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Article 226 being an extraordinary remedy, is not intended to be used for the purpose of declaring private rights of the parties: Allahabad High Court

The remedy under Article 226 of the Constitution being an extraordinary remedy, it is not intended to be used for the purpose of declaring private rights of the parties. For the enforcement of contractual rights and liabilities the normal remedy of filing a civil suit must be availed and the court would not exercise its prerogative writ jurisdiction to enforce contractual obligations. This declaration was made by the Allahabad High Court presided by J. Y.K. Srivastava and J. Surya Prakash Kesarwani in the case of Badri Narayan Shukla Associates vs. State of U.P. and othrs [Writ.C.No. 13291 of 2020].

In the present case, the respondent had invited tender for a civil work and the petitioner was successfully awarded the contract as he was the lowest bidder. The pleadings and the documents indicate that there arose a dispute regarding the work not being up to the standards and was not completed within the scheduled time. The petitioner filed writ petition before the court under article 226 in the nature of certiorari to call for record of the case to provide that the payment of his earlier work has been denied on false ground that the payment has already been made and also by which his contract had been cancelled. He further issued a writ of mandamus directing the respondent to pay the rest amount of the work done by the petitioner immediately and also not to take any coercive action against the petitioner.

The honorable court in the present case asserted, “The remedy under Article 226 of the Constitution being an extraordinary remedy, it is not intended to be used for the purpose of declaring private rights of the parties. In the case of enforcement of contractual rights and liabilities the normal remedy of filing a civil suit being available to the aggrieved party, this court would not exercise its prerogative writ jurisdiction to enforce such contractual obligations. The only exception may be a case where the amount is admitted and there is no disputed question of fact requiring adjudicating of detailed evidence and interpretation of the terms of the contract. In the case at hand, the reliefs sought as per the case set up by the petitioner, would require adjudication of serious factual disputes relating to terms of the contract in respect of the prescribed standards of work and the time schedule for its completion. There is also serious dispute with regard to the extent of the work completed and the payments which are due. The pleadings and the material which are on record do not in any manner indicate that it is a public law remedy which the petitioner is seeking to invoke so as to persuade us to exercise our discretionary jurisdiction.”

Reference was made to the case of M/s Lalloo Ji Rajiv Chandra And Sons vs. Meladhikari Prayagraj Mela Authority and others, reiterated the legal position that in a case of non-statutory contract, the remedy available to the contractor, if he is aggrieved by non-payment, would be either to file a civil suit or if there is an arbitration agreement between the parties, to invoke the terms of the agreement. The writ petition was dismissed with the following observation that in the present case, there is nothing to held that the contract is a statutory contract. The remedy of the contractor, if he is aggrieved by non-payment, would be to either file an ordinary civil suit or if there is an arbitration agreement between the parties, to invoke the terms of the agreement.

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Appropriate compensation for disability should take care of all the non-pecuniary damages of a minor: Rajasthan High Court

Appropriate compensation for disability should take care of all the non-pecuniary damages. The compensation awarded should enable the child to acquire something or to develop a lifestyle which will offset to some extent the inconvenience or discomfort arising out of the disability. This assertion was made by the Rajasthan High Court Jaipur Bench presided over by J. Prakash Gupta in the case of HDFC Ergo General Insurance Company Ltd., Ajmer vs. Khushi, Abid Khan and Abhishek Patidar [S.B. Civil Miscellaneous Appeal No. 5421/2018] connected with Khushi vs. Abid Khan, Abhishek Patidar and HDFC Ergo General Insurance Company Limited, Ajmer [S.B. Civil Miscellaneous Appeal No. 1074/2019].

In the present case, the claimant was travelling with seven others when their vehicle met with an accident. She was the sole survivor and was 15 years of age when her statement was recorded. She filed for the compensation from the insurance company. The insurance company declining the claim pleaded that she was minor and her statement could not be relied upon. The claimant on the other hand, filed for the enhancement of the amount of compensation which was supposed to be provided by the insurance company to her.

The honorable court in the present case declared, “in view of the facts and circumstances, as mentioned above, the appeal filed by the claimant is partly allowed. The claimant would be entitled to receive Rs.9,18,820/- as compensation instead of Rs.6,68,820/- as awarded by the Tribunal. Other terms and conditions of the award shall remain unchanged. The Insurance Company shall deposit the enhanced amount along with interest @ 6% p.a. from the date of filing the claim petition till the date of payment”.

The Apex Court in the case Kumari Kiran through her father Harinarayan Vs. Sajjan Singh & Ors. 2015 (1) R.A.R.87 (SC) held, “we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs.” Hence, this Court in accordance with the principles laid down by this Court and after examining the facts, evidence on record and circumstances of the case on hand, we deem it fit and proper to award Rs.3,00,000/- towards permanent disability of the appellant-minors viz. Kumari Kiran and Master Sachin, since they have suffered 30% and 20% permanent disability respectively, due to the shortening of their right leg by one inch after the injuries sustained in the motor accident.”

Further, reference was made to the case of R.D. Hattangadi v. Pest Control (India) Pvt. [CMA-5421/2018] Ltd. and Ors. [(1995) 1 SCC551], in which this Court had contended, “while assessing the non-pecuniary damages, the damages for mental and physical shock, pain and suffering already suffered and that are likely to be suffered, any future damages for the loss of amenities in life like difficulty in running, participation in active sports, etc., damages on account of inconvenience, hardship, discomfort, disappointment, frustration, etc., have to be addressed especially in the case of a child victim. While considering the claim by a victim child, it would be unfair and improper to follow the structured formula as per the Second Schedule to the Motor Vehicles Act for reasons more than one. The main stress in the formula is on pecuniary damages. For children there is no income.”

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No Mandamus can be issued for shifting Mobile tower to other place: Uttarakhand High Court

Where a Mobile tower should be erected is a decision that must be taken by the authorities of the state and it is neither the responsibility nor the duty of the court. Uttarakhand High Court had given its decision in the case of Samay Sharma vs. State of Uttarakhand [Writ petition (PIL) no. 14 OF 2021] stating the above-cited reasons by the bench of Hon’ble Chief Justice Raghvendra Singh Chauhan and Justice Manoj Kumar Tiwari.

In the instant case, Petitioner Samay Sharma had filed a petition stating that Indus Towers Ltd. (respondent no. 5) has been permitted to erect a mobile tower in Aaganwadi Campus, Shivlok Colony, Ramnagar, Raipur, Dehradun. Petitioner had argued that the mobile tower may adversely affect not only the children but whoever will be attending the Aaganwadi Campus and who’ll be residing in the residential area of the colony. Therefore, the petition was filed to direct the authorities to move the tower to some other place.

While observing, HC asked the petitioner’s counsel if there’s any bar in law that prevents a mobile tower from being erected. HC bench contended that “No mandamus can be issued to the respondents for shifting the mobile tower to another place”, observing that “It is neither the responsibility nor the duty of this Court to run the administration.”

High Court, however, gave liberty to the petitioner to file a representation before the respondents and directed them to decide the representation, after giving an opportunity of being heard to the petitioner.

Hence, HC decided to dismiss the petition and stated “At best, if the petitioner were to file a representation before the respondent nos. 1, 2, 3, 4 & 6, they are directed to decide the representation, after giving an opportunity of hearing to the petitioner, and after hearing all his grievances with regard to the erection of the Tower, and shall pass a reasoned order thereafter. Such exercise shall be carried out by the said respondents within three weeks, after receiving the representation to be filed by the petitioner.”

While disposing of the plea, HC opined that where a mobile tower should be erected is a decision that needs to be taken by the respondents themselves i.e, the authorities including the State of  Uttarakhand, District Magistrate, Dehradun, Dehradun Smart City Limited, Mussoorie Dehradun Development Authority and Nagar Nigam, Dehradun.

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Production Capacity of Raw Pet Coke is subject to the ‘Consent to operate’: Delhi High Court

Production Capacity of Raw Pet Coke is subject to the ‘Consent to operate’. The Consent to Operate from the State Pollution Control Board is required for establishing or operating any industrial plant or operation. This assertion was made on behalf of the Delhi High Court by J. Navin Chawla in the case of Rain CII Carbon Vizag ltd. and Anr. Vs Union of India and Othrs. [W.P.(C). 3709/2020].

In the present case, The petitioner had prayed before the Hon’ble Supreme Court to enhance the limit of 1.4 Million MT by a specific quantity of 4,88,000 MT which it has expanded through its SEZ unit. The Supreme Court has set the outer limit for import of raw pet coke cannot exceed 1.4 MT per annum in total. In view of the aforesaid, prayers made on the basis of expansion etc. are totally misconceived and cannot be entertained. No further orders are required to be passed on these. The same are hereby dismissed. Therefore, the order of the Hon’ble Supreme Court is clear neither the limit of 1.4 Million MT can be enhanced nor the expansion of the capacity by the calciners can be entertained.

The respondents asserted that the Supreme Court had merely fixed the limit of 1.4 million MT for import of RPC and did not decide upon the installed capacity of various parties or their entitlement to the RPC. It was observed that the Committee rejected the plea on account of dismissal of its application by the Supreme Court and more importantly, because it found that “as per the official record” the additional capacity of 1.30 lakh MT had been created by the petitioner after the order of the Supreme Court.

The Committee on behalf of the honorable court while considering the submission of the petitioner was of the view that, “the capacity of each applicant was decided on the basis of consent to operate available with the firm on the date on which the Hon’ble Supreme Court passed the order and the firm was not having consent to operate then. Any other criteria for deciding the capacity will be a highly contentious issue and will be fraught with endless interpretations.” The Committee again placed reliance on the orders of the Supreme Court, it also clarified that, “the Production Capacity had been determined on basis of ‘Consent to Operate’ and that any other criteria for deciding the capacity will be highly contentious issue and will be fraught with endless interpretation.”

The Consent to Operate from the State Pollution Control Board is required for establishing or operating any industrial plant or operation. As noted hereinabove, DGFT in its Public Notice(s) has required the eligible entity to produce valid Consent to Operate in support of their application for allocation of RPC.

The court referred to the case of M.C. Mehta v. Union of India & Ors. [WP(C) 13029/1985], where EPCA stated that, “based on extensive discussion between MoEFCC, MoPNG and DGFT, a regime for regulating import of pet coke had been suggested by DGFT, which is also compliant with WTO norms. EPCA stressed that this regulatory framework should be immediately implemented and import of pet coke should be permitted only in those industries where pet coke is used as a feedstock or in the manufacturing process and not as a fuel. These industries, which have been permitted to us pet coke in NCR states. Also, pertaining to this, several guidelines were laid down and it was established that the ‘Consent of Order’ shall determine the capacity of production”.

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Slight difference in the nature of services for the battle against Covid-19: Delhi High Court

The slight difference in the nature of services and a slightly higher percentage of risk due to the proximity of the client and the service provider can be obviated by prescribing stricter measures and safeguards. Such preventive measures must be adopted rather than continuing to keep the establishments closed. This was contended by the Delhi High Court, in the case Ms. Sukaita and othrs. vs. Government of NCT of Delhi and Anr. [W.P.(C)6555/2020] and Association of Wellness Ayurveda and Spa vs. Government of NCT of Delhi [W.P.(C)7366/2020], presided by J. Pratibha M. Singh.

In the present case, the Petitioners are technical workers who have been trained under various national bodies and run spas in Delhi. In effect, the grievance of the Petitioners is that, after the lockdown in March 2020, though various other establishments have been permitted to reopen and commence businesses, spas have still been forced to remain closed. The Petitioner is also aggrieved by the delay by GNCTD and the Ministry of Home Affairs in issuing guidelines for re-opening of spas. Accordingly, the Court permitted the reopening of spas, wellness clinics and similar establishments, in the GNCTD, by laying specific guidelines to be followed and strict measures to be taken.

The honorable Court asserted that, “The slight difference in the nature of services and a slightly higher percentage of risk due to the proximity of the client and the service provider can be obviated by prescribing stricter measures and safeguards rather than continuing to keep such establishments closed. It also cannot be lost sight of that several salons also provide services akin to those provided in spas. Thus, the difference between the services provided in Salons and Spas is very minimal. Both these services require service providers and service takers to remain in close proximity for a sufficient duration. Thus, while allowing the opening of salons, continuing the embargo on spas would be violative of the rights of these establishments and their employees”. The court further held, “While this Court is conscious of the importance of prescribing strict safeguards that ought to be taken by establishments providing spa services as also the clients who visit these establishments, the continuation of the embargo on reopening of spas is unjustified. Accordingly, this Court permits the reopening of spas, wellness clinics and similar establishments, in the GNCTD.”

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