Tag: #SupremeCourtofIndia

S.no	Contents
1.	Introduction
2.	The Consumer Protection Act
3.	Features of The Consumer Protection Act 2019
4.	Rights of The Consumers
5.	The Consumers Protection Act 2019 Authority
6.	Issues with Consumer Protection Act, 1986
7.	Consumer Protection Act 2019 Amendment
8.	Consumer Protection Act Demonstration and Direct Selling
9.	Supreme Court Cases
10.	Different Features of the Consumer Protection Act 1986 and 2019
11.	Conclusion

Introduction

Each person purchases different goods and services in their everyday life. Anything they purchase needs to Pay for itself and get fulfilment from its utilization and use. But now and again they don’t feel happy with the item they buy. This might be a record of low quality of the item, cheating by the retailer, lower nature of constants, deceiving promoting, etc.^[1]

The digital era has guided and immensely filled in this new period of online business and acquired its degree new assumptions and wants of the shoppers. It has now become effectively available, with more extensive decisions to the customers, and gives viable techniques for business.

Because such a transformation is achieved by digitalization, the consumer protection act, of 1986 had a few difficulties and confronted numerous mishaps which required quick consideration. Be that as it may, the public authority achieved an extraordinary change and presented the Buyer Security Act, 2019 which came into force on 20 July 2020. This previous sanctioning had been reconsidered once in a while to get it congruity with changes achieved by globalization, financial progression, digitalization of items and administrations, and so on be that as it may, its execution was far to accomplish its ideal goal of financial regulation which looked to give security of the interests of the customers. While then again the new Buyer Insurance Act, 2019 will fortify and upgrade the extent of assurance given to the purchasers by redoing the promoting claims, supports, disciplines, prison terms, organization of the debates, and different variables.

The Consumer Protection Act

Consumer Protection Act^[2] is a law that protects consumers from unfair, harmful methods by businesses and sellers of goods and services. First Consumers Protection Act came in 1986 and the parliament of India elected it. It also gives consumers the right to Safety, Choice. Also, the Consumers Protection Act imposes duties and liabilities on producers. It gives hope for the bits of help of helpless consumers. This Consumers Protection Act came as a “Panacea” for consumers all over the country. The Consumers Protection Act makes a system name “three-tier” it is set up at the State, District, and National levels. The Consumer Protection Act was replaced by the Government as The Consumers Protection Act 2019.

Features of The Consumer Protection Act 2019

The Consumer Protection Act 2019 has some features that are: 

• The Consumer Protection Act defines a consumer as a person who buys goods and services with careful thought. 
• Consumer Protection Act does not allow goods and services for commercial purposes. 
• Consumers Protection Act covers transactions with all modes online, and offline through electronic, also multi-level marketing. 
• For Consumer Protection Act central Government made set up it was CCPA (Central Consumer Protection Authority). 
• It protects and enforces the right of consumers CCPA impose a penalty for those who supply goods up to 10 lacks and two-year imprisonment for any false advertisement.
•  For subsequent offense fine extend to Rs 50 lakh and imprisonment for five years.

Rights of The Consumers

In The Consumer Protection Act 2019, Consumers have some rights that are:

• Consumers have the right to know all the information related to the goods and services, like goods and services quality, quantity, how much pure, and also the prices should inform the consumer. 
• Sometimes consumers’ right to protect goods and services can be dangerous to their life and property. Rights to protect from hazardous goods and services.
•  The consumer has the right to be protected from unfair trade practices. 
• They have the right to access a variety of goods and services.
•  Consumers should have the right remedy or compensation for any losses or suffering.
• Right to give consumers proper education.
• Also, the consumer has the right to need a clean and healthy environment.

The Consumers Protection Act 2019 Authority

• The central government establish an authority to protect consumer goods and services, which is CCPA (Central Consumer Protection Authority) as a regulatory authority.
•  CCPA protects consumer rights and regulated some cases that are related to unfair trade practices. 
• CCAP gives power to consumers.
• Consumers can take Suo-Moto action, recall the product and cancel licenses. 
• CCAP has the right to investigate consumer law violations.

Product of Goods and Services Liability

The huge expansion to the 2019 demonstration is the arrangement for item obligation by which the makers or specialist co-ops have been made dependable to repay the purchaser for any mischief, injury, or misfortune experienced because of damaged items, or lack of help. This additionally incorporates web-based business inside its ambit and even they can’t get away from the fury of the go-about as now the item responsibility has been stretched out to the specialist co-ops and not simply restricted to the producers.

• The defeat of some Design. 
• Responsible for all the compensation for injuries and damages. 
• Services of the product provided faulty.

Issues with Consumer Protection Act, 1986

• Remove all the  imperfections from the goods;
• Substitution of the goods;
• Discount of the prices which are paid;
• Give compensation to the consumer for all the losses or injuries;
• Withdrawal of the hazardous goods from being made available for purchase; or Giving satisfactory expenses to parties.
• Evacuation of deformities or lacks in the administrations;
• Discontinuance of unjustifiable exchange rehearses or prohibitive exchange practices or course not to rehash them.

Consumer Protection Act 2019 Amendment^[3]

• In chapter one section 2 sub-clauses(4),(13),(14),(16),(40)
• In chapter two sections 3 to 9 both are inclusive
• In chapter four sections 28 to 73 both are inclusive. Except for some sub-clauses (iv) of clause (a) of sub-section(1) of section 58.
• In chapter five sections 74 to 81 both are inclusive
• In chapter six sections 82 to 87 also both are inclusive
• In chapter seven sections 90 and 91 except sections 88,89,92&93
• In chapter eight  sections 95,98,100 sections 101 except for some clauses (f) and clauses (zg), (zh), and (zi) of the sub-sections 2
• Sections 102,103,105, 106, 107 except sections 94,96,97,99,104

Monetary Limit

The National Consumer Disputes Redressal Commissions(NCDRC) will hear grievances where the debate esteem is worth more than Rs. 10 crores. The State Consumer Disputes Redressal Commissions will hear objections where the contested worth is more than Rs 1 crore but not as much as Rs 10 crore. While the Locale Buyer Questions Redressal Commissions will engage in protests when the worth of products or administration depends on Rs 1 crore.

Consumer Protection Act Demonstration and Direct Selling

One more change was connected with online business working as per the regulations set for direct selling. The rules make it obligatory for the e-organizations to uncover the dealer’s subtleties like their location, site, email, and so on, and data connected with discount, return, assurance and guarantee, conveyance, shipment, instalment choices, the wellbeing of instalment, complaint taking care of the instrument and so on. This step is fundamental as in the developing universe of online businesses damaged and lacking items and administrations are given and through this arrangement the organizations could be punished for something very similar.

“Under the new Demonstration, the web-based business will be represented like direct selling in India and online stages for selling labour and products, or conglomerating administrations will be expected to take responsibility for any infringement of customer privileges or embracing any out-of-line exchange rehearses,”^[4] Mehta said

Supreme Court Cases

• Rojer Mathew v. South Indian Bank LTD.^[5] (This Judgement came in November 2019) Judgement given by Ranjan Gogoi Chief justice of India Leave Granted.
• Association For Consumer Welfare And Aid v. Granite Properties Private Limited (2019) This case was dealt with by the Supreme Court of India. The Judgement of the Court delivered by DR. D.Y. Chandrachud, j. Civil appeal no 259 of 2019 The National consumer disputes redressal commission(NCDR). “ The consumer on whose behalf this complaint is instituted did not hire or avail the services of opposite party 1 and therefore they cannot be said to its consumers.“^[6]

Current cases:

• M/S. Texco Marketing Pvt. Ltd. v. TATA  AIG General Insurance Company Ltd (2022)
• Ibrat Faizan v. Omaxe Buildhome Pvt.Ltd.(2022)
• Shankarlal Nandani v. South Indian Bank LTD.(2022)
• Texco Marketing Private Limited v. Tata Aig General Insurance Company Limited And Others. (2022)
• Sunil Kumar Maity v. State Bank of India and another(2022)

Different Features of the Consumer Protection Act 1986 and 2019

In consumer protection act there is some kind of differences we find between the consumer protection act 1986 and the consumer protection act 2019 that’s are:

• Regulator:
  In Consumer Protection Act 1986 there is no separate regulator but in Consumer Protection Act 2019 there is an authority formed that is CCPA(Central consumer protection act)
• Consumer Court:
  In the consumer act, 1986 complaint was filed in the consumer court where the sellers or the defendant’s office is located but in Consumer Protection Act 201complaintsed filed the consumer court where the complaints are worked. 
• Product Liability: 
  In Consumer Protection Act 1986 there is no such provision of product liability consumers can apply in civil court but not in consumer court. In Consumer Protection Act 2019 consumers have product liability they get their compensation for any kind of harm caused by the services. 
• Mediation Cells: 
  In Consumer Protection Act 1986 there is no such legal provision for Mediation cells but in Consumer Protection Act 2019 court refer settlement through the mediation cells.

Conclusion

The Consumer Protection Act 2019 is a productive step that would bear natural products later on. The act incorporates inside itself a few new ideas which were the need of great importance and the prospect of executing a similar in a nation like India would give a palatable outcome. In the developing universe of digitalization steps like e-recording of cases, and procedures through video conferencing will change, create and upgrade customer freedoms by and large. However, one can’t deny and scrutinize the execution of down-to-earth earth use of the arrangements. For any law and regulation to find actual success, fundamental its execution ought to be done appropriately and productively. Hence, for the 2019 demonstration to become useful it needs to defeat its disadvantages and slack ought to be given to realize the help for the shoppers. Consumer Protection Act gives a law designed to ensure fair competition and free of truthful information in the market areas. The law is designed to prevent businesses that are engaged in fraud or UTP(Unfair Trade Practices). The Consumer Protection Act 2019, is a Constructive Step that would bear fruits in the Future.

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Endnotes:

1. Consumer Protection Act 1987, https://www.which.co.uk/consumer-rights/regulation/consumer-protection-act-1987-a5xTL3w6L9OI
2. THE CONSUMER PROTECTION ACT, 1986, https://legislative.gov.in/sites/default/files/A1986-68_0.pdf
3. The Consumer Protection Act, 2019, https://consumeraffairs.nic.in/sites/default/files/CP%20Act%202019.pdf
4. Draft Consumer Protection (Direct Selling) Rules, 2021, https://consumeraffairs.nic.in/sites/default/files/file-uploads/latestnews/Draft%20Consumer%20Protection%20%28Direct%20Selling%29%20Rules%2C%202021.pdf
5. Rojer Mathew v. South Indian Bank Limited, (2020) 6 Supreme Court Cases
6. Shipra Singh, Here’s how consumers will benefit under the new Consumer Protection Act, https://economictimes.indiatimes.com/wealth/spend/heres-how-consumers-will-benefit-under-the-new-consumer-protection-act/articleshow/70711304.cms?from=mdr

This article is written by Pranita Dhara, a student of Lloyd Law College.

S.no	Contents
1.	Abstract
2.	Introduction
3.	Constitutional Theory in Different Countries
4.	Constitutional Theory in the Indian Context
5.	Background of Formation of the Constitution
6.	Salient features of the Indian constitution
7.	Conclusion

Abstract

This article aims to present an overview of Constitutional Theory, its types, and its evolution over the period of time. Further on it explains in detail the constitutional principles of some of the world’s strongest constitutions, particularly the Indian and US constitutions.

Introduction

Constitutional Theory is an aspect of constitutional law that focuses on the underpinnings of constitutional government. A constitutional theory tries to draw upon bases of agreement that exist within a legal culture and to extend those agreed-upon principles to solve issues and problems in society. Its main aim is an organization of all points of agreement together in a formal manner in cases where there is no agreement. This theory can be both subjective as well as prescriptive. On one hand, the constitutional theory is prescriptive as it purports to tell what to do but at the same time, it is also descriptive as it cannot call for a wholesome departure from existing practices.
Constitutional theory can be best understood if seen as an exercise of justification. More or less, it is an effort to justify a set of prescriptions about how certain controversial constitutions should be decided. The justification is then addressed to people within a particular legal culture There are broadly two aspects of constitutional law:

1. The first aspect which is more of a formal theory covers
   • The overall structure of the government
   • Relations amongst branches of government
   • Relations between various levels of government
2. The second aspect relates to the theories of judicial review, which provides justifications for the occasions on which the courts, ruling on constitutional issues, will and will not displace the judgments of elected officials.

A constitution is a set of fundamental principles or established precedents, all of which altogether constitute the legal basis of an organization, and polity and determines how that entity is to be governed. When all the principles (to be followed) are written down in a single document or multiple legal documents and are written in a single, codified, comprehensive document it is said to constitute a constitution.

Constitutionalism is a legal political philosophy that recognizes the need for a government but at the same time also emphasizes restraining its power. This evolutionary philosophy is essential for a democratic setup. Like constitutional theory, there is no uniform definition of constitutionalism but in modern times it emphasizes restraining the powers of government to an extent that it doesn’t hinder the self-development of the society and economy.

Constitutions concern different levels of organizations, from sovereign countries to companies and even unincorporated associations. Moreover, even a treaty that establishes an international organization can be termed to be a constitution since it describes how that organization was constituted. Constitutions especially codified one act as limiters of state power, by establishing lines that a state’s rulers cannot cross such as fundamental rights.

The constitutional theory differs from one country’s constitution to another’s.

Constitutional Theory in Different Countries

CONSTITUTIONAL THEORY AS ESTABLISHED IN THE UNITED STATES OF AMERICA is more of an academic discipline that focuses on the meaning of the US constitution, which draws attention to all aspects ranging from ethical, political, linguistic to sociological to historical. US’s constitutional theory emphasizes a lot of Judicial Review.

Judicial Review is a process wherein the judiciary reviews the legislative, executive, and administrative actions. It is one of the checks and balances in the separation of Power wherein the judiciary has the power to supervise the legislative and executive branches when the latter exceeds their authority. The types and general principles vary according to the jurisdiction and the country.

This idea of Separation of Power; initially introduced by Montesquieu, is based on the idea that no branch of government should be able to exert power over any other branch without due process of law, each branch should keep a check on the other to create a “regulative” balance amongst all.

When carrying out judicial review a court may ensure that the principle of ‘Beyond the Powers’ (ULTRA VIRES) is followed i.e. the public body’s actions must not exceed the powers given to them by legislation.

The great influence of judicial review in constitutional theory was established in Marbury v. Maddison^[1]. Broad concepts explained by the Constitutional Theory:

1. It seeks to understand the relationship between
   • Branches of government
   • Individual rights and state power
   • Federal government and state
2. It seeks to understand how the constitution’s meaning shifts with
   • changes in cultural norms
   • changes in Political structure

Some of the US’s constitutional theorists are:

• Bruce Ackerman
• Jack Balkin
• Ronaldo Dworkin
• Robert Post
• Class Sunstein

GERMANY’S CONSTITUTIONAL THEORY was established by Immanuel Kant and is based on the supremacy of a country’s written constitution This idea is the foundation for the constitutional theory of the 21st century.
Similarly, based primarily upon the German legal tradition, the Russian legal system was borne out. Russian legal state concept adopts the written constitution as a supreme law of the country, it consists of 6 democratic federative legal states with a republican form of governance.

Constitutional Theory in the Indian Context

The Constitution of India is the supreme law of the land in India. The constitution lays down the framework that demarcates fundamental political code, structure, powers, and duties and lays down fundamental rights, directive principles, and duties of citizens. The democratic values in Indian society are deeply rooted in REPUBLICS since the era of the Janpadas, which can be traced back to 600 BC. The constitution very well upholds the principle of equality in all fields like ethnicity, gender, religion and creed. The success of the constitution in such a vast and diverse country like India can be traced to the fact that India has successfully accommodated the aspirations of people since its creation. Despite many internal challenges in illiteracy, inequality and diversity of cultures, traditions, and religions in contemporary India.

Background of Formation of the Constitution

The Constitution of India was framed by the Constituent Assembly, elected by members of the various Provincial Assemblies. Dr B. R. Ambedkar was the chairman of the drafting committee formed by the Assembly. Our Indian Constitution was finally adopted by the Constituent Assembly on 26 November 1949 and became effective on 26 January 1950. At the time of adoption, the Indian Constitution consisted of 395 articles in 22 parts and 8 schedules. Later, additional parts and articles have been included in the Constitution through various amendments. Presently, there are 25 parts, 448 articles and 12 schedules in our Constitution.

The first ever report prepared, also called the Nehru Report was formed in 1928 when the All Parties Meet convened a committee in Lucknow.

The Indian Constitution is drawn from a large number of sources, depending on India’s needs and conditions. It draws inspiration from the already proposed constitutional theories in other parts of the world.

The constitution declares India to be a Sovereign, Secular, Socialist, Democratic, and Republic and assures to all its citizens Justice, Liberty, Fraternity, and Equality as prescribed in the Preamble of the Constitution.

The Indian constitution prescribes the functioning of each organ and even the biggest to the smallest unit of administration in India. The three pillars of the Indian legal–political system are the Legislative, Executive, and Judiciary. Constitutions are broadly classified by political scientists as being unitary or federal. In a unitary constitution, the powers of the government are centralized in one government which is the central government, the provinces are subordinate to the centre. However, on the other hand, in the case of a federal constitution, there exists a division of powers between the Federal and State governments. Indian constitution is however termed as a mix combo of both types of constitution i.e., a Quasi Federal constitution. Dr BR Ambedkar termed the Indian constitution as a
predominantly federal constitution with a slight mix of unitary features.

Salient features of the Indian constitution

1. Lengthiest Constitution
   The constitution of India is a written constitution that happens to be the lengthiest written constitution in the world. It is an extensive, elaborate, and detailed document.
   
2. Drawn from Various Sources
   It has taken the majority of its provisions from the constitution of several other countries as well as from the Government of India act, of 1935. Ex: structural part from GOI, 1935, independence of the judiciary from USA, Fundamental Rights from USA, etc.
   
3. The Preamble of the Constitution
   The Preamble includes the objectives, ideals, and basic principles of the Constitution. The Preamble is the nature of the Indian state and its purpose is committed to safeguarding the people. The Preamble of the Indian constitution also called a short introduction to the constitution sets out the main objectives which the legislation is intended to achieve. It is often termed as expressing the phrase “what we thought or dreamt for India for so long”.
   
   In the Re Berubari case^[2], the Supreme court held that the Preamble to the constitution is a key to opening the mind of the makers and shows the basic objective for which they made the different provisions in the constitution. However, at the same time, it doesn’t mean that it can override the express provisions of the constitution.
   
   In Kesavananda Bharati v State of Kerala^[3], the Supreme Court held that Preamble is a part of the constitution. Sikri, CJ had observed, “It seems to me that the Preamble of our Indian Constitution is of extreme importance and the constitution should be read and interpreted in the light of the grand and noble vision expressed in the preamble.”
   
4. Fundamental Rights and Duties
   The Constitution of India allows and ensures Fundamental Rights to its citizens.
   
5. Directive Principles of State Policy
   A unique part of the Constitution is that it consists of a chapter in the Directive Principles of State Policy.
   
6. Federal Structure of Government
   The Indian Constitution has conceived a federal structure for India in view of the geographical vastness and the diversity of regions, languages, castes, religions, etc.
   
7. Concept of Single Citizenship
   The concept of single citizenship has been envisaged in the constitution of India where all citizens enjoy common uniform citizenship.
   
8. Integrated Judiciary
   The Constitution specifies a single integrated judicial system for the Union and the states.
   
9. Basic Structure Doctrine
   The basic structure doctrine was firmly established by the Kesavananda Bharti v. State of Kerala^[3] which means that the basic structure of the constitution cannot be either changed or destroyed through amendments made by the Indian Parliament. It is probably one of the most important, landmark cases post-independence. While deciding on the issue, it was contended that in case unfitted powers were vested in the hands of the parliament, it would lead to misuse of power by the government as per their own whims and fancies. In short, this limitless power can erode the fundamental governing, and guiding principles of the constitution.
   
   It was held in the case of Indira Gandhi v. Raj Narayan^[4] and in the case of Minerva Mills v. Union of India^[5] that the where comes the question that whether a particular feature of the constitution is to be covered under the basic feature or not, is upon the discretion of the relevant court, before which the case has been brought up to.
   
10. Judicial Review
    It was held in the case of State of Madras v. V.G. Row^[6], Chief Justice Patanjali held that judicial review is an important component closely attached to the legislature.
    
11. Living Document
    Last but not the least, In the case of Nagaraj v Union of India^[7] it was held that the Constitution of India is a living document which is a set of leg rules for the present society but at the same time it envisages principles for the futuristic society keeping in mind the adaptation it shall have to take during times of various crisis of human affairs.

Conclusion

There are many interpretations and analyses of constitutional theory. It differs from country to country, organization to organization as the purpose of a constitution, a legal document that serves society also varies accordingly. The Indian constitution, the world‘s lengthiest and most complex constitution is a great blend of features adopted from the constitutions of countries from all across the globe. India, which adopted the path of democracy much later than other western countries, took inspiration from all these borrowed features to create a constitution which can meet the demands of the heavily diverse India. Some of the most salient features of the Indian constitution which make it stand apart from the other constitutions include being the lengthiest constitution, the preamble or the unique short brief to the constitution, and the concept of basic structure doctrine which has been laid down and upheld in several landmark cases. The Indian constitution most importantly is neither too rigid nor too flexible, it allows amendments to the existing structure through specified procedures, to cope up with the changes of time and society, hence making the Indian constitution a living document. Despite, all flaws pointed out by the critics, the Indian constitution has stood all tests of time and won in all aspects of the Indian Democracy.

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Citations:

1. Marbury v. Madison, 5 U.S. 137 (more)1 Cranch 137; 2 L. Ed. 60; 1803 U.S. LEXIS 352
2. Re: The Berubari Union, AIR 1960 SC 845
3. Kesavnanda Bharati v State of Kerala, AIR 1973 SC 1461
4. Mineva Mills v. Union of India, AIR 1980 SC 1789
5. State of Madras v. V.G. Row, 1952 SCR: AIR 1952 SC 196
6. Nagaraj & Ors. v. Union of India & Ors. (2006) 8 SCC 212

References:

1. Constitution of India, V.N Shukla
2. WILLIAM & MARY BILL OF RIGHTS JOURNAL: constitutional theory in a nutshell by THOMAS E. BAKER
3. What is a constitutional theory? – DAVID A. STRAUSS; CALIFORNIA LAW REVIEW (VOL. 97:581)
4. http://lexpeeps.in/indian-federalism-issues-and-challenges-2/
5. http://lexpeeps.in/interrelationship-between-fundamental-rights-and-duties/

This article is written by Jasmine Sethi, a 1^st-year law student at Dr B.R. Ambedkar National Law University

-Report by Anurag Sinha

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

FACTS:

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

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

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

APPELLANT’S CONTENTIONS:

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

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

RESPONDENT’S CONTENTIONS:

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

JUDGMENT:

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

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

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

-Report by Sakshi Muttur

It was held by the Honourable Supreme Court of India in the case of STATE OF HARYANA VS SATPAL AND OTHERS that the students of the school are entitled to a good environment inclusive of a playground that was illegally occupied by the encroachers namely, the respondents. It overruled the order passed by the High Court of Punjab.

FACTS:

The above case was an appeal filed by the Appellants which is the State of Haryana against the order passed by the High Court of Punjab and Haryana at Chandigarh dated 12.05.2016. The said respondents were held to be in unauthorized possession of the land that surrounded a school belonging to the Gram Panchayat. Certain demarcations were carried out on the application to the Sarpanch of the Gram Panchayat. 

The eviction proceedings were carried out against the respondents on 25.03.2009 under Section 7(2) of the Punjab Village Common Land (Regulation) Act which explains the ejectment process. It was passed by the Assistant Collector on 30.08.2011.

The respondents, aggrieved by the previous order of ejectment, filed for an appeal before the Collector which was rejected by order dated 02.05.2012.

RESPONDENT’S CONTENTION:

The respondents proposed a Civil Writ Petition No. 3167 of 2015 before the High Court of Punjab and Haryana to override the previous orders. Upon the preliminary hearing dated 23.02.2015, it was disclosed that land occupied by the original writ petitioners is encroached upon and is a part of the school premises. However, the petitioners were ready to give the equivalent vacant land adjoining the school premises as a playground for the school.  

APPELLANT’S CONTENTION:

The High Court dated 12.05.2016, directed the newly constituted Gram Panchayat to invoke the powers under Rule12 and assess the market value of the land where houses are constructed and wherever the vacant area can be segregated from the residential house, it can be separated and utilized for earmarked purpose, i.e., school premises. The needful was to be done within four months from the dated order. Thus, the writ petition was disposed of by the High Court.

Following the order passed by the High Court of Punjab and Haryana, the appellants filed for an appeal in the Supreme Court, which was heard by the Honourable Court on 29.03.2022.

COURT’S JUDGEMENT:

The Court ordered the Assistant Collector to submit a report pointing out the exact measurement of the land which was earmarked for the school and playground. In the report, it shall also be mentioned the total area of the land and the measurement of the area occupied as the school and the area to be used for the playground, and that whether in the land other than being used for School there are any other encroachers or no other than the respondents.

Upon receiving the report filed before the court, it was found that there was no playground at the school and the land near, was owned by another person who was not ready to give up his ownership. Thus, it was established that the original writ petitioners had encroached on the land up to 200 sq. yds. belonging to the Gram Panchayat, which had been earmarked for the school.

The Court overruled the order of the High Court which passed an order that wherever the vacant area can be segregated from the residential house, it can be separated and utilized for earmarked purposes, i.e., school premises. It was held that these directions made by the High Court could not be implemented.

The school was surrounded by unauthorized construction made by the original writ petitioners and therefore, the land which was reserved for the school cannot be legalized. The Court held that the students are entitled to good environment and there cannot be a school without a playground. 

The respondents were granted a period of 12 months to vacate the land which was occupied by them forbiddingly and if they failed to vacate the premises, the appropriate authority is directed to remove their unauthorised and illegal occupation and possession.

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-Report by Umang Kanwat

If the High Court is the common High Court for two or more States under Article 231 of the Constitution and both the Civil Courts (transferor and transferee) are subordinate to it, the power under Section 24 of the Civil Code of Procedure may be exercised by the High Court even for the interstate transfer of a suit, appeal, or another proceeding. Section 25 applies to the interstate transfer of a suit, appeal, or another proceeding where both States have a High Court under Article 214 of the Constitution. The present case of Shah Newaz Khan & Ors. V State Of Nagaland & Ors. deals with an appeal regarding the issue of such an interstate transfer of suits between courts.

FACTS:

A request to transfer a case from the district judge’s court in Dimapur, Nagaland, to the district judge’s court in Guwahati, Assam, was denied by the Gauhati High Court in this case. Two issues, in particular, were raised before the Apex Court in the present appeal :

(1) According to section 25 of the Code of Civil Procedure (hereafter referred to as “the CPC”), is the Supreme Court the only body with the authority to order the transfer of a lawsuit, appeal, or another process from a civil court in one state to a civil court in another state?
(2) Is it permissible for a High Court to consider a transfer request under section 24 of the CPC and transfer a suit, appeal, or another proceeding from one Civil Court to another Civil Court for consideration and decision if the High Court is the common High Court for two or more States?

APPELLANT’S CONTENTIONS:

The appellant argued that if the High Court is the common High Court for two or more States according to Article 231 of the Constitution and both the Civil Courts (transferor and transferee) are subordinate to it, the power under Section 24 of the CPC may be exercised by the High Court even for the interstate transfer of a suit, appeal, or another proceeding. Section 25 applies to the interstate transfer of a suit, appeal, or another proceeding where both States have a High Court according to Article 214 of the Constitution. The learned advocate prayed before the court for a new review of the appellants’ request under section 24 of the CPC. As an alternative, he argued that section 25 applicability can be taken into account by us on its own merits.

RESPONDENT’S CONTENTIONS:

The respondent retaliated that the provisions of both sections 24 and 25 of the Code must be examined because this involves an inter-State transfer and not an intra-State transfer simplicity to understand whether the common High Court has the authority to withdraw any suit, appeal, or other proceeding pending before any Court subordinate to it from one State and to transfer the same to any Court subordinate to it, in another State. After taking into account the arguments made, it is obvious that the legislative intent was clear: under section 25 of the CPC, only the Supreme Court has the power to ordain the transfer of a lawsuit, appeal, or another legal proceeding from one civil court in a state to another civil court in a different state. The CPC’s section 25 expressly and only grants this authority, hence a High Court cannot use it.

The legal counsel for the respondent argued in favour of upholding the contested judgement rather than having it overturned.

JUDGEMENT:

The questions framed at the beginning of this case were answered by concluding that :

(1) Section 25 of the CPC applies to an interstate transfer of a lawsuit, appeal, or another proceeding when both States have a high court under Article 214 of the Constitution, but not when both States have a common high court under Article 231 of the Constitution; and 46.

(2)Additionally, if the High Court is the common High Court for two or more States under Article 231 of the Constitution and both the Civil Courts (transferor and transferee) are subordinate to it, it may exercise the power under Section 24 of the CPC even for the inter-State transfer of a suit, appeal, or another proceeding.

The supreme court asked the Gauhati High Court to give the application under section 24 of the CPC a reasonable amount of priority and to resolve it as soon as feasible, provided that it is convenient for all parties. Additionally, it directed the Parties to pay their expenses.

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-Report by Eshna Ray

The Supreme Court in the recent judgement of AMAN SEMI-CONDUCTORS (PVT.) LTD. VERSUS HARYANA STATE INDUSTRIAL DEVLOPMENT CORPORATION LTD. & ANR., passes required conditions that the Respondent needs to follow for the industrial plot allotment, failure to comply which will have consequences.

FACTS:

The appeals, brought by special leave, concern orders issued by the National Consumer Disputes Redressal Commission (NCDRC). The NCDRC allowed a revision petition filed by the respondent corporation, Haryana State Industrial Development Corporation (HSIDC), which had resumed an industrial plot allotted to the appellant, a proprietary concern, for failing to fulfill the terms and conditions of the allotment. The appellant had applied for the plot in 1994, and possession was handed over in 1995, but no concrete steps were taken to set up the industrial unit on the site. The appellant sought extensions of time, citing the absence of basic infrastructure facilities, but failed to produce any concrete evidence or document to satisfy HSIDC. The NCDRC held that the appellant’s grounds and reasons were vague and evasive and that HSIDC was justified in resuming the plot. These appeals challenge the NCDRC’s orders.

APPELLANT’S CONTENTIONS:

The appellant’s learned counsel, Mr. Rajiv K. Garg, argued that the appellant did not violate any of the terms of the allotment letter and had taken all the necessary steps in accordance with the terms of the allotment letter. The appellant had obtained the required certificate from the Industrial Department, applied for a power connection from the electrical department and deposited the requisite amount with the HSEB, and applied for financial assistance with the Financial Corporation. The appellant had also arranged for the required facilities from outside when they were not granted due to a change in government policy. The appellant’s counsel argued that the appellant did not violate any terms of the allotment letter and had taken all necessary steps, including obtaining certificates and applying for power connection and financial assistance. The appellant’s delay was due to government policy changes and not releasing capital. The counsel also contended that the resumption order was issued without granting an opportunity to the appellant and was non-speaking, which violated the principles of natural justice.

RESPONDENT’S CONTENTIONS:

In response to Mr. Garg’s arguments, Mr. Sangwan urged the court not to interfere with the NCDRC’s findings. He stated that the record showed that the appellant was given sufficient opportunity and a show cause notice was issued to him asking why he had not taken steps to construct an industrial unit on the plot. He argued that the overall objective of the scheme under which plots were allotted was to promote industrialization and ensure employment, and the persistent inaction of the appellant suggested that he was not interested in using the plot for any industrial activity.

Mr. Sangwan further highlighted that the allotment was based on the appraisal of the project proposed by the applicant and its feasibility, and the appellant was obliged to take swift and timely action towards putting up the unit as per the conditions in the allotment letter. He also argued that the allotment was hedged with several conditions, and many of them, upon violation, entailed cancellation. Therefore, he contended that HSIDC’s action in resuming the plot was not abhorrent or reprehensible.

JUDGEMENT:

The case revolves around the appellant’s allotment of an industrial plot by HSIDC and the subsequent cancellation of the allotment. The appellant claims that the cancellation was done without a hearing and violated principles of natural justice. Additionally, the lack of essential infrastructural facilities prevented construction within the stipulated time frame. The allotment had conditions for construction and production, and failure to comply could result in resumption by HSIDC. HSIDC could also call for periodical reports about the project’s progress.

Conditions for the industrial plot allotment included starting construction within six months and completing it within 1 1/2 years, as well as commencing production within two years of possession after constructing a minimum of 25% of the permissible covered area. Failure to meet these requirements would result in HSIDC resuming the plot, and the corporation could request periodic reports every six months about the project’s progress.

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CITATION

(2017) 9 SCC 1

INTRODUCTION

The case of Shayara Bano vs Union of India refers to a landmark judgment by the Supreme Court of India in 2017 that upheld the constitutional validity of the practice of Triple Talaq or instant divorce among Muslims in India. The case was filed by Shayara Bano, a Muslim woman from Uttarakhand, who challenged the practice of Triple Talaq, which allows Muslim men to divorce their wives by saying “Talaq” three times in one go, without giving any reasons or going through the legal process.

FACTS

Shayara Bano vs Union of India is a landmark case that challenged the practice of Triple Talaq or instant divorce among Muslims in India. The case was filed by Shayara Bano, a Muslim woman from Uttarakhand, who had been married to Rizwan Ahmed for 15 years and had two children. In October 2015, her husband divorced her by sending a letter with the word “Talaq” written thrice. Shayara Bano was devastated by the sudden and arbitrary divorce and decided to challenge the practice of Triple Talaq in court.

Shayara Bano’s petition challenged the legality of Triple Talaq, Nikah Halala, and polygamy, which are practices prevalent among the Muslim community in India. Triple Talaq is a practice that allows Muslim men to divorce their wives by saying “Talaq” three times in one go, without giving any reasons or going through the legal process. Nikah Halala is a practice where a divorced woman has to marry another man, consummate the marriage, and then get divorced again before remarrying her former husband. Polygamy is a practice where Muslim men are allowed to have multiple wives. Shayara Bano argued that these practices violated her fundamental rights as a woman and went against the principles of gender justice and equality enshrined in the Indian Constitution. She contended that the practices were arbitrary, and discriminatory, and left Muslim women vulnerable to abuse and injustice. She also argued that the practices were not essential to the practice of Islam and should be declared unconstitutional.

PROCEDURAL HISTORY

The case of Shayara Bano vs Union of India was filed in the Supreme Court of India on February 2016. Shayara Bano, the petitioner, challenged the constitutionality of the practice of Triple Talaq, which allows Muslim men to divorce their wives by saying the word “Talaq” three times in one go.

The case was assigned to a five-judge bench of the Supreme Court, which held several rounds of hearings and considered arguments from both sides. The bench was headed by Chief Justice J.S. Khehar and included Justices Kurian Joseph, Rohinton Fali Nariman, Uday Umesh Lalit, and Abdul Nazeer. The first hearing in the case was held on May 11, 2017, and the court directed the Union of India to file its response to the petition. The All India Muslim Personal Law Board (AIMPLB) was also allowed to intervene in the case and present its arguments.

The Union of India, represented by the Attorney General, took a neutral stand on the issue and argued that it was up to the Supreme Court to decide whether Triple Talaq was constitutional or not. The AIMPLB, on the other hand, supported the practice of Triple Talaq and argued that it was a matter of personal law and should be left to the community to decide.

The court held several rounds of hearings over the next few months and heard arguments from both sides. The bench also received submissions from several other Muslim women who had been victims of Triple Talaq and other similar practices.

Finally, on August 22, 2017, the Supreme Court delivered its judgment on the case.

JUDGEMENT AND ANALYSIS

This case is a landmark judgment that has inspired many women to make bold movements and is famously known as the judgment that changed India. This landmark case is also known for its unique diversity in the religion of the judges as it was headed by a Sikh Judge followed by judges from other religions namely, Christianity, Islam, Parsi, and a Hindu judge. In this case, Shayara Bano along with 4 other Muslim women was subjected to talaq e biddat also known as instant triple talaq. They demanded that talaq e biddat should be declared unconstitutional because they believed that it violated their fundamental rights. Hence the five-bench constitution bench mentioned before they were formed. It is also quite ironic that there was no women judge on the bench given the fact that the case dealt with gender justice. The verdict of this case was quite unexpected as the Supreme Court neither constitutionally banned nor legally, instead, they set aside the Muslim Personal law related to triple talaq. 2 out of the 5 judges namely CJI Khehar and Justice Nazeer said this law cannot be banned and the other 2 judges namely justice R.F.Nariman and Justice U.U.Lalit declared it unconstitutional. It was read perhaps for the first time that a Muslim Personal Law is also a fundamental right as the law comes under the religion of Islam and people have the right to practice any religion as a fundamental right. Thus, they said the law must not be banned.

On the other hand, the other two judges declared that the act was arbitrary, that is without any application of logic and also violating the fundamental rights of the women, the law is unconstitutional. They read that the Muslim personal is a pre-constitutional law that is not arbitrary and thus is to be banned. The last judge, Justice Kurian Joseph said that triple talaq is unislamic. He went on to justify his statement by stating that for talaq to occur, there are two prerequisites for the same. Justice Kurian Joseph said that for talaq to be valid, there must be reconciliation and arbitration and that in the form of triple talaq, there is no scope for either as it is irrevocable. Reconciliation and arbitration are two essentials of Islam divorce law where both parties may plan to reunite after marriage. Even though the judges did not declare it unconstitutional, it was sent forth to the parliament for implementation. Eventually, on 28 December 2017, the Lok Sabha passed the bill with a majority. 

The question here is whether the passing of the bill is a violation of the Islamic principle or a stepping stone toward women’s empowerment. 

We can see how patriarchal the laws are as the only way in which Muslim women can get separated from their Muslim husbands is by Talaq-e-Tafweez. The wife can approach the court for the dissolution of the marriage under the Muslim Marriage Act, of 1939 if any of the said conditions are practised by the husband. Moreover, it is like an agreement, they don’t have the option to pronounce talaq in different ways as Muslim men do. When talaq-e-biddat was banned in Shayara Bano v. Union of India., some sort of legal protection was awarded to the Muslim women and this landmark judgment was a ray of hope for them. 

Under the Muslim Women (Protection of Rights on Divorce) Act, 1986, Muslim women at the time of divorce can ask their husbands for maintenance only until the Iddat period. If the woman is not in a position to maintain herself and she has not married again, she is not entitled to ask her former husband for maintenance. Its constitutional validity was challenged in the landmark case of Daniel Latifi & Anr., v. Union of India.^[1], where it was argued that the rights of Muslim women are violated under articles 14, 15, and 21 of the constitution. Therefore, it was held that women are to be awarded maintenance under section 125 of CrPC. This section ensured that women in general is protected from destitution and vagrancy and were secular in nature.

These two landmark cases ensured the protection of the rights of women and a better position in society along with giving a wide interpretation of article 44 and the Uniform Civil Code. 

CONCLUSION

Men under Muslim law have the right to marry 4 women at a time whereas women can contractually enter only a single marriage. This clearly shows the patriarchy that women face and their plight when compared to men. In the present world of advanced science, technology, and advanced thinking, where there are different methods that have been developed for the rescue of people like adoption, IVF, etc. the procreation capacity of women cannot be considered a justification for polygamy. In such a scenario, UCC needs a safe and secure future for women in society. This is an important issue in the current scenario because, in many of Islam-practicing countries like Iran, Tunisia, Pakistan, etc. polygamy has already been abolished. It is high time for a country like India which give immense importance to human rights and equality to consider the same.

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ENDNOTES:

1. Daniel Latifi & Anr., v. Union of India., (2001) 7 SCC 740

This case analysis is done by Vishal Menon, from Symbiosis Law School, Hyderabad.

-Report by Arun Bhattacharya

The honourable Supreme Court of India on Monday (27^th of February, 2023) while allowing an appeal matter (SIRAJUDHEEN versus ZEENATH & Ors.) observed that “merely because a particular evidence which ought to have been adduced but had not been adduced, the Appellate Court cannot adopt the soft course of remanding the matter.” 

FACTS

The original matter concerned a civil suit filed by one of the sisters who were involved in an agreement regarding their father’s property. The primary cause of action arose because of a fraudulent or coercive sale deed executed between the original plaintiff and the present appellant which as per the former’s claim was signed under the misconception that it was an agreement of a completely different subject matter but later found out to be a sale of her portion or share in the partitioned property. The trial court dismissed the suit while the High Court in the appeal is not satisfied by the evidences and was confused to appropriately provide relief and hence remanded the matter back to the Trial Court for further incorporation of evidences. The respondents in that matter happened to be aggrieved by the same and filed the present appeal before the apex court.

APPELLANT’S CONTENTION

The counsel for the appellants primarily contended the fact that the honourable High Court was just in remanding the matter back to the Trial Court whereby giving the original plaintiffs another opportunity to adduce further evidences. This fact was a point of contention since it was their obligation while filing the initial suit and such ignorance should not be and cannot be made ground for furthering a matter which is already predisposed off. 

RESPONDENT’S CONTENTION

The respondent/ original plaintiff’s counsel tried to convince the apex court of the vitality of the stance of the High Court while remanding the matter. They highlighted the merits of the case that since the document/ sale deed was void, it was appropriate on part of the High Court to provide such an opportunity to the aggrieved parties to submit further documents in favour of supporting the same.

JUDGEMENT

The honourable apex court while pointing out some of the errors committed by the High Court while deciding the aforementioned appeal observed that

“the High Court has not at all referred to the findings of the Trial Court and it is difficult to find from the judgment impugned as to why at all those findings were not to be sustained or the decree was required to be reversed”.

The fundamental factor that the honourable Supreme Court of India emphasised was that the High Court was unable to provide just and proper reasons for remanding the matter back to the Trial Court when the latter had already concluded the same. Thus the lack of particular evidences which was expected by one party to be submitted but was not cannot be a just reason to remand the matter back to a court which had already concluded the matter on the basis of already provided evidences. This was the stance of the apex court while allowing the appeal and setting aside the impugned order of the High Court.

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-Report by Eshna Ray

The Constitution of India has been invoked by the petitioners under Article 32 to seek relief regarding the constitution of the Municipal Corporation of Delhi after the elections held on December 4, 2022. The elections were held to elect 250 Councillors, and the first petitioner is a prospective candidate for the post of Mayor. Despite over two months passed since the election, the election of the Mayor has not taken place. The matter is now before the Court, seeking a resolution to this delay in the constitution of the Municipal Corporation of Delhi.

Fact

The Delhi Municipal Corporation Act, 1957 is an act that establishes the municipal corporation in Delhi. Chapter II of the Act deals with the establishment of the corporation, and Section 35(1) provides for the election of the chairperson, known as the Mayor. Chapter V of the Act deals with the procedure and transaction of business by the corporation, and Section 72(1) provides for monthly meetings.

The controversy in the case before the court was whether aldermen nominated by the Administrator have the right to vote at the first meeting of the corporation where the Mayor is elected and the order of holding elections. The opposing views were that the aldermen should not have the right to vote, and all elections should be held simultaneously, respectively.

Article 243R of the Indian Constitution deals with municipalities, and Clause (1) stipulates that all seats in a municipality shall be filled by direct election. An exception is provided in Clause (2) of the Article, which allows the legislature of a state to provide for representation in a municipality of persons with special knowledge or experience in municipal administration. The Court heard arguments from both sides and considered the provisions of the Delhi Municipal Corporation Act, 1957, and Article 243R of the Constitution.

Judgement

In this case, the Court was dealing with the question of the order in which the election of the Mayor, Deputy Mayor, and members of the Standing Committee of the Municipal Corporation of Delhi should be conducted. The Court referred to the relevant provisions of the Constitution and the Delhi Municipal Corporation Act, 1957, and also relied on the judgment in Ramesh Mehta v Sanwal Chand Singh (2004) 5 SCC 409.

Article 243R of the Constitution provides for the composition of Municipalities. Clause (1) of the Article provides for direct election to all the seats in a Municipality, subject to exceptions provided in clause (2). Clause (2) contains provisions, inter alia, for the representation in a Municipality of persons having special knowledge or experience in Municipal administration as well as other persons such as members of the House of the People and the Legislative Assembly and members of the Council of States and the Legislative Council of the States representing the specific constituency and the Chairpersons of the Committees constituted under clause (5) of Article 243S. The Constitution has imposed a restriction in terms of which nominated members who are brought in on account of their special knowledge or experience in Municipal administration do not have the right to vote. The same restriction finds statutory recognition in Section 3(3)(b)(i) of the Delhi Municipal Corporation Act, 1957.

The Court held that the election of the Mayor should be held first, and upon the election of the Mayor, the Mayor shall act as the presiding authority for conducting the election of the Deputy Mayor and the members of the Standing Committee. The Court clarified that the prohibition on the exercise of vote by the nominated members in terms of Section 3(3)(b)(i) shall continue to operate even during the election of the Deputy Mayor and members of the Standing Committee. The Court directed that the notice convening the first meeting of the Municipal Corporation of Delhi should be issued within a period of twenty-four hours and should fix the date for convening the first meeting at which the election of the Mayor, Deputy Mayor, and members of the Standing Committee shall be conducted in terms of the above directions.

The Supreme Court issued directions for the first meeting of the Municipal Corporation of Delhi, which includes holding elections for the Mayor and Deputy Mayor posts, and members of the Standing Committee. Members nominated in Section 3(3)(b)(i) of the Act cannot vote in these elections. The elected Mayor will preside over the elections for Deputy Mayor and Standing Committee members, where the same prohibition on voting by nominated members will apply. The notice for the first meeting must be issued within 24 hours and should include the dates for the elections as per the Court’s directions.

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-Report by Eshna Ray

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

FACTS:

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

RESPONDENT’S CONTENTIONS:

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

PETITIONER’S CONTENTIONS:

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

JUDGEMENT:

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

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

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

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