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The High Court, in exercise of discretion under Article 226, will not entertain a petition under Article 226 when the statutory alternate remedy is available was held by the Delhi High court in case of RAJNI PARMAR V. DIRECTOR GENERAL ARMED FORCES MEDICAL SERVICES & ORS. [W.P. (C) 11149/2020]

Facts of the case are, the petitioner, a Junior Hindi Translator with the respondent No.1 Director General Armed Forces Medical Services (DGAFMS), has filed this petition impugning the order dated 17th December, 2020 and seeking a direction to the respondents to consider the case of the petitioner on compassionate grounds at the post of Junior Hindi Translator at Respondent no. 3 Armed Forces Medical Store Depot (AFMSD) Delhi Cantt., which is stated to be lying vacant.

Importantly, the petition was found to be in abuse of the process of the Court.  HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW AND HON’BLE MS. JUSTICE ASHA MENON stated that, “What shocks us is that a transferable employee has been able to, by abusing the process of the court, stall transfer for so long.

However, the petitioner, being a civilian employee, has the remedy of approaching the Central Administrative Tribunal (‘CAT’) and has in the past in fact approached the CAT. However, his contention is that the petitioner “can always approach the High Court under Article 226 of the Constitution of India”

Also, the counsel for the petitioner does not dispute that the job of the petitioner is transferrable. The counsel for the petitioner however contends that since there is a vacancy at Delhi, the petitioner, owing to her family circumstances, should be posted against that vacancy. However, he again agrees that merely because there is a vacancy, there is no right to be appointed at that vacancy. As far as, the family circumstances of the petitioner are concerned, the same are not found by us to be of such nature which any of the other government employee, also desiring to be posted at Delhi, would not have.

Nonetheless, the counsel for the petitioner stated that the petitioner is willing to join at AFMSD Lucknow within two weeks of the transfer order being issued. He stated that the transfer order has not been issued till now and without the transfer order, the petitioner cannot proceed to Lucknow.

Moreover, the undertaking of the petitioner that she will, on or before 30th December, 2020, join at AFMSD Lucknow, is accepted and the W.P. (C) 11149/2020 Page 5 of 5 petitioner, through counsel, is made aware of the consequences of breach of undertaking given to the Court.

Delhi High Court held that “Subject to the petitioner complying with the undertaking and performing her duties at AFMSD Lucknow, the writ petition be treated as a representation of the petitioner for being transferred from AFMSD Lucknow to a unit in Delhi and the said representation be decided on or before 31st March, 2021. 16. The petition is disposed of subject to just exceptions and as per extant rules.”

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The principle of ‘Res Ipsa Loquitor’ (rule of presumption that a particular act points towards negligence of another) applies in cases of medical negligence. If a patient suffers an complication which was not contemplated in the normal course of treatment/operation/surgery the above said principle will apply. The ration was laid down by the Kerala High Court presided over by J. S.V. Bhatti & J. B.K. Thomas, in the case of M/s. PRS Hospital & Anr. Vs. P. Anil Kumar [ RFA No. 131 of 2020].

The facts of the case are that a 29 year old was undergoing a surgery for removal of kidney stones and after the surgery he lost his sound and became a paraplegic. A suit for medical negligence was filed by the patient in the Sub-Court of Thiruvananthapuram, and the court affirmed that the patient suffered the complication due to medical negligence and awarded a compensation of Rs. 20,40,000/- along with interest and cost of the suit. The Hospital and doctor filed an appeal in the High Court only challenging the contention of Medical Negligence and not challenging the compensation.

The High Court observed that before the surgery the patient was fit and came walking into the hospital 30 minutes after the surgery he suffered these two complications and hence this is a result of medical negligence. The court relied on the landmark judgment of V.Kishan Rao v. Nikhil Super Speciality Hospital & Anr. [(2010) 5 SCC 513]. The Court stated that, “As a patient, when one lies on the operation table, that too under general anesthesia, it is impossible for the patient to comprehend what happens around him. When the patient is under general anesthesia, he is unaware of the processes that are being carried out. Admittedly, the plaintiff was being operated upon under general anesthesia. it was not possible for the plaintiff to specify the nature of acts done or performed on him, that could be depicted as negligent. Plaintiff, as a patient undergoing a procedure, can never claim knowledge of the niceties of the procedure and actual omissions, if any, by the professional, whom he relied upon for treatment.” The court dismissing the appeal stated that, “Defendants failed to prove the cause of the injury sustained by the plaintiff. Even though he deposed that the cardiologist of the Hospital and two other Doctors had seen the plaintiff when the injury occurred, none of them were examined as witnesses or even cited as witnesses. Even the anesthetist who was inside the operation theater throughout was not examined. These are all direct witnesses who were not examined. Even the vague and indirect reference to a possible lack of oxygen supply to the brain and its cause has not been explained by the defendants. They have miserably failed to discharge their onus or explain the cause of the injury.”

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Section 304B was incorporated in the Penal Code, 1860 by the Dowry Prohibition (Amendment) Act, 1986 (Act 43 of 1986). The object of the amendment was to curb dowry death. Section 304B does not categorize death, it covers every kind of death that occurs otherwise than in normal circumstances.

The petitioner was granted regular bail, considering all the facts and circumstances and in light of the allegations made against him, however he shall not leave the NCR region without permission of the Trial Court and shall not contact any of the witnesses of the prosecution and directly or indirectly influence them, Delhi High Court presided over by J. JAYANT NATH held in the case PRAVEEN @ PARVEEN V. STATE [CRL. M. A. 14935/2020]

Facts of the case are that marriage between the petitioner and the deceased was solemnized on 12.12.2018. The death took place within six months from the date of marriage. On 01.07.2019 statement of Shri Arun Kumar Viz/Complainant was recorded who is the father of the deceased by the SDM Dwarka. The FIR in question was registered under Section 304B/498A/34 on 02.07.2020. A perusal of the FIR showed that the marriage between the petitioner and the deceased was solemnized on 12.12.2018. The barat had come from Pavti Village, District Panipat. The barat came without a horse, baggi, drum and there was a gathering of only about 50 persons in the barat. For the ring ceremony also only 11 persons had come. It was contended that no demand of dowry etc. was raised. However, it was brought into light that Rs.50,000/- was given after the marriage on the ground of financial constraint.

Nonetheless, it was urged by learned counsel for the petitioner that the marriage between the petitioner and the deceased was a love marriage. A very small barat had come and the marriage was celebrated without any pomp and show. Also, it was also stated that it was on account of temperamental differences and the fact that the parties have come from different backgrounds and that the deceased was unhappy and committed suicide.

However, the Allegations against the petitioner were denied. JUSTICE JAYANT NATH stated that It appears that the marriage was by consent of the couple and was a simple affair. The couple used to stay separately. No evidence has been found against the parents of the petitioner. The court further stated that, “The bail application is disposed off and the petitioner will furnish a bail bond for a sum of Rs.50,000/- with one surety of the like amount to the satisfaction of the Trial Court and also the petitioner shall provide his phone number and phone number of the surety which shall be kept on at all times to enable the Investigating Officer to contact them, if required.”

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The decision taken by the National Highway Authority of India for accepting/rejecting the bids for tenders cannot be interfered by the Court. However, the court was of the opinion that the decision is not subject to judicial scrutiny, but the process is subjected to judicial review. The Delhi High Court presided over J. H. Kohli & J. S. Prasad laid down the ratio in the case of Track & Towers Infratech Pvt. Ltd. Vs. National Highway Authority of India, [W.P.(C) 3743/2020].

The brief facts of this case are that the Respondents i.e. NHAI issued a tender notice for construction of a highway. The Petitioner in a Pre-Bid Meeting submitted its bid and sought for a clarification from the Respondent. In the clarification the Petitioner asked whether construction of railway tracks is considered a “similar work” for qualifying in the eligibility criteria. The Respondents asked the Petitioners to rely on the clause provided by them in the tender contracts as it clearly laid down all the details. The Respondents further sought a clarification from the Petitioner asking them how the projects carried out by them satisfy the terms and conditions laid down in the tender documents. The Petitioner replied by referring the clause earlier cited by the Respondents. The Respondents rejected the bid of the Petitioners on the basis that construction of railway track did not qualify as similar work for the said tender. The Petitioner filed a writ in the Court contending that the highway sector would deem to include the railways and the grounds for rejection was baseless.

The court after analyzing the arguments of both the parties relied on the landmark judgment of Jagdish Mandal Vs. State of Orissa. As laid down in the case the court was of the opinion that the owner of the project is the author of the tender documents and is the best person to interpret and appreciate its requirements. The Court further stated that the decision made by any such authority cannot be interfered with to determine its correctness but the process it adopted to make the particular decision can be subject to judicial review. Hence, the Court dismissing the writ petition filed by the Petitioner stated that, “The petitioner has not been able to demonstrate that the decision-making process adopted by the respondent/NHAI is perverse, irrational or tainted with mala fides or is designed to favor a particular party.”

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Disputes that arise between landlord and tenant under Transfer of Property Act, 1882, are Arbitrable and the ones that arise under the Rent Act are not. This ratio was laid down by the Supreme Court of India presided over J. A.S. Bopanna in the case of Suresh Shah Vs. Hipad Technology India Private Limited, [Arbitration Petition (Civil) No(s). 08/2020].  

The brief facts of this case are that there was a dispute between the Petitioner and the Respondent regarding sub-lease of a premise. The Deed between the parties consist a clause that any dispute between the parties should be resolved by Arbitration. Therefore, the Petitioner approached the court under Section 11(5) of the Arbitration and Conciliation Act, 1996, for appointing a Sole Arbitrator. The Court observed that the Arbitration qualifies as an International Commercial Arbitration as the Petitioner is a citizen of Kenya. Further, the Petitioner submitted that the dispute is Arbitrable as the rights of the tenant are not protected by any special statute. Further, there would be no impediment for resolving dispute through Arbitration.

The Court analyzed Section 114 A and 114 of the Transfer of Property Act and further relied on the landmark judgments of Namdeo Lokman Lodhi Vs. Narmadabai & Ors., and stated that in case of disputes between lease and sub-lease in the Transfer of Property Act, normally the court has the jurisdiction to adjudicate upon the same but if the parties have conferred jurisdiction to an Arbitral Tribunal in their agreement then the dispute can be solved through Arbitration. But if the lease/sub-lease is governed by a Special statute like the Rent Act, then the only the court that has been conferred jurisdiction by the Act can adjudicate over the dispute. As the court does not only look over the validity of the agreement but the bona-fide requirement and comparative hardships.

The Supreme Court in this case appointed J. (Retired) Mukul Mudgal as a Sole Arbitrator and observed that, “We are of the considered view that insofar as eviction or tenancy relating to matters governed by special statutes where the tenant enjoys statutory protection against eviction where under the Court/Forum is specified and conferred jurisdiction under the statute alone can adjudicate such matters. Hence in such cases the dispute is non-­arbitrable.   If the special statutes   do   not   apply   to   the   premises/property   and   the lease/tenancy created thereunder as on the date when the cause of action arises to seek for eviction or such other relief and in such transaction if the parties are governed by an Arbitration   Clause;  the   dispute   between   the   parties   is arbitrable and there shall be no impediment whatsoever to invoke the Arbitration Clause.  This view is fortified by the opinion   expressed   by   the   Co­ordinate   Bench   while answering the reference made in the case of Vidya Drolia wherein   the   view   taken   in   Himangni   Enterprises   is overruled.” 

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