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MP High Court Mandates Swift Disclosure of Termination Details in Rape Victim’s Case

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Case Title: Shri Lucky Bijolia (Representing Advocate) Vs. The State of Madhya Pradesh Principal Secretary Department of Public Health and Family Welfare & Ors.

Case No.: WRIT PETITION No. 9585 of 2024

Dated on: 30th APRIL, 2024

Coram: HON’BLE SHRI JUSTICE SUBODH ABHYANKAR

Facts:

In this case, a writ petition was filed under Article 226 of the Constitution of India by the petitioner, who is the father of a rape victim, seeking medical termination of his daughter’s pregnancy. The victim, a minor, was abducted on January 28, 2024, and recovered on March 1, 2024. On the same day of her recovery, her Medical Legal Case (MLC) was conducted, revealing her pregnancy. However, the petition seeking termination of her pregnancy was filed on April 8, 2024, more than a month after the pregnancy was detected. The court noted that neither the treating doctor nor the police officer informed the petitioner or the victim’s relatives about the pregnancy and the possibility of termination under the law. The victim’s pregnancy was terminated on April 17, 2024, following court directions. Further, the court criticized the apathetic conduct of the investigating officer and the treating doctor for failing to inform the victim’s family about her right to terminate the pregnancy, which it deemed as a violation of her right under Article 21 of the Constitution of India.

Legal Provisions:

  • Medical Termination of Pregnancy Act, 1971: This Act empowers registered medical practitioners to terminate specific pregnancies and addresses related matters or incidental issues.
  • Article 226 of the Constitution of India: It grants the HCs the power to issue writs, orders, or directions for the enforcement of fundamental rights or for any other purpose within their respective jurisdictions.
  • Article 21 of the Constitution of India: It guarantees the right to life and personal liberty.

Contentions of the Appellant:

The contentions of the appellant, primarily revolved around seeking medical termination of his daughter’s pregnancy, who is the victim of rape. The appellant argued that the victim, being a minor, should have been informed about her right to terminate the pregnancy under the law. They emphasized that despite the victim being abducted and subsequently recovered, there was a significant delay in filing the petition seeking termination of pregnancy, which they attributed to a lack of awareness about legal provisions regarding termination of pregnancy resulting from rape. Moreover, the appellant sought to highlight the responsibility of the investigating officer and the treating doctor in informing the victim’s family about their rights in such cases, arguing that their failure to do so infringed upon the victim’s right to live with dignity as guaranteed by Article 21 of the Constitution of India.

Contentions of the Respondents:

The respondents, contended that they informed the court that the petitioner’s daughter’s pregnancy had already been terminated on April 17, 2024, in compliance with the court’s previous directive issued on April 12, 2024. Further, they contended that during the victim’s MLC examination, the victim’s mother was present and consented to the examination, during which the victim was informed of her pregnancy. However, they acknowledged that the affidavit of the treating doctor was not filed as the doctor had been transferred, but they did not deny that neither the victim’s parents nor the victim herself were orally informed about the pregnancy and its termination options. Moreover, they provided documentation showing that the investigating officer had informed the petitioner about the victim’s pregnancy on March 4, 2024, during an ultrasound examination, but the officer’s memorandum indicated only the pregnancy status without any advice on termination.

Court’s Analysis and Judgement:

Upon its critical analysis, the Hon’ble Court issued directions and mandated that in all cases of rape where the victim is found to be pregnant, she or her parents must be immediately advised by the police officer and treating doctor about her right to terminate the pregnancy under the Medical Termination of Pregnancy Act, 1971. Failure to comply with these directions would be treated as contempt of court. Moreover, the court ordered that the information provided to the victim and her family members must be documented in writing by the investigating officer and treating doctor. Furthermore, the court directed the dissemination of this order to all police stations in Madhya Pradesh and government hospitals. With these directives, the court disposed of the petition.

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Judgement Reviewed By- Shramana Sengupta

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MP High Court upholds Gratuity Payment for Deceased Employee despite Delayed Challenge

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CASE TITLE – Controller Government Printing Press And Stationary v. Nafeesa Bano & Ors.

CASE NUMBER – WRIT PETITION No. 3507 of 2024

DATED ON – 26th OF FEBRUARY, 2024

QUORUM – Hon’ble Shri Justice Vivek Agarwal

 

FACTS OF THE CASE

This petition was filed because the petitioner was unhappy with the order issued on September 1, 2022, by the Controlling Authority under the P.G. Act, as the Assistant Labour Commissioner, Bhopal, in Gratuity Case No. 64 of 2019. The order directed the State Authorities to pay the deceased employee’s gratuity and interest within a thirty-day period. This order was dated September 6, 2022. After more than a year and a half, a petition challenging this order is filed in 2024.  The petition takes refuge in the rulings of the Supreme Court in Civil Appeal No. (S) 9722 of 2013 (Controller, Government Printing and Stationary Press vs. Rashida Bee) & other related matters decided on October 29, 2013. The application argues that the worker is not eligible for a gratuity payment under the provisions of the Supreme Court’s ruling, which is included in Annexure P-1. It is clear reading the Supreme Court’s ruling that the facts of that particular case are completely different. Previously, victims of the Bhopal Gas Tragedy were trained and absorbed in the Industries Department before being assigned to the M.P. Government Printing and Stationary Department, which is an industry. With this background and in consideration of the aforementioned prayer, the learned Labour Court instructed the State Instrumentality, by order dated 18.12.2002, to regularly classify the respondents as Junior Binders starting on July 29, 1998, and to award them the pay scale and any salary differential that qualifies them for the Junior Binder position.  The State Government challenged this ruling in front of the High Court, which took a more progressive stance by ordering the regularization of daily wagers against 150 open positions in the Junior Binder cadre.  The State Government had appealed to the Supreme Court, feeling wronged by the High Court’s decision to allow the applicant to regularise the respondents, citing that the High Court erred in declaring that 150 Junior Binder positions were open and available.

ISSUES

Whether the State Authorities should pay the deceased employee’s gratuity and interest?

 

COURT ANALYSIS AND JUDGEMENT

The Hon’ble Madhya Pradesh High Court traces the history of the Rashida Bee case, explaining that: The employees initially approached the M.P. State Administrative Tribunal, which dismissed their claim as it lacked jurisdiction. They then approached the High Court, which also dismissed their petition. Finally, they went to the Labour Court, which ruled in their favor regarding regularization and pay scales, which was then challenged by the State in the High Court. In the Rashida Bee case, the Supreme Court modified the Labour Court’s order and directed a settlement payment of Rs. 2,00,000 each to the employees, without setting a precedent for other cases. The Hon’ble High Court clarifies that the Supreme Court’s decision in the Rashida Bee case does not relate to the Payment of Gratuity Act, 1972, and thus cannot be used as a precedent to deny gratuity. The court explains that: The definitions of ’employee’ and ’employer’ under Sections 2(e) and 2(f) respectively, along with the concept of ‘continuous service’ under Section 2(a), clearly mandate the payment of gratuity and that the Assistant Labour Commissioner’s order to pay gratuity is based on these mandatory provisions. The court finds that the State’s reliance on the Supreme Court’s ruling in Rashida Bee is incorrect and irrelevant to the present case of gratuity payment. The Hon’ble High Court concludes that the State’s petition lacks merit due to the inappropriate grounds for challenge and the delay in filing. Thus, the petition was dismissed.

 

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Judgement Reviewed by – Gnaneswarran Beemarao

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“PLAINTIFF MUST PERSONALLY DEMONSTRATE READINESS AND WILLINGNESS TO FULFILL CONTRACTUAL OBLIGATIONS; THIRD PARTIES TO THE CONTRACT CANNOT ATTEST FOR THESE CONDITIONS” – Madhya Pradesh HC verdict upheld by SC

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CASE TITLE – Rajesh Kumar v. Anand Kumar & Ors.

CASE NUMBER – Civil Appeal No. 7840 of 2023

DATED ON – 17.05.2024

QUORUM – Justice Pankaj Mithal & Justice Prashant Kumar Mishra

 

FACTS OF THE CASE

The appellant/plaintiff has called into question the judgment rendered by the High Court of Madhya Pradesh dated 01.09.2016 in First Appeal No. 340 of 2003 allowing the appeal preferred by the respondent nos. 1 to 3/defendant nos. 12 to 14. The appellant/plaintiff agreed to sell with respondent no. 4 (acting as Power of Attorney holder of respondents/defendant nos. 2 to 11) for purchase of land situated at village Khirsau, Tehsil Sihora, District Jabalpur, M.P for sale consideration at the rate of Rs. 3,000/- per acre, totalling Rs. 4,41,000/-. The appellant/plaintiff paid earnest money of Rs. 41,000/- on the date of agreement to sell and the balance amount was to be paid on the date of registration of the sale deed which was to be done within six months from the date of the agreement. On 26.12.1996, another agreement was executed between the appellant/plaintiff and the Power of Attorney Holder extending the execution of the sale deed till 31.03.1997, the remaining terms being the same. Another entry was made on 23.04.1997 mentioning that the agreement to sell shall come to an end on 31.05.1997. However, the respondent/defendant no. 1 being the Power of Attorney Holder of respondents/defendant nos. 2 to 11 executed the sale deed of the suit land on 14.05.1997 in favour of respondent nos. 1 to 3/defendant nos. 12 to 14 even though the said respondents were aware of the earlier sale agreement and its extensions. The sale deed dated 14.05.1997 was executed behind the back of the appellant/plaintiff which came to his notice subsequently on which a legal notice was sent on 30.05.1997 calling upon the respondents/defendant nos. 1 to 11 to be present in the Registrar’s office at Sihora on 31.05.1997 to carry out the formalities for execution of the sale deed. Despite receipt of this notice, the respondents/defendant nos. 1 to 11 did not attend the Registrar Office. On 31.05.1997, the appellant/plaintiff was informed by the sub-Registrar that the suit land has been sold in favour of respondent nos. 1 to 3/defendant nos. 12 to 14. According to the appellant/plaintiff, he has the suit land, therefore, he objected to the application dated 20.08.1997 moved by the respondents/defendant nos. 12 to 14 for mutation of their names.

 

ISSUES

Whether a Power of Attorney Holder can depose in a civil suit of this nature on behalf of the plaintiff?

Whether the agreement is void ab initio because it was not signed by all the owners of the suit land?

 

CONTENTIONS BY THE APPELLANT

The Learned senior counsel appearing for the appellant submitted that the High Court had committed a serious error of law and fact by setting aside the well-reasoned judgment and decree passed by the Trial Court. According to him, the execution of the sale agreement by defendant no. 1 as a Power of Attorney Holder of Defendant Nos. 2 to 11 having been duly proved and the appellant/plaintiff has paid the earnest money and filing the suit within time, the First Appellate Court ought not to have set aside the judgment of the Trial Court. It was further submitted that the High Court was not correct in holding that the defendant nos. 2 to 11 had not signed the agreement because defendant no. 1 was their Power of Attorney Holder. The High Court has also erred in holding that the Power of Attorney Holder cannot depose in a civil suit on behalf of the plaintiff. According to him, non-appearance of the appellant/plaintiff as a witness would not have any adverse impact in a suit of this nature

 

CONTENTIONS BY THE RESPONDENT

The Learned senior counsel for the respondents/defendants submitted that the agreement dated 26.09.1995 is void ab initio because it was not executed by all the owners of the suit land. It was then argued that in a suit for specific performance non-appearance of plaintiff as a witness is fatal to his case because it is he who has to plead and prove the readiness and willingness. He mentioned that the High Court has rightly set aside the judgment and decree of the Trial Court which is based on perverse finding and incorrect application of settled legal principles.

 

COURT ANALYSIS AND JUDGEMENT

The Hon’ble Supreme Court observed that the Madhya Pradesh High Court has non-suited the appellant/plaintiff on two counts. Firstly, that defendant no. 1 is not the sole owner of the property which was the coparcenary property and the other coparceners did not sign the initial agreement and secondly, that the appellant/plaintiff having failed to appear in the witness box, the testimony of his Power of Attorney Holder cannot be read as statement of the plaintiff in a civil suit of this nature, and in the initial agreement dated 26.09.1995 was executed by Defendant no. 1-Gajay Bahadur Bakshi. It is the case of the appellant/plaintiff that Gajay Bahadur Bakshi was the Power of Attorney Holder of Defendant nos. 2 to 11, the other co-owners/coparceners of the suit property. However, the agreement itself no where states that Gajay Bahadur Bakshi has executed the agreement as Attorney Holder of Defendant nos. 2 to 11. On the contrary, it was mentioned in the agreement that Gajay Bahadur Bakshi would be responsible for getting the sale deed executed and registered by all the co-owners or co-khatedars at the time of registration. Neither the names of all the co-owners/coparceners/co-khatedars are mentioned in the agreement, and thus, held that the High Court was right in finding that all the co-owners have not signed the agreement. The Hon’ble Supreme Court also viewed the so-called power of attorney pleaded in the plaint through which the defendant nos. 2 to 11 authorised defendant no. 1 to execute the agreement, have not been produced and proved in the Trial Court, and held that, neither in the agreement nor in course of trial the power of attorney is proved by tendering the same in evidence. They were of the view that  in a suit for specific performance wherein the plaintiff is required to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract, a Power of Attorney Holder is not entitled to depose in place and instead of the plaintiff. It was also mentioned that the term ‘readiness and willingness’ refers to the state of mind and conduct of the purchaser, as also his capacity and preparedness, one without the other being not sufficient. Therefore, a third party having no personal knowledge about the transaction cannot give evidence about the readiness and willingness. And since the plaintiff entered into an agreement with only one of the co-owners and thereafter sought extensions for the execution of the sale deed but did not prefer any suit though he was aware of the sale deed dated 14.05.1997 executed in favour of defendant nos. 12 to 14 and sent a legal notice on 30.05.1997 and even objected to the subsequent purchasers’ application for mutation of their names in the revenue records on 20.08.1997 and refers to a meeting of the Gram Panchayat dated 06.12.1997, yet the suit was preferred, on 09.05.2000 on the last date of limitation. The Hon’ble Supreme Court held that the suit having been preferred after a long delay, the plaintiff is not entitled to specific performance on this ground and proceeded to say that they uphold the judgement of the High Court of Madhya Pradesh.

 

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Judgement Reviewed by – Gnaneswarran Beemarao

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Supreme Court Ruling on M/s Shewalkar Developers Ltd.: Legal Battle Over Land in Pachmarhi Wildlife Sanctuary

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CASE TITLE – T.N. Godavarman Thirumulpad v. Union of India & ORS.

 M/S Shewalkar Developers Ltd. (Applicant)

CASE NUMBER – IA NO(S). 2930 OF 2010, 3963 OF 2017, 160714 OF 2019, 77320 OF 2023 AND 79064 OF 2023 IN WRIT PETITION(CIVIL) NO(S). 202 OF 1995

DATED ON – 16.05.2024

QUORUM – Justice Sandeep Mehta & Justice B.R. Gavai

 

FACTS OF THE CASE

These interlocutory applications have been preferred by the applicant M/s Shewalkar Developers Limited being aggrieved by the inaction of the Respondents in deciding the application filed by the Applicant seeking permission to construct a health/eco-resort on the subject land, Plot Nos. 14/3 and 14/4, falling in Sheet No. 20, Civil Station, Pachmarhi, District Hoshangabad, Madhya Pradesh. The total area of these two plots is around 59,265 sq. ft. and 49,675 sq. ft., respectively. The Applicant herein approached the Madhya Pradesh High Court by filing Writ Petition No. 14478 of 2006 seeking a direction to the respondents to favourably consider the prayer of the applicant. Vide order dated 22nd November, 2006, the Division Bench of Madhya Pradesh High Court permitted the applicant to approach the Central Empowered Committee(hereinafter being referred to as ‘CEC’) constituted under the directions given by this Court in Writ Petition(Civil) No. 202 of 1995. Consequently, the applicant preferred an application to the CEC seeking permission to construct the health/eco-resort on the land mentioned above asserting that the said chunk of land was not a forest land and had been acquired under valid title deeds and thus, the prayer for permission to construct may be allowed. However, the prayer made by the applicant was not accepted whereupon, the applications under consideration came to be filed before this Court. Much water has flown during pendency of the original application(I.A. No.2930 of 2010) which has remained pending for almost 14 years.

 

ISSUES

Whether plot No.14/3, 14/4 is excluded from the Panchmarhi Wildlife Sanctuary, and if so, can the Applicant proceed to construct their desired health/eco-resort on the subject land?

 

CONTENTIONS BY THE PETITIONER

The Learned Senior Counsel representing the Applicant drew the Court’s attention to an order dated 15th December, 2000 passed by the Department Officer (SDO), Pipariya on the application preferred by the applicant seeking mutation based on a registered sale deed dated 13th September, 1991 executed by the land owner Dennis Torry in favour of the applicant. The SDO accepted the said application taking note of the fact that Plot No.14 admeasuring 3,23,365 sq. ft. was entered in the name of Dennis Torry who sought and was granted permission to sell the plot in question, by the Government of Madhya Pradesh vide order dated 1st May, 1991. Thereafter, by a registered sale deed dated 13th September, 1991, Dennis Torry had sold the subject plots of land to Ashutosh Shewalkar on behalf of the applicant company. Consequently, the SDO directed that the land sold by Dennis Torry should be mutated in the name of M/s Shewalkar Developers Ltd. through Ashutosh Shewalkar, resident of Nagpur. There is no dispute that the aforesaid order passed by the jurisdictional Revenue Officer in favour of the applicant has not been questioned in any Court of law. The Learned Counsel also drew the Court’s attention to the report of the CEC dated 16th June, 2020, as per which the permission to construct has been denied to the applicant on the ground that the State of Madhya Pradesh had filed an affidavit stating that the land falls in the Pachmarhi Wildlife Sanctuary and that the same had been purchased in violation of the provisions of the Wild Life(Protection) Act, 1972. He contended that this objection raised by the State with reference to the Eco Sensitive Zone (hereinafter being referred to as ‘ESZ’) notification dated 9th August, 2017 is totally against the material available on record. He drew the Court’s attention to the site map dated 26th December, 2023(Annexure A-1 annexed with the compliance affidavit dated 12th February, 2024 filed by the respondent-State of Madhya Pradesh) to contend that as a matter of fact, the land owned by the applicant is located right on the periphery of the Nazul land, at a distance of about 10 kms. from the forest area and therefore, the same is well beyond the ESZ area. It is clear that the plots in question are located in the urban area of Pachmarhi and thus, there is no question of these plots being covered either under the wildlife sanctuary or the ESZ area. He thus urged that the applicant deserves the relief sought for.

 

CONTENTIONS BY THE RESPONDENT

The Learned Counsel for the State of Madhya Pradesh urged that the plots in question are subject matter of litigation in the writ appeal pending before the Division Bench of the Madhya Pradesh High Court and thus, the applicant should await the outcome of the aforesaid writ appeal before seeking permission to construct the health/ecoresort on the land in question. They further brought in Mr. K. Parameshwar, learned Amicus Curiae appearing on behalf of the CEC submitted that in view of the ESZ notification dated 9th August, 2017, permission to raise a new construction on the land in question cannot be granted and whatever permissions are sought for, have to be routed through the CEC. Furthermore, The Learned Counsel appearing for the Union of India adopted the submissions advanced by the standing counsel for the State and learned Amicus Curiae.

COURT ANALYSIS AND JUDGEMENT

After going through the facts presented before the Hon’ble Supreme Court, they noticed that It is not in dispute that the applicant herein was never impleaded in any of the proceedings before the Revenue Courts or the High Court as has been emphatically stated in Para-9 of the compliance affidavit dated 12th February, 2024. It is thus, clear that irrespective of the fact that the order passed by the District Collector dated 9th August, 2004, purportedly covers entire area of the Plot No. 14 and the transactions done in favour of and by Dennis Torry, the sale deed executed in favour of the applicant and the mutation made in its name had never been questioned in any Court of law. Neither the Revenue Department nor the State Government authorities took the trouble of impleading the applicant as party in any of the abovementioned litigations. The title acquired by the applicant over the subject plots not having been challenged, attainted finality and thus the State cannot claim a right thereupon simply because at some point of time, the plots came to be recorded as Nazul lands in the revenue records. The categoric stand in the compliance affidavit filed by the State(reproduced supra) fortifies the claim of the applicant that these plots are falling under the urban area. The Hon’ble Supreme Court were of the firm opinion that the permission sought by the Applicant for raising the construction of the health/ecoresort cannot be opposed only on account of the pendency of the writ appeal before the Madhya Pradesh High Court. However, it can be said without a cavil of doubt that activities, if any, on the Plot Nos. 14/3 and 14/4 purchased by the applicant from Dennis Torry would have to be carried out strictly per the ESZ notification dated 9th August, 2017, issued by the Ministry of Environment, Forest and Climate Change. Furthermore, since the writ appeal pending before the Madhya Pradesh High Court arises out of the orders passed in relation to the title rights of Dennis Torry, from whom the applicant purchased the plots in question, the activities, if any, undertaken by the applicant on the said plot of land would also remain subject to the outcome of the said writ appeal.

Therefore, the Hon’ble Supreme Court directed that the application filed by the Applicant for raising construction on plot Nos. 14/3 and 14/4 shall be decided objectively by the CEC/Competent Authority of the local body keeping in view the location of the land with reference to the notified boundaries of the ESZ, and that the Application shall be decided within a period of two months from today. And further stated that in the event of any adverse orders being passed, the applicant shall be at liberty to challenge the same as per law.

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Judgement Reviewed by – Gnaneswarran Beemarao

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Courts cannot entertain a petition once electoral process has begun as it obstructs the process: MP High Court

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Case Title : Moti Singh vs Election Commission Of India Through Chief Election Commissioner & Ors.

 Case no : Writ Petition No. 1039 of 2024

 Order no : 3rd May, 2024Moti Singh v. Election Commission of India Through Chief Election Commissioner & Ors.

 Quorum : Hon’ble Justice Sushrut Arvind Dharmadhikari and Hon’ble Justice Gajendra Singh

 FACTS OF THE CASE

The Election commission of India on 16/03/2024 announced the General Elections for the House of People. Both the Petitioner and the Respondent filed their nominations before the said date in the prescribed format as required under Conduct of Election Rules, 1961. Indian National Congress declared Respondent No.4 as ‘approved candidate’ and the Appellate as a ‘substitute candidate’

On 29/04/2024 the approved candidate (respondent no.4) withdrew his nomination, following the Appellant submitted a request to declare him as the ‘approved candidate’ of INC. Subsequently the same was declined by the Returning Officer and he was deprived of his Legal right. As stating that it was necessary according to Sec 33(1) of the Representation of Peoples Act the candidate is supposed to submit the nomination with 10 proposers signatures.

LEGAL PROVISIONS

  1. Article 226 of the Indian Constitution : Clearly states that every High Court has the powers throughout the territories in relation to which it exercises jurisdiction to issue writ or any order to any person or authority.
  2. Sub-Section (1) of Section 33 of The Representation of People Act , 1951 : A candidate not set up by a recognised political Party shall not be deemed to be duly nominated for election from the constituency unless the nomination paper is subscribed by 10 proposers being elector of the constituency. 
  3. Sub-Section(5) of Section 36 of the Representation of People Act, 1951 : The returning officer shall hold the scrutiny on the date appointed in this behalf under clause (b) of section 30 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control:

Provided that in case an objection is raised by the returning officer or is made by any other person the candidate concerned may be allowed time to rebut it not later than the next day but one following the date fixed for scrutiny, and the returning officer shall record his decision on the date to which the proceedings have been adjourned.

CONTENTION OF THE APPELLANT

The counsel for the appellant argued that the Learned Judge had overlooked the Provisions of the Representation of the Peoples Act which mentioned that only one single signature was required. The appellant also submitted that according to Section 36(5) of the Act the candidate must be given one day’s time to collect the signatures yet the Returning Officer rejected the appellants claim.

As a result the Appellant claimed that he was entitled to contest in the parliamentary elections.

 CONTENTION OF THE RESPONDENT

The Respondent’s counsel requested the court to dismiss the Petition as the High Court cannot entertain a petition under article 226 of the constitution once the electoral process has begun as it would be obstructing the electoral process.

 COURT’S ANALYSIS AND JUDGMENT

The court after considering the facts and circumstances of the case dismissed the Appeal as to finding force in the contentions put forth by the Learned counsel of the Respondent.

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 JUDGMENT REVIEWED BY – Nagashree N M

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