Tag: #recentjudgement

–Report by Tannu Dahiya

Hon’ble Supreme while hearing the appeal on 8th February 2023 in the case of NATIONAL INSURANCE COMPANY LTD. Versus THE CHIEF ELECTORAL OFFICER & ORS., set aside the decision of Patna High Court made in 2017 and directed that the terms of the insurance policy should be strictly interpreted. 

Facts:

An MOU i.e memorandum of understanding was signed between the insurance company (Appellant) and Chief Electoral Officer, Bihar, Patna, on 9th Feb 2000, to cover the insurance of persons working for the Bihar Legislative Assembly Elections in the year 2000. 

Now clause 3 of the MoU mentioned that the insurance will be for the death caused by accident in extra violence and any other means. 

Now the duration of the scheme was extended from 24.05.2000 to 23.06.2000 seeing the period of the by-polls. 

The husband of respondent no.2, who was a constable died while performing his duty in Bihar Legislative Assembly. It happened during the extended time of the scheme. 

After a long time, the wife of the constable (respondent no. 2) claimed compensation in 2008.

The Assistant election officer of that time wrote to the secretary of Lokayukta, Patna, that it was not election duty but heat stroke which was the reason behind the death of the constable thus, no such compensation can be made. 

The wife filed a writ in High Court for quashing the above-said statement. The learned single judge first asked the insurance company to pay the claim but then relied on the judgement made in Lilawanti Devi v. The State of Bihar & Ors 1, which opined that the duration to make a claim has expired and it was chief electoral office liability to make the compensation. 

The chief electoral officer filed an appeal stating that it was the insurance company which should pay the compensation. The insurance company was then asked to take the liability. 

Plaintiff’s contentions

The appellant contended before the court that the chief electoral officer had already paid the claim to respondent 2 and just wanted to fasten the liability on the company. The learned counsel claimed that the death of the deceased was due to heat stroke which is beyond the scope of the MoU. The appellant insurance company was not made aware of the time issue. And was notified only after eleven years. 

Defendant’s contentions:

It was found that the chief electoral officer had already paid the claim to the wife. Also, it was clarified that the death was due to heat stroke which was beyond the scope of the MoU. The delay in raising the claim was not driven by the chief electoral officer. Its role was only till recommended, which it did. It was pleaded that the insurance company was under an obligation to honour the promise. 

Judgement :

The SC raised two aspects which need to be answered

• The result of a delay in claiming the amount
• Whether all the insurance policies covered the scenario of the death of the constable. 

To answer the first, respondent no. 2 never claimed the chief electoral officer to get compensation till 2008. Thus the claim was beyond the period. 

To answer the second, it said that the conduct of respondent no 1 would not allow them to fasten the liability on the appellant. 

The Supreme Court in its verdict said that the chief electoral officer ‘has been playing ducks and drakes’. 

The Supreme Court thus dismissed the judgement of Patna High Court calling it unsustainable. The insurance company was not liable. Also, the chief electoral officer would not recover any amount paid to the deceased wife. 

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

Civil appeal no. 4769 of 2022

–Report by Arun Bhattacharya

The Delhi High Court on Wednesday 8^th of February 2023 in the matter of THE STATE versus SACHIN SINGH & ORS reiterated the stand taken by the Additional Sessions Judge’s observation that “Mere vague allegations that accused tried to commit rape upon her does not ipso facto attract the penal provision of offence u/Section 376 read with Section 511 IPC.”

FACTS

The present matter invoked revisional jurisdiction of the Delhi High Court whereby an order passed by the Additional Sessions Judge was in question. The order dealt with chargesagainst a brother-in-law and father-in-law, who had allegedly committed attempts to rape. The complainant had alleged that the brother-in-law had gotten hold of the complainant in an attempt to commit rape, while in another instance the father-in-law had forcefully entered the complainant’s room to rape her. Although the complainant tried to raise these issues with her husband and mother-in-law, all such attempts were suppressed forcefully with the only reason provided by them being that the brother-in-law happens to be a police official. Therefore, the complainant filed a complaint to the Commissioner of Police and accordingly registered an FIR against her in-laws. They were also made parties to the initial chargesheet filed in the court of learned Metropolitan Magistrate, Rohini which was later transferred to the Court of Sessions. 

SESSIONS COURT’S ORDER

The Court of Sessions initially discharged the brother-in-law and the father-in-law under Sections 356 (Punishment of Rape) and 511 (Punishment for attempting to Commit Offences Punishable with imprisonment for life or another imprisonment) but framed separate charges of 498 (enticing or taking away or detaining with criminal intent a married woman), 406 (Punishment for criminal breach of trust), 354(Assault or criminal force to woman with intent to outrage her modesty) and 34 (Common intention). The court’s primary focus whilst discharging the two respondents was that the mere fact of the brother-in-law getting hold of her hand and the father-in-law barging into her room late at night does not suffice to prove a case of rape. These allegations of the complainant involved attempts but no specific action was committed which may indicate a clear intention of rape. This order has been challenged in today’s petition.  

PROSECUTION’S CONTENTION

The learned APP submitted that the learned Sessions court was not intended to satisfy itself on the graveness of evidence produced but merely on prima facie allegations of the complainant and he confined himself to the fact that the complainant had made specific allegations regarding her father-in-law and brother in the law regarding an attempt to commit rape on different occasions.

RESPONDENT’S CONTENTION

The learned counsel for the respondents’ primarily focused on the fact that no specific allegations were made against the father-in-law and brother-in-law and no such proof was also submitted on record. He also highlighted the fact that no action was committed in compliance with the definition provided under Section 375 of the Indian Penal Code and this would suffice as a reason for discharging the same. To point out the same the counsel had referred to the judgment of Tarkeshwar Sahu v. State of Bihar (now Jharkhand), IV (2006)  CCR 115 (SC).

DELHI HIGH COURT’S JUDGEMENT

The honourable high court pointing out that the revisional power under Section 397 of CrPC is very narrow which only allows it to satisfy itself to check the legality and correctness of an impugned order, reiterated the stance taken by the Court of Sessions and accordingly dismissed the revision petition.

READ FULL JUDGEMENT: https://bit.ly/40EQy8S

CITATION: 2023/DHC/000883

–Report by Shreya Gupta

The petitioner in this case of LAL VEDANT NATH SHAH DEO v STATE (NCT OF DELHI) was Lal Vedant Nath Shah Deo and the respondent was the State. The petitioner filed the application for bail under section 439 of CrPC.

FACTS:

The sub-inspector Gajendra Singh found Raghav Mandal a 23-year-old student of Amity University with 334 grams of charas. He disclosed about the co-accused Himanshu Singh and Lal Vedant Nath Shah Deo who was also arrested. Lal Vedant was arrested under a non-bailable warrant. Raghav further disclosed that he used to get paid Rs. 500 to 1000 for every delivery. Their phones were checked and details of the Paytm account where they used to receive the payments were taken out. The Paytm account details showed that Himanshu Singh had credited a total sum of Rs. 4,70,390 and Rs. 28,03,561.11 to Lal Vedant. The petitioner was charged with section 82 of the CrPC and section 201 of the IPC.

PETITIONER’S CONTENTIONS:

The advocate of the petitioner contends that no incriminating material was obtained from the petitioner on the raid in his house and that his name was earlier not mentioned in the FIR. He states that the rigours of section 37 are not applicable. He stated that section 35 and 54 of the NDPS act is not applicable since there was no conscious and intelligible possession. He stated that only on the basis of the disclosures by the co-accused the petitioner can’t be denied bail. He stated that mere phone calls among the accused and Paytm transactions can’t be the means to deny bail since the accused were college friends.

RESPONDENT’S CONTENTIONS:

The advocate contended that a total sum of Rs. 4,70,390 and Rs. 28,03,561.11 was credited to Lal Vedant. He contended that the petitioner tried to run away and was so charged with section 82 of the CrPC and section 201 of IPC for trying to disappear the evidence.

JUDGEMENT:

The court stated that the rigours of section 37 of the NDPS act are not applicable if the cannabis quantity is less than 1 kg and the quantity found in this case is only 334 grams. It further stated that since there is no evidence to show that the transaction between them took place for the recovery therefore it concludes that they were not involved in any other offence under the NDPS act except the buying and selling of drugs. The court stated that no useful purpose will be served by keeping the petitioner in custody and therefore the application for bail was passed on some terms and conditions and on the furnishing of a personal bond of Rs. 50,000. The Hon’ble Supreme Court to conclude referred to the Sanjay Chandra v. Central Bureau of Investigation, 2012.

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CITATION: 2023/DHC/000885

–Report by Umang Kanwat

Arbitration is the out-of-court resolution of a dispute by one or more (odd number) individuals chosen by both parties to serve as arbitrators. Any type of arbitration, regardless of its nature, has been legally recognised in India by placing it under the purview of the Arbitration and Conciliation Act. The arbitral award has the same legal force and effect as a judicial order or judgement. The present case of Union of India v Pushkar Paint Industries talks about the power or ability of the arbitrator.

Facts:

In the present case of Union of India v Pushkar Paint Industries, the Arbitral Tribunal’s mandate has been terminated under the current petition, which had been submitted under Section 14 of the Arbitration & Conciliation (Amended) Act. The Indian Army’s Ordnance Department, which is a division of the Ministry of Defence, was the petitioner in this case and the respondent in the arbitration procedures. Due to the respondent’s failure to produce the advance sample by the deadline specified in the contract, the petitioner suffered significant losses and was forced to revoke the previously approved Supply Order.

Petitioner’s Contentions:

The petitioner stated that the learned Arbitrator began pressuring the petitioner’s conducting officer to assist him in receiving the maximum amount as his fee, but the conducting officer retorted that it was beyond his purview. Furthermore, it ed claimed that the proceedings were not concluded by the learned Tribunal within the allotted year. The petitioner believed that the learned Arbitrator was biased towards the respondent/claimant and was operating in their favour.

He argued that the learned Sole Arbitrator failed to determine the case’s final fee because he continued to oppose the petitioner’s schedule of fee payment and insisted on paying under the Fourth Schedule of the Act. Allegedly the learned Arbitrator’s actions do not reflect well on the Office and instead, he was vehemently opposing the petitioner to further his interests. By bringing false accusations, he had attempted to harm the Conducting Officer’s career. He was not accurately capturing the events. In reality, he never documented the events as they happened but instead created fictitious orders later on according to his whims and fancies.

Therefore, a request was made that the learned Arbitral Tribunal’s mandate is terminated and replaced by the appointment of another Arbitrator.

Respondent’s Contentions

The petitioner’s claims that the arbitrator was demanding a high charge were unjustifiable in that he had been acting on his whims without ever getting the respondent’s permission to agree to any such fee structure. No agreement would be possible without the other party’s approval.
According to the Act, which does not make a distinction between Government and private parties and is equally applicable to both, the petitioner was not an exception.

It is submitted that the petition is without merit and is liable to be dismissed.

JUDGEMENT

The petitioner’s assertion was unfounded. It was plain that the petitioner was bringing frivolous objections, which are clearly against the statute’s requirements, to evade its obligation to pay the arbitrator’s fees. In the current instance, there is no evidence to suggest that the learned Arbitrator ever agreed to the petitioner’s proposed fee schedule, nor at any stage did he ever admit to it. According to the court, this claim made by the petitioner had no support. The petitioner in this matter, in the view of the court, was unable to show any of the grounds listed in Sections 14 or 15 of the Act. The current petition was determined to be without merit and dismissed with the remark that the learned Arbitrator may continue the arbitration and publish the Award following the Rules.

Conclusion

The dedication of the Indian government to turning India become a hub for arbitration and other ADR mechanisms is demonstrated by the several revisions made to the Arbitration and Conciliation Act to meet the demands of the constantly changing international business community. India can only strengthen its position as the global leader in rapid and effective dispute resolution by continuous adjustments based on lessons learned from the relevant commercial jurisdictions throughout the world and proper execution of those learnings concerning arbitration.

READ FULL JUDGEMENT: https://bit.ly/3I7Pp2p

CITATION: 2003/DHC/000894

–Report by Shweta Sabuji

The appeal in the case of ITC LIMITED Vs. AASHNA ROY was made under Section 23 of the Consumer Protection Act of 1986. It questions the validity of the decision made by the National Consumer Disputes Redressal Commission in Consumer Complaint No.1619/18 between Aashna Roy and Yogesh Deveshwar and another in which the consumer’s rights were communicated.

FACTS:

On April 12, 2018, the respondent went to the ITC Maurya Hotel’s saloon for hair styling so that she would look presentable and well-groomed when she appeared before the interview panel a week later. She asked for Ms Alem, the hairdresser who had previously cut her hair on several occasions when she had visited the saloon. Since Ms Alem was unavailable, the respondent’s hair was styled by Ms Christine, a different hairstylist. The respondent, who had previously expressed dissatisfaction with Ms Christine’s services, agreed to hire her after the saloon’s manager assured her that Ms Christine had significantly improved her performance over some time.

The reply specifically instructed the mentioned hair stylist to “length flicks/layers covering her face in the front and at the back and 4-inch straight hair trim from the bottom,” using those exact words. The respondent was told to keep her head down since she was wearing high-powered glasses, which were taken off for the hairstyling process, and she was unable to view herself in the mirror to see what the hairdresser was doing. The respondent claimed that the directions were straightforward and would not require much time, but when the hair stylist spent more than an hour styling the subject’s hair, the respondent questioned why.

The hairstylist responded by telling her that she was giving her “the London Haircut.” When the hair styling was finished, she was shocked to see that the hair stylist, Ms Christine, had completely chopped off her hair, leaving only 4 inches from the top and barely brushing her shoulders, which was quite the opposite of what she had requested. She voiced her complaint to Mr Gurpreet Acharya, the saloon manager, right away. The Manager did not present a bill because she had complained, so she did. She was, however, so irritated and angry that she left the saloon.

Later, the saloon offered the respondent services for free treatment and hair extensions for the interview, and it appears that she accepted both offers. To extend its offerings, the salon hired an outside technical hair specialist from MoeHair (an international brand). She was instructed to repeat the procedure two to three more times. On March 5, 2018, the respondent underwent hair treatment once more. She was told that Ms Alem would supervise Mr Vicky, the on-staff hairdresser, as he performed the procedure. The respondent was informed that Mr Vicky was a highly skilled hair stylist with training. It ends up being a disaster for the respondent once more. Her hair and scalp were severely damaged during the treatment because too much ammonia was utilized, which caused intense scalp burning and irritation.

PLAINTIFF’S CONTENTIONS

The appellant, who was positioned as Opposite Party No. 2 before the NCDRC, raised several issues in separate written objections, including doubting the respondent’s status as a consumer given the free services provided; the compensation claim was extremely excessive; no documentary evidence had been presented to support such a large claim; and the complaint should be dismissed for lack of pecuniary jurisdiction. The appellant presented its argument even on the merits. The respondent also submitted a response affidavit to the NCDRC. Affidavits were used to present the evidence by both parties. Additional photos, CCTV footage, social media talks, and other materials were also included in the package.

DEFENDANT’S CONTENTIONS

The NCDRC determined that the respondent’s hair had been cut shorter than she had requested. Additionally, it noted a conclusion that the respondent’s appearance may have changed as a result of poor hair styling. The NCDRC further determined that the appellant had been careless in how it treated the respondent’s hair and had also damaged the respondent’s scalp. After then, the NCDRC handled the quantification of the compensation.

JUDGEMENT

In the aforementioned ruling, the National Consumer Disputes Redressal Commission accepted the solitary respondent’s complaint and ordered the present appellant, who is Opposite Party No. 2, to pay compensation in the amount of Rs. 2 crores to the NCDRC.

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

-Report by Saloni Agarwal

The Delhi High Court in Arun Chauhan v State case convicted the accused of the murder of his wife and his son’s tuition teacher on the account of having an extramarital affair.

Facts:

The appellant was convicted of the murder of Akash. The appellant took the deceased to an under-construction site and stabbed him with a knife. The deceased was the tuition teacher of the appellant’s son and he had a feeling that his wife was having an extramarital affair with the teacher. He murdered the man on 15th November 2014. The appellant was sentenced to life imprisonment and a fine by the trial court in 2019. In this case, the appellant has challenged the order passed by the trial court. The major injuries sustained by the deceased were enough to cause death. The body of the deceased was found later by someone and after verification, he was identified. The appellant was arrested. He was charged under Section 302 IPC i.e., murder. The appellant also murdered his wife but he admitted that crime.

Appellant’s Contention:

The plaintiff’s claim was that there was not enough evidence to prove him guilty of such a heinous crime. He further claimed that there was no existing rivalry between them and his kids used to visit the deceased home to take tuition. The reason given for the murder was vague. It was that the court had made a wrong decision based on insufficient proof and reasons. It was further asked that the appellant should be left free. The plaintiff also killed his wife on the same day and accepted the crime.

Respondent’s Contention:

The State claimed that the chain of events are sufficient enough to prove the guilt of the appellant. The witness gave their testimony and all statements lead to the fact that after suspecting the extramarital relationship the appellant planned to kill both.

Judgement:

The Judges after hearing all the witnesses came to the conclusion that the reason for the murder is clear as the appellant first killed his wife and later that same day the deceased. The evidence was also sufficient as testified by the witnesses. The knife was also recovered and the blood stains on the appellant’s clothes were sufficient to hold him liable. The injuries suffered by the deceased were sufficient to cause death. The murder was hence proved without reasonable doubt. The court refused the challenge and held the appellant guilty of the murder of his wife and the deceased.

READ FULL JUDGEMENT: https://bit.ly/3x7vnyM

​​​-Report by Shivansh Pratap Singh

The case MASUDEO RAMA KUSALKAR Vs THE STATE OF MAHARASHTRA AND OTHERS dated 6 February 2023 revolves around alleged misconduct while carving out a new revenue village, namely Joshi Vasthi.

Facts:

A petition is filled by a group of villagers seeking the quashing of orders for the creation of a new revenue village, Joshi Vasthi (pop. 2000-2500) from village Limpangaon. The respondents of the case are majorly the government officers inches (tehsildar, etc) who claim no major misconduct and adherence to the law of the land while the creation of the respective village is under purview.

Applicant’s Contention:

1. The impugned notification dated 07-11-2017 issued by Additional Collector(Ahmednagar) is contrary to law and provisions of section 4 of the Maharashtra Land Revenue Code,1966 and Section 24 of the Bombay General Clauses Act.
2. Further the declarations dated 23-08-2018 & 31-08-2018 are contrary to law.
3. The Petitioner seeks issuance of the writ of certiorari to quash notifications dated 07-11-2017 & 23-08-2018.
4. Claim that no publication seeking objections were made by the respective authority before
   06-12-2017.
5. Objections made thereafter were not considered.
6. The publication of notification was not given the required publicity as stated by Section 4 of the code.
7. The land under consideration is a forest area according to the 1992 notification.
8. According to the forest act,1980 in absence of no objection from the central government the action of carving out could not have been undertaken.

Respondent’s Contention:

1. Proposal for carving out Joshi Vasthi was received in 30-01-2015.
2. The provisional notification was published on 07-11-2017 declaring the carving out of Joshi Vasthi and objections were called up to 28-11-2017, the notification was published by the govt. Gazette, notice board of Tehsil Office, Shrigonda, Talahati office, etc.
3. Objections were received, duly discussed and dismissed following the relevant provisions contemplated under Section 4(1) and 4(4) with Section 24 of the General clauses act.
4. The final decision was taken in tune with section 4(4) of the Code.

Judgement:

1. After hearing the arguments from both sides respected judge reached the conclusion that according to the provisions of sections 4 and 24 a legit publication of intention for the carving of a new village, followed by reasonable time to raise objections and consideration of objections while following the principles of natural justice are the only requirements.
2. The draft notification dated 07-11-2017 has been published in accordance to section 4(4). The objections were accordingly called on 28-11-2017.
3. Evidence points towards that required publicity to the publication of the notification was provided.
4. Objections were received, stakeholders were granted the opportunity of being heard, and an enquiry was done on the directions of the sub-divisional officer, Shrigonda.
5. All the principles of natural justice were adhered to.
6. The area covered under the proposed Joshi Vasti is already part and parcel of the village panchayat so the impugned notification has not been impeded by any provisions of the forest act or the rules.
7. The writ petition is dismissed with no order as to costs.

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

CITATION: WP/11923/2018

–Report by Tannu Dahiya

The Delhi High Court on 6th February 2023 held a sadar bazar trader guilty of violating the restraining order by selling counterfeit products of the famous Louis Vuitton brand.

Facts:

Everyone desires to own luxury items like Prada, lv, etc. But these items are so costly that even the upper middle class can’t afford them. Traders take advantage of this situation and make duplicate branded products to deceive customers. The same happened in the present case. The famous LV brand has sued several small entities that manufactured and sold products under its name. The court in its decision has used the term counterfeit, to let us know its meaning. A counterfeit is an item which uses someone else’s trademark without their permission.

On 23rd September 2021, the court found the trader guilty and passed interlocutory orders to restrain them.
According to the order, the defendants were restrained from importing, selling, manufacturing, or dealing directly or indirectly with the lv-labelled goods.

The present appeal was filed by the plaintiff alleging that even after injunction orders, defendant 2 and defendant 3 have been selling products under the brand’s name. The application prayed that the defendant must be punished for this violation of the injunction.

Plaintiff’s contention:

Mr Anand, the learned counsel for the plaintiff claimed that defendant 2 has continued the business of selling belts of lv till September 2022. Opposing the request of the defendant party to take lenient action, he submits that counterfeiting has now become a social evil and the court must take strict action against it, as it has eroded the brand value which was built over the years. He said that leniency, in this case, would encourage others to commit this wrong.

Defendant 2 has also imitated other reputed brands. Mr Anand also stated that the court must consider this strictly as a breach of its order. He also wants the court to take action for counterfeiting other brands like Gucci, etc.
He urges that the punishment should be proportionate to the wrong. If it is the first time counterfeiting then strict action must be taken as it has become a habitual business for the defendant.

He also submitted a report to the civil justice council under the UK Civil Procedure Act 1997, titled ―Anti-social behaviour and the Civil Code to prove his points.

He also took the decisions made by Various learned single judges High Court of Bombay in Glenmark Pharmaceuticals Ltd. v. Curetech Skincare10 and decisions of the Federal Court of Singapore in Louis Vuitton Malletier S.A. v. Singga Enterprises11 and Louis Vuitton Malletier S.A. v. Lin Pi-Chu Yang12. He also relied on section 105 of the Trade Marks Act.

Defendant’s contention:

Mr Burender Bhatt, learned counsel for defendant 2, acknowledged the fact that his client has been selling the lv belt even after the injunction orders. He apologised for the breach and asked for leniency in the matter. He also argued that the court must not rely on sentencing practices in foreign jurisdictions while deciding on this case.

He said even Mr Anand has not pointed out any case in India where the court has relied on foreign practices. The action must be limited to the injunction which was granted by the court, and which has been breached by the defendant and it has no relation to counterfeiting of other brands. Mr Anand has failed to present any proof to show that the defendant has counterfeited any other brand. He also claimed that section 105 of the trade mark act is not applicable in the present case.

The cases presented by Mr Anand dealt with the damage being awarded while the decree was being passed. Thus they have no such relevance here. However, counterfeiting is a serious matter and the defendant has committed it even after the orders of the court. Mr Bhatt apologised for the same but it would hardly make any difference.

Judgement:

Justice C Hari Shankar expressed that the defendant is not entitled to any sympathy. The court added that there should be a message for all those who indulge or propose to indulge in the practice of counterfeiting. The defendant was directed to pay Rs. 5 Lakhs within four weeks. If failed to do so the proprietor of defendant 2 Javed Ansari shall be punished with a sentence in prison for 1 week in Tihar jail.

READ FULL JUDGEMENT: https://bit.ly/3JK2Zu3

CITATION: 2023/DHC/000810

–Report by Shreya Gupta

The petitioner, in this case, was Masudeo s/o Rama Kusalkar and there were 8 respondents, The State of Maharashtra, The Divisional Commissioner, The Collector, The Additional Collector, The Sub-Divisional Officer, The Tahsildar, The Talathi, Bhalchandra Dattatraya Sawant. The history of the case lies in 1989 when the government of Maharashtra ordered to allot 1 acre of land to each beneficiary of the backward class.

FACTS:

The case is filed under article 226 of the Indian constitution. The government of Maharashtra allotted 1-acre land to 179 people of backward class for rehabilitation provided to some terms and conditions. The issue arose since land is a part of the revenue village Limpangion known as Joshi Vasti and was getting separated from it to become a different village. For this, the notification to raise objections was sent which caused the main dispute since it was contended that no such notification was issued.

PETITIONER’S CONTENTIONS:

According to the petitioner, the notification declared by respondent no. 4 is bad in law and contrary to section 4 of the Maharashtra land revenue code, 1966 and section 24 of the Bombay general clauses act. The petitioner contends that there should be an issuance of a writ of certiorari to quash and set aside the notification. It was contended that the notification was not given publicity by law. He contends that the action of the respondent is arbitrary and illegal. He took the support of previous judgements like Prashant Bhausaheb Ghiramkar Vs. The state of Maharashtra reported in 2013 (6) Mh.L.J. 703 and Dr Avinash Ramkrishna Kashiwar and others Vs. The state of Maharashtra and others reported in 2015 (5) Mh.L.J. 830.

RESPONDENT’S CONTENTION:

According to the respondent’s contention, the proposal for consideration of a new revenue village with details was received. It is also contended that under section 4 (1) of the code, the collector can carry out the powers vested in the state government. They also contended that a village that has more than 300 population needs to be separated and created as a new village. They also contended that the call for objection from the public was issued, published on the notice board and a further hearing was also done. They further contended that the report from the District Superintendent of Land Record, Ahmednagar opined towards the creation of the new revenue village. They contend that they have compiled section 4 of the Maharashtra land revenue code, 1966 and section 24 of the Bombay general clauses act.

JUDGEMENT:

The court declares that the respondents have compiled by the law, issued the notifications, heard the objections and further published it too. The court stated that “We cannot sit in the appeal and appreciate the minor procedural lapses caused during the process undertaken by competent authority towards creating separate revenue village. We are concerned with substantive compliance with the provisions keeping in mind the object sought to be achieved. We are satisfied that there is the compliance of requirements indicated under section 4 of the Code.” The court stated that the petitioner cannot derive any advantage from the previous judgements that they have mentioned for reference. The court declared that no such evidence has been brought to our notice that shows that the notification issued impeded any provisions of the Forest act or rules. The court further declared that there is no merit in the writ petition and is therefore dismissed.

READ FULL JUDGEMENT: https://bit.ly/3I3HaUZ

CITATION: WP-11923-2018-J..odt

–Report by Eshna Ray

The petitioner in the case of Ashwini Kumar Upadhyay Vs. Union of India and Another, challenged the constitutional validity of Section 33(7) of the Representation of the People Act 1951, which allows a person to contest an election for the same office from more than one constituency simultaneously. The petition seeks direction from the court to the Central government and the Election Commission to take appropriate steps to prevent this practice. The basis for the challenge is the Chief Election Commissioner’s request to the Prime Minister in 2004 to amend the act and the Law Commission’s 255th Report opinion that the act should be amended to restrict a person from contesting from multiple seats at a time. The petition is filed under Article 32 of the Constitution.

Facts:

The petitioner filed a petition to challenge the validity of Section 33(7) of the Representation of the People Act 1951, which allows a person to contest from more than one constituency for the same office simultaneously. The Law Commission in its 255th Report recommended amending the act to prevent this. The Election Commission of India and the Union of India filed counter-affidavits. The court heard arguments from both parties and the Attorney General for India. The court noted that the provision falls under the legislative domain and can only be challenged if there is a violation of a Fundamental Right or if the legislature lacks the competence to enact a law. Permitting a candidate to contest from more than one seat in a Parliamentary or State Legislative Assembly election is a matter of legislative policy, determined by Parliament. The court found no manifest arbitrariness in the provision or violation of Article 19 and concluded that the provision cannot be struck down as unconstitutional. The petition was therefore dismissed.

Plaintiff’s Contention:

The petitioner argues that contesting from multiple constituencies for the same office undermines the right of citizens to know about a candidate’s character, qualifications, and criminal record, as stated in Article 19 of the Constitution. When a candidate is elected from multiple seats, they have to vacate one, leading to a financial burden on the public and depriving the electorate of representation. The petitioner contends that this deprives the electorate of their right to know, as stated in Article 19(1)(a), and that this legislative issue should be addressed to prevent a drain on public resources through bye-elections. The contention is that the current provision allowing multiple constituencies is invalid.

Defendant’s Contention:

The defendant argues that the provision in the Representation of the People Act 1951 that allows a person to contest from more than one constituency for the same office simultaneously is a matter of legislative policy. It is within the legislative authority of Parliament to make the decision and enact or amend legislation. The defendant argues that unless there is manifest arbitrariness or a violation of a Fundamental Right in the provision, the Court cannot strike it down as unconstitutional. The defendant also mentions that Parliament has already intervened in the form of Act 21 of 1996 which restricts a candidate’s choice for an electoral contest to two seats in one and the same election.

Judgment:

The petition challenging the validity of Section 33(7) of the Representation of the People Act 1951, which permits a candidate to contest from more than one constituency in the same election, has been dismissed by the court. The court held that this provision, allowing a candidate to contest from multiple seats, is a matter of legislative policy and within the discretion of Parliament. The court stated that a statutory provision can only be struck down if it is made by a legislature lacking the competence to enact a law or if there is a violation of a fundamental right. In this case, the provision does not violate any fundamental rights, and therefore, the court cannot interfere with it. The Parliament has the authority to make legislative choices, and it has intervened in the past by restricting the choice of a candidate to two seats in the same election.

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