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Delhi HC rules abatement upon plaintiff’s death on religious accomodation dispute

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Case title: Diocese of Delhi-CNI vs. Mr. Deepak Martin Caleb

Case No. C.R.P 46/2022

Dated on: 21st May, 2024

Quorum: Hon’ble Mr. Justice Dharmesh Sharma

FACTS OF THE CASE

The deceased plaintiff was appointed as a resident priest by the defendant No. 1 (referred to as petitioner) to perform religious services and duties in the Church. The petitioner allowed the deceased to reside in accommodation on the ground floor of the Church premises. Despite initially intending to retire in March 2001, the deceased’s services were extended at the request of the petitioner on an ad hoc basis until 2005.Claiming a crisis in the Church’s affairs, the deceased was given further extensions by defendant No. 3 to continue performing religious services and retain the accommodation until May 14, 2018.However, in May 2018, the petitioner informed the deceased that his services were no longer required, and a new Presbyter in-charge had been appointed. Subsequently, defendant No. 2 instructed the deceased to vacate the premises, declining his request for alternative accommodation in November 2018.In response, the deceased instituted a suit challenging the authority of the petitioner and defendant No. 2, alleging harassment and asserting his right to continue residing in the accommodation inside the Church. The deceased’s suit claimed relief against the termination of his services and challenged the authority of the defendants to manage the Church’s affairs, particularly regarding his accommodation rights. The petitioner argued that the deceased’s rights were personal and did not survive his death. They contended that the accommodation was provided as an incidental benefit for the performance of religious duties and that the right to retain it ended with the termination of services and the plaintiff’s death. The court noted that the deceased’s claim to the accommodation was not based on tenancy rights but on possessory rights. It emphasized that no hereditary rights were created, and the deceased’s successor could not continue the suit as a legal heir. Referencing legal precedents, including a case involving the appointment of priests in Hindu temples, the court concluded that the deceased’s personal rights terminated with his death and did not devolve onto his legal representatives. Additionally, the court addressed arguments made by the respondent’s counsel regarding a Supreme Court order granting temporary relief but clarified that it did not determine the survival of legal rights in the pending suit. After analyzing the arguments and legal principles, the court concluded that the deceased’s suit abated upon his death, and the previous order allowing its continuation was set aside. The court instructed that a copy of its order be sent to the trial court for information and compliance, effectively ending the proceedings related to the deceased’s suit.

ISSUES

  1.  Whether the deceased plaintiff’s legal rights continue beyond his death and can be pursued by his legal representatives.
  2. Examining the validity of the defendants’ actions in terminating the deceased’s services and demanding his eviction from the accommodation.
  3. Determining whether the deceased’s rights were personal and extinguished upon his death or if they could be inherited or transferred to his legal representatives.

LEGAL PROVISIONS

  1. Order 22, Rule 1 of the Code of Civil Procedure (CPC): This rule deals with the abatement of a suit in case of the death of a plaintiff or defendant and specifies the circumstances under which the suit may or may not abate.
  2. Principle of “actio personalis moritur cum persona”: This Latin maxim means “a personal action dies with the person.” It applies to certain actions ex delicto, such as defamation or personal injury, where the right to sue extinguishes upon the death of the person.
  3. Legal Precedents: Referring to past judgments like Puran Singh v. State of Punjab and Girja Nandini v. Bijendra Narain, which establishes when the right to sue survives the death of a party and when it does not.

CONTENTIONS OF THE APPELLANT

The appellant, representing the deceased plaintiff, contends that the deceased was initially appointed as a resident priest by the petitioner/defendant No.1. It is acknowledged that the petitioner allowed the deceased to reside in the accommodation on the church premises. Despite the acknowledgment of retirement, the deceased’s services were extended multiple times, indicating an ongoing engagement with the church. The appellant argues that the deceased, in his capacity as a resident priest, faced harassment from the defendants, particularly from petitioner/defendant No.1 and defendant No.2. The deceased challenged the authority of these defendants not only for the non-extension of his tenure but also for alleged harassment. The contention revolves around the termination of his services, which the deceased perceived as unlawful and unjustified. Another key contention is regarding the nature of the legal rights asserted by the deceased. The appellant argues that the rights claimed by the deceased, including the right to continue residing in the accommodation provided by the church, were personal in nature and not heritable. This implies that these rights did not transfer to the appellant upon the deceased’s death.The appellant further contends that the respondent, as the son of the deceased, does not inherit any rights to become a religious priest of the church or challenge the authority of the defendants. The appellant emphasises that the accommodation provided to the deceased was for the sole purpose of facilitating his religious duties and did not confer any hereditary rights upon his heirs. Additionally, the appellant distinguishes between possessory rights and hereditary rights. While acknowledging that the respondent seeks to protect possessory rights in the premises, the appellant asserts that no hereditary rights were created in favour of the respondent. Therefore, the appellant suggests that any claim to the premises should be pursued separately from the deceased’s lawsuit. These contentions collectively form the appellant’s argument against the respondent’s claim and serve as the basis for challenging the lower court’s decision.

CONTENTIONS OF THE RESPONDENT

The respondent contends that the deceased plaintiff challenged the authority of the petitioner/defendant No.1 and defendant No.2. This challenge is not solely based on the termination of his services but also involves allegations of harassment at the instance of defendants No.1 and 2. The respondent argues that such actions justify his right to maintain the suit and seek relief from the court. The respondent asserts that the deceased plaintiff was appointed as a religious priest in the Church in his individual and personal capacity by petitioner/defendant No.1. Moreover, he was allotted and allowed to retain accommodation in the suit premises inside the church premises solely to facilitate him in discharging religious duties. Therefore, the respondent argues that the plaintiff’s legal rights were personal to him and not heritable, which justifies his right to continue the suit.The respondent further contends that even if an extension was granted to the deceased plaintiff, the legal right, if any, available to him was a personal right of action that died with his death and was not transferable or heritable. Therefore, the respondent argues that the relief claimed by the deceased plaintiff challenging the authority of the petitioner/defendant No.1 and defendant No.2 essentially died with him and cannot be pursued further by his successor or legal heir.  The respondent emphasises that no hereditary rights are created in favour of the respondent to continue with the suit filed by the deceased plaintiff as his successor or legal heir. The respondent refers to an analogy regarding the right of a pujari to provide services in Hindu temples to support this argument, suggesting that continuity of service does not confer an independent right upon successors. These contentions form the basis of the respondent’s argument in the case, asserting the legitimacy of maintaining the suit despite the death of the original plaintiff.

COURT’S ANALYSIS AND JUDGEMENT

The court’s analysis and judgement in the case revolve around interpreting the legal rights and obligations concerning the deceased plaintiff’s tenure as a religious priest in the Church and his right to retain accommodation on the church premises. 

The court begins by examining whether the legal right to sue survives the death of the plaintiff, as per legal provisions outlined in Order 22 of the Code of Civil Procedure (CPC). It acknowledges the principle that a personal action dies with the death of the person, citing the maxim “actio personalis moritur cum persona.” However, it notes exceptions where the right to sue survives despite the death of the party, particularly in cases where the relief sought would not be rendered nugatory by the party’s death.

 The court proceeds to analyse the nature of the deceased plaintiff’s rights and tenure as a religious priest in the Church. It observes that the plaintiff’s appointment and accommodation were facilitated by the petitioner/defendant No.1 to enable him to discharge religious duties. The court underscores that the plaintiff’s rights were personal and not heritable, emphasising that the accommodation was provided as an incidental benefit to his role as a priest.

Examining the contentions raised in the suit, the court considers the plaintiff’s challenge to the authority of the petitioner/defendant No.1 and defendant No.2, as well as allegations of harassment. It concludes that the relief sought by the plaintiff challenging his termination and authority essentially died with him, as it was a personal right of action.

Addressing the respondent’s contention that he, as the legal heir of the deceased plaintiff, should be allowed to continue the suit, the court rejects this argument. It emphasizes that no hereditary rights are created in favor of the respondent to pursue the suit, as the deceased plaintiff’s rights were personal and not transferable or heritable.

The court draws parallels with legal precedents related to the appointment of priests in Hindu temples to support its analysis. It highlights that continuity of service does not confer an independent right upon successors, further reinforcing its stance on the non-heritability of the plaintiff’s rights.

 Based on its analysis, the court concludes that the impugned order allowing the respondent’s application under Order 22 Rule 3 of the CPC suffers from patent illegality and constitutes an erroneous exercise of jurisdiction. Consequently, the court sets aside the order and declares that the suit filed by the deceased plaintiff abates, meaning it comes to an end and shall not be further proceeded with in the Trial Court.

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Judgement Reviewed by – Shruti Gattani

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Delhi HC Validates Externment of Habitual Offender for Public Safety

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Case title : Rajjan @ Ashu Chauhan vs. The State of NCT of Delhi

Case No. W.P. (CRL) 955/2024

Dated on: Reserved on 22nd April,2024 ; Pronounced on 21st May,2024

Quorum: Hon’ble Mr. Justice Amit Sharma

FACTS OF THE CASE

 The petitioner, a habitual offender with a criminal record from 2017 to 2022, faced externment proceedings initiated by the police due to his persistent involvement in crimes such as cheating, criminal trespass, breach of trust, forgery, extortion, assault, and intimidation. Witnesses, who were too fearful to testify publicly, provided in-camera statements describing how the petitioner, often accompanied by armed associates, created a climate of fear and threatened those who opposed his illegal activities. The competent authority, after reviewing the statements and other relevant materials, concluded that the petitioner’s continuous presence was hazardous to the public, necessitating his externment under Section 47 of the Delhi Police Act, 1978. Despite the petitioner’s challenge to the scope and duration of the externment, the court upheld the order, emphasizing that it was based on credible evidence and aimed at ensuring public safety. The Lieutenant Governor later reduced the externment period from two years to one year, but the geographical scope remained the entire National Capital Territory of Delhi to effectively address enforcement challenges.

ISSUES

  1. The legality and validity of the externment order issued against the petitioner under     Section 47 of the Delhi Police Act, 1978, questioning the sufficiency of evidence and the subjective satisfaction of the competent authority.
  2. The geographical scope of the externment order, specifically questioning why the entire National Capital Territory (NCT) of Delhi was included and not just the specific area associated with the alleged offences or concerns related to the petitioner’s activities.
  3. The duration and proportionality of the externment order, considering whether the initially set duration of two years (later reduced to one year) is proportionate to the alleged offences and whether the imposition of the order aligns with principles of fairness and necessity.

LEGAL PROVISIONS

  1. Section 47 of the Delhi Police Act, 1978: This section empowers the competent authority to external individuals from specific areas within the National Capital Territory of Delhi if their presence is deemed hazardous to society.
  2. Section 56(1)(bb) of the Bombay Police Act, 1951: While not explicitly mentioned in the text, the case refers to the provisions of this act to outline the grounds and procedures for externment orders.
  3. Precedents and Case Law: The court referred to various judgments, including Pandharinath Shridhar Rangnekar v. Dy. Commr of Police, State of Maharastra, (1973) 1 SCC 372, and Gazi Saduddin v. State of Maharashtra, (2003) 7 SCC 330. These judgments provide precedents and interpretations related to the legal aspects of externment orders, including the requirements for sufficient evidence, procedural fairness, and the scope of such orders.

CONTENTIONS OF THE APPELLANT

Learned Senior Counsel for the appellant submitted that the externment order issued against the appellant was excessive and lacked proper reasoning. They contended that the order should have been more specific regarding the area of externment and the reasons behind selecting the NCT of Delhi as the externment area. The appellant’s counsel raised concerns about the lack of a clear link between the offences registered against the appellant between 2017-2022 and the externment order issued in 2024. They argued that this lack of connection undermined the validity of the externment order.The appellant’s counsel also questioned the sufficiency of the material considered by the competent authority in reaching its decision. They argued that there was a lack of opportunity given to the appellant to adequately explain the circumstances surrounding the offences and the grounds for the externment order. These contentions formed the basis of the appellant’s challenge to the legality and validity of the externment order in the case.

CONTENTIONS OF THE RESPONDENT

The contentions of the respondent are not explicitly mentioned.The casemainly focuses on the arguments and observations made by the court regarding the petitioner’s case and the legal provisions relevant to it. The potential contentions that the respondent might have made in the case is that the respondent may argue that the externment order was necessary to maintain public safety and order in the locality where the petitioner was active. They could assert that the petitioner’s continuous involvement in criminal activities, as documented by the competent authority, posed a significant threat to the peace and security of the community. The respondent could contend that witnesses were reluctant to come forward and testify against the petitioner in public due to fear of retaliation. They might argue that the petitioner and his associates used intimidation tactics, such as threats of violence, to silence potential witnesses, thereby obstructing justice and impeding law enforcement efforts. Another contention could be that the petitioner demonstrated a pattern of habitual criminal behaviour, as evidenced by his involvement in multiple criminal cases over a significant period. The respondent may argue that the externment order was justified based on the petitioner’s persistent engagement in illegal activities and the need to protect society from further harm. These contentions would likely support the respondent’s position that the externment order was justified and necessary for the maintenance of law and order in the community.

COURT’S ANALYSIS AND JUDGEMENT

The court’s analysis and judgement provide a comprehensive overview of the case, meticulously examining the arguments presented by both parties and applying legal precedents to reach a verdict.

The judgement begins by addressing the petitioner’s awareness of the proceedings initiated by the police station and the ample opportunity provided to explain the circumstances. It then proceeds to discuss the petitioner’s contention regarding the link between the offences registered from 2017-2022 and the externment order passed in 2024. This includes citing the Competent Authority’s reasoning for the externment order, which was based on evidence such as witness statements recorded in camera.

Legal precedents, particularly judgments from the Hon’ble Supreme Court, are referenced to provide a framework for evaluating externment orders. Cases like Pandharinath Shridhar Rangnekar v. Dy. Commr of Police, State of Maharashtra, and Gazi Saduddin v. State of Maharashtra are quoted to support the court’s analysis. These precedents establish the criteria for passing an externment order and the circumstances under which such orders can be upheld.

One significant aspect addressed in the judgement is the contention regarding the excessiveness of the externment order, particularly concerning the area of externment. The court compares the present case to previous rulings to determine if the order was justified based on the circumstances. It examines whether the area chosen for externment was proportionate to the petitioner’s unlawful activities and whether it served the intended purpose of maintaining public order and safety.

The judgement also mentions that the Hon’ble Lieutenant Governor had already reduced the period of externment from two years to one year, indicating a consideration of the severity of the order. This reduction reflects a balance between the need for public safety and the petitioner’s rights.

In conclusion, the court finds that the externment order and the subsequent reduction by the Lieutenant Governor do not suffer from any error. Therefore, it dismisses the petition and disposes of it accordingly. The judgement directs the immediate uploading of the judgement on the court’s website, ensuring transparency and accessibility to the public.

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Judgement Reviewed by – Shruti Gattani

 

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Delhi HC Grants Waiver of Costs After Petitioner Tendered Unconditional Apology

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Case Title: We, The People of India vs. Union of India & Ors.

Case Number: W.P.(CRL) 1203/2024 (Writ Petition (Criminal) likely)

Date of Decision: May 20, 2024

Quorum: Hon’ble The Acting Chief Justice & Hon’ble Ms. Justice Manmeet Pritam Singh Arora

FACTS OF THE CASE

-The case, W.P.(CRL) 1203/2024, involves a writ petition filed by a party identifying themselves as “WE, THE PEOPLE OF INDIA” against the Union of India and others. The petitioner is represented by Mr. Karan Pal Singh, Advocate, while various respondents, including the Union of India, are represented by different legal representatives.

-On May 20, 2024, the Acting Chief Justice and Ms. Justice Manmeet Pritam Singh Arora issued a judgment concerning two miscellaneous applications: CRL.M.A. 15552/2024 and CRL.M.A. 15551/2024.

-In CRL.M.A. 15552/2024, the petitioner sought exemption from certain requirements, which was granted by the court, subject to all just exceptions.

-CRL.M.A. 15551/2024 was filed seeking waiver of costs amounting to Rs. 75,000/- imposed on the petitioner by the court in its final order/judgment dated April 22, 2024. The petitioner tendered an unconditional apology for their actions before the court and expressed their understanding of the judicial system and laws of the land after reading the final order. They acknowledged their mistake and tendered the apology. The petitioner, described as a student from the lower-middle class fully dependent on their parents, stated their inability to bear the imposed costs.

-After considering the petitioner’s apology and their financial circumstances, the court waived the imposed costs of Rs. 75,000/-. However, the court directed that if the petitioner or its deponent filed any fresh proceedings in any court, they must annex a copy of the judgment dated April 22, 2024, and a copy of this order.

-Overall, the case revolves around the petitioner seeking exemption and waiver of costs, citing personal and financial circumstances as mitigating factors.

ISSUES

  1. Whether the petitioner’s application seeking waiver of costs of Rs. 75,000 imposed by the court should be granted.
  2. Whether the petitioner’s unconditional apology and acknowledgment of mistake warrant a waiver of the imposed costs.
  3. Whether the petitioner’s financial circumstances, being a student from a lower middle-class background, justify the waiver of costs.
  4. Whether the court’s decision to waive the costs is contingent upon the petitioner and/or its deponent refraining from filing any fresh proceedings in any court.

LEGAL PROVISIONS

  1. Section 151 of the Code of Civil Procedure, 1908: This section empowers the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.
  2. Judicial discretion: The court has the discretion to waive costs or impose penalties based on the circumstances of the case and the conduct of the parties involved.
  3. Precedent: The court may consider past judgments and legal principles established in similar cases while deciding whether to grant exemption from costs.

CONTENTIONS OF THE APPELLANT

-The contentions of the appellant, identified as “WE, THE PEOPLE OF INDIA,” in the case W.P.(CRL) 1203/2024 are not explicitly mentioned in the provided text. However, based on the nature of the case and the fact that the appellant is seeking exemption from certain requirements and waiver of costs, we can infer some possible contentions.  The appellant may contend that there was a violation of their legal rights or the law by the respondents (Union of India and others). This violation could be related to constitutional rights, statutory provisions, or any other legal obligations. The appellant might argue that the judgement dated April 22, 2024, imposing a cost of Rs. 75,000/- was unreasonable or unjustified. They could claim that the reasons provided by the court for imposing the cost were unfounded or that the amount of the cost was excessive given their circumstances.The appellant could assert that there was an error in the legal analysis conducted by the court in its previous judgement. They might argue that the court misinterpreted the law or applied it incorrectly to the facts of the case. As indicated in the text, the appellant is described as a student from the lower-middle class, dependent on their parents, and unable to afford the imposed costs. Therefore, one of their contentions could be based on their financial circumstances, arguing that they should be exempt from the costs due to their inability to pay.  The appellant may also contend that they have acknowledged their mistake, tendered an unconditional apology, and demonstrated an understanding of the judicial system and laws of the land. Therefore, they might request leniency from the court in the form of waiving the imposed costs.

CONTENTIONS OF THE RESPONDENT

-The text provided doesn’t explicitly outline the contentions of the respondents, namely the Union of India and others. However, based on the context provided, we can infer some potential contentions. The respondents may argue that the costs imposed by the court in its previous judgement were justified based on the actions or behaviour of the appellant. They might contend that the appellant’s conduct warranted the imposition of costs as a deterrent against frivolous litigation or inappropriate behaviour in court.  The respondents might assert that they have complied with all legal requirements and obligations in the case. They could argue that the actions taken by them were in accordance with the law and that there was no basis for the appellant’s claims or requests. The respondents could oppose the appellant’s request for waiver of costs, arguing that the appellant has not provided sufficient grounds for such relief. They might contend that the appellant’s financial circumstances or apology are not relevant factors in determining whether costs should be waived. The respondents may seek to uphold the previous judgement of the court, which imposed costs on the appellant. They could argue that the court’s decision was appropriate given the circumstances of the case and the appellant’s actions. The respondents might request that the court ensure that the appellant complies with any conditions set forth in the judgement, such as attaching copies of the judgement to any future legal proceedings filed by the appellant. These potential contentions suggest that the respondents are likely to defend the previous judgement of the court and oppose the appellant’s request for waiver of costs. They may emphasise the importance of upholding legal principles and ensuring accountability in the judicial process.

 

COURT’S ANALYSIS AND JUDGEMENT

– In the case of W.P.(CRL) 1203/2024, the petitioner, represented by Mr. Karan Pal Singh, Advocate, filed an application seeking waiver of costs amounting to Rs. 75,000 imposed by the court in its final order/judgement dated 22nd April, 2024. The petitioner submitted the application under Section 151 of the Code of Civil Procedure, 1908, asserting that he was tendering an unconditional apology for his actions before the court. He claimed to have gained a better understanding of the judicial system and laws of the land after reviewing the final order. Additionally, the petitioner, described as a student, emphasised his financial dependency on his parents, stating that he belonged to the lower middle class and was incapable of bearing the imposed costs.

– The court, presided over by Hon’ble Acting Chief Justice and Hon’ble Ms. Justice Manmeet Pritam Singh Arora, heard the matter and considered the submissions made by the petitioner. It noted that the costs were initially imposed due to the untenable legal submissions and contrary facts presented in the petitioner’s writ petition. The court, recognizing the necessity for a course correction, imposed the costs. However, in light of the petitioner’s acknowledgment of his mistake and the tendering of an unconditional apology, the court exercised its discretion to waive the imposed costs amounting to Rs. 75,000.

– While granting the waiver, the court issued a directive that if the petitioner or its deponent were to file any fresh proceedings in any court, they must annex a copy of the judgement dated 22nd April, 2024, along with a copy of the present order. This directive serves as a precautionary measure to ensure transparency and adherence to legal principles in any future legal proceedings initiated by the petitioner or its representative.

-The judgement, delivered on May 20, 2024, demonstrates the court’s careful consideration of the petitioner’s apology, financial circumstances, and the necessity for upholding legal principles while maintaining fairness and justice. It reflects the court’s exercise of judicial discretion in balancing the interests of the parties involved and ensuring equitable outcomes in the administration of justice.

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Judgement Reviewed by – Shruti Gattani

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Unaided recognized private school is not required to take prior approval before fees hike- Delhi High Court.

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Case title: Action committee unaided recognized private schools v. Directorate of Education.

Case no: W.P. (C) 5743/2024 and CM APPL. 23712/2024, CM APPL.23713/2024

Dated on: April 29th, 2024

Quorum: Hon’ble Mr. Justice C. Hari Shankar.

Facts of the case: 


Directorate of Education (DoE) issued Order dated 27.03.2024 that as per Section 17 of DSEAR, 1973 no private unaided school in Delhi which has been allotted land by the Govt. Agencies shall enhance fee without prior sanction of the Director of Education. All the Head of Schools/Managers of Private Recognized Unaided Schools, seeking prior sanction for increase in fee, to submit their proposals, for the academic session 2024-25, online from 01.04.2024 through website of Directorate latest by 15.04.2024. The proposals submitted by the schools shall be scrutinized by the Director and in case, no proposal is submitted, the school shall not increase tuition fee/fee. In case of complaint regarding increase of any fee without prior approval will be viewed seriously and will make the school liable for action against itself as per the statutory provisions. The said Notification was challenged by the Action Committee Unaided Recognized Private Schools and which has come up for hearing.

Contentions of the appellant: 


Committee Unaided Recognized Private Schools v. DoE1 and Mt. Carmel School v. DoE2. Both were decided by a common judgment dated 15 March 2019. The The impugned order is in the teeth of the judgment of this Court in Action Court to rely on the judgment of the Supreme Court in Modern School wherein was held that schools which are subject to the “land clause” have to take prior approval of the DoE before enhancing their fees.   
Contentions of the respondent: 


Upon reference in para 140 of Action Committee Unaided Recognized Private Schools case, this Court has accorded license to the principle that schools which are situated on land, to which the land clause applies, could not increase their fees without prior approval. From Modern School the propositions emerged was; (i) The issue for consideration, before the Supreme Court, was whether schools were charging excessive and disproportionate fees and whether, the DoE acted within its jurisdiction in issuing directives (ii) Unaided educational institutions enjoyed greater autonomy, in the matter of determination fee structure. Such institutions to be allowed to plan their investment and expenditure, to generate reasonable profit. (iii) Charging of capitation fees, and profiteering, could not be allowed. (iv) Balance, to be struck between autonomy of the institutions and measures to be taken to prevent commercialization of education. (v) These regulatory measures could not, trespass on the autonomy of the unaided educational institutions. (vi) The right to establish and administer minority educational institutions, conferred, by Article 30(1) of the Constitution, was subject to reasonable regulations. (vii) Subject to the prohibitory parameters, regarding charging of capitation fee and profiteering, fees chargeable by unaided educational institutions could not be regulated. (viii) The “issue”, condensed by the Supreme Court, was “as to what constitutes reasonable surplus”. (ix) The directions, issued to the DoE is to “ascertain whether terms of allotment of land by the Government to the schools have been complied with, by the schools”. In the event of non-compliance being detected, the DoE was directed to take “appropriate steps in that regard”.  

Issue: 


Whether unaided recognized private school is required to take prior approval of the DoE before increasing its fees, irrespective of whether the land clause? 

Legal provision: 


Section 8(2) of the Delhi School Education Act, 1973- which mandates prior approval for dismissal orders.  

Courts analysis and Judgement: 

 Action Committee Unaided Recognized Private Schools v. DoE1 and Mt. Carmel School v. DoE2 the Court observed that “the schools are entitled to complete autonomy in the matter of fixation of their fees and management of their accounts, subject only to the condition that they do not indulge in profiteering, and do not charge capitation fee, thereby “commercializing” education. There is no requirement for the school to take “prior approval”, of the DoE, before enhancing its fees”. The resultant legal position, following Action Committee Unaided Recognized Private Schools, is that an unaided recognized private school is not required to take prior approval of the DoE before increasing its fees, irrespective of whether the land clause. The principle that private unaided schools do not have to seek prior approval before enhancing their fees, so long as they do not indulge in profiteering or commercialization of education by charging capitation fees and making of profits, is undisturbed till date though it is subject to decision of the Division Bench. The DoE, even if dissatisfied with the judgment of this Court in Action Committee Unaided Recognized Private Schools has to respect the verdict so long as it stands. The attitude of the DoE in continuously issuing Circulars threatening recognized unaided schools is objectionable and cannot be allowed. The grievances are to be ventilated before Division Bench where the Appeal is pending, and not issue continuous circular thereby driving the schools to drive to litigations and repeatedly re-arguing the same points which were considered in Action Committee Unaided Recognized Private Schools. As long as there is no prohibition by the Division Bench, with the principle in Action Committee Unaided Recognized Private Schools the DoE is required to respect that position. In view of the aforesaid reasons, why rule nisi should not be issued? And until next hearing DoE Circular dated 27.03.2024 shall stand stayed.    

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Judgement reviewed by- Parvathy P.V.

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Supreme Court Directs Bombay High Court to Scrutinize Legality of Advocates’ Filed ‘Minutes of Order’

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Case Title: Ajay Ishwar Ghute and Ors V. Meher K. Patel and Ors

Case no: Civil appeal No. 4786 of 2024

Dated on: 30th April, 2024

Quorum: Justice Abhay S. Oka and Justice Ujjal Bhuyan

Facts of the case:

An Arbitration Petition was filed under the Arbitration and Conciliation Act, 1996 before single judge of Bombay High court wherein consent terms were filed in the arbitration petition preferred by the first respondent. In terms of the consent terms the learned single judge recorded that the process of handing over the possession of the suit property by the respondents to the first respondents as commenced. The disputes were related to lands of Parsi Dairy Farm. The seventh respondent filed an interim application after two years of filing the consent terms by stating that High court had directed the Police to give police protection to the parties for completing the process of handing over possession. A compound wall was to be constructed in terms of the consent terms, which according, to the seventh respondent could not be done as local persons obstructed the work. The learned single judge of the Bombay High court disposed the interim application by directing Police/Tahasildar/ Collector/ Gram Panchayat office and all other Government authorities to offer assistance to construct a wall to safeguard the suit property. The persons who had obstructed the construction of the wall were not part to the arbitration proceedings/ interim application. An application was filed to Deputy Superintendent of Land Records by first respondent and five others for measuring the land who vide later dated 20.11.2021 informed the first respondent that several persons have objected, in writing, in carrying out the survey. Hence, holding an enquiry was necessary. First and second respondent filed a writ petition under Article 226 of the constitution for non-compliance with the orders of the Arbitration Petition regarding survey and construction of compound wall. The persons who raised objections were not impleaded in the Writ Petition. The Division Bench on 09.03.2022 ordered the Superintendent of Police to be present. The Superintendent of Police filed an affidavit stating that local tribals have gathered an impression that they were attempted to be illegally dispossessed and they insisted that the lands be demarcated before constructing the compound wall. The District Superintendent of Land Records vide an affidavit stated that there are certain persons to whom the petitioners and others have sold small portions of land and if a compound wall is constructed the third parties are likely to get landlocked. The Division bench without noticing the contentions of the above Government officers, instead of directing impleadment of the affected parties passed an order in terms of ‘Minutes of order’ dated 16.03.2022, for issuing a direction to survey authorities to carry out demarcation of the boundary and to direct the police to provide protection for constructing the compound wall.

Contentions of the appellant:

Of the thirty review petitioners Nos. 7-18 were shown as interveners in the “Minutes of order” though they had not engaged any advocate. The said interveners never met the advocate who is shown to have signed ‘Minutes of order’ on their behalf. The appellants had rights in respect of several properties which were likely to be adversely affected by the construction of the compound wall. The principles of Natural justice were not followed before permitting the construction of the compound wall. The impugned order based on ‘Minutes of order’ is completely illegal and vitiated by the non-joinder of the necessary parties.

Contentions of the respondent:

The compound wall had been built in such a manner that no person was landlocked or in any manner inconvenienced. The owners of the adjacent lands continue to enjoy unhindered and unfettered access to their respective land.

Legal provisions

Article 226- Writ Jurisdiction of High Court.

Issue: 

Whether the High court was justified in passing a order while exercising Writ Jurisdiction under Article 226 of the constitution of India permitting the first and second respondent to construct a compound wall under police protection in terms of “Minutes of Order”?

Court’s Analysis and Judgement:

The court summarised conclusions regarding the concept of Minutes of order as follows:
a) The practice of filing ‘Minutes of order’ prevails in Bombay High court the object of which is to assist the court.
b) An order passed in terms of ‘Minutes of order’ is not a consent order. It is an order in invitum.
c) The Courts to apply its mind as to whether parties likely to be affected by an order in terms ‘Minutes of order’ have been impleaded to the proceedings and whether such order is lawful? If the court finds that all parties are not impleaded the court to defer passing of the order till all the necessary parties are impleaded.
d) If the court is of the view that an order made in terms of ‘Minutes of order’ will not be lawful court should decline to pass order in terms of ‘Minutes of order’.

It was the duty of the Court to call 1st and 2nd respondent to implead persons who were likely to be affected by the construction of the compound wall. The Division Bench of the High court failed to make an enquiry as to whether the third parties will be affected by the construction of the compound wall. Hence, order dated 16.03.2022 in terms of ‘Minutes of order’ is entirely illegal and must be set aside. The writ Petition to be remanded to the High court. After remand, High court must decide who are the necessary parties to the petition in case of failure of 1st and 2nd respondents to implead the necessary parties the High court is within its power to dismiss the Writ Petition and pass an order of restoration of status quo ante by directing demolition of the compound wall.

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Judgement reviewed by- Parvathy P.V.

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