#BOMBAY HIGH COURT Archives

1 Jun

UNDERSTANDING COMPENSATION AND EVIDENCE ON LAND ACQUISITION: BOMBAY HIGH COURT

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INTRODUCTION:

The High Court of Bombay bench at Aurangabad passed a judgement on 04 May 2023. In the case of BALAWANT S/O RABHAU SHINGARE … VS THE EXECUTIVE ENGINEER IN FIRST APPEAL NO.253 OF 2015 which was passed by a division bench comprising of HONOURABLE SHRI JUSTICE V. V. KANKANWADI and HONOURABLE SHRI JUSTICE ABHAY S. WAGHWASE Land acquisition is a legal process involving the compulsory purchase of private property by the government for public use. Disputes often arise when landowners challenge the compensation awarded to them for their acquired land. In this analysis, we will examine a specific judgment, Land Acquisition Reference Nos. 497 of 2012 and 498 of 2012, which revolves around the construction of a godown by the Maharashtra State Electricity Board (M.S.E.B.). The case involves arguments regarding compensation and evidence presented by both parties.

FACTS:

The land in question is situated in the village of Shekapur, Osmanabad, and was acquired by the government for the construction of a godown. The land acquisition process commenced with a notification under Section 4 of the Land Acquisition Act on September 15, 1993, although possession had already been taken through negotiation on March 25, 1992. The Special Land Acquisition Officer awarded compensation to the landowners on June 25, 1996. Dissatisfied with the awarded amount, the landowners filed a reference under Section 18 of the Land Acquisition Act, seeking enhanced compensation.

The landowners claimed that they were not given the opportunity to present evidence during the acquisition proceedings and that the award was declared ex-parte or arbitrarily. They argued that no rent or damages were paid for the possession taken prior to the notification. Additionally, they contended that the market price of the land in 1992-1993 was higher than the price calculated by the Special Land Acquisition Officer. The landowners emphasized the location of the acquired land, its potential for non-agricultural use, and its proximity to residential, educational, and commercial areas. They sought an enhancement of compensation to Rs. 100 per square foot.

The respondents, representing the government, asserted that the claimants were given a fair opportunity to present their case and support their claim. They argued that the evidence presented by the claimants was insufficient. The Special Land Acquisition Officer had already considered the prevailing market value, land quality, fertility, and topography. The respondents claimed that the compensation awarded was adequate, considering the rural nature of the acquired land. They requested the rejection of the reference.

JUDGMENT:

After considering the arguments and examining the evidence, the reference Court allowed the references filed by the claimants. The Court held that the claimants were entitled to enhanced compensation at the rate of Rs. 100 per square foot. Additionally, the court awarded a 30% solatium and a 12% additional component on the enhanced amount. Interest at a rate of 9% from the date of acquisition until September 15, 1994, and at a rate of 15% from September 16, 1994, to June 25, 1996, was also granted under Section 34 of the Land Acquisition Act.

CONCLUSION:

In the case of Land Acquisition Reference Nos. 497 of 2012 and 498 of 2012, the landowners successfully challenged the compensation awarded to them for their acquired land. The court recognized the potential value of the land for non-agricultural use and its location in relation to residential, educational, and commercial areas. The judgment emphasized the need for fair compensation based on market value and awarded enhanced compensation to the claimants. This case highlights the importance of considering relevant evidence and factors when determining compensation in land acquisition cases.

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1 Jun

QUASHING OF INTERIM ORDER ON AGE RELAXATION: ANALYSIS OF A RECENT JUDGMENT:BOMBAY HIGH COURT

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INTRODUCTION

The High Court of Bombay passed a judgement on 26 May 2023. In the case of RAJU DHONDIRAM AKRUPE Vs STATE OF MAHA. THR. PRIN. SECRETARY (DRUGS) MEDICAL EDUCATION AND DRUGS DEPT. AND ORS IN WRIT PETITION NO. 6239 OF 2023 which was passed by a division bench comprising of HONOURABLE SHRI JUSTICE ABHAY AHUJA and HONOURABLE SHRI JUSTICE M. M. SATHAYE, the court deliberated on a petition seeking to quash an interim order passed by the Maharashtra Administrative Tribunal (MAT). The petitioner, a government employee, had requested age relaxation to participate in the selection process for a higher post through nomination and appear in an upcoming examination. This blog will examine the key arguments presented, the court’s analysis, and the ultimate judgment rendered in this case.

FACTS

The petitioner, employed as a Food Safety Officer, was 39 years old and aimed to appear for the Combined Civil Services Preliminary Examination 2023 conducted by the Maharashtra Public Service Commission (MPSC). Citing the Bombay Civil Services, Classification, and Recruitment Rules of 1939 (the “1939 Rules”), along with a government circular from 2003 and a previous court decision, the petitioner sought age relaxation as a government servant. The petitioner argued that the 1939 Rules, despite being formulated prior to India’s independence and the Constitution, were still valid and applicable.

PETITIONER’S CONTENTIONS

The petitioner’s counsel argued that the 1939 Rules entitled government servants to upper age relaxation. Although the petitioner had crossed the general category’s age limit of 38 years, being 39 years old, the counsel contended that the 1939 Rules still held legal authority. They referred to Rule 7 of the 1939 Rules, which outlined the qualifications for candidates in terms of age and education for government service appointments. Specifically, Note 3B under Rule 7 allowed for an exception to the upper age limit for government servants. The counsel maintained that the government circular issued in 2003, limiting age relaxation for government servants, contravened the 1939 Rules, which had statutory force.

PETITIONER’S ORIGINAL APPLICATION

In the original application filed before the MAT, the petitioner sought complete age relaxation for selection through nomination based on the 1939 Rules, the 2003 government circular, and a prior court decision. Additionally, the petitioner requested a declaration that the exclusion of an upper age limit in the advertisement for in-service candidates was illegal and unconstitutional. They further sought a direction to the state government to adopt and amend the Recruitment Rules and a direction to the MPSC to incorporate the amendment as a qualification in the selection process for the advertised post.

MAT INTERIM ORDER AND SUBSEQUENT COURT ANALYSIS

The MAT rejected the petitioner’s interim application, stating that the 1939 Rules did not mention selection by nomination as it was introduced after independence. The MAT also noted that the Rules of 1986, which governed the upper age limit for recruitment by nomination, did not provide age relaxation for government servants. Based on the Recruitment Rules of 2013 and 2022 for the post of Assistant Commissioner (Food)-cum-Designated Officer (Group A), the MAT determined that the 1939 Rules were inapplicable. The MAT concluded that no case was made out by the petitioner and rejected the interim relief application.

In the subsequent court analysis, the court concurred with the MAT’s interpretation. The court observed that the 1939 Rules did not address selection by nomination. They referred to the Recruitment Rules of 1986 and subsequent Rules, which did not provide age relaxation for government servants. The court noted that the Recruitment Rules of 2022 were applicable, and as they did not permit age relaxation beyond 38 years, the petitioner’s argument for relaxation was untenable. The court emphasized that public employment law was primarily governed by statutory rules, and unless specific rules permitted age relaxation, it could not be granted.

CASE LAW

In its analysis, the court cited the precedent set by the case of Anil Motilal Nimbhure vs. State of Maharashtra and Others (Writ Petition No.6179 of 2007, decided on 7th January 2008) where the court had held that the 1939 Rules were not applicable to selection by nomination. The court emphasized that this precedent was binding, and the petitioner’s reliance on the 1939 Rules was misplaced. As a result, the court concluded that the petitioner’s case lacked merit, and the interim relief was rightly rejected by the MAT.

JUDGMENT

Considering the arguments presented and the relevant legal provisions, the court held that the petitioner was not entitled to age relaxation for selection through nomination. The court affirmed the decision of the MAT, stating that the 1939 Rules did not apply to the present case and that the Recruitment Rules of 2022 governed the selection process. Consequently, the court dismissed the petition seeking to quash the MAT’s interim order.

CONCLUSION

This judgment underscores the significance of statutory rules in public employment cases and reiterates that age relaxation can only be granted if explicitly provided for by the applicable rules. The court’s analysis demonstrates the importance of legal precedent and the binding nature of earlier court decisions. This judgment serves as a reminder that thorough understanding and interpretation of the relevant laws and rules are vital for petitioners seeking relief in public employment matters.

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31 May

EXONERATION OF INSURANCE COMPANY: A MATTER OF COMPENSATION AND LIABILITY-BOMBAY HIGH COURT

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INTRODUCTION:

The High Court of Bombay passed a judgement on 18 April 2023. In the case of SUBHASH WAMAN BAVISKAR AND ORS Vs ADINATH HAMBIRRAO BUDHWANT AND ANR IN FIRST APPEAL NO.410 OF 2016 which was passed by a single bench comprising of HONOURABLE SHRI JUSTICE S. G. DIGE, the issue of exoneration of an insurance company from paying compensation was deliberated upon. The case revolved around the breach of terms and conditions of an insurance policy, specifically regarding the validity of the driver’s license at the time of the accident. The judgment explored the contentions of both the appellant and the respondent, ultimately shedding light on the question of whether the claimants had the right to challenge the tribunal’s decision regarding the exoneration of the insurance company.

BACKGROUND:

The incident in question occurred on November 23, 2011, when the deceased, Asha Baviskar, was traveling as a pillion rider on a motorcycle. A truck, traveling at high speed, attempted to overtake the motorcycle and collided with it. Asha suffered severe injuries and tragically passed away before receiving medical treatment. The offending truck driver was charged with the offense.

The Insurance Company’s defense centered on the argument that the driver of the truck did not possess a valid and effective driver’s license at the time of the accident. The tribunal noted that the driver’s license had expired four months before the accident, and no application for renewal had been made within the stipulated period.

CONTENTIONS OF THE PARTIES:

The appellant’s counsel argued that the tribunal’s observation regarding the breach of the insurance policy’s terms and conditions was incorrect and requested the court to allow the appeal. They contended that the insurance company should be held liable to indemnify the claimants.

In contrast, the respondent’s counsel, representing the insurance company, asserted that the claimants were not the aggrieved party in this matter. They argued that the claimants were entitled to compensation for the accident, irrespective of the source of payment. The counsel further emphasized that it was within the tribunal’s purview to determine the party responsible for providing compensation in cases involving a breach of insurance policy terms.

COURT’S ANALYSIS:

Upon careful consideration of the arguments presented, the court examined the relevant provisions of the Motor Vehicles Act (M.V. Act). Section 173 of the M.V. Act stipulates that any person aggrieved by an award of a Claims Tribunal can file an appeal within ninety days from the date of the award. The court acknowledged that this section does not define the term “aggrieved person” and upheld the appellants’ right to challenge the tribunal’s decision.

The court further emphasized that although the driver of the offending vehicle did not possess a valid license at the time of the accident, it did not necessarily imply a lack of driving skill. It stated that as per settled legal principles, if the driver of an offending vehicle is found to be without a valid license, the insurance company must initially pay the compensation and subsequently recover it from the vehicle owner. The court noted that the tribunal had overlooked this aspect when passing its order.

To strengthen its reasoning, the court cited two relevant cases. One of them is Balu Krishna Chavan v. The Reliance General Insurance Co. Ltd., which likely provided insights into compensation entitlement and the rights of claimants regarding insurance companies. The court also mentioned Biju R. & Ors. v. Vivekanandan and Ors., which likely presented legal principles supporting the rights of claimants to challenge tribunal decisions. The court distinguished these cases based on the differing facts and circumstances, supporting its conclusion.

CONCLUSION:

In conclusion, the court allowed the appeal, asserting that any aggrieved person has the right to file an appeal under Section 173 of the M.V. Act. It directed the insurance company to pay the compensation awarded by the tribunal, along with accrued interest, within six weeks. The court clarified that the insurance company could subsequently recover the amount from the owner of the offending vehicle. Additionally, the claimants were permitted to withdraw the deposited amount, and all pending civil applications were disposed of.

This judgment clarifies the rights of claimants and underscores the insurance company’s responsibility to indemnify compensation even in cases where the driver of an offending vehicle does not possess a valid license. It highlights the importance of upholding contractual liabilities and ensuring that aggrieved parties have the opportunity to challenge decisions affecting their entitlement to compensation. The court’s references to the Balu Krishna Chavan and Biju R. cases further support the arguments presented, solidifying the legal basis for the decision.

JUDGEMENT REVIEWED BY VETHIKA D PORWAL, BMS COLLEGE OF LAW

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31 May

Unexplained Removal from the Waiting List: A Breach of Fairness in Compassionate Appointment

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Introduction:

The High Court of Bombay: Nagpur Bench passed a judgement on 03 April 2023. In the case of PORNIMA D/O MOHANSINGH PAWAR Vs ZILLA PARISHAD, GONDIA THR. ITS CHIEF EXECUTIVE OFFICER AND ANR IN WRIT PETITION NO. 6257 OF 2022 which was passed by a division bench comprising of HONOURABLE SHRI JUSTICE R. B. DEO and HONOURABLE SHRI JUSTICE VRUSHALI V. JOSHI, a provision that allows for the appointment of a dependent family member of a deceased employee, is intended to provide financial support and stability to families during times of tragedy. However, the implementation of this provision can sometimes be marred by administrative errors and unjust actions. In a recent judgment, the court rectified such an injustice, restoring hope to an aggrieved petitioner seeking compassionate appointment. This blog post explores the details of the case and the significance of the court’s decision.

Facts of the Case:

Ms. Pornima Mohansingh Pawar, the petitioner, had been on the waiting list for compassionate appointment since 2011. Her father, Mr. Mohansingh Pawar, had been an employee of Zilla Parishad, Gondia, until his untimely demise in 2005. Following her father’s death, Ms. Pawar’s mother, Smt. Premlata Mohansingh Pawar, applied for compassionate appointment and her name was included in the waiting list as per the applicable regulations.

In 2011, Ms. Premlata Mohansingh Pawar requested the authorities to replace her name with that of her daughter, Ms. Pornima Mohansingh Pawar. The request was accepted, and Ms. Pawar’s name was duly added to the waiting list. Over the years, Ms. Pawar’s name appeared on multiple iterations of the waiting list, validating the legitimacy of her claim for compassionate appointment.

However, to the petitioner’s dismay, the waiting list published on June 10, 2021, omitted her name without any prior notice or explanation. Instead, her mother’s name was listed as ineligible due to exceeding the age limit of 45 years. In light of this arbitrary removal, Ms. Pawar approached the court seeking redress.

Judgment:

After considering the submissions made by both parties, the court critically examined the records and relevant government decisions. It was noted that after Ms. Pawar reached the age of majority, her mother had applied to the authorities for the inclusion of Ms. Pawar’s name. The court questioned the respondents’ actions in removing Ms. Pawar’s name from the waiting list and subsequently denying her appointment based on her mother’s eligibility.

The court concluded that the removal of Ms. Pawar’s name without proper explanation and the denial of her appointment on the grounds of her mother’s eligibility were unjust and illegal. Emphasizing the due process followed in including Ms. Pawar’s name on the waiting list, the court held that the respondents’ actions were arbitrary and violated the principles of fairness and equality.

Therefore, the court ruled in favor of the petitioner, directing the respondent authorities of Zilla Parishad, Gondia, to restore Ms. Pawar’s name in the waiting list dated June 10, 2021, for compassionate appointment. The court further directed the authorities to consider Ms. Pawar’s appointment based on her serial number and educational qualifications.

Conclusion:

The judgment in this case serves as a significant milestone in rectifying an injustice faced by the petitioner seeking compassionate appointment. It highlights the importance of adhering to due process, fairness, and equality in the implementation of such provisions. By restoring Ms. Pawar’s name in the waiting list and ordering consideration for appointment, the court not only provides relief to the petitioner but also sets a precedent for similar cases in the future. This judgment reaffirms the principle that individuals deserving of compassionate appointment should not be unjustly deprived of their rightful opportunity for stability and support.

JUDGEMENT REVIEWED BY VETHIKA D PORWAL, BMS COLLEGE OF LAW

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30 May

CHALLENGING THE SCRUTINY COMMITTEE’S ORDER: A VICTORY FOR CASTE VALIDITY RIGHTS

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INTRODUCTION

The High Court of Bombay: Nagpur Bench passed a judgement on 19 April 2023. In the case of DIVYA MUKESH CHAWDA Vs THE STATE OF MAHARASHTRA, THR. SECRETARY, SOCIAL WELFARE DEPT. MUMBAI AND OTHERS IN WRIT PETITION NO.6971/2022 which was passed by a division bench comprising of HONOURABLE SHRI JUSTICE R. B. DEO and HONOURABLE SHRI JUSTICE VRUSHALI V. JOSHI the Court reviewed a case where a petitioner challenged the decision of the Scrutiny Committee to invalidate her claim of belonging to the Mochi Scheduled Caste. The petitioner’s claim was based on various documents and a genealogical tree provided to establish her caste identity. The Court carefully examined the evidence and ultimately ruled in favour of the petitioner, emphasizing the committee’s errors in disregarding the presented documents. This blog post will delve into the details of the case, highlighting the key arguments and the Court’s reasoning.

BACKGROUND

The petitioner, a student at Kapadia Gujarati Junior College in Amravati, sought a caste validity certificate to verify her claim as a member of the Mochi Scheduled Caste. After submitting the necessary documents, including validation certificates of her family members, the Vigilance Cell conducted an inquiry and confirmed the authenticity of the provided documents. However, the Scrutiny Committee issued a notice to the petitioner, demanding additional pre-constitution documents and questioning her relationship with one of the validation certificate holders, Shailesh Vallabh Chawada.

THE SCRUTINY COMMITTEE’S DECISION

In its decision, the Scrutiny Committee contended that the petitioner failed to produce sufficient evidence to establish her caste identity as Mochi. They reasoned that the petitioner had not submitted any pre-constitution documents, and the committee referred to a judgment by the Hon’ble Gujarat High Court, which stated that the Mochi caste did not fall under the Scheduled Caste category.

PETITIONER’S ARGUMENTS

The petitioner, through her counsel, argued that the Scrutiny Committee erred in discarding the validity certificates of her family members. The counsel emphasized that the High Court’s judgment was irrelevant to the case. It was further asserted that the petitioner had submitted four validity certificates of her cousins, including one of her real cousin brothers, Shailesh Chawada, along with a genealogical tree proving their relationship.

COURT’S ANALYSIS AND DECISION

Upon careful examination of the case, the Court noted that the documents submitted by the petitioner, which referred to her caste as Mochi, were not questioned for their authenticity. However, the committee rejected her claim based on the petitioner’s father’s statement that their family originally hailed from Gujarat. According to the committee, the Maharashtra law stipulated that only Mochis from specific districts were declared as Scheduled Caste.

The Court acknowledged that the burden of proving the claim lies with the petitioner, as per the Maharashtra Scheduled Castes and Scheduled Tribes Act, 2000. Nevertheless, the Court found fault with the committee’s approach. The Vigilance Cell’s inquiry had not questioned the petitioner’s relationship with Shailesh, and the Court believed the petitioner should have been given notice to provide additional documentary evidence to establish this relationship.

The Court found merit in the petitioner’s case since her family had settled in Maharashtra well before independence. Notably, a pre-constitution entry in a school admission register referred to the petitioner’s grandfather, Velji Shamji Chawada, as Mochi. The Court held that the committee erred by applying the amended presidential order relevant to Gujarat, rather than considering the pre-constitution evidence from Maharashtra.

In light of these findings, the Court set aside the Scrutiny Committee’s order and granted the petitioner’s prayer for quashing the order and directing the committee to issue her a validity certificate for her caste, Mochi, within one month.

CONCLUSION

This judgment highlights the importance of a fair and meticulous examination of evidence when determining caste validity claims. The Court’s decision recognized the significance of pre-constitution documents and concluded that the Scrutiny Committee had erred in disregarding them. By setting aside the committee’s order, the Court upheld the petitioner’s right to establish her caste identity and receive a validity certificate. This ruling serves as a reminder of the need for careful consideration and adherence to the law in caste validity proceedings.

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