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High Courts cannot entertain a writ petition wherein alternative remedies are available which have not been availed by the aggrieved. The High Court bench consisting of J. Tarlok Singh Chauhan and J. Jyotsna Rewal Dua, decided upon the matter of M/s Radha Krishan Industries v. State of H.P. and Ors. [CWP No. 568 of 2020], wherein the petition was filed under Article 226.

By way of search and seizure as provided under the Himachal Pradesh Goods and Services Tax Act, 2017 and the Integrated Central Goods and Services Tax Act, 2017 against the suppliers of the present petitioners, a detection was made,  post which a show cause notice was issued to them. The petitioner, in response to this filed representation after which the respondent withdrew the aforementioned notice. However, after the initial inquiry, evidences of tax evasion were detected and it was found that input tax credit was claimed and utilized on account of invoices which were issued by fake/fictious firms without any actual movement of goods from them. Consequently the payments were issued by the respondent to the petitioners which led rise to the present appeal.

The learned Sr. Addl. Advocate general questioned the very maintainability of the petition on the grounds that alternative remedies were available. The counsel for the petitioner however, argued that though they did not dispute that alternative remedy was available, however, the rule of exclusion of jurisdiction due to availability of such a remedy was a rule of discretion and not a compulsion.

The HC relied on the matter of Micromax Informatics Ltd. v. State of H.P. and Ors. [2015 (3) SLC 1293], wherein it was held that “High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation”. Further the HC relied on another latest SC judgement in the case of Assistant Commissioner (CT) LTU, Kakinada and Ors. v. Glaxo Smit Kline Consumer Health Care Limited [AIR 2020 SC 2819], wherein it was held that “though the High Court can entertain writ petition against any order or direction passed or action taken by State under Article 226 of the Constitution of India, but it has not to do so as a matter of course when aggrieved person could have availed the effective alternative remedy in the manner prescribed by law”.

Hence, the HC held that in the present matter “the writ petitioner has not only efficacious remedy, rather alternative remedy under the GST Act, and therefore, the present petition is not maintainable”.

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An independent evidence must exist, apart from the oral statements of the victim, in order to convict an accused. The High Court bench consisting of J. H P Sandesh, adjudicated on the matter of State of Karnataka by Whitefield Police Station Bengaluru v. Christopher Ireland & Ors. [Criminal Appeal No. 173/2011], wherein the accused were charged under the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The complainant was assaulted by the accused who belonged to Scheduled Caste and Scheduled Tribe. They tore the clothes of the complainant, pushed and pulled her and outraged her modesty and intentionally insulter her referring to her caste and humiliating her publicly. The accused together hence committed various offences punishable under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The accused claimed trial before the Trial Court and did not plead guilty. The Trial Judge acquitted the accused and hence, the present appeal was filed by the aggrieved appellant. The Prosecution argued that the Trial Court Judge had committed an error as he had failed to consider the evidence put forth. The accused were the family members of the victim’s husband and they had intentionally trespassed into the house of the complainant and abused her. The counsel appearing for the respondent argued that the Trial judge appreciated the contradictions in the cross examinations and realised the discrepancies between the medical evidence and the case of the prosecution, and hence, had rightly acquitted the accused.

The HC found that the claims of the victim that the accused had abused her taking her caste name was not reflected in her oral evidence or the complaint lodged. Further that the incident had taken place within four walls of the house and no public was present and hence, the provisions of SCST Act could not be invoked. The court also noticed that the only evidence present which could be relied upon was the statement of the victim which was not enough to convict the accused. The court held that “Taking into consideration of all these material contradictions and there is no any independent witness with regard to the incident, in order to convict the accused, there must be an independent evidence before the court and the prosecution has to prove the case with regard to the incident as well as the injuries, and hence, dismissed the appeal.

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The Petitioners have served for several years in the Navy and that they would be required to look for fresh accommodation, as also on humanitarian grounds during a global pandemic, they are permitted three months’ time to vacate their official accommodations It is made clear that the Respondent authorities would cooperate with the Petitioners during this period, for their smooth transition. This judgment was delivered by division bench comprising Hon’ble Justice Prathiba M. Singh and Justice Subramonium Prasad at Delhi High Court in the matter of CDR Amit Khajuria v. Union of India and Ors. [WP No. (C) – 11231 of 2020].

The Petitioners in the present petition has alleged that they were shortlisted and the Selection Board was constituted for consideration of grant of Permanent Commission. The Selection Board, after a detailed consideration of the matter, decided to grant discharge to eight Officers, including the three Petitioners herein. A notice of discharge was served upon the Petitioners on 18th December 2020, pursuant to which the Petitioners moved before the AFT and sought stay of the discharge order. The present three writ petitions have been filed challenging the impugned order dated 24th December, 2020, passed by the learned Armed Forces Tribunal by which the applications moved by the Petitioners seeking stay of discharge as per order dated 18.12.2020, passed by the Ministry of Defence, have been dismissed by the ld. AFT. The Petitioners had originally filed petitions before the AFT seeking directions against non-consideration for grant of Permanent Commission. In the said petitions filed before the AFT, an interim order was passed on 21st December, 2018.

The court observed that “Under these circumstances, no interference is called in the present petitions, under Article 227 of the Constitution. The question as to whether the policy applied and whether the rejection of Permanent Commission to the Petitioners is valid or not, would have to be decided on merits by the Tribunal, either in the pending petitions or in any fresh challenge which may be mounted by the Petitioners. Accordingly, the writ petitions are dismissed. Usually, Short Service Commission officers are given eight to ten months release time in order to enable them to seek alternate employment. If that is the usual practice, the Petitioners are permitted to make a representation to that effect to the Respondent authority, which shall be considered in a compassionate manner considering the prevalent situation of a pandemic. The Petitioners are permitted to approach the Ld. AFT for any further directions in this regard.”

The court while deciding upon the matter held that “Needless to add that the observations made in the present petitions would not affect the final determination by the ld. AFT. The petitions and all pending applications are disposed of in the above terms.”

 

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A vote cast by a member of the Legislative Assembly will not be considered invalid, consequent upon his/her disqualification arising out of a conviction. The Supreme Court bench consisting of Hon’ble Chief Justice S A Bobde, J. A S Bopanna and J. V Ramasubramanian decided on the matter of Pradeep Kumar Sonthalia v. Dhiraj Prasad Sahu @ Dhiraj Sahu & Anr. [Civil Appeal No. 611 of 2020], which was an election petition questioning the validity of  a vote caste by a member who later faced conviction.

The biennial elections for 2 seats in the Council of States from the State of Jharkhand was conducted on 23.03.2018 wherein a total of 80 members of the Legislative Assembly cast their vote. One Shri Amit Kumar Rao cast his vote at 9.15 AM and was later convicted at 2.30 PM of various offences on the same day. The Election Petitioner was declared defeated with a total of 2599 value of votes whereas the candidates who were duly elected had secured 2601 and 2600 value of votes. Pradeep Kumar Sonthalia (petitioner) lodged an objection requesting the Returning Officer to declare Shri Amit Kumar Rao’s vote invalid on the basis of his conviction. An Election Petition was filed by the defeated candidate in the High Court who dismissed the same inspite of deciding majority of the issues in favour of the petitioner and refused to grant any relief to the election petitioner, primarily on the ground that “the election to the Council of States by a system of proportional representation by means of single transferable vote, is a highly complex, technical issue and that it is not possible for the Court to find out whether the election petitioner could have won the election, if that one vote had been rejected”.

Two main issues were framed by the SC – Whether the vote cast by Shri Amit Kumar Rao was to be treated invalid on account of the disqualification suffered by the voter under Article 191(1)(e) of the Constitution of India read with Section 8(3) of the Representation of the People Act, 1951 by virtue of his conviction? Ans if yes, then whether the petitioner was entitled to be declared as duly elected automatically?

The SC pointed out the conditions for disqualification along with the period of disqualification of a vote by relying on the case of Saritha S. Nair v. Hibi Eden [SLP (C) No. 10678 of 2020]. The court found that the interpretation to be given to the expression “the date” in Section 8(3) of the Representation of People Act, 1951 would have bearing upon the interpretation to be given to the date of happening of any one of the events of disqualification. The court finally held that the vote caste by Shri Amit Kumar Rao was rightly treated as a valid vote and holding otherwise would “create endless confusion and needless chaos”.

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Merely because an order has been passed by the Ld. CCJD and JMFC, Renapur allowing the application of the Petitioner made by way of a claim under Section 13(3) of the Birth and Death Registration Act, 1969 for change of date of birth to 12.03.1966, such change at this stage is impermissible. This judgment was delivered by division bench of Vacation Court comprising Hon’ble Justice S.S. Shinde and Justice Abhay Ahuja at Bombay High Court in the matter of Prabhakar Yashwant Salve v. The Chief Engineer and Ors. [WP. No. 99753 of 2020].

The petitioner in this present Writ Petition has alleged that in the year 2018-2019, Petitioner discovered that the date of birth mentioned in his School Leaving Certificate and S.S.C. Board Certificate was not correct. He therefore, made an application before the Gram Panchayat Office of his district, where upon a certificate of non-availability of birth and death dated 12.10.2020 as well as another certificate dated 31.01.2019 was issued to the Petitioner by Gram Panchayat Office. Petitioner then preferred an application by way of a claim under Section 13(3) of Birth and Death Registration Act, 1969 before the Court of J.M.F.C. at Renapur contending the non-availability of his date of birth entry. the learned CJJD and JMFC, Renapur allowed the application made by the Petitioner.

The court observed that “Though Petitioner relies on the order passed by the Learned CCJD and JMFC, Renapur allowing the claim of the Petitioner made under Section 13(3) of the Birth and Death Registration Act, 1969 and consequent birth certificate dated 27.12.2019 for change of date of birth to 12.03.1966, there is no material on record to indicate that the said document had been produced before the employer at the time of joining employment. In that background, the service record maintained by Respondent No. 1 discloses that the date of birth indicated in the document is 02.12.1962 which has been furnished by the Petitioner himself.”

The court while deciding upon the matter held that “in accordance with the decision of the Supreme Court in the Bharat Coking Coal Ltd. and Ors. v. Shyam Kishore Singh 2020 (3) SCC 411, Petitioner’s prayer for change in date of birth in the service register and consequential change of date of retirement cannot be entertained at the far end of service after accepting the same to be correct during the entire service. Moreover, the Petitioner’s counsel has not brought to the notice of this Court the relevant provision which enables JMFC to entertain the proceedings which were initiated by the Petitioner. In this view of the matter, we do not find any merit in the contentions raised in the Petition. Writ Petition is accordingly dismissed. Rule is discharged. There will however, be no order as to costs.”

 

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