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JUDGMENT ANALYSIS: ENTITLEMENT TO REFUND OF COURT FEES WITHOUT JOINT APPLICATION – BOMBAY HIGH COURT

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INTRODUCTION

The High Court of Bombay-Nagpur Bench passed a judgement on 27 April 2023. In the case of YES BANK LIMITED Vs UNION OF INDIA AND 2 ORS IN WRIT PETITION NO. 5229 OF 2022 which was passed by a division bench comprising of HONOURABLE SHRI JUSTICE G. S. KULKARNI and HONOURABLE SHRI JUSTICE RAJESH S. PATIL, the court addressed a writ petition filed by a bank seeking a writ of mandamus to quash certain provisions in the Debts and Recovery Tribunal (Refund of Court fees) Rules, 2013. The bank also sought a direction to the Registrar of the Debt Recovery Tribunal-II (DRT-II) in Mumbai to release the amount specified in the impugned order without insisting on a joint application. The judgment provides clarity on the entitlement to a refund of court fees and the requirement of a joint application in certain circumstances.

FACTS OF THE CASE

The petitioner, a bank engaged in banking activities, had initiated recovery proceedings against a borrower who had defaulted on a loan repayment. However, a settlement was reached between the parties, and the petitioner filed an interlocutory application seeking permission to withdraw the original application. The DRT-II permitted the withdrawal and directed the petitioner to follow the procedure for a refund of court fees as per the refund rules.

Subsequently, the petitioner filed an application for the refund of court fees. However, the DRT-II passed an order stating that a joint application from both the applicant and the defendant was required for the refund to be processed further. This led to the petitioner filing the present writ petition challenging the requirement of a joint application.

ANALYSIS

The court considered the submissions of both parties and examined the relevant provisions of the Debts Recovery Tribunal (Refund of Court Fee) Rules, 2013. Rule 4 of the rules stipulates the amount of refund that may be ordered by the Presiding Officer of the Tribunal. It allows for a refund of 50% of the fees if the matter is settled before the commencement of the hearing and 25% if settled at any stage before the final order is passed.

Rule 5(1) of the rules deals with the procedure for a refund and states that the applicant and the defendant should file a joint application before the Registrar of the Tribunal, indicating the details of the settlement. The court interpreted Rule 5(1) in light of the petitioner’s claim that it becomes difficult to obtain the defendant’s consent or signatures for a joint application in cases where the dispute is settled outside the court and the defendant is not available or unwilling to engage in the refund process.

The court acknowledged that the petitioner, as the applicant in the original application, should have the right to receive the refund of court fees when the dispute is settled and the original application is withdrawn. It held that the requirement of a joint application for refund cannot defeat the legal rights of the applicant, especially when the DRT has already permitted the withdrawal of the original application and the refund of court fees.

The court concluded that Rule 5(1) should be read down to mean that once the DRT has permitted the applicant’s refund of court fees and the entitlement for the refund has been fixed by a judicial order, the Registrar of the DRT cannot insist on a joint application. However, in cases where there is doubt about the applicant’s entitlement or the judicial order does not clearly grant a refund to the applicant alone, the requirement of a joint application may be necessary.

CONCLUSION

The judgment clarifies that the entitlement to a refund of court fees should not be undermined by the requirement of a joint application in cases where the dispute is settled and the applicant seeks to withdraw the original application. The court’s interpretation of Rule 5(1) ensures that the legal rights of the applicant are protected and that the refund process is not unduly burdensome. The judgment provides guidance to the Registrar of the DRT in processing applications for the refund of court fees, including cases like the petitioners.

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JUDGEMENT REVIEWED BY VETHIKA D PORWAL, BMS COLLEGE OF LAW

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“JURISDICTION AND GRIEVANCE RESOLUTION IN A CASE OF DISCIPLINARY ACTION AGAINST A COLLEGE PRINCIPAL: A CRITICAL ANALYSIS OF THE BOMBAY HIGH COURT’S RULING”

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INTRODUCTION

The High Court of Bombay-Nagpur Bench passed a judgement on 27 April 2023. In the case of SHRI GADGE MAHARAJ VIDYALAYA MANDAL (SOCIETY) THR. PRESIDENT, ADV. SUHASRAO B. TIDKE Vs STATE OF MAHARASHTRA, THR. SECRETARY, HIGHER AND TECHNICAL EDUCATION DEPARTMENT, MUMBAI, AND ORS IN WRIT PETITION NO. 2348 OF 2021 which was passed by a division bench comprising of HONOURABLE SHRI JUSTICE A.S. CHANDURKAR and HONOURABLE SHRI JUSTICE M. W. CHANDWANI, disputes and conflicts often arise, necessitating judicial intervention to resolve them. This blog post delves into a notable judgment concerning a writ petition filed by a college principal and aggrieved employees. The case center’s around the jurisdiction of the Vice-Chancellor of a university to initiate disciplinary action against the principal and the grievances raised by the employees. Through this common judgment, the court examines the legal framework and the powers vested in the Vice-Chancellor, ultimately rendering a decision.

FACTS OF THE CASE

The case involves three writ petitions that address interconnected issues. The principal, appointed at Shri Gadge Maharaj Vidyalaya in Murtizapur, faced complaints from aggrieved employees who filed a police complaint and made subsequent complaints to various authorities. The Vice-Chancellor of Sant Gadge Baba Amravati University constituted a three-member committee to investigate the grievances, which the principal objected to. The committee submitted its report, leading the Vice-Chancellor to direct the college to initiate disciplinary proceedings against the principal. This action prompted the principal to challenge the Vice-Chancellor’s direction and subsequent communication regarding disciplinary proceedings.

Additionally, the aggrieved employees filed a separate writ petition seeking the implementation of the Vice-Chancellor’s communication and the initiation of disciplinary proceedings against the principal. The management of the college, represented by Shri Gadge Maharaj Vidyalaya Mandal, also filed a writ petition seeking approval for the re-appointment of the principal and challenging the registrar’s order refusing to approve the proposal.

ARGUMENTS PRESENTED

The principal’s counsel argued that the Vice-Chancellor lacked the jurisdiction to direct the management of a private affiliated college to initiate disciplinary action against its employees. They contended that Section 12 of the Maharashtra Public Universities Act, 2016, which outlines the powers and duties of the Vice-Chancellor, does not grant specific authority to initiate disciplinary action against an employee. The counsel suggested that the aggrieved employees should have approached the Grievances Committee established under Section 79 of the Act to address their grievances.

On the other hand, the aggrieved employees’ senior counsel asserted that Section 12(14)(a) of the Act empowered the Vice-Chancellor to consider complaints made by employees of affiliated colleges and conduct inquiries. They argued that since the college and management failed to address the employees’ grievances, the Vice-Chancellor’s intervention was justified under the spirit of Section 12. They also referred to the nature of the complaints and emphasized that the aggrieved employees had no choice but to approach the Vice-Chancellor.

The counsel representing the college management challenged the Vice-Chancellor’s power to constitute a three-member inquiry committee and direct the management to conduct disciplinary proceedings. They argued that disciplinary action against an employee should be initiated solely by the employer, in this case, the management. They further claimed that the re-appointment of the principal was wrongly denied, as the management had complied with all necessary requirements.

LAWS INVOLVED

  1. Maharashtra Public Universities Act, 2016: This legislation outlines the powers and duties of public universities in Maharashtra, including the Vice-Chancellor’s role. It provides a legal framework for the functioning and governance of universities in the state.
  2. Section 12(14)(a) of the Maharashtra Public Universities Act, 2016: This specific provision empowers the Vice-Chancellor to consider complaints made by employees of affiliated colleges and conduct inquiries. It is the focal point of contention in the case, with different interpretations regarding the extent of the Vice-Chancellor’s jurisdiction.
  3. Section 79 of the Maharashtra Public Universities Act, 2016: This section establishes a Grievances Committee, which is responsible for addressing various grievances of teachers and employees, including those from affiliated colleges. It provides a formal mechanism for resolving grievances within the university system.
  4. Relevant labour laws: In addition to the specific provisions of the Maharashtra Public Universities Act, other labour laws may also come into play in the case. These could include laws related to employee rights, disciplinary actions, and dispute resolution, depending on the specific nature of the grievances raised by the employees and the actions taken by the management.

CASE LAWS

Maharashtra University of Health Sciences and others Vs. Satchikitsa Prasarak Mandal and others (2010) 8 SCC 372- In this case, the Supreme Court of India considered the issue of the jurisdiction of Vice-Chancellors in affiliated colleges. The court held that the Vice-Chancellor has the power to inquire into complaints against employees of affiliated colleges under Section 12(14)(a) of the Maharashtra Public Universities Act, 2016. This judgment provides guidance on the interpretation of the relevant provision and its application to similar cases.

Bharathidasan University and another Vs. All India Council for Technical Education (2001) 8 SCC 676 – This case dealt with the autonomy of affiliated colleges and the authority of Vice-Chancellors. The court held that Vice-Chancellors have the power to supervise the functioning of affiliated colleges and ensure compliance with university regulations. The judgment emphasized the need for a harmonious relationship between the university and affiliated colleges to maintain academic standards and discipline.

COURT’S ANALYSIS

After considering the arguments and examining the relevant provisions of the Act, the court found that Section 12(14) of the Act of 2016 did not confer the power upon the Vice-Chancellor to entertain complaints or grievances between employees of an affiliated college. The court emphasized that the Vice-Chancellor’s powers primarily pertain to matters concerning the administration, finance, and overall functioning of the university and its properties. It was noted that Section 79 of the Act specifically established a Grievances Committee to address various grievances of teachers and employees, including those from affiliated colleges.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

JUDGEMENT REVIEWED BY VETHIKA D PORWAL, BMS COLLEGE OF LAW

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STRIKING THE BALANCE: UPHOLDING EDUCATIONAL RIGHTS AMIDST ADMISSION CHALLENGES AND REGULATORY HURDLES – BOMBAY HIGH COURT

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INTRODUCTION:

The High Court of Bombay passed a judgement on 18 April 2023. In the case of SHRI KRISH RAJENDRA CHORDIYA Vs THE STATE OF MAHARASHTRA THR ITS MINISTRY OF SCHOOL EDUCATION AND ORS IN CRIMINAL REVISION APPLICATION NO. 131 OF 2022 which was passed by a division bench comprising of HONOURABLE SHRI JUSTICE G.S. PATEL and DR. NEELA KEDAR GOKHALE. Education is a fundamental right that paves the way for a bright future. However, there are times when students find themselves entangled in complex situations that threaten their educational journey.

FACTS OF THE CASE:

The petitioner, a diligent 17-year-old student, had successfully completed his 10th standard examination under the ICSE Board. Due to the COVID-19 pandemic and subsequent lockdown, he was unable to immediately enroll in a college. During this period, he took the initiative to develop a digital app related to COVID-19 tracking, showcasing his technical and scientific abilities.

Later, when the petitioner sought admission to a junior college for the 11th and 12th standard Science stream, he applied to the 5th Respondent college, as it was closer to his residence. The petitioner and his father followed the college’s instructions, filled in the online application form, and indicated their choice as the 5th Respondent college. Subsequently, the petitioner received an allotment letter from the Deputy Director of Education, confirming his seat in the Science stream of the 5th Respondent college.

The petitioner successfully completed his 11th standard, performed exceptionally well in examinations, and even secured provisional admission to prestigious engineering and technical colleges through competitive entrance exams. However, to his utter dismay, just before the HSC examination, the 5th Respondent college informed him that his admission had been cancelled by an order from the 4th Respondent, the Maharashtra State Board of Secondary and Higher Education.

LAWS INVOLVED:

Several crucial laws come into play in this case:

  1. Maharashtra Secondary and Higher Secondary Boards Act, 1965: This act establishes the framework for secondary and higher secondary education in Maharashtra, including the powers and functions of the state boards and admission regulations for junior colleges.
  2. Regulation 16 of the Maharashtra State Board: This regulation stipulates the eligibility criteria for admission to the Science stream in junior colleges. It requires candidates to secure a minimum of 40% marks in science subjects in the SSC examination or its equivalent.
  3. Right to Education Act, 2009: While not directly applicable in this case, this legislation emphasizes the importance of providing equal educational opportunities and safeguarding the rights of students.
  4. The principle of natural justice: This principle, derived from common law, ensures fair treatment and procedural fairness in administrative and judicial proceedings. It requires that individuals be given an opportunity to be heard and to present their case before any adverse decisions are made.
  5. Constitutional rights: The Indian Constitution guarantees certain fundamental rights, including the right to education (Article 21A) and the right to equality (Article 14). These rights play a significant role in shaping educational policies and ensuring that students are not arbitrarily denied admission or subjected to unfair treatment.

ANALYSIS:

Examining the facts of the case and the relevant laws, it becomes evident that the petitioner’s situation raises compelling questions. The 4th Respondent argues that the petitioner is ineligible for admission, citing the applicable regulations. However, it is crucial to consider the coordination and responsibility of both the 4th and 5th Respondents in informing the petitioner of his ineligibility before granting him admission.

Furthermore, the petitioner’s exceptional academic performance, completion of 11th and 12th standards, and success in competitive entrance exams highlight his commitment and aptitude for studying Science. The rigidity and tardiness of the 4th Respondent’s approach appear incongruent with the evolving National Education Policy, which emphasizes flexible learning options and nurturing individual potential.

The principle of natural justice demands that students be given a fair opportunity to present their case. Additionally, constitutional rights, such as the right to education and equality, serve as guiding principles in shaping educational policies and safeguarding students from arbitrary denials and unfair treatment.

JUDGMENT:

Considering the facts, laws, and principles at hand, the court could not disregard the petitioner’s plight. Recognizing the petitioner’s exemplary performance, the court found no plausible reason to exclude him completely from pursuing Science education. The court held that cancelling the petitioner’s admission on the eve of his HSC examination would be a grave injustice.

The court directed the 4th Respondent to reconsider the petitioner’s case, considering his academic achievements, provisional admission to prestigious institutions, and the paramount importance of his educational rights. The court emphasized the need for a fair and expeditious resolution to ensure that the petitioner’s prospects were not unduly jeopardized.

CONCLUSION:

The case highlights the crucial role of laws, regulations, and principles in safeguarding students’ educational rights. It underlines the need for educational institutions and regulatory bodies to balance regulations with flexibility, fairness, and consideration of individual circumstances. Upholding the petitioner’s right to education paves the way for a more inclusive and progressive educational system, where every student’s potential can be nurtured, regardless of procedural intricacies.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

JUDGEMENT REVIEWED BY VETHIKA D PORWAL, BMS COLLEGE OF LAW

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FROM SILENCE TO STRENGTH: ILLUMINATING THE VEIL OF DOMESTIC VIOLENCE LAWS AND SHAPING JUSTICE THROUGH KEY RULINGS BY THE BOMBAY HIGH COURT

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INTRODUCTION

The High Court of Bombay passed a judgement on 18 April 2023. In the case of AHSANULLAH @ JAVEED KHAN S/O CHAND KHAN Vs SHAHANA PARVIN @ BRIJIS W/O AHSANULLAH @ JAVEED KHAN IN CRIMINAL REVISION APPLICATION NO. 131 OF 2022 which was passed by a single bench comprising of HONOURABLE SHRI JUSTICE G. A. SANAP, the court dealt with a case of domestic violence and maintenance under the Protection of Women from Domestic Violence Act, 2005 (DV Act). The judgment, dated 17th November 2021, was passed by the learned Sessions Judge of Akola, Maharashtra. The court dismissed the appeal filed by the husband (non-applicant) and allowed the appeal filed by the wife (applicant), thereby enhancing the amount of maintenance awarded to the wife..

FACTS

The case involved a married couple from Akola, Maharashtra. The wife alleged that she was subjected to domestic violence by her husband and his relatives. The wife claimed that the husband’s relatives instigated him to ill-treat and torture her in order to force her to compromise a criminal case against them. The wife further alleged that she was physically and mentally tortured, leading her to seek shelter with her parents on multiple occasions. The husband denied the allegations and stated that the wife left him of her own accord and refused to resume cohabitation.

PROCEEDINGS AND FINDINGS

The matter was initially brought before the learned Magistrate, who held that the wife had been subjected to domestic violence and awarded her maintenance, compensation, and other reliefs under the DV Act. Both parties appealed this decision. The learned Sessions Judge dismissed the husband’s appeal and allowed the wife’s appeal, increasing the maintenance amount.

The husband’s arguments in the revision application before the higher court were three-fold. First, he contended that there was no domestic relationship between the parties at the time of filing the application under the DV Act. Second, he claimed that as a divorced Muslim woman, the wife was not entitled to maintenance under the Muslim Women (Protection of Rights on Divorce) Act, 1986. Third, he challenged the quantum of maintenance awarded by the Sessions Judge.

The wife, on the other hand, argued that she had proven the domestic violence she experienced and that she qualified as an aggrieved person under the DV Act. She also contended that even as a divorced Muslim woman, she was entitled to maintenance after the initial period if she did not remarry.

ANALYSIS

The court carefully examined the evidence and concurrent findings of the lower courts. It noted that both the Magistrate and the Sessions Judge had thoroughly considered the evidence and found in favour of the wife. In the exercise of revisional jurisdiction, the higher court would only interfere with the lower court’s decision if it was perverse, arbitrary, or unreasonable. However, after reviewing the record, the court found no grounds for such interference.

The court emphasized that the definitions of “aggrieved person” and “domestic relationship” under the DV Act did not require the parties to be residing together at the time of filing the application. Section 2(a) of the DV Act defines an “aggrieved person” as any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. The court cited the Supreme Court case of Lalita Kumari v. Government of U.P., (2013) 4 SCC 1, which supported this interpretation.

Moreover, the court held that even if the husband had given the wife a Talaq (divorce), she could still seek relief under Section 12 of the DV Act for past domestic violence. Section 12 of the DV Act provides for the right to obtain an order for protection, residence, monetary relief, or compensation. The court referred to the Supreme Court case of Shabana Bano v. Imran Khan, (2010) 1 SCC 666, which recognized the rights of Muslim women to seek maintenance beyond the initial period.

The court also addressed the issue of maintenance and observed that the amount awarded by the Sessions Judge was justified considering the wife’s financial needs and the husband’s income and obligations. The court referred to the Supreme Court case of Rajnesh v. Neha, (2020) 14 SCC 209, which highlighted the need to ensure reasonable and fair maintenance to victims of domestic violence.

CONCLUSION

In conclusion, the judgment highlights the importance of the DV Act in addressing domestic violence and protecting the rights of women. It clarifies that a woman can seek relief under the DV Act even if she is not residing with the respondent at the time of filing the application. Additionally, the judgment reaffirms the application of the DV Act to all women, irrespective of their religion or marital status.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

JUDGEMENT REVIEWED BY VETHIKA D PORWAL, BMS COLLEGE OF LAW

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THE IMPUGNED EXTERNMENT ORDER SUFFERS FROM THE VICE OF IMPOSING UNREASONABLE RESTRICTIONS WITHOUT RECORDING ANY REASONS OR SUBJECTIVE SATISFACTION AND, THEREFORE, IT IS LIABLE TO BE SET ASIDE: BOMBAY HIGH COURT

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INTRODUCTION

The High Court of Bombay passed a judgement on 05 June 2023. In the case of SMT. AJAY RAM THORAT Vs STATE OF MAHARASHTRA AND ORS. IN CRIMINAL WRIT PETITION NO. 1490 OF 2023 which was passed by a single bench comprising of HONOURABLE SHRI JUSTICE S. V. KOTWAL, the court examined a petition challenging an externment order issued by the Deputy Commissioner of Police, Zone-1, Pimpri Chinchwad. The petitioner was externed from the limits of the Pimpri Chinchwad police Commissionerate, Pune City Police Commissionerate, and Pune Rural for a period of two years. The court carefully analysed the arguments presented by both parties and ultimately decided in favour of the petitioner. The judgment emphasized the importance of recording subjective satisfaction while passing an externment order and highlighted the potential violation of fundamental rights if such satisfaction is not adequately established.

BACKGROUND

The petitioner received a show-cause notice under Section 59 of the Maharashtra Police Act, which cited several registered offenses from 2009 to 2021. One of the mentioned cases resulted in the petitioner’s acquittal. Subsequently, an externment order was issued by the Deputy Commissioner of Police based on the material presented during the inquiry. The petitioner appealed against this order under Section 60 of the Maharashtra Police Act, but the appeal was dismissed.

THE PETITIONER’S ARGUMENTS

The petitioner’s counsel contended that the externing authority had considered offenses from 2009 and 2015, which were relatively old and irrelevant. Moreover, the petitioner had been acquitted in the 2015 case mentioned in the notice. The counsel argued that there was a significant delay between the issuance of the first notice and the passing of the externment order, suggesting that the order itself was unnecessary. Additionally, reliance was placed on the judgment of the Hon’ble Supreme Court in the case of Deepak Versus State of Maharashtra and others (2019) 5 SCC 344, emphasizing the requirement for recording subjective satisfaction regarding the necessity of passing an externment order for the maximum period of two years.

THE STATE’S ARGUMENTS

The learned Assistant Public Prosecutor (APP) representing the state relied on the reasons mentioned in the externment order. It was argued that the petitioner’s acts had caused alarm in the public, posing harm and danger to society. Based on these grounds, the externing authority was satisfied that externing the petitioner was necessary for a maximum period of two years.

LEGAL ANALYSIS

In order to understand the court’s decision, it is important to consider the relevant laws and judicial precedents involved in externment orders. The Maharashtra Police Act, under which the externment order was issued, provides the framework for maintaining public order and safety in the state. Section 59 of the Act empowers the authorities to issue show-cause notices to individuals to explain why they should not be externed from a particular area. Section 60 allows the aggrieved party to appeal against the externment order.

The court, in this case, referred to the judgment of the Hon’ble Supreme Court in the case of Deepak Versus State of Maharashtra and others (2019) 5 SCC 344. The Supreme Court had observed that when passing an order of externment for the maximum period of two years, the competent authority must demonstrate an application of mind and record subjective satisfaction regarding the necessity of such an order. Failure to do so may result in the imposition of unreasonable restrictions on the fundamental rights guaranteed under clause (d) of Article 19(1) of the Constitution of India.

COURT’S ANALYSIS AND DECISION

The court carefully considered the arguments presented by both sides and focused on the issue of subjective satisfaction. Referring to the Supreme Court judgment in Deepak’s case, the court observed that an externment order must disclose an application of mind by the competent authority and record its subjective satisfaction regarding the necessity of passing the order for the maximum period of two years, based on the material on record.

Upon examining the externment order in question, the court found no indication of subjective satisfaction or reasons provided by the externing authority for externing the petitioner for the maximum period of two years. Consequently, the court concluded that the order suffered from the vice of imposing unreasonable restrictions without adequate justification. Accordingly, the court allowed the petition, quashed, and set aside the externment order, and disposed of the writ petition.

CONCLUSION

The recent judgment serves as a reminder of the importance of upholding fundamental rights, even in cases involving externment orders. It emphasizes the necessity for the competent authority to demonstrate an application of mind and record subjective satisfaction when passing an order that restricts an individual’s rights. By scrutinizing the externment order and finding it lacking in justifying the maximum period of two years, the court ensures that unreasonable restrictions are not imposed without proper consideration. This judgment contributes to the ongoing efforts to strike a balance between public safety concerns and the protection of individual liberties, as outlined in the relevant provisions of the Maharashtra Police Act and judicial precedents.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

 

JUDGEMENT REVIEWED BY VETHIKA D PORWAL, BMS COLLEGE OF LAW

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