#bombayhc Archives - Page 3 of 10

16 Jan

Additional compensation would not be granted in cases where the limitation period has barred and when an alternative remedy is available – Bombay HC

Prime Legal

Blog #bombayhc, #compensation, #law, #propertylaw

TITLE : Sardar v The state of Maharashtra

CORAM : Hon’ble Justice Ravindra v Ghuge

DATE : 15^th January 2024

CITATION : WP No. 14842 Of 2023

FACTS

The petition was filed under Article 226 and 227 of the constitution of India. The petitioner’s case was that his land was acquired by the government for public project under Section 4 of the Land acquisition Act,1894. A compensation of Rs. 1,26,110 was granted and it did not consider the value of 40 teak trees, 25 mango trees, 35 berry trees and 2 gooseberry trees and a well attached to the land. The petitioner has asked for an enhancement of compensation. It was contended that the petitioner had not used alternative remedies under Section18 of the Act. The petitioners father has received the compensation of Rs. 1,45, 566 without any protest.

LAWS INVOLVED

As per Section 18 of the Act, any person who has not accepted the compensation to make an application to the collector within a period of 6 weeks from the date of the award, if the interested person represented before the collector was present of in any other cases, within 6 months of the award.

ISSUES

Whether the petitioner entitled to additional compensation?

JUDGEMENT

The court held that the petitioner’s father has already received the compensation without any protest. The court found that no reference was made under Section 18 of the Act. The court in furtherance held that the petitioner has approached this court after 18 years withtout availaing alternative remedy available in law.

The writ was found to be without any merits and was subsequently dismissed.

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Written by- Sanjana Ravichandran

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16 Jan

Census record is sufficient to prove scheduled tribe to certify them belonging to the community : Bombay HC

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blog #bombayhc, #constitutionofindia, #legalnews, #Scheduledtribe

TITLE : Omkar v The state of Maharashtra

CORAM : Hon’ble Justice Ravindra v Ghuge

DATE : 15^th January 2024

CITATION : WP No. 13567 Of 2021

FACTS

It was claimed by the petitioner that they belong to a particular tribe called as Thakar Scheduled Tribe, which was invalidated by the scheduled tribes certifying authority. It was argued that the collector has approved the petitioners in belonging in the community. The same was forwarded to the Scheduled Tribes certifying scrutiny authority. It was contended that the procedure adopted by the Committee is contrary to Rule 12(7)(8) of the Maharashtra Scheduled Castes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Rules, 2012. The vigilance committee also approved the petitioners as belonging to the caste.

LAWS INVOLVED

The scheme under Rule 12, particularly, sub-clause (7) and (8) would depict that once the vigilance cell report is favourable, the Committee shall normally rely upon the same and issue validity certificates.

ISSUES

Whether the petitioner belong to the thakar community?

JUDGEMENT

The court observed the evidence provided by the petitioners which were national census including the relatives as ‘Thakar’ caste. Records also figured school certificates of the cousin and grandfather of the petitioners to declare them as belonging to the thakar community.

The court held that the petitioners have proved themselves to be belonging to the thakar community through census record.

Written by- Sanjana Ravichandran

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11 Jan

Bombay HC calls demolition notice against the legal system, sets aside notice against shiv Sena member

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Uncategorized #bombayhc, #law, #legalnews, #partnership, #propertylaw

TITLE : Sadanand Gangaram Kadam V Additional Commissioner, Konkan Bhavan and Ors

CORAM : Hon’ble Justice Milind N. Jadhav

DATE : 6^th January 2024

CITATION : WP No. 203 Of 2024

FACTS

The present Writ Petition was against Demolition Notice against the petitioner. The petitioner purchased a property of a firm called M/s. Sai Star Distributors. One of the 5 partners were the respondent and the petitioner. The respondent retired from the firm and the share of his property was shifted to the petitioner. The petitioner then constructed a resort after obtaining permission from the appropriate authorities. It was submitted that NA permission was received and in the miscellaneous conditions, any dispute with respect to ownership of the said land would be on the Petitioner in the event of any dispute. The respondent filed a private complaint alleging a breach of the NA permission granted. Petitioner filed statutory Appeal under Section 247 of the Maharashtra Land Revenue Code, 1966 before the Additional Collector along with the stay Application. Subsequently a demolition notice was issued.

LAWS INVOLVED

Section 247 of the Act :

(1) In the absence of any express provisions of this Code, or of any law for the time being in force to the contrary, an appeal shall lie from any decision or order passed by a revenue or survey officer specified in column I of the Schedule E under this Code or any other law for the time being in force to the officer specified in column 2 of that Schedule whether or not ,such decision or order may itself have been passed on appeal from the decision of order of the officer specified in column I of the said Schedule :

Provided that, in no case the number of appeals shall exceed two.

(2) When on account of promotion or change of designation, an appeal against any decision or order lies under this section to the same officer who has passed the decision or order appealed against, the appeal should lie to such other officer competent to decide the appeal to whom it may be transferred under the provisions of this Code.

ISSUES

Whether the complaint against the petitioner valid along with the demolition notice issued?

JUDGEMENT

The court held that though there is a statutory appeal pending, the facts are extremely strong and requires intervention of this court so no party can take advantage of the legal system and take is for granted.

The demolition notice was set aside and an ad-interim relief was given to the petitioners.

Written by- Sanjana Ravichandran

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10 Jan

Bye-election for the Pune Lok Sabha cannot be conducted immediately: Supreme Court

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Blog #bombayhc, #electioncommissionofindia, #Representation of Peoples Act 1951, #SupremeCourt

Case Title: Election Commission of India v. Sugosh Joshi and another

Case No: SLP(C) No. 200 of 2024

Decided on: 8th January, 2024

CORAM: THE HON’BLE MR. CHIEF JUSTICE OF INDIA D.Y. CHANDRACHUD, HON’BLE MR. JUSTICE J.B. PARDIWALA & HON’BLE MR. JUSTICE MANOJ MISRA

Facts of the Case

Sughosh Joshi, a registered voter in the Pune parliamentary constituency and Kothrud Legislative Assembly constituency. He is on the electoral roll for both the constituencies. He challenges a “certificate” dated 23rd August 2023 issued by the Election Commission of India (“ECI”), the 1st Respondent, said to be under Section 151A(b) of the Representation of People Act, 1951 (“RoPA”). This “certificate” says that the Election Commission has “difficulty” in holding a bye-election to the Parliamentary Constituency–34 Pune. This constituency is unrepresented and the parliamentary seat for this constituency is vacant since 29th March 2023 on account of the demise of the then elected Member of Parliament for Pune, the late Shri Girish Bhalchandra Bapat.

The High Court, in its judgment, pointed out that the Lok Sabha Secretary’s notification had officially confirmed the vacancy from March 29, 2023, and the ongoing term of the Lok Sabha is scheduled to conclude on June 16, 2024. Rejecting the Election Commission of India’s argument that organizing a by-election was challenging, the division bench comprising Justice GS Patel and Justice Kamal Khata underscored that constituencies must not remain without representation beyond a stipulated timeframe. The court emphasized the crucial role of elected representatives as the voice of the people in a parliamentary democracy. It noted the inconsistency in the ECI’s stance, citing instances where by-elections had been conducted for various Legislative Assembly and Lok Sabha constituencies since the Pune seat became vacant. The High Court stressed that the relevant date for considering the by-election is the date when the vacancy arises, leaving no room for ambiguity.

Legal Provision

Section 149 of RoPA reads as follows:

“149. Casual vacancies in the House of the People—

(1) When the seat of a member elected to the House of the People becomes vacant or is declared vacant or his election to the House of the People is declared void, the Election Commission shall, subject to the provisions of sub-section (2), by a notification in the Gazette of India, call upon the parliamentary constituency concerned to elect a person for the purpose of filling the vacancy so caused before such date as may be specified in the notification, and the provisions of this Act and of the rules and orders made thereunder shall apply, as far as may be, in relation to the election of a member to fill such vacancy.

(2) If the vacancy so caused be a vacancy in a seat reserved in any such constituency for the Scheduled Castes or for any Scheduled Tribes, the notification issued under sub-section (1) shall specify that the person to fill that seat shall belong to the Scheduled Castes or to such Scheduled Tribes, as the case may be.”

Section 151A was added by a 1996 amendment. It reads thus:

“151A. Time limit for filling vacancies referred to in sections 147, 149, 150 and 151—

Notwithstanding anything contained in section 147, section 149, section 150 and section 151, a bye-election for filling any vacancy referred to in any of the said sections shall be held within a period of six months from the date of the occurrence of the vacancy:

Provided that nothing contained in this section shall apply if—

(a) the remainder of the term of a member in relation to a vacancy is less than one year; or

(b) the Election Commission in consultation with the Central Government certifies that it is difficult to hold the bye-election within the said period.

Issue

The issue revolves around the validity and justification of the Election Commission of India’s reluctance to conduct a bye-election for the vacant Pune parliamentary constituency, challenged by the registered voter, Sughosh Joshi.

Court’s analysis and decision

The Supreme Court issued a stay on the Bombay High Court’s directive to the Election Commission of India regarding the organization of a bye-election for the vacant Pune Lok Sabha seat. This seat has remained unoccupied since the death of MP Girish Bapat on March 29, 2023.

While issuing notice on the Special Leave Petition filed by the Election Commission of India challenging the High Court’s order dated December 13, 2023, a bench issued the interim order. The bench noted that the current situation invokes Section 151A of the Representation of Peoples Act 1951. As per this provision, the Election Commission of India is not obligated to conduct a bye-election to fill a vacant seat if the remaining term for the vacancy is less than one year. The bench stated its intention to schedule the matter for a hearing in March or April, during which it will establish legal principles on the matter.

Written by- Afshan Ahmad

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9 Jan

A single person cannot be party to arbitration when the arbitration agreement mandates joint holders to be a party : Bombay HC

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TITLE : Ketan Champaklal Divecha V DGS Township Pvt. Ltd. &

CORAM : Hon’ble Justice Manish Pitale

DATE : 2^nd January 2024

CITATION : Arbitration Application No. 21860 of 2023

FACTS

Maintainability of the present petition was challenged under Section 9 and 11 of the Arbitration and Conciliation Act, 1996. According to the respondents, the arbitration clause, in the present case, is so worded and structured that the petitioner, being a member of Co-operative Housing Society, alone cannot seek resolution of disputes under the arbitration clause. In the current case, it was found that the actual area of the plot was less than the area on the basis of which the development agreement was executed.

LAWS INVOLVED

Section 2(1)(h) of the Arbitration and conciliation act states that :

(h) “party” means a party to an arbitration agreement

The arbitration agreement states that :

“35.1 All disputes, claims and questions whatsoever which may arise with respect to this Agreement between the Parties hereto touching or relating to or arising out of these presents or the construction or application thereof or any clauses or thing herein contained or in respect of the duties responsibilities and obligations of either party hereunder or as to any act of omission of any party or as to any other matter in anywise relating to these presents or the rights, duties. and liabilities of either party under these presents shall be referred to arbitration under Arbitration and Conciliation Act, 1996 or any statutory modification and/or re-enactment thereof in the following manner:

35.2 The Society and the Members as one Party and the Developer as the other Party may forward a panel of names to facilitate the task of selection of the Sole Arbitrator, and a Sole Arbitrator shall then be appointed jointly by the Society and the Developer;”

ISSUES

Whether individual members of the society being signatories of the development agreement entitled to invoke arbitration?

JUDGEMENT

The court analysed Section 2(1)(h) of the Act defines who a party is. Section 7 thereof defines an ‘arbitration agreement’, as an agreement by parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship. The arbitration clause in the present case has to be interpreted on the basis of the aforesaid definition of ‘party’ and ‘arbitration agreement’. The arbitration agreement states that ‘society and members’ as one party and the developer as the other party. The court held that with respect to the arbitration clause, an individual member does not have the capacity to invoke arbitration.

Written by- Sanjana Ravichandran

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