Difference between Court and persona designata!

A persona designata is a person who is pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character.

[per Schwabe, C.J. in Parthasaradhi Naidu v. Koteswara Rao]

Where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms confer a right of appeal.

[Source: Secretary of State for India v. Chelikani Rama Rao (1916) L.R. 43 I.A. 192 : S.C. 18 Bom. L.R. 1007 relied in Adaikappa Chettiar v. R. Chandrasekhara Theva, (1948) 50 BOMLR 18]

Whether the order passed by the City Civil Court in exercise of power under Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, as an Appellate Officer, is in the capacity of a Civil Court or persona designata?

Continue reading “Difference between Court and persona designata!”

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Declaration of assets by an Election Candidate

Fundamental right of citizens to know about financial position of a Candidate.

The petitioner submits that the first step in the collection of data should be to call upon those who seek to get elected to a legislative body to make a declaration of – (i) their assets and those of their ASSOCIATES (which is already a requirement under Section We must make it clear that nothing in law prevents a vigilant citizen from collecting such data for initiating appropriate proceedings in accordance with law. 33 of the RP Act of 1951 etc.); and (ii) the sources of their income.

The information regarding the sources of income of the CANDIDATES and their ASSOCIATES, would in our opinion, certainly help the voter to make an informed choice of the candidate to represent the constituency in the LEGISLATURE. It is, therefore, a part of the fundamental right under Article 19(1)(a).

Continue reading “Declaration of assets by an Election Candidate”

Liability of Insurance Company if vehicle is driven by unlicensed person

Compensation to victim of motor accident and liability of Insurance:

Facts and questions of law:

Vehicles insured with the petitioners were involved in accidents resulting in filing of claim applications by the respective legal representatives of the deceased(s) or the injured person(s), as the case may be.

Defences raised by the Petitioner company in the claim petitions purported to be in terms of Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) were :

(a) driving licence produced by the driver or owner of the vehicle was a fake one;

(b) driver did not have any licence whatsoever;

(c) licence, although was granted to the concerned driver but on expiry thereof, the same had not been renewed;

(d) licence granted to the drivers being for one class or description of vehicle but the vehicle involved in the accident was of different class or description; and

(e) the vehicle in question was driven by a person having a learner’s licence.

Continue reading “Liability of Insurance Company if vehicle is driven by unlicensed person”

Correct multiplier for death of victim aged about 29 years

Compensation for death in accident with motor vehicle:

Death of victim aged 29 years.

The case of the claimants rested on the premise that the deceased was likely to be made permanent in which event, he would be entitled to a higher salary. PW 3, who was the Secretary of the Trust, deposed that though the strength of the students had increased, and the workload had increased, persons such as the deceased continued in service on a contract basis for want of sanction from the government for the post. The High Court observed that the evidence of PW 3 was that if the government were to sanction the post, considering the seniority and experience of the deceased, the Trust would have appointed him as a permanent teacher in which event his salary, according to the scales of the 6th Pay Commission, would have been Rs 40,000 per month. The finding was that the deceased at the relevant time was 29 years of age; that he had completed his B.Ed. from the University of Mumbai and was an Assistant Teacher employed on a temporary/contract basis for teaching English from 2001 to 2006. The High Court adverted to the provisions contained in the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. In this background, the High Court arrived at the finding that if the deceased were to be alive, he would have been regularized and would have drawn a salary of Rs 40,000/- per month. Continue reading “Correct multiplier for death of victim aged about 29 years”

Marriage does not change the caste.

Marriage of a Vaishya with a Jatav.

Appellant was born in “Agarwal” family. She married Dr. Veer Singh, who happens to belong to “Jatav” Community (said to be one of the Scheduled Castes). A caste certificate dated 29.11.1991 was issued by District Magistrate/Collector, Bulandshahar certifying the appellant as of Scheduled Caste (Jatav). Based on the academic qualifications and the caste certificate, she was appointed initially as a Post Graduate Teacher (Hindi) vide letter dated 16.12.1993 at Kendriya Vidyalaya No.1, Pathankot, Punjab. During the course of her service, she completed her M.Ed and served the institution for about 21 years as teacher.
Continue reading “Marriage does not change the caste.”

Appointment of persons with criminal background in police forcce

Acquittal by itself not enough for appointment:

The question involved in these appeals is whether the candidature of the respondents who had disclosed their involvement in the criminal cases and also their acquittal could be canceled by the Screening Committee on the ground that they are not suitable for the post of constable in Chandigarh Police and whether the court can substitute its views for the decision taken by the Screening Committee.

Screening Committee examined each and every case of the respondents and reasonings for their acquittal and taken the decision. While deciding whether a person involved in a criminal case has been acquitted or discharged should be appointed to a post in a police force, nature of offence in which he is involved, whether it was an honourable acquittal or only an extension of benefit of doubt because of witnesses turned hostile and flaws in the prosecution are all the aspects to be considered by the Screening Committee for taking the decision whether the candidate is suitable for the post. As pointed out earlier, the Screening Committee examined each and every case and reasonings for their acquittal and took decision that the respondents are not suitable for the post of Constable in Chandigarh Police. The procedure followed is as per guideline 2(A)(b) and object of such screening is to ensure that only persons with impeccable character enters police force. While so, the court cannot substitute its views for the decision of the Screening Committee.

In a catena of judgments, the importance of integrity and high standard of conduct in police force has been emphasized. As held in Mehar Singh case, the decision of the Screening Committee must be taken as final unless it is mala fide. In the case in hand, there is nothing to suggest that the decision of the Screening Committee is mala fide. The decision of the Screening Committee that the respondents are not suitable for being appointed to the post of Constable does not call for interference.

[Source: Union Territory, Chandigarh  vs Pradeep Kumar, decided by SC on 8 January, 2018]

Jurisdiction of Court created under Kerala Cooperative Societies Act

Industrial or Labour Court vs. Cooperative Court

Whether a service dispute arising between the Cooperative Society’s Employee and his Employer is capable of being tried by the forum prescribed under the KCS Act or by the machinery provided under the ID Act or it is capable of being tried under both the Acts leaving the aggrieved person to select one forum under any of the Acts of his choice out of the two for getting his/her service dispute decided by such forum?

First, the language of Section 69 of the KCS Act as it originally stood is materially different from the language used in its counter part Sections of two earlier repealed Kerala Co-operative Societies Acts of 1932 and 1951. This departure made in the language employed in Section 69 of the KCS Act qua language of earlier two repealed Acts is significant and has a material bearing while answering the questions. Continue reading “Jurisdiction of Court created under Kerala Cooperative Societies Act”

Reservation procedure when Reserved candidate selected on merits.

Reserve candidate qualifying on merits

Often, in a competitive examination held for the purpose of admission in technical and medical institutions etc. some candidates belonging to reserved category/categories, qualify for the higher ranking on the basis of their own merit and depending on their performance in the common entrance test, are placed in the general merit list. Such class of candidates belonging to reserved categories who qualify on their own merit, to be placed in general merit list, are described, for the purpose of convenience, as Meritorious Reserved Candidate (MRC). It is by now well settled that a MRC who goes on to occupy a general category seat is not counted against the quota reserved for a reserved category candidates, but is treated as an open competition candidate or general merit candidate. This Court in the case of Indra Sawnhey v. Union of India, 1992 Supp (3) SCC 217 has observed thus: Continue reading “Reservation procedure when Reserved candidate selected on merits.”

Compliance with natural justice

Decision without opportunity of hearing.

On behalf of the appellants it is urged that the appellants had received notice dated 08.07.2014 from the National Commission and, thereafter, they had sent a reply on 25.07.2014 praying that the matter may be heard in the Camp Sitting of the National Commission at Bengaluru. According to the appellants, no reply was received to this letter. On behalf of the claimants/respondents it is urged that the appellants were aware of the case and that the matter had been settled on the basis of a compromise arrived at by the appellants with another consumer and there is no need to set aside the order. After going through the record we find that the appellants had made a request that their matter be heard at Bengaluru. Copies of the orders passed thereafter have been placed on record and the record does not show that the appellants were ever informed that their request for having the matter heard at Bengaluru was either accepted or rejected. Therefore, we are of the considered opinion that the National Commission erred in not issuing fresh notice to the appellants. Accordingly, the order of the National Commission is set aside and the matter is remitted to the National Commission for hearing the same on merits.

[Source: Mangalam Homes & Resorts Pvt. … vs Joy Kaliyavumkal decided by SC on 10 January, 2018]

National Anthem playing in Cinema Halls in India

Directions to play National Anthem of India

On 30th November, 2016, taking note of the assertions made in the petition, Court had passed an interim order, which reads thus:-

―Having heard the learned counsel for the parties and awaiting the reply from the Union of India, as an interim measure, it is directed that the following directions shall be scrupulously followed:-

(a) There shall be no commercial exploitation to give financial advantage or any kind of benefit. To elaborate, the National Anthem should not be utilized by which the person involved with it either directly or indirectly shall have any commercial benefit or any other benefit.

(b) There shall not be dramatization of the National Anthem and it should not be included as a part of any variety show. It is because when the National Anthem is sung or played it is imperative on the part of every one present to show due respect and honour. To think of a dramatized exhibition of the National Anthem is absolutely inconceivable.

(c) National Anthem or a part of it shall not be printed on any object and also never be displayed in such a manner at such places which 3 may be disgraceful to its status and tantamount to disrespect. It is because when the National Anthem is sung, the concept of protocol associated with it has its inherent roots in National identity, National integrity and Constitutional Patriotism.

(d) All the cinema halls in India shall play the National Anthem before the feature film starts and all present in the hall are obliged to stand up to show respect to the National Anthem.

(e) Prior to the National Anthem is played or sung in the cinema hall on the screen, the entry and exit doors shall remain closed so that no one can create any kind of disturbance which will amount to disrespect to the National Anthem. After the National Anthem is played or sung, the doors can be opened.

(f) When the National Anthem shall be played in the Cinema Halls, it shall be with the National Flag on the screen.

(g) The abridge version of the National Anthem made by any one for whatever reason shall not be played or displayed.‖

4. After issuing the directions, this Court noted the submissions of the learned Attorney General which were to the following effect:-

―We have so directed as Mr. Mukul Rohtagi, learned Attorney General for India submits with all humility at his command and recommend that National Anthem has to be respected. The directions are issued, for love and respect for the motherland is reflected when one shows respect to the National 4 Anthem as well as to the National Flag. That apart, it would instill the feeling within one, a sense committed patriotism and nationalism.

Modification of directions on 14th February, 2017

In view of the aforesaid, it is clarified that when the National Anthem is sung or played in the storyline of a feature film or par of the newsreel or documentary, apart from what has been stated in the order dated 30.11.2016, the audience need not stand.

At this juncture, we may state that the Parliament has brought a new legislation called ‘The Rights of Persons with Disabilities Act, 2016. Section 102 repeals ‘The Persons with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act, 1995. This Court on 9.12.2016 has modified the earlier order regard being had to the handicapped persons keeping in view the 1995 Act. On a query being made, Mr. Mukul Rohatgi, learned Attorney General for India submitted that the Union of India shall issue an appropriate notification/guidelines in view of the language employed in the Rights of Persons with Disabilities Act, 2016. The said notification/guidelines may be issued within a week hence.

Mr. Subhash Chandran, learned counsel submits that he may be permitted to file an application for intervention on behalf of the National Platform for the Rights of the Disabled. He is at liberty to file the application.‖

7. On 18th April, 2017, dealing with I.A. No.15 of 2017, which also related to disabled persons, certain modifications were made. The said order is as follows:-

―This is an application filed by the NPRD to direct the respondent No.1 to exempt certain categories of disabled persons from the purview of the order of this Court dated 30th November, 2016 and 9th December, 2016. The categories of persons mentioned are:-

(i) Wheel chair users – can be cerebral palsy, Parkinsons, Multiple sclerosis, Muscular dystrophy or other conditions

(ii) Those with autism

(iii) Those with cerebral palsy

(iv) Intellectual disabilities

(v) Mental illness

(vi) Deaf blind

(vii) Multiple disabilities

(viii) Parkinsons, Multiple sclerosis

(ix) Leprosy cured

(x) Muscular dystrophy Having heard learned counsel for the parties, we are inclined to modify the orders and direct that the persons who are wheel chair users, those with autism, persons suffering from cerebral palsy, multiple disabilities, parkinsons, multiple sclerosis, leprosy cured, muscular dystrophy and deaf and blind be treated not to be within the ambit of the orders passed by this Court.

As far as the other categories, which we have not referred to mentioned in the application, are concerned, the same may be considered by the Union of India.

Modifications dated 9th January 2018

When we consider the perspectives put forth before us pronounced in their own way, we have no shadow of doubt that one is compelled to show respect whenever and wherever the National Anthem is played. It is the elan vital of the Nation and fundamental grammar of belonging to a nation state. However, the prescription of the place or occasion has to be made by the executive keeping in view the concept of fundamental duties provided under the Constitution (See article 51-A) and the law.

In view of the aforesaid, we do not intend to keep the writ petition pending and dispose of the same with the following directions:-

(i) The Committee appointed by the Union government shall submit its recommendations to the competent authority in terms of the Notification dated 5th December, 2017, for follow up action.

(ii) The order passed on 30th November, 2016, is modified to the extent that playing of the National Anthem prior to the screening of feature films in cinema halls is not mandatory, but optional or directory.

(iii) Since the Committee constituted by the Union government is looking into all aspects of the matter, it shall make its recommendations uninfluenced by the interim directions of this Court, as clarified in our order dated 23rd October, 2017. Similarly, the competent authority shall in taking its decision(s) not be constrained or influenced by any of the interim directions.

(iv) Citizens or persons are bound to show respect as required under executive orders relating to the National Anthem of India and the prevailing law, whenever it is played or sung on specified occasions.

(v) The exemption granted to disabled persons shall remain in force till the final decision of the competent authority with regard to each occasion whenever the National Anthem is played or sung.

[Source: Shyam Narayan Chouksey vs Union Of India, decided by SC on 9 January, 2018]