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ANDHRA PRADESH HIGH COURT DISPOSED OF THE WRIT PETITION OF MANDAMUS WITH DIRECTIONS, FILED AGAINST THE AUTHORITIES FOR TRYING TO DEMOLISH THE SHOP OF PETITIONER WITHOUT ISSUING ANY NOTICE

Andhra Pradesh High Court – Amravati

Battula Drsv Sanyasirao vs The State Of Andhra Pradesh

BENCH – HONOURABLE SMT. JUSTICE V. SUJATHA

WRIT PETITION No. 13116 OF 2023

DATE OF JUDGEMENT – 12 MAY 2023

 INTRODUCTION

This writ petition was filed under Article 226 of the Constitution of India seeking to issue a Writ Order in Mandamus declaring the action of the Respondents who were trying to demolish the shop of Petitioner without issuing any notice. The petitioner was in possession and of his land  situated in Panduru village, Kotauratla Mandal, Visakhapatnam district and Respondents were further trying to evict the Petitioner from the said property which is arbitrary, unlawful, illegal, in violation of the Fundamental Rights of the Petitioner guaranteed under Article 300A of the Constitution of India and Rules made thereunder by consequently directing the Respondents not to interfere with the property of the Petitioner except under due process of law.

The main provision followed in this case are as follows: –

ARTICLE 226

The Indian High Courts have the authority to issue writs under Article 226 in order to enforce the fundamental rights protected by Part III of the Constitution. These writs include certiorari, quo warranto, prohibition, habeas corpus, and mandamus.

Everybody and every authority under the High Court’s jurisdiction is granted the authority granted by Article 226. This includes the government. Regardless of the location of the government, authority, or person against whom the writ is sought, it also permits any High Court to employ this power even if the cause of action partially arises inside its territorial jurisdiction.

In general, Article 226 gives the Indian High Courts broad authority to defend basic rights and uphold the rule of law within their respective domains.

ARTICLE 300-A

Article 300 A provides that no person shall be deprived of his property save by authority of law. The State cannot dispossess a citizen of his property except in accordance with the procedure established by law.

FACTS

The agricultural land was located in Panduru village, Kotauratla Mandal, Visakhapatnam, and the petitioner was its sole owner. The petitioner has erected a tiny-thatched hut on the front of the subject land and has been operating a fruit-selling business there for several years, conducting business which is in the Panchayat, Revenue, and R&B Departments.

Due to some village politics, the Panchayat, Revenue and Roads and Buildings authorities to cause loss to the petitioner, they have planned to demolish the shop of the petitioner and to grab the land, as if property falls within the road margin. Then the Panchayat and R&B staff came to the subject property and demanded to remove the shop, failing which, they will take steps to remove the shop on 03.05.2023, without any notice and without following due process of law. Challenging the same, the present writ petition is filed.

The learned counsel for the respondent has submitted that they are not interfering with the possession of the petitioner’s subject property and further they will follow due process of law. He also submitted that the issue will be resolved once survey is conducted.

JUDGEMENT

The Hon’ble court has disposed this writ petition with the following directions: –

1) In the presence of the petitioner or his representatives, the third respondent (The Assistant Executive Engineer) shall perform a survey and fix the boundaries of the subject property with the assistance of Revenue officials.

2) Notice must be given to the petitioner in order to be present when the survey is conducted.

3) The respondents would be free to take the proper legal action if it turned out after the survey was performed that the petitioner had infringed.

4) The above exercise must be finished within eight (8) weeks of receiving a copy of this order, and during that time, the respondents are forbidden from interfering or ejecting the petitioner from the subject property without first following the rules’ requirements for due process of law.

JUDGEMENT REVIEWED BY HARSHIT JAIN

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WRIT PETITION CHALLENGING THE ORDER OF DETENTION OF THE PETITIONER’S BROTHER ALLOWED AT ANDHRA PRADESH HIGH COURT

Andhra Pradesh High Court – Amravati

Y Maddilety vs The State Of AP

BENCH – THE HON’BLE SRI JUSTICE D.V.S.S. SOMAYAJULU AND THE HON’BLE SRI JUSTICE V. SRINIVAS

WRIT PETITION No. 712 of 2023

DATE OF JUDGEMENT – 12 MAY 2023

INTRODUCTION

This case is about the writ petition which is challenging the order of the detention of the brother of the petitioner.

The relevant provision followed in this case are as follows –

A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986.

Section – 3 Power to make order detaining certain persons: –

(1) The Government finds if any boot-legger, dacoit, drug-offender, goonda, immoral traffic offender or land-grabber is acting in any manner prejudicial to the maintenance of public order and if it is necessary so to do, can make an order directing that such person be detained.

(2) A District Magistrate or Commissioner of Police may also, if satisfied as provided in subsection (1), exercise the powers granted by the said subsection if the Government is of the opinion that doing so is necessary considering any circumstances existing or likely to exist in any area within the local limits of their jurisdiction. The Government may make this determination by issuing an order in writing.

Section – 2(g) Definitions – “Goonda”

A “goonda” is a person who regularly commits, seeks to commit, or aids in the commission of acts punishable under Chapter XVI, Chapter XVII, or Chapter XXII of the Indian Penal Code, whether alone or as a member of or leader of a gang.

FACTS

As per the learned counsel of the petitioner, the detention order passed by the 2nd respondent (The Collector & District Magistrate, Kurnool District )was confirmed by the 1st respondent (State), the petitioner wants to amend the prayer of the writ petition as Yerukali Polenti Satyam, S/o late Y.Devanna, who is now lodged in Central Prison, Kadapa, YSR Kadapa District to be set at liberty/ordered to be released forthwith by declaring the detention order passed by the 2nd respondent  as arbitrary, illegal and unconstitutional.

The 2nd respondent, while categorizing the detenue as “Goonda” within the definition of Sections 2(g) of the A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 passed the impugned order of detention.

Learned counsel for the petitioner submits that the detenue was allegedly involved in fourteen crimes, in which, some of the cases registered due to family disputes and they can be dealt with under general laws and he was already acquitted in five cases which were not even considered by the authority. That the order of detention does not have any material to justify the detenue as goonda and that the preventive detention shall not be passed. The offences alleged against the detenue do not involve any disturbance of public order and the same cannot be used for issuance of preventive detention order under Section 3 of the A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986.

It was submitted by the learned counsel for the respondents that there was absolutely no illegality nor there exists any procedural infirmity in the impugned action and in the absence of the same, the present writ is not maintainable. Even procedural laws were also not strictly followed by the sponsoring authority, while passing the detention orders, which amounts to procedural irregularity as well not following the provisions contained under on perusal of record by the learned counsel for the petitioner, it reveals that a blanket detention order was passed without specifying a period of detention which is invalid as which is mandated under Section 3(2) of the A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986.

JUDGMENT – 

In this case the court held that the impugned was made without proper application of mind and there was a serious procedural violation. Hence, Hon’ble court was of the opinion that the detenue will not fall under the category of Section 2(g) of the A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986. The order of detention does not show any material to justify the allegation that the detenue is a ‘goonda’ whose activities would be actually prejudicial to public order.

The court held that this Writ Petition was allowed setting aside the order of detention passed by the 2nd respondent and the detenue namely Yerukali Polenti, was directed to be released forthwith by the respondents.

JUDGEMENT REVIEWED BY HARSHIT JAIN

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“THE BATTLE FOR JEE ADVANCED: A PETITION FOR IMMEDIATE EXAM ACCEPTANCE”

INTRODUCTION

The High Court of Bombay passed a judgement on 24 May 2023. In the case of ATHARVA MILIND DESAI Vs JOINT ADMISSION BOARD IIT THR. CHAIRPERSON IN WRIT PETITION NO. 6239 OF 2023 which was passed by a division bench comprising of HONOURABLE SHRI JUSTICE ABHAY AHUJA and HONOURABLE SHRI JUSTICE M. M. SATHAYE the court had to decide on a petition filed under Article 226 of the Indian Constitution. The petitioner sought directions to the sole respondent to accept their examination form and fees for the JEE Advance examination. The petitioner claimed that due to network connectivity glitches, they were unable to fill the examination form within the stipulated time frame. The court carefully examined the arguments presented by both parties and the relevant documents before reaching a decision. This blog post aims to analyse the judgment and its implications.

FACTS

The petitioner had qualified the HSC examination in 2022 and was preparing to appear for the JEE Advance examination. However, they encountered network connectivity issues that prevented them from submitting the examination form within the prescribed time frame. The petitioner argued that since they were eligible to appear for the exam based on their previous qualification, they should be allowed to participate, considering their strong percentile score. They also mentioned residing in a rural area with frequent internet and power outages, which further hindered their registration process.

The respondent, the organizing institute for the JEE Advanced Examination, contended that the examination process was strictly governed by an information brochure. According to the brochure, candidates had to register online within a specified time frame. The respondent presented evidence that the petitioner did not log in during the designated period but only successfully logged in on the day after the registration deadline. The respondent argued that making an exception for the petitioner would set a bad precedent and undermine the sanctity of timelines and the merit selection process.

COURT’S ANALYSIS

The court carefully considered the arguments put forth by both parties and examined the relevant documents, including the petitioner’s login details and the information brochure. It acknowledged the significance of technical institutes like IITs and NITs and the importance of discipline in the education system. The court noted that the registration period provided by the respondent was eight full days, which should have been sufficient for all candidates to complete their registration. It also observed that the petitioner successfully logged in on the day after the deadline, without any explanation for the delay.

The court emphasized that the petitioner had not utilized the grievance redressal mechanism outlined in the information brochure during the registration period. Furthermore, the petitioner’s failure to contact the respondent’s designated channels for grievance or query resolution indicated a lack of diligence on their part. Considering these factors, the court concluded that the rules governing the JEE Advanced Examination were binding on all participants, including the petitioner.

LEGAL PRECEDENTS:

The court referenced the Supreme Court case of Maharshi Dayanand University v. Surjeet Kaur (2010) 11 SCC 159, which highlighted the principle that a court cannot direct an authority to violate its own rules and regulations. The court also mentioned the Delhi High Court case of Pallavi Sharma v. College of Vocational Studies 2015 SCC Online Del 10249, which followed the aforementioned principle.

JUDGMENT

After careful deliberation, the court dismissed the petition, stating that it was not a fit case to exercise its extraordinary writ jurisdiction under Article 226 of the Indian Constitution. The court held that maintaining discipline and adhering to the rules and regulations were crucial in the interest of lakhs of aspiring meritorious students across the country. It stressed that its direction should not result in authorities violating their own rules.

CONCLUSION

This judgment highlights the importance of adhering to rules and regulations in educational processes such as examination registrations. The court’s decision underscores the need for candidates to exercise due diligence and utilize the available mechanisms for grievance resolution within the specified time frames. While sympathizing with the petitioner’s circumstances, the court prioritized the larger interest of maintaining discipline and fairness in the selection process for technical institutes. This judgment sets a precedent for upholding the sanctity of timelines and rules in similar cases, ensuring a fair and transparent examination system.

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

 

JUDGEMENT REVIEWED BY VETHIKA D PORWAL, BMS COLLEGE OF LAW

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WRIT PETITION FILED BY PETITIONER TO SET ASIDE THE ORDER OF DETENTION OF HER HUSBAND ALLOWED AT ANDHRA PRADESH HIGH COURT

Andhra Pradesh High Court – Amravati

Kothapalli Pavani vs The State Of AP

BENCH – THE HON’BLE SRI JUSTICE D.V.S.S. SOMAYAJULU AND THE HON’BLE SRI JUSTICE V. SRINIVAS

WRIT PETITION No.1378 of 2023

DATE OF JUDGEMENT – 9 MAY 2023

INTRODUCTION

This case is about the writ petition which is challenging the order of the detention of the husband of the petitioner.

The relevant provision followed in this case are as follows –

A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986.

Section – 3 Power to make order detaining certain persons: –

(1) The Government finds if any boot-legger, dacoit, drug-offender, goonda, immoral traffic offender or land-grabber is acting in any manner prejudicial to the maintenance of public order and if it is necessary so to do, can make an order directing that such person be detained.

(2) A District Magistrate or Commissioner of Police may also, if satisfied as provided in subsection (1), exercise the powers granted by the said subsection if the Government is of the opinion that doing so is necessary considering any circumstances existing or likely to exist in any area within the local limits of their jurisdiction. The Government may make this determination by issuing an order in writing.

Article 226 in The Constitution of India 1949

Power of High Courts to issue certain writs –

Any High Court may issue directions, orders, or writs, including those in the nature of writs of habeas corpus, mandamus, prohibitions, quo warranto, and certiorari, or any of them, to any person or authority, including in appropriate cases, any Government, within those territories, regardless of what Article 32 says. These writs may be used to enforce any of the rights granted by Part III and for other purposes.

 Andhra Pradesh Prohibition Act, 1995

Section 7-B. Prohibition of Boot Legging Activities:

It is forbidden to produce, transport, set, purchase, import, export, or store any alcoholic beverages, as well as to supply or transport any raw materials to produce alcoholic beverages illegally or covertly, in violation of the provisions of the A.P. Excise Act, 1968.

Section 8-B. Penalty for sale, export, import and transport of alcoholic liquor manufactured illegally and clandestinely:

Whoever violates section 7-B of this Act by engaging in the sale, export, import, or transportation of illegally distilled alcoholic beverages is subject to imprisonment for a term that must not be less than one year but may not exceed eight years, as well as fines that must not be less than Rs. 2 lakhs for a first offence and Rs. 5 lakhs for a second, upon conviction.

FACTS

Learned counsel for the petitioner submits that the grounds for detention are not at all grievous offences, that he was allegedly involved in seven crimes under Sections 34(A), 34(e) and 7(B) r/w.8(B) of Andhra Pradesh Prohibition Act, 1995 and they can be dealt under general laws. It is also stated that the detenue was already granted bail in five crimes, out of seven crimes.

The learned counsel for the respondent supports the order of the District Magistrate as the detenue is a habitual offender and argues that his acts are prejudicial to the public order, that he is a bootlegger who is selling adulterated liquor. He states that the order impugned in the writ petition do not warrant any interference of this Court under Article 226 of the Constitution of India.

The court observed that as ordinary criminal law is adequate to deal with the offences, preventive detention without subjecting an individual to the procedure of free and fair trial would infringe the fundamental right to life and liberty guaranteed under Chapter III of Constitution of India.

As per the contention of the petitioner, the detenue was granted bail in five crimes, out of seven crimes, but the said fact is not considered by the detaining authority. The detaining authority as well sponsoring authority has not taken into consideration the said fact and no opinion has been expressed as to whether the preventive detention of detenue was essential or not in the order. It was not clear how the authority came to the conclusion that the ordinary law was not sufficient to stop the alleged crimes.

JUDGEMENT

The Court held that the orders impugned were made without proper application of mind and there is a serious procedural violation. The order of detention does not show any material to justify that the detenue is a ‘Bootlegger’ whose activities would be actually prejudicial to public order. The detenue will not fall under the category of Section 3(1) and 3(2) of the act.

This Writ Petition is allowed, setting aside the order of detention passed by the 2nd respondent (The Collector and District Magistrate, YSR district). The detenue namely Kothapalli Raghurami Reddy, was directed to be released forthwith by the respondents if the detenue is not required in any other cases.

JUDGEMENT REVIEWED BY HARSHIT JAIN

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Emphasizing the importance of “tangible” material in reassessment proceedings and protecting taxpayers’ rights: Bombay High Court

The High Court of Bombay passed a judgement on 04 May 2023, addressing the validity of a reassessment notice issued by the Income Tax Department. The petitioner sought to challenge the notice, which proposed to reopen the assessment for the Assessment Year 2014-15. The case of CHANCHAL BHAGWATILAL GOKHRU VS. UNION OF INDIA & ANR.  IN WRIT PETITION NO. 2014 OF 2022 which was passed by the division bench comprising of HONOURABLE SHRI JUSTICE DHIRAJ SINGH THAKUR & HONOURABLE JUSTICE G. S. KULKARNI, KAMAL KHATA.

Facts

The petitioner had filed her income tax return for AY 2014-15 on 28th July 2014. The Assessing Officer (AO) subsequently passed an order under section 143(3) of the Income Tax Act, 1961, on 18th November 2016. This order added a specific amount to the petitioner’s total income based on the withdrawal of exemption claimed under section 10(38) of the Act. The petitioner paid the tax on the additional amount as directed by the AO. Furthermore, the petitioner was granted a waiver of penalty for AY 2014-15 on 31st January 2018, based on an application made under section 273A of the Act.

However, to the petitioner’s surprise, a notice under section 148 of the Act was issued on 26th March 2021, proposing to reopen the assessment for AY 2014-15. This notice was issued after a significant gap of four years. In response, the petitioner filed a return of income on 14th April 2021, followed by notices under sections 143(2) and 142(1) on 10th November 2021 and 15th November 2021, respectively. The petitioner provided the requested details and expressed objections to the reassessment through a communication dated 28th January 2022. The objections were disposed of on 11th February 2022. Another notice was issued on 25th February 2022, leading to the filing of the present petition.

Judgment

The court meticulously examined the reasons recorded by the AO for reopening the assessment. The AO primarily relied on the claim made by the petitioner regarding the purchase and sale of shares of penny stock scrips. The AO concluded that the long-term capital gain should be considered as unexplained investment/income from other sources rather than a capital gain, suggesting that the transactions were merely an accommodation entry designed to generate unexplained investment and bogus profits.

However, the court found no indication of the petitioner’s failure to disclose any material facts. It noted that the AO had already considered these transactions during the original assessment proceedings and had added the corresponding amount to the petitioner’s total income. The petitioner had duly paid the tax on this additional income. The court, therefore, found no substance in the AO’s claim that income chargeable to tax had escaped assessment. It emphasized that the mere change of opinion regarding the calculation of tax payable did not provide a valid basis for reopening the assessment. The court reiterated the well-established principle that reassessment proceedings require fresh “tangible material” to justify their validity.

Considering the settled legal position and the facts of the case, the court delivered the following order:

The impugned notice dated 26th March 2021, issued by Respondent No. 2 for AY 2014-15, was quashed, and set aside. All actions taken in furtherance of the notice were prohibited.

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

 

JUDGEMENT REVIEWED BY VETHIKA D PORWAL, BMS COLLEGE OF LAW

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