Tag: #recentjudgement

-Report by Mehul Jain

It was held by the Delhi High Court in the case of Daulat Ram Dharam Bir Auto Private Limited & Ors Vs Pivotal Infrastructure Private Limited & Ors. that on April 27, the learned Arbitrator shall fix his fee in consultation with the counsel for the parties. All the contentions of the parties are left open to be decided by the learned Arbitrator. The learned Arbitrator shall give his disclosure in terms of section 12 of the Act of 1996. It is the conclusion of the Delhi High Court.

FACTS

The judgment is made by the learned Single Judge bench “Hon’ble Mr Justice V. Kameswar Rao” On 27 April 2023. 

It is a case where the petitioner’s Nos. 1 to 3 („Petitioner Group‟) are companies duly incorporated under the provisions of the Companies Act, 1956 („Act of 1956‟), have filed the instant petition under section 11 of the Arbitration and Conciliation Act, 1996. Whereas respondent No. 1 herein, is also a company duly incorporated under the provisions of the Act of 1956, having its registered office at Plot No.12, Sector-4, Faridabad, Haryana-121004. It is stated that respondent No. 2 is also a company duly incorporated under the provisions of the Act of 1956 and was earlier a part of the Petitioner Group. However, currently the same is under liquidation and is thus being sued through its Liquidator appointed by the National Company Law Tribunal. 

Facts leading to the filing of the instant petition (as it relates to the Petitioner Group) are: that the Petitioner Group together with respondent No.2, each of whom owned a piece of land, handed over the possession of a parcel of their lands to the respondent No.3 (which is also a company incorporated under the provisions of the Act of 1956, [„Original Developer‟ herein]) and permitted the latter to develop, construct and complete the building on such lands, i.e., built-up area at projects titled as „Royal Heritage‟ & „Faridabad Eye‟ under License No. 78 of 2009 & 33 of 2010, granted by Directorate of Town and Country Planning, Haryana, („DTCP‟), Haryana, [„project land‟]. While the Petitioner Group and Respondent No.2 provided their piece of land for the development and construction of buildings, respondent No.3, in exchange for the same, undertook the obligation to provide a 10% share in the built-up area of the project land to the Petitioner Group.

It is stated, the Petitioner Group and the Respondent No. 2 companies transferred the development rights over the said project land to Respondent No.3 through Collaboration Agreements dated June 04, 2007, while retaining the rights, title and interest to the land underneath amongst themselves. So, in light of forgoing facts and circumstances, the Petitioner Group has filed the present petition seeking the appointment of a Sole Arbitrator for adjudication of disputes which have arisen between the Petitioner Group and respondent No.1.

PETITIONER’S CONTENTION

Whereas it has been extensively submitted by Mr Rajiv Bajaj, learned counsel appearing on behalf of the Petitioner Group that the obligation of giving 10% of the built-up area back to the Petitioner Group became legally ascertainable only on the issuance of the Occupation Certificates (i.e., on November 30, 2017, June 25, 2018, and August 17, 2020) by the DTCP, Haryana and as on date Occupation Certificates in respect of Towers no. l and no. 2, are yet to be received by respondent no. l. Reliance in this regard has been placed on section 264 of the Haryana Municipality Act, 1994.

They submitted that the claim of 10% built-up area has never been sought before any Court or Tribunal as the same became legally ascertainable only when the Flats built on the project land received necessary approvals in the form of Occupation Certificates. 

They submitted that the claims sought by the Petitioner Group are well within the period of limitation as the project is yet to be completed, and even otherwise, before the grant of the Occupation Certificate, the units could not have been identified and allocated to the Petitioner Group. So, they contended that the present petition is well within the period of limitation and thus, the same should be allowed and disputes be referred to arbitration. 

So, it is the case of the Petitioner Group and so contended by Mr Rajiv Bajaj, learned counsel appearing on behalf of the Petitioner Group that if the afore-said reliefs, as sought, are not granted then they shall be left with no remedy, as the respondent No.1 shall, alienate the 10% built-up area falling under the share of the Petitioner Group under the Collaboration Agreements, Deed of Assignment and all other documentations, to unaware homebuyers.

RESPONDENT’S CONTENTION

Mr Harish Malhotra learned senior counsel appearing for respondent No.2, that the obligation of giving 10% built-up area back to the Petitioner Group became legally ascertainable only on the issuance of the Occupation Certificates (i.e., on November 30, 2017, June 25, 2018, and August 17, 2020) by the DTCP, Haryana and as on date Occupation Certificates in respect of Towers no. l and no. 2, are yet to be received by respondent no. l. Reliance in this regard has been placed on section 264 of the Haryana Municipality Act, 1994.

It is also their submission that the present dispute arises out of respondent No.1 undertaking the obligations of respondent No.3 (Original Developer) under the Collaboration Agreements by way of the Deed of Assignment.

It is also their submission that the present petition is not barred by the contours of res judicata (constructive as well) or Order II Rule 2 of the CPC.

On the other hand, in essence, it is Mr Singh’s primary submission that claims sought to be referred to arbitration by the Petitioner Group: (i) are not arbitrable; (ii) are barred by limitation; and (iii) have already been adjudicated between the parties in previous civil and arbitral proceedings. So, he submitted that when the petition under section 11 of the Act of 1996 is itself not maintainable then on this ground alone, the instant petition should also be dismissed.

So, on the afore-said grounds, Mr Singh has argued for the dismissal of the instant petition.

COURT’S DECISION

Having heard the learned counsel for the parties and perused the record, at the outset, it may be stated, this petition has been filed by the Petitioner Group. A prayer has also been made on behalf of respondent No.2 for allowing it to participate in the arbitral proceedings as the claimant for its share in the built-up area, to avoid multiplicity of litigation. The Notice invoking the Arbitration Clause was sent by respondent No.2 only on October 19, 2022, i.e., during the pendency of these proceedings. It is not known whether any reply has been sent by respondent No.1 to the said Notice. In any case, in the absence of a substantive petition by respondent No.2, the aforesaid prayer in these proceedings cannot be accepted. Nonetheless, nothing precludes respondent No.2 to seek reference following the law. 

The reliance placed by Mr Malhotra on the judgment of the Co-ordinate Bench of this Court in the case of Raghuvir Buildcon Pvt. Ltd. v. Ircon International Limited, (2021) SCC OnLine Del 2491, in support of his contention that the claim of 10% share in the developed area by the Land Owners has not been settled by former the arbitration proceedings. Because of my above discussion, the petition under section 11 of the Act of 1996 needs to be allowed. 

I accordingly appoint Justice Rajiv Sahai Endlaw, former Judge of this Court as the learned Arbitrator to adjudicate the dispute(s) which have arisen between the Petitioner Group and respondent No.1, in respect of 10% of the built-up land. 

The learned Arbitrator shall fix his fee in consultation with the counsel for the parties. All the contentions of the parties are left open to be decided by the learned Arbitrator. The learned Arbitrator shall give his disclosure in terms of section 12 of the Act of 1996.

READ FULL JUDGEMENT: https://bit.ly/3ACLnu9

-Report by Moksh Kapoor

The appellant’s contention was set aside by the Supreme Court in the case of RAJIV KUMAR JINDAL AND OTHERS VERSUS BCI STAFF COLONY RESIDENTIAL WELFARE ASSOCIATION AND OTHER. Decided on 27-04-2023.

FACTS

BCI was deemed a sick company, and assets of BCI were disposed of in accordance with the directions of the Board for Industrial and Financial Reconstruction. (BIFR) commenced the procedure of inviting sealed cover proposals for the sale of assets of the captioned unit under Section 20(4) of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as the “Act 1985”) through IDBI – the Operating Agency. In a public notice dated May 24, 2004, offers were invited for various blocks, with the interested parties being asked to deposit earnest money of Rs.6 lakhs for Block IV and submit their tenders in a sealed cover within 30 days of the date of the 3 advertisements, and for further information, the interested parties may contact Mr. P.M. Nair, DGM, IDBI, Mumbai, the office of the BIFR’s Assets Sale Committee, and the agency reserved the right to accept or reject any bid without assigning any reason. In accordance with Section 21(c) of the Act, 1985, the Operating Agency was required to evaluate the realisable value of the property from the approved valuer and then notify the reserve price in the auction notice, which was not done, and the solitary bid submitted by the appellants in Civil Appeal No. 10128 of 2011 of Rs.2,84,00,000/- on 22nd June 2004 was accepted by the authority. The appellants were directed to provide a bank guarantee for a bid value of Rs.2,84,00,000/- for a term of one year by August 27, 2004, and to deposit payment in instalments. The appellants were hesitant to provide the bank guarantee of Rs.2,84,00,000/ from the start, but they allegedly showed their willingness to pay the value of the assets in accordance with the bid within six months. However, the appellants did not submit a bank guarantee of Rs.2,84,00,000/- or deposit a penny after the ASC approved the proposal by communication dated August 12, 2004. Because the appellants (in this case) are unwilling to follow the ASC rules, the Bench declined to accept the proposal.

APPELLANT’S CONTENTION 

The advertisement was published by the IDBI (Operating Agency), but the ASC guidelines were not attached, and the parties were not informed. They are required to furnish a bank guarantee as security for the bid amount, and requiring the appellants to act on the guidelines and furnish a bank guarantee at the stage of bid acceptance was not justified, as determined by the AAIFR in its order dated 1st April 2005, and which has not been properly appreciated by the High Court. Appellants paid the entire sale consideration on June 3rd and 7th, 2005, in accordance with the tripartite Memorandum of Understanding. The High Court made a manifest error in failing to consider that once the auction sale is confirmed, objections to the said auction can only be entertained if there are material irregularities and fraud appellants had scrupulously adhered to the conditions of the ASC and were ready to pay the entire saleconsideration, and until September 2004, the appellants were never informed that a bank guarantee equal to the bid sum would be required. The appellants herein made over the bid sum of Rs.2,84,00,000/- on 3rd and 7th June 2005, immediately after their appeal was approved by the AAIFR, and hence there was no breach of any terms and circumstances of the sale of assets.

RESPONDENT’S CONTENTION

The appellants submitted an offer of Rs.3 crores, which was more than their bid in Civil Appeal No.10128 of 2011, and they were successfully residing for a sufficiently long time over the property in question put up for auction, at the very least they seek the Court’s indulgence that their offer 2 (2018) 8 SCC 243 10 be accepted and the authorities be directed to execute the sale certificate in their favour the employees of the company in liquidation have not participated in the proceedings but their dues are still outstanding and could not have been made over in the absence of funds available. Upholding the Division Bench of the High Court’s decision, the BIFR or the Official Liquidator may be summoned to launch a new bidding procedure to maximise the value of the property that may provide some comfort to the staff whose dues have been outstanding for a long time and they have a superior claim over the company’s financial creditors in a liquidation.

JUDGEMENT

Undisputedly, the appellants (auction bidder) have not paid the selling consideration in accordance with clause (h) of the rules, nor have they provided the bank guarantee within 15 days of the acceptance of the offer bid in accordance with the guidelines’ clause (i). When the case was heard by the BIFR, the Bench noted that the appellants, M/s Rajiv Kumar Jindal and others, were the lone bidder for Block IV of the Rajpura Unit and had not followed the ASC criteria. Taking both facts into account; (i) the appellant being the lone bidder; and (ii) ASC guidelines not being followed, the appellants’ bid was not confirmed, However, when the appellants filed an appeal, the AAIFR ignored the fact that the ASC’s standards were not followed and the appellant was wrongfully convicted, The single bidder, because there was no competition bidding, which is usually important to ensure that the property’s worth is maximised. The Tripartite MOU was executed with no substance because the procedure initiated by the Operating Agency in the first instance was defective from the start, and prior to the initiation of the 20 auction proceedings, neither the value of the property was assessed through the approved valuer nor the reserve price was notified in the auction notice dated May 24, 2004, The appellants’ money paid in Civil Appeal No. 10128 of 2011 shall be refunded in accordance with the impugned High Court ruling dated February 5th, 2010. Simultaneously, the official liquidator may use all reasonable means to obtain the highest possible value for the property in order to achieve the purpose of public auction.

READ FULL JUDGEMENT: https://bit.ly/42aWVRn

-Report by Sejal Jethva

The State of Uttar Pradesh and Others v. Rachna Hills and Others this instance, Section 16-FF of the Act and Regulation 17 of the Regulations outlines the process for choosing and appointing heads of institutions and teachers at minority institutions. Although the specific selection process is outlined in Regulation 17, Section 16-FF, subsection (3) of the Act requires that the District Inspector of Schools provide his or her approval before appointing a teacher.

FACTS

Two minority institutions took the lead in the teacher selection process and submitted their requests for DIOS clearance. The Government changed Regulation 17 to include a new selection process before the required permission was given. In order to ensure that the proposal complied with the new method, the DIOS returned it. By submitting writ petitions in accordance with Article 226 of the Constitution, the institutions contested the DIOS’s decision forcing the Management to abide by the new Rules.

According to the decisions challenged before us, the High Court determined that the selection process was complete and the suggested candidates had a vested right to be appointed after Management sent the names to the DIOS for approval. The High Court also made reference to and relied on the rule that vacancies that occur before rules are amended must be regulated by the rules in effect at the time of the occurrence of the vacancy. We are hearing an appeal from the State of U.P.

APPELLANT’S CONTENTION

We have maintained that the selection process doesn’t end until the DIOS has given its required clearance. A considered appointment has no place, according to our analysis of the legislative framework and the supporting laws. Additionally, we have made it clear that in light of recent decisions by this Court, the concept used by the High Court in order to apply outdated standards to previous vacancies is neither appropriate to the circumstances of the current cases nor sound legal precedent.

RESPONDENT’S CONTENTION

The Respondent-candidates appealed the DIOS’s judgment in question by submitting a writ petition to Allahabad’s High Court of Judicature4. The judgment was overturned and the DIOS was instructed to rethink it by the learned Single Judge in an order dated 07.05.2018 on the grounds that the modified Regulations would not apply because the selection procedure had reached its conclusion.

JUDGMENT

1. In order to evaluate the Respondents’ claims that individuals whose names are submitted to the Management for approval by the DIOS acquire a vested right to be appointed as Teachers, it is important to look at Section 16-FF.

2. Respondents claim that in accordance with Regulation 1815, suggested candidates should be presumed to have been appointed if the DIOS fails to approve them within 15 days following the Management’s proposal.

3. The Division Bench and the High Court’s Single Judge accepted the selected candidates’ argument that the 19 Rules and Regulations in effect at the time the vacancies arose and not the Regulations that would later be amended could only be used to fill the vacancies for the post of a teacher.

4. In light of the law’s unambiguous formulation, we have no qualms about rejecting the learned counsels for the respondents’ argument that the vacancies that existed before the alteration to Regulation 17 of Chapter II must be regulated by unaltered norms.

5. Civil Appeal No. 1882 of 2023, Civil Appeal No. 1883 of 2023, and Civil Appeal No. 1884 of 2023 are all accepted for the reasons mentioned above. As a result, the decisions rendered by the High Court of Judicature in Allahabad on January 16, 2019, January 16, 2019, and January 18, 2019, in the cases of Special Appeal Defective No. 42 of 2019 and Writ Appeal No. 27341 of 2018 and Special Appeal Defective No. 38 of 2019, respectively, are annulled.

6. No cost-related order.

READ FULL JUDGEMENT: https://bit.ly/3LAs0Y3

-Report by Neha Mishra

In the case of STATE OF GUJARAT VS DR. P. A BHATT, the question of whether Allopathy doctors and doctors of indigenous medicine can be said to be performing “equal work” so as to be entitled to “equal pay” is answered.

FACTS

A High-Power Committee was established on May 3, 1990, with Shri R.K. Tikku as its chairman, to enhance the working conditions and career prospects for doctors employed by the government. This was done by a Memorandum of Settlement signed by the Ministry of Health and Family Welfare on August 21, 1989, and the Joint Action Council of Service Doctors Organisation. This committee held 30 meetings between June 1990 and October 1990, and on October 31, 1990, it issued a report with its recommendations. The recommendations in this Report were only applicable to service physicians with MBBS degrees, post-graduate medical degrees, degrees in super-specialities, and individuals working on both the teaching and nonteaching sides of medicine.

The Ministry of Health and Family Welfare established a second High-Power Committee on November 19, 1990, with the same person serving as its chairman—Shri R.K. Tikku—toconsider career advancement and cadre restructuring for practitioners of Indian Systems of Medicine and Homoeopathy. On February 26, 1991, this Committee issued a second Report that was limited to individuals who practised alternative systems of medicine and had degrees in Ayurveda, Unani, Siddha, or homoeopathy.

The Local Fund Audit, Ahmedabad requested clarifications via letters dated 04.03.1998 and 21.04.1998, as to whether the same benefits are available to non-MBBS medical officers holding qualifications such as G.A.F.M/LMP, following the implementation of the recommendations of the Tikku Committee dated 31.10.1990 in respect of allopathic doctors in the State of Gujarat by the Government Resolution dated 17.10.1994.

In response, the Gujarati government’s Health and Family Welfare Department published a government resolution stating that non-MBBS medical officers are also qualified for the benefit. In addition, this letter indicated that, by a government resolution dated 01.07.1997, the Tikku Committee’s recommendations were extended to physicians who were covered by the Employees State Insurance Scheme.

The respondents in this case, who were initially hired on an as-needed basis under the “Community Health Volunteer Medical Officers Scheme” put forth by the Government of India and who were subsequently absorbed by the State of Gujarat in May 1999, filed four writ petitions on the file of the High Court of Gujarat seeking an extension of the benefit of higher pay scales based on the recommendations of the Tikku Pay Commission. The Medical Officers (Ayurved) Association, made up of individuals initially appointed as Medical Officers Class-III, filed a separate writ petition. This Association requested a similar remedy to that outlined in the group of four writ petitions.

The High Court’s Division Bench dismissed all intra-court appeals, ruling that (i) non-MBBS doctors and MBBS doctors both belong to the same cadre and that, as a result, there may be no discrimination based on educational background; and (ii) non-MBBS doctors were performing the same duties and functions as MBBS doctors and even manning primary health centres independently, making them equally qualified for employment.

PETITIONER’S CONTENTION

On behalf of the State, it is argued that the recommendations of the Tikku Pay Commission for raising pay scales were per se applicable only to MBBS doctors; that the revision of pay scales in favour of allopathic physicians was justified by the ongoing shortage of allopathic physicians; and that the State Government had to fulfil its constitutional duty to provide adequate healthcare infrastructure. 

The assailed order is incorrect in law and law and on facts because the High Court shamefully failed to recognize the fundamentally distinct nature of duties and responsibilities undertaken by Allopathy doctors and AYUSH doctors.

RESPONDENT’S CONTENTION

The learned attorney for the respondents responds by arguing that both Allopathy and AYUSH doctors are appointed to the position of Medical Officer falling under Class-II of Gujarat Medical Services; that once individuals with various qualifications are appointed to one unified cadre with a common pay scale and governed by one set of rules, then at a later stage, the Government cannot make a classification; and that all Medical Officers, regardless of their educational backgrounds, are subject to the same rules.

The appeals are likely to be dismissed because the findings of fact made by the learned Single Judge and the Division Bench of the High Court that both types of doctors are conducting equivalent work do not call for any interference under Article 136 of the Constitution.

JUDGEMENT

In our judgment, two issues come up for discussion in these appeals. They are: (i) Is it possible to set different pay scales for officers appointed to the same cadre based on their educational backgrounds? (ii) Can allopathic physicians and practitioners of indigenous medicine be deemed to have “equal work” to warrant “equal pay”?

This Court determined that the classification of Tracers into two pay scales—one for matriculates with a higher pay scale and the other for nonmatriculated with a lower pay scale—does not violate Articles 14 and 16 of the Constitution.

Doctors who practice allopathy must handle emergencies and treat trauma patients. The emergency duties and trauma care that Allopathy doctors are capable of executing, as well as the advancements in science and current medical technology, cannot be performed by Ayurvedic doctors due to the nature of their practice and the advancements in science and modern medical technology.

Ayurved doctors are also unable to assist surgeons in undertaking difficult surgeries, but MBBS doctors can. We do not intend for this to imply that one medical system is better than another. It is well known that MBBS doctors are required to care for hundreds of patients during outpatient days (OPD) in ordinary hospitals in cities and towns, however, this is not the case with Ayurvedic doctors.

We are unable to distinguish between Ayurvedic physicians who have already obtained some benefits thanks to the temporary injunction issued by this Court and those who have not.Additionally, we cannot ignore the fundamental rule that states a person cannot be permitted to keep a benefit obtained through an interim order issued by a court if the case’s final result was averse to that person.

As a result, all appeals are granted, the High Court’s contested order is revoked, and the respondents’ writ petitions are denied. All interlocutory applications, including the impleadment application(s), and the contempt petitions are likewise rejected. No fees

READ FULL JUDGEMENT: https://bit.ly/3Nol96x

-Report by Utkarsh Kamal

In the present case supreme court discusses the conviction when the trails court records are absent and can not be obtained. White discussing the present case by the division bench of Justice Krishna Murari and Justice Sanjay Karol observed that the job of the Court of Appeal is not to depend on the lower Court’s judgment to uphold the conviction but, based on the record available before it duly called from the Trial Court and the arguments advanced before it, to come to a conclusion thereon…Had there been properly preserved records of the Trial Court, the issue in the present appeal as to whether the High Court could uphold a conviction having not perused the complete Trial Court record, would not have arisen they also talk about the digitalisation of the court for smoothening the judicial process.

Facts of the case:

The prosecution has been successful in proving that accused J.K Rode being working at the post of a   Public   Servant as   Assistant   Commercial Manager,   Northern   Railway,   Lucknow made a 2 demand of   Rupees   Five   Hundred from   Chief Ticket   Inspector   Shri   Jai   Prakash   Narayan Upadhyay on 03.05.95 to dispose of the charge sheet issued against him. He was caught red-handed receiving the bribe on 03.05.95. He received Rs. 500 (Rupees five hundred) from said J.P.N Upadhya being posted as a public servant misusing his post as a public servant for his gain in a corrupt and illegal manner.   Thus,   the offence under sections 7, 13(1) and 13(2) of the PC Act 1988 is proved against the accused and he is liable to be punished for these charges. Accused is on bail and his bail bonds are discharged. The accused should be taken into custody then the accused person moves to the High Court where the High Court upheld the conviction of the accused person.

Legal issue:

1)Whether in the absence of the records of the Court of Trial, the appellate Court could have upheld the conviction and enhanced the quantum of the fine.

2)Whether, given the language employed under Section 385 of CrPC, the present situation constitutes a violation of the accused’s fundamental rights under Article 21 of the Indian constitution

Related laws:

1)Sec 7 of the Prevention of corruption act: Public servant taking gratification other than legal remuneration in respect of an official act.—Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.

2) Sec 13(1),Sec13(2) of the prevention of the corruption act 

3)SEC.385. of Criminal Procedure code Procedure for hearing appeals not dismissed summarily.—(1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given—

(i) to the Appellant or his pleader;

(ii) to such officer as the State Government may appoint on this behalf;

(iii) if the appeal is from a judgment of conviction in a case instituted upon complaint to the complainant;

Appellant’s contention:

On the surface of the record, it is clear that the relevant portions of the record, in particular, could never have been recreated by the relevant District Court. Despite this, the Court sustained the conviction on the basis of the partially reconstructed record, which only contained a few documents, such as the FIR. The knowledgeable attorney for the appellant claims that the law is clear on the matter and that without these records, it is impossible to say that a conviction was obtained on solid evidence and is therefore subject to being overturned.

Respondent’s contention : 

Not every conviction alters a person’s personality forever. A conviction may occasionally have little to no effect on a person’s behaviour and character. Furthermore, even though key evidence was lacking, it would be reasonable to uphold the conviction in particular circumstances. Although 500 rupees may not seem like much, if the evidence leads to a conviction, the accused should still be held accountable for their acts. The absence of an appeal does not necessarily imply that the defendant is innocent or deserves a second chance. Instead, in order to reach a fair and just judgment, the relevant data should be thoroughly analyzed and taken into account

Judgment: 

The Court of Appeal’s responsibility is to reach a decision on the matter “based on the record available to duly called from the Trial Court and the arguments advanced before it,” rather than relying on the lower court’s decision to affirm the conviction. The Court further held that in the absence of a fair legal process, the protection of Article 21 rights includes the freedom from any restrictions thereon. This includes the right of the person filing an appeal to contest the findings of fact made by the trial court, which can only be done when the record is available to the Court of Appeal. We hold that noncompliance with the mandate of the section, in certain cases contingent upon specific facts and circumstances of the case, would result in a violation of Article 21 of the Constitution of India, which we find to be the case in the instant case. Therefore, in the considered opinion of this Court, it is not within prudence to lay down a straightjacket formula.

As a result, the Court overturned the appellant’s conviction.

Court also directed the High Court to the digitization of the lower courts so these kinds of situations could not arise in the future.

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

-Report Himanshi Chauhan

The recent judgement of P.V. Satheesan v. UOI & Ors deals with the question that whether a person can get absorbed in the department to which he had gone on deputation. Herein, the original application of the person was rejected by the Tribunal. Therefore, a writ petition was filed in the Delhi High Court challenging the order passed by the Tribunal.

FACTUAL BACKGROUND:

The petitioner was appointed as LDC in General Reserve Engineering Force (‘GREF’ in short). He was selected as LDC on a deputation basis in CBI on September 13, 2002. He initially worked in Chennai. In 2004, he applied for permanent absorption in CBI. Subsequently, on May 3, 2005, he was transferred to Delhi. CBI required a NOC for the petitioner’s permanent absorption in CBI. According to the petitioner, on March 24, 2005, GRPF/ parent department issued NOC for his absorption. But even after submitting NOC, CBI did not absorb deputationist as LDC/ SCS in CBI.

Thereafter, CBI requested for further extension of the petitioner’s deputation in CBI but the GREF did not accede to the same request. Accordingly, the Head Office of CBI vides Fax directed SP, CBI, AC-II to repatriate the petitioner to his parent department by March 26, 2006. 

Therefore, the petitioner approached the Central Administrative Tribunal, Principal Bench, New Delhi. However, the original application of the petitioner was dismissed by the Tribunal stating that a person underlying deputation has no right to continue for long on deputation or get absorbed in the department to which he had gone on the department. 

The petitioner, therefore, aggrieved by the order of the Tribunal moves to the Delhi High Court.

PETITIONER’S CONTENTIONS:

➢ The learned counsel for the petitioner submits that the petitioner joined the CBI on December 10, 2002, on a deputation basis and subsequently, as requested by the CBI, the GREF gave NOC for the absorption of the petitioner. However, after receiving NOC, the CBI denied the permanent absorption of the petitioner.

➢ The learned counsel further submits that the petitioner has served CBI for more than 20 years and in fact, he is superannuating on April 30, 2023.

➢ Furthermore, during his service in CBI, his work has been appreciated by the CBI by conferring “CBI Day Award”, “ATI UTKRISHT SEWA PATAK, 2016” and Commendation Certificates in 2006, 2015, 2016 & 2017.

➢ The learned counsel further submits that in the given background, if the petitioner is compelled to be repatriated then his entire family would be put to irreparable loss and injury.

➢ The learned counsel further states that it would be inequitable for the respondents to repatriate the petitioner to GREF, at this point, when the petitioner is on the verge of retirement after putting in more than 20 years of service which is more than his tenure in GREF.

RESPONDENT’S CONTENTIONS:

➢ The learned counsel for the respondent (CBI) submitted that the petitioner cannot claim absorption as a matter of right when CBI has already decided not to absorb deputation’s LDC/ SCS. 

➢ He also submitted that, since 2005, no absorption of deputations LDC/ SCS has been effected.

➢ The learned counsel further relied upon the judgment of the Supreme Court in the case of Kunal Nanda v. UOI & Anr., (2000) 5 SCC 362, in this case, the petitioner, who had come on deputation from CRPF, sought his absorption in CBI. This request was rejected and he was repatriated. The decision was upheld by the Supreme Court. The learned counsel, therefore, contends that similar should be the outcome in this case as well.

JUDGEMENT:

The Delhi High Court observes that the petitioner has worked for 12 years in GREF as against 20 years of service in the CBI. Therefore, the court held that it is inequitable to deny the absorption of the petitioner in CBI. Insofar as the judgement of Kunal Nanda is concerned, the same shall not be applicable to the facts of this case, as the CBI (in that case) has rejected the prayer of the petitioner for absorption in CBI on the ground of unreliability. But in the present case, there is no issue of integrity raised by the CBI against the petitioner herein.

Thereby, the High Court opined that the petitioner should be absorbed in the CBI from the date when NOC was given by the GREF with all the consequential benefits that would flow pursuant to his absorption in CBI from that date. Accordingly, the Hon’ble High Court set aside the impugned order passed by the Tribunal.

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-Report by Arunima Jain

Adjudicating the matter of life imprisonment on a rarest of rare cases of a man raping his 9-year-old daughter, the Delhi High Court on Tuesday held that the term ‘life imprisonment’ is synonymous with a convict spending the rest of their life imprisoned for whatever they have been convicted for. Liberal remissions to diminish the sentence of the life imprisonmentgranted to the convict in the present case would in factuality, be nothing short of a travesty ofjustice. Judges who wield the sword of justice should not hesitate to wield that sword with the utmost severity to the full and to the end if the seriousness of the offence so requires, as thisCourt noted in Madan Gopal Kakkad Vs. Naval Dubey and another.

FACTS

In the matter at hand, the appellant was tried for raping his own 9-year-old daughter in August 2012. In accordance with the same, the Sessions Court (Special Fast-track Court) hadheld the appellant guilty of the same in 2013 and had adjudicated the appellant for lifeimprisonment under Sections 376, 377 7 506 of the IPC. Additionally, the appellant was alsonot granted clemency by the State until and unless he had served at least 20 years ofimprisonment. On appeal, a Division Bench of the High Court of Delhi further upheld theprevious court’s judgement in 2017. As a last resort, this special leave petition was filedunder Article 136 of the Constitution. This appeal was filed to merely discuss the magnitude of the sentence imposed on the convicted person, and not to elaborate on the conviction.

JUDGEMENT

Upon giving due regard to the facts and law in the above-mentioned case, it is contended bythe Hon’ble High Court that the appellant is liable for serving at least 30 years ofimprisonment upon taking into account remissions His lengthy incarceration would not only guarantee that he received his just rewards but would also give his daughter more time and maturity to calm down and move on with her life, even if her father is released. Owing to the amendments leading to the inclusion of the new sections 376(2)(f) and 376(3) in the IPC in 2013, the legal recourse adopted by the Sessions Fast-track Court had been wrong in technicality since the newer provisions would not have been applicable as the present case had been instituted in 2012. But owing to the gravity and severity of this case, the monstrosityimposed by the father on his own daughter led to the High Court deciding the present case. The appeal therefore has been dismissed and the appellant/convicted has been directed to payhis dues accordingly.

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-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.

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-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.

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-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.

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