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Bombay HC holds MBBS degree valid even though the reservation certificate is proven to be fraudulent.

CASE TITLE – Miss. Lubna Shoukat Mujawar v. State of Maharashtra

CASE NUMBER – Writ Petition No. 132 of 2017

DATED ON – 09.05.2024

QUORUM – Justice A.S. Chandurkar and Justice Jitendra Jain

FACTS OF THE CASE

The Petitioner had in the year 2012-13, enrolled herself for the MBBS course at the Lokmanya Tilak Municipal College and Hospital, who is the Respondent No.4 in this case. She had opted to enroll under the OBC category on the basis of Non-Creamy Layer, for which she had provided certificates. In 2012, a Writ Petition, numbered as 7456, was filed by an aspiring medical student seeking inquiry with respect to admission to the MBBS course through the OBC category based on the Non-Creamy Layer Certificate, due to which an enquiry was conducted against all the students that were enrolled at the college who obtained the admission on the basis of the said Certificate. The Petitioner’s father who had obtained the said Certificate was called for hearing by the Enquiry Committee in the month of April and October 2013. The Enquiry Committee came to the conclusion that the Petitioner’s father has misrepresented to the Authorities while making an application for the said Certificate. The Petitioner’s father stated that he gave Talaq on 9th October, 2008 to his wife and, therefore, the income of the wife was not shown while making the application but at the same time in his statement stated that for the betterment of the children, he used to stay along with his wife. Due to which, The Committee began to doubt the documents based on which the Talaq was granted. The Committee, therefore, concluded that the Petitioner’s father has obtained the said Certificate by giving false information.

On the basis of the above Enquiry Report, the Collector of the Mumbai Suburban District, Respondent No.3, on 8th October, 2013 cancelled the said Certificate and consequently, The College too, through a communication, dated 1st February, 2014, cancelled the admission of the Petitioner to the MBBS course. It is on this backdrop that the present petition was filed before this Court on 5th February, 2014 challenging the cancellation of the admission and the said Certificate.

ISSUES

  1. Whether the Petitioner has proven that she could be provided admission under the OBC category on the basis of Non-Creamy Layer Certificate?

  1. Whether the Petitioner’s father has procured the Non-Creamy layer Certificate rightfully?

  1. Whether the College is justified in cancelling the admission and preventing the Petitioner from further continuing her MBBS course?

CONTENTIONS BY THE PETITIONER

The Petitioner submitted that since her father had given Talaq to her mother on 9th October, 2008, the income of the mother was not mentioned by her father while making the application for the said Certificate. The Petitioner submitted that her parents were staying together for the sake of the Petitioner and, therefore, merely because they were staying together, the income of both the parents should not be considered for the said Certificate, since they had already obtained Talaq in 2008. The Petitioner further submitted that if the income of her father is considered then the Certificate has been correctly issued as per the Government Resolution dated 14th October 2008, wherein the upper limit of annual income prescribed for obtaining the said Certificate was Rs.4,50,000/-, which was more than what her father was earning. The Petitioner submitted that there is no false information given by her father and, therefore, the action of Respondent Nos.3 and 4 cancelling the Certificate and the admission is illegal and bad in law. The Petitioner had also filed notes of arguments giving dates and events up to 2022. The Petitioner submitted that on 25th July 2017, she completed her MBBS course and the passing certificate was issued to that effect. The Petitioner had also completed her internship as well as served as a Medical Officer in Kolhapur District during the period 22nd January 2022 to 11th October 2022.

CONTENTIONS BY THE RESPONDENT

The Respondents have relied upon the Enquiry Report and submitted that the Petitioner’s father had given false information with respect to the Talaq and also falsely stated that the Petitioner’s parents were staying separately when in fact they were staying together. The Respondents further submitted that such a course of action adopted by the Petitioner’s father to obtain admission is improper and would set a wrong precedent if the same is accepted. Furthermore, they informed that till today, the income of the Petitioner’s mother is not disclosed although, she was working with the Corporation. The learned Senior Counsel strongly opposed the petition and the prayers sought therein and justified the action of cancellation of the admission.

COURT ANALYSIS AND JUDGEMENT

The Petitioner’s father in his application dated 25th June, 2012 for obtaining Non-Creamy Layer Certificate has stated that his wife is a housewife and her income is Nil. This statement is found to be incorrect since his wife was working with the Corporation as stated by the petitioner as Class-III employee. Therefore, the statement made in the application was found to be incorrect. If the income of the wife had been given then the total income of the family would have exceeded Rs.4,50,000/- since the Petitioner in the said application has stated that his income was Rs.4,37,815/- for the financial year 2011-12. The Court believed that it is for this purpose that the Petitioner’s father, to circumvent the upper limit specified by Government Resolution had made a false statement. In the application, the Petitioner’s father stated that Afroz Jahan, a housewife was having no income whereas, before the Enquiry Committee, he stated that on 9th October, 2008, he had given Talaq to his wife. If that be so then there was no need for the Petitioner’s father in the application made for the certificate to state that Afroz Jahan is his wife. This lead the Court to conclude that either the document dated 9th October, 2008 giving Talaq is not genuine or the information provided in the application dated 25th June, 2012 is incorrect. Which in either case, the application is based on incorrect, wrong, and false information. The Petitioner’s father sought to justify that although he had given Talaq, he was staying with his wife for the betterment of the children when confronted by the Enquiry Committee. Which was in the eyes of the Court, self-contradictory and an afterthought, and therefore, the Enquiry Committee was justified in rejecting such a contention. From any angle, there was no doubt that the basis of cancelling the certificate and the admission was justified since the same was based on false, incorrect, and suppression of information. Therefore, the Petitioner’s prayer to quash the communication dated 8th October, 2013 was rejected. However, since the Petitioner had completed the MBBS course and was also qualified as a Doctor, the Court did not see it as necessary to deprive the country of a qualified doctor as it would be a loss, since the nation already had a very low ratio of doctors to population. The court then held that Respondent No.3 was justified in cancelling Non-Creamy Layer Certificate of the Petitioner dated 8th October 2013 based on which the admission was obtained in the College. But since the Petitioner was qualified, the College and the University were then directed to confer the degree to her. The admission of the Petitioner in the College right from year 2012 till completion of the MBBS course would be considered in the “Open Category” and the Petitioner was instructed to pay the difference in the fees which an Open Category Candidate was required to pay for the entire course, within 12 weeks from the date of the order. The Petitioner was also directed to pay the cost of Rs.50,000/- to the Hospital within the same time period.

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Judgement Reviewed by – Gnaneswarran Beemarao

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Mere smell of the alcohol in the breath Would not lead to a conclusive presumption of contributory negligence, Delhi High court

CASE TITTLE:RELIANCE GENERAL INSURANCE CO LTD V.HAWA SINGH & ANR

CASE NO:MAC.APP. 107/2016

ORDER ON:08 May 2024

QUORUM: J. DHARMESH SHARMA

FACTS OF THE CASE:

The present appeal is prefered  by the appellant/insurance company , Under Section 173 of the Motor Vehicles Act, 1988, challenging the judgment-cum-award dated 23.11.2015

The brief facts of the case is that the claimant/ respondent 1 sustained injuries on 07.11.2011, wherein his motorcycle was hit by a Santro car(‘offending vehicle’) driven by respondent No.2/Anil Kumar, who is the driver-cum-owner Of the offending vehicle.While the case came before the  Presiding Officer, Motor Accident Claims Tribunal, on 23.11.2015 passed a judgment-cum-award directing, A sum of Rs.7,64,654/- as compensation to The claimant with interest @ 9% per annum from the Date of filing of the petition till realisation.

LEGAL PROVISIONS:

Section 173 of the Motor Vehicles Act, 1988:talks about appeals which states that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent.

CONTENTIONS OF APPELLEANT:

Learned counsel for the appellant/insurance company Vehemently urged that while the factum of the accident is not in Dispute as also the fact that the two vehicles were indeed involved in The accident, however, it was vehemently submitted that the Respondent No.1/claimant-injured was guilty of negligence since when He was examined in Sanjay Gandhi Memorial Hospital and MLC, was recorded by the doctor Attending to him that he smelled of alcohol in his breath. Having consideration to the submissions advanced by The learned counsel for the rival parties and on perusal of the Trial Court Record (TCR), plea raised by the Appellant/insurance company cannot be sustained in law.

COURTS ANALYSIS AND JUDGEMENT:

The court considered that observation made by  motor accident claims tribunal wherein the respondents claims that the accident was claimed by the fault of the petitioner under influence of liquor  but respondents failed to lead the evidence of the same, herefore court also observed that the procecution witness in cross-examination, denied that he had consumed liquor before the accident. However,  it is borne out from the medical records MLC of respondent No.1/claimant injured that the smell of alcohol was present and it was also recorded that The patient was conscious and well-oriented.therefore the court considered that the  blood sample of the Respondent No.1/claimant-injured was taken so as to test how much Alcohol was present in his blood. Further, there was no challenge in The cross-examination to his testimony that it was the driver of the Offending vehicle who was responsible for causing the accident. Hence the court opined that Mere smell of the alcohol in the breath Would not lead to a conclusive presumption that the respondent No.1/claimant was guilty of contributory negligence.

Therefore, the  court opines that, issue that requires modification is the award of compensation towards the interest rate. The claim Petition was decided within three years of its filing and the Court,in Umpteen number of cases, has taken a consistent view that the interest Rate should ordinarily be 7.5% unless and until exceptional Circumstances are shown.therefore the court refered,

The Oriental Insurance Co. Ltd. V. Sohan Lal

National Insurance Co. Ltd. v. Mannat Johal

Accordingly, the court reduced the intrest rate  from 9% to 7.5%, which shall be payable to the claimant from the date of filing of the petition till realization. In view of the foregoing discussion, the court  hereby dismissed the present appeal. It is pertinent to mention here that the Court vide order dated 02.02.2016, had directed the appellant/insurance company to deposit the entire amount of compensation with accrued interest with the learned Tribunal within four weeks from the day upon which 60% of the amount of compensation was directed to be released to the respondent No.1/claimant. Hence, the balance amount of Compensation be released to the respondent No.1/claimant forthwith With interest. Further, the court held that since the present appeal is failing on merits, the Statutory amount of Rs.25,000/- deposited by the appellant/insurance Company shall stand forfeited to the State. The court disposed of the  present appeal accordingly.

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Judgement Reviewed by:Sowmya.R

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Power to modify the Orders of the original authority conferred to the appellant tribunal cannot be in dispute: Madras High court

CASE TITTLE: Regional PF Commissioner, EPF organization vs President officer EPF Appellate tribunal and ors.

CASE NO:W.A(MD).No.298 of 2024

ORDER ON:15.04.2024

QUORUM: J. D.KRISHNA KUMAR And J. R.VIJAYAKUMAR

FACTS OF THE CASE :

The facts leading to the present appeal in question is that the second respondent in the writ appeal had suffered an order under Section 14-B of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 on 26.12.2003. Aggrieved over the same, the Management had filed an appeal before the Appellate Tribunal in A.T.A.No.37/(13) of 2004. The Appellate Tribunal under the impugned order dated 03.03.2009 had restricted the damages up to 15% per annum. This order has Been confirmed by the writ Court. Challenging the same, the present appeal has been filed by the Regional Provident Fund Commissioner, Madurai.

LEGAL PROVISIONS:

Employees’ Provident Funds and Miscellaneous Provisions Act, 1952

 Sec 14B- pertains to the power to recover damages from the employer on default payment of contribution of provident fund. The section provides that authorized officials may recover damages by way of penalty from the employer.

Employees’ Provident Funds and Miscellaneous Provisions Act, 1952

Sec 7-I – Appeals to the tribunal, Sec 7-L- orders of the tribunal

CONTENSIONS OF THE APPELENT:

The learned counsel appearing on behalf of the appellant submitted that,The Appellate Tribunal has no power to Revise the damages imposed by the Original Authority under Section 14-B Read with Sections 32A and 32B of Employees’ Provident Fund Scheme 1952.Further, gross reduction in the levy of damages will Have an adverse impact on the entire scheme itself.As per Paragraph No.32A of EPF Scheme, damages have to be levied at the rates furnished therein, And there is no discretion to the official to do so as per the said provision.the financial difficulties of the Management cannot be a reason for reducing the quantum of damages. When The management had deliberately and intentionally delayed the payment of Contribution, there is no ground or discretion whatsoever to the authorities to Reduce the quantum of damages as prescribed under the statute.

COURT ANALYSIS AND JUDGEMENT:

The court after hearing the submissions made by the appellant counsel perceived the material records and observed that A perusal of Section 7-I and 14-B makes it clear that all orders Including the order passed by the Central Board under Section 14-B are also Appealable to the Appellate Tribunal. When the order of the Central Board is Appealable to the Appellate Tribunal, the contentions of the learned counsel Appearing for the appellant that the Appellate Tribunal would not have any power to reduce or waive damages Is not legally acceptable. A close reading of Section 7-L would reveal that the Tribunal has Got power either to confirm, modify or to annul the orders of the original Authority or it can remit it back to the original authority for fresh Adjudication. Therefore, the power of the Appellate Tribunal to modify the Orders of the original authority cannot be in dispute. The original authority Cannot contend that his orders cannot be modified or set aside by the Appellate Authority. It is very strange that the original authority had Questioned the power of his Appellate Authority by way of filing this writ Petition. A comparative reading of 7-Q which relates to the imposition of Interests for the belated payment of their contribution amount and damages Under Section 14-B of the Act clearly reveals that the imposition of interest is Automatic and it is not necessary to provide any opportunity of being heard to The employer. But before imposing damages, a hearing is mandatory. Therefore, it is clear that some kind of discretion is vested with the Authorities to consider the mitigating circumstances before imposing the Damages. If there is no discretion whatsoever, the legislature would not have Mandated granting of opportunity to the employer before imposing damages, Thereafter court also referred to the below precedents, Regional Provident Fund Commissioner, Nagpur Vs. Manohar Bhai Ambalal Gondia,  Spinning Mills Ltd., Tirupur District Vs. Regional Provident Fund Commissioner, Coimbatore and others)In view of the above said deliberations, the court Opines, that the Appellate Tribunal, is Empowered to reduce or waive damages as per the scheme. In the present case, in the exercise of the said powers, the Appellate Tribunal has reduced the Damages to 15%. Therefore, the court doesn’t find any illegality or infirmity in the Order passed by the Appellate Tribunal or by the writ Court in confirming the Order passed by the Appellate Tribunal. Therefore, concluded that there are no merits in the writ appeal. Hence, The Writ Appeal is dismissed

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Judgement Reviewed by:Sowmya R

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Validity of the use of loudspeakers by religious establishments in the lens of the judiciary

Introduction :

The Gujarat HC[1] in its recent plea held that a 10-minute use of loudspeakers during Azan (religious Muslim prayer) to not be causing noise pollution. This has stirred a question of whether the use of loudspeakers for religious purposes is valid as per the law or not. Secondly, does the use of loudspeakers cause noise pollution and banning them is violative of the provisions of the Constitution.

Legislative View :

The term noise is derived from the term nausea in Latin and has been defined as an unwanted sound with a potential health hazard to health and communication. It is also to cause irreversible damage to the environment.

Section 2(a) of the Air (Prevention and Control of Pollution) Act, 1981 includes noise in the definition of “air pollutant”. Noise Pollution is considered to be a public nuisance and is Punishable under Section 268, 290 and 291 of the Indian Penal Code. Section 268 states that,

“268. A person is guilty of a public nuisance who does any act or is guilty of an illegal omission, which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right[2]

The government of India drafted the regulations for controlling noise pollution in the Noise Pollution (Control and Regulation) Rules, 1999 which was enforced in the year 2000.

The rules laid down that the control of noise pollution is in the control of state governments and ensure that the noise level is as permitted. It also stipulated that loudspeakers and public address systems should not be used unless there is a prior authorization of use. Furthermore, it provided that a loudspeaker or public address system shall not be strictly used at night (10 PM- 6.00 AM) unless there is permission from the State Government.

Judicial Pronouncements :

The question that often arises is whether the ban of loudspeakers in religious institutions is whether it is against Article 25 and 19(1)(a) of the Constitution of India. Article 25 gives the right to religion and Article 19(1)(a) guarantees freedom of speech and expression to the citizens.

The Kerala High Court in the case of P.A Jacob  v Superintendent of Police Kottayam[3] deduced that the use of loudspeakers in a Christianity denomination would disrupt the law and order by causing inconvenience to the other group of citizens. It held that an high volume noise would be against the principle of right to life and personal liberty guaranteed under Article 21 of the Constitution Of India.

Additionally, the Supreme Court in the case of Noise Pollution (V) Re[4], the hon’ble court held that freedom from noise pollution is a part of the right to life under Article 21 of the constitution. It also relied on the Noise pollution rules to point that it is the State’s duty to ensure the noise level of a particular jurisdiction.

The Court further held that people cannot shelter under Article 19(1)(a) and justify noise pollution. It reasoned that although right to freedom of speech and expression are of fundamental in nature, it is not absolute and secondly, Article 21 supersedes Article 19 of the Constitution.

In another case of the Supreme Court, Church of God in India v. K.K.R majestic Colony Welfare Assn[5], it was held that no religion preaches to use voice amplifiers or loudspeakers to promote and propagate the religion. It laid down that religious establishments should keep in mind the society and the harm that may be caused because of the noise.

The Bombay High Court[6] in August 2016 held that the use of loudspeakers is not a fundamental right conferred under Article 25 of the Constitution of India. Further, it was held that all religious places are bound by the noise pollution rules and must have permission from the appropriate authorities working for the state. The same was reiterated by the Punjab High Court[7] and ordered that,

“The States of Punjab, Haryana and Union Territory, Chandigarh are directed to ensure that no loudspeaker or public address system shall be used by any person including religious bodies in temples, mosques and gurdwaras without written permission of the authority even during day time, that too, by getting an undertaking that the noise level shall not exceed more than 10dB(A) peripheral noise level”

In recent times, the Madras High Court in the case of K.Bose V The district Collector[8] held that the state and its machinery should ensure that no individual or institution, whatsoever may be cause any noise pollution affection the rights of the residents living in that area.

A Public Interest Litigation was filed to prohibit the use of loudspeakers during Azan in the high court of Karnataka[9]. The question that raised was whether the use of loudspeakers during Azan violate the right to religion of people of other faiths. The court held in the negative and refused to order mosques to stop playing azan on loudspeakers.

However, the court directed the authorities to implement the Noise Pollution rules and the state government to take action regarding the same.

In the case of K.Ramesh V The State of Tamilnadu[10], the court stated that fundamental rights and fundamental duties go hand in hand. Any religious institution exercising their right to practice must be reminded off their duties towards other citizens, upon whose rights are also to be protected.

The court held that all religious institutions must adhere to the rules of the law for the purpose of conducting their respective religious activities.

“Any such religious activities affecting the rights of the other citizen and any infringement of rights under the Constitution of India must be viewed seriously and all appropriate actions are to be initiated in the event of any complaint or otherwise”

The same ratio was held by the Allahabad High Court in the case of Afzal Ansari V  State of UP[11]. The court added Azan may be an essential and integral part of Islam but recitation of Azan through loudspeakers cannot be said to be an integral part of the religion to guarantee protection under Article 25.

The decision of Gujarat Hight Court[12] on rejecting the plea to ban Loudspeakers during Azan is based on the mere knowledge that the voice used during Azan is relatively slow and 10 minutes of the same wont cause harm and compared the same to the use of arati and drums in hindu temples. Therefore, the test to whether a noise constitute to pollution is dependent upon the decibel of the sound and not the usage per se. 

Conclusion

It can thereby be said that the controlling of noise pollution purely lies in the hand of the state. There is no exemption or gateway to escape the noise pollution rules. It is mandatory to seek permission before using loudspeakers from the state authority.

It is also to be noted that, Article 21 prevails as in a greater ambit, Right to life and personal liberty includes the right to live In a pollution free environment which also includes noise pollution. Although Article 25 and 19 are fundamentally important, the rights are not absolute and they pertain of certain rules and conditions.

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Written by- Sanjana Ravichandran

[1] Narsi Benwal, If 10 mins of Azaan causes noise pollution, what about loud music, bhajan in temples? Gujarat High Court rejects PIL against Azaan, BAR AND BENCH (Nov 29, 2023) https://www.barandbench.com/news/if-10-mins-azaan-causes-noise-pollution-what-loud-music-bhajan-temples-gujarat-high-court-rejects-pil-azaan.

[2] The Indian Penal Code, 1860

[3] AIR 1993 Ker 1

[4] (2005) 5 SCC 733

[5] (2007) 7 SCC 282

[6] Dr. Mahesh Vijay Bedekar v The State of Maharashtra (2016) SCCOnline Bom 332

[7] Reet Mohinder Singh Virk v State of Punjab & Ors (2023) PHHC 107430

[8] K.Bose V The district Collector , W.P (MD) No. 9099 of 2004

[9] Chandrashekhar R v State of Karnataka WP 10473/2022

[10] K.Ramesh V The State of Tamilnadu W.P No 21143 of 2014

[11] 2020 SCCOnline All 592

[12] Id,1

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The Party Is Obliged To Follow The Undertaking Given In Front Of Court: Patna High Court

Citation: CR. MISC. No.39089 of 2023

Decided On: 16-10-2023

Coram: Honourable Mr. Justice Satyavrat Verma

Introduction:

The learned counsel for the petitioners submits that the present quashing application has been filed seeking quashing of the FIR being Patliputra P.S. Case No. 386 of 2023 dated 12.05.2023, registered under Sections 406, 420, 504, 506 and 120B of the Indian Penal Code.

Facts:

The learned counsel submits that the aforesaid F.I.R. was instituted by the Opposite Party, it is next submitted that the offences are compoundable and the parties have entered into a compromise dated 20.09.2023. The learned for the Opposite Party does not object to the submissions of the learned counsel for the petitioners but submits that in the compromise dated 20.09.2023, three conditions were there out of which two conditions have been fulfilled by the petitioners but the third conditions which was with respect to withdrawal of Complaint Case No. 4801 of 2023, pending in the Court of learned C.J.M, Patna which was instituted by the petitioners against the Opposite Party till date has not been withdrawn though in the compromise it was clearly recorded that the petitioners will withdraw the said case also.

The learned counsel for the petitioners submits that the next date fixed in the Complaint Case 4801 of 2023 pending in the Court of learned C.J.M, Patna is 03.11.2023 and on the said date the said complaint case shall be positively withdrawn by the petitioners, since the parties have compromised and the learned counsel for petitioners, on behalf of the petitioners, have undertaken before this Court that Complaint Case No. 4801 of 2023 pending in the Court of learned C.J.M, Patna shall be withdrawn on 03.11.2023 in terms of the compromise dated 20.09.2023.

Court’s analysis and Judgement:

In the event if the petitioners violates the undertaking given before this Court that petitioners will withdraw the Complaint Case No. 4801 of 2023 pending in the Court of learned C.J.M., Patna in that event the Opposite Party shall be at liberty to bring the said fact to the notice of the Court. Stating that the court allowed the quashing of the application.

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Written By : Sushant Kumar Sharma

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