Legal Feathers- the legal magazine

08/12/2023

19/04/2023

25/01/2023

Land Cannot Be Kept Under Temporary Acquisition For Years, It Violates Right To Property Under Article 300A : Supreme Court

22/01/2023

Advocate Practicing in J&K High Court,
FreeBird,
DreamRider,
Philanthropist, Altruiist & Humanitarian

05/02/2021

Shri Lal Chand g is nominated as Chairman candidate and Smt Juhi Manhas is choosen as Vice Chairman Candidate by BJP in Udhampur. Needless to add that the party enjoys full majority and they are likely to be elected as Chairman and Vice Chairman. Chairman's seat was reserved for SC and Smt Juhi Manhas Pathania has defeated Ms Manju Singh in most publicised contest in DDC Khoon.

10/11/2020

Georgia's Republican Secretary of State Slams Criticism from GOP Senators

02/10/2020

President Trump and 1st Lady USA corona positive just ahead of elections

27/09/2020

Home Isolated people may not this advisory of the govt

13/09/2020

****77 years old woman moves Supreme Court challenging rules prescribing age limit to study Law.****

A 77-year old woman desirous of pursuing a law degree has moved Supreme Court challenging the Rules of *Legal Education and BCI* Rules which set the upper limit of admission prescribing the upper age limit of admission to a 3 year *LLB course* at 30 and 5 year course at 20.

Seeking to intervene in a matter pending before the Top Court regarding the same issue, the septuagenarian widow says not only does she seek knowledge of the law, but has also developed a passion for it while defending her late husband's estate.

However, despite approaching various law colleges, she was denied admission based on the age restriction and was informed about the Rules governing the same.

"To the utter shock and dismay of the Applicant herein, when she approached the various colleges in the vicinity of her home, to seek admissions, she was informed that there is age bar as imposed by the Bar Council of India, and she is therefore not eligible to enrol herself to the LL.B Degree Courses offered by any of the Law Colleges", states the application.

The applicant goes on to assert that the Rules violate fundamental rights under Article 14 and 21. She avers that the Right to Life includes the right to read, be educated in a medium of instruction, pursue a degree or a course of her choice, notwithstanding the limitation of age.

Therefore, in her prayer, she has sought directions to strike down Circular No. 6 dated 17.09.2016 as well as Clause 28, Schedule III, Rule 11 of the Rules of Legal Education, 2008 as unconstitutional.

The applicant states that she is "challenging the validity of Clause 28, Schedule III, Rule 11 of the Rules of Legal Education, 2008 ('BCI Rules') and of impugned Circular No. 6 dated 17.09.2016 on grounds of the same being in violation of Article 14 by prescribing an age limit of 20 years and 30 years respectively for admission into the 5- Year and 3-Year LLB Programmes of all law schools throughout India."

Buttressing her claim, the applicant relies on a judgment passed by a Constitution Bench of the Supreme Court in Francis Coralie Mullin v. Administrator, Union Territory of Delhi wherein it was held that the Right to Life extended beyond 'animalistic existence'. The fundamental right under Article 21 constitutes the right to live with dignity which includes the right to read, write and receive instructions in a course of choosing, states the applicant accordingly.

The Application is drawn by Advocates Nipun Saxena, Serena Sharma and Umang Tyagi, and filed by AOR Astha Sharma.

01/09/2020

The National flag shall fly at half-mast during the mourning period on all buildings and places throughout the Union territory of Jammu and Kashmir where it is flown regularly and there will be no official entertainment.

20/08/2020

Two tweets of Advocate Prashant Bhushan on whom he is found guilty

1. “When historians in future look back at the last 6 years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs.”

2. “CJI rides a 50 Lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access Justice!”

28/07/2020

23/07/2020

****Centre issues formal sanction for permanent commission for women officers in Indian Army.*****

The Central Government has reportedly issued formal sanction letter for grant of *Permanent Commission to women officers in Indian Army*.

The order specifies grant of Permanent Commission to Short Service Commissioned *(SSC)* women officers in all ten streams of Indian Army in addition to the existing streams of Judge and Advocate General (JAG) and Army Educational Corps (AEC).

Indian Army spokesperson said that this will be paving the way for empowering women officers to shoulder larger roles in the organisation.

Earlier this month, the Supreme Court had granted one Month's time to implement the grant of Permanent Commission and Command Posts for eligible women officers in the Indian Army. The 17th February judgment directed that Permanent Commission should be granted to women in the Army, regardless of their service, in all the ten streams where the Union Government had already taken a decision to grant Short Service Commission to women.

20/07/2020

****( Sec 498 A IPC) SC quashes matrimonial cruelty charges against husband based on compromise****

The Supreme Court recently quashed charges of *Cruelty by a wife* against her husband basis an *amicable settlement* between them.

A bench of *Chief Justice SA Bobde & Justice R Banumathi* held that considering that the complainant wife and accused husband have already compromised the matter, the FIR registered in the Criminal case viz. Sections *498A, 506, 323 & 406* stood quashed.

Further to this, the Court noted that since the appellant was a distant relative of the husband and wife and now that a compromise had been reached between the couple, the appellant who was a distant relative and the accused, the FIR against him stood quashed as well.

"Mr. Chitnis, learned counsel appearing for the respondent-State, has also submitted that he has instructions to state that the husband has amicably compromised the matter with his wife. The State has no objection for quashing the aforesaid FIR registered against the present appellant. Since the husband and the wife have amicably settled the matter, considering the fact that the appellant is a distant relative of the husband and wife, FIR No.26 of 2015 in Regular Criminal Case No.653 of 2015 is hereby quashed qua the appellant - Jairaj".

In an earlier decision of the Top Court B.S. Joshi V. State of Haryana, the Court examined the inherent powers of the High Court under Section 482 of the CrPc read with Article 226 of the Constitution.

The Court had decided on the question of whether quashing of criminal proceedings or FIR or Complaint filed by the wife under Sections 498A & 406 IPC can be declined on the ground that since the offences are non-compoundable, therefore would it be permissible for the court to quash the Criminal proceedings or complaint after the husband and wife agree for a mutual settlement of disputes?

While answering the question in the affirmative, a bench of Justices YK Sabharwal & HK Sema had reiterated the observations made in G.V. Rao v. L.H.V. Prasad & Ors. [(2000) 3 SCC 693] for determining the approach required to be kept in view in matrimonial dispute by the Courts.

"....it was said that there has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their "cases" in different courts."

In light of this, the Court stated that the object of introducing Section 498A in the IPC was to prevent torture to a woman by her husband or by relatives of her husband, however a "hyper-technical view would be counter productive and would act against interests of women and against the object for which this provision was added".

Therefore, the Court, while setting aside the impugned judgment dismissing the petition filed by the appellants seeking quashing of the FIR for in view of the High Court the offences under Sections 498A and 406 IPC are non compoundable and the inherent powers under Section 482 of the Code cannot be invoked to bypass the mandatory provision of Section 320 of the Code, said that non-exercise of inherent exercise of power to quash the proceedings to meet the ends of justice would prevent women from settling the disputes.

18/07/2020

15/07/2020

Supreme Court to hear contempt petition challenging the non formation of Committee to examine 4g issue in j and k today

13/07/2020

Red zones in jammu...

13/07/2020

*Telangana State Southern Power Distribution Co. Ltd vs M/S Srigdhaa Beverages*

(Delivered by Supreme Court on 01.06.2020)

*Brief Facts*

*Respondent* – auction purchaser of the property of M/s. SB Beverages Private Limited failed to pay its dues, resulting in the auction by Syndicate Bank (Secured Creditor) under *SARFAESI Act*
Whether the liability towards previous electricity dues of the last owner could be mulled on to the respondent.
*Ratio:*

Electricity dues, where they are statutory in character under the Electricity Act and as per the terms & conditions of supply, cannot be waived in view of the provisions of the Act itself more specifically u/s 56 of the Electricity Act, 2003 (in pari materia with Section 24 of the Electricity Act, 1910), and cannot partake the character of dues of purely contractual nature.
Where, as in cases of the E-auction notice in question, the existence of electricity dues, whether quantified or not, has been specifically mentioned as a liability of the purchaser and the sale is on "AS IS WHERE IS, WHATEVER THERE IS AND WITHOUT RECOURSE BASIS", there can be no doubt that the liability to pay electricity dues exists on the respondent

2. *Pandurang Ganpati Chaugale vs. Vishwasrao Patil Murgud Sahakari Bank Ltd*

(Delivered by Supreme Court on *05.05.2020*)

*Brief facts:*

The court framed the following questions

Whether co­operative banks both at the State level and multi­State level are 'banks' for applicability of the SARFAESI Act?
Whether provisions of Section 2(c) (iva) of the SARFAESI Act on account of inclusion of multi­-state co­operative banks and notification dated 28.1.2003 notifying cooperative banks in the State are ultra vires
Ratio

The co­operative banks under the State legislation and multi­-state co­operative banks are 'banks' under section 2(1)(c) of SARFAESI. The recovery is an essential part of banking; as such, the recovery procedure prescribed under section 13 of the SARFAESI Act, is applicable.

The Parliament has legislative competence under Entry 45 of List I of the Seventh Schedule of the Constitution of India to provide additional procedures for recovery under section 13 of the SARFAESI with respect to co­ operative banks. The provisions of Section 2(1)(c)(iva), of SARFAESI, adding 'a multi­-state co­operative bank' is not ultra vires.
Coopearative banks have to act under Banking Regulation Act with respect to banking business.

12/07/2020

****Plea in SC challenging 100% reservation in public employment in UT of J&k****

A writ petition has been filed before the Supreme Court *challenging 100%* domicile reservation in *public employment*, prevalent in the UT of *Jammu and Kashmir.*

The plea has been filed by *Ladakh based lawyer* Najmul Huda through Advocate Nishant Khatri (also a Petitioner), challenging Sections 3A, 5A, 6, 7 & 8 of the Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act, 2010, as violative of Article 14, 16, 19 & 21 of the Constitution.

The matter is listed for consideration on July15.

The Petitioners have contended that since abrogation of Article 370, the UT is equally subject to all laws and Supreme Court judgments that are applicable to the rest of the country. Therefore, if any reservation has to be granted in the UT on the basis of residence, the same may be done only in consonance with Article 16(3) of the Constitution.

In this backdrop it is asserted, Section 5A of the Act which stipulates that no person shall be eligible for appointment to any post unless he is a domicile of the Union Territory of Jammu and Kashmir, would render the guarantee of equal opportunity under Article 16(3) "meaningless" and "illusory".

Significantly, this provision was inserted in the Act by way of an executive order passed by the Union Ministry of Home Affairs on March 31, 2020, in exercise of "powers to modify" under Section 96 of the Act.

The Petitioners have contended that,

"Parliament has never delegated law making power of Article 16(3) of Constitution to the central government under Section-96 of J&K reorganization Act, 2019. Power Delegated under Section-96 was only for the purpose of facilitating the application of already prevailing law in former state of J&K or to make laws (which were applicable in rest of India) applicable to new Union territories of J&K and Ladakh. Every modification or adaption of any law shall be done in that reference only and not beyond."

The plea further points out that reservations contemplated in Article 16 should not exceed 50%.

"100% reservation on the basis of domicile or residence is unambiguous violation of the law as it would render the guarantee of equal opportunity contained in Articles 16(1) and 16(2) wholly meaningless and illusory. Supreme Court has time and again made it clear that the reservations contemplated in Article 16 should not exceed 50%. Hence, 100% reservation for domicile of Union territory of J&K is clear cut violation of law laid down by Supreme court," the plea states.

09/07/2020

*******
Cancellation of Registered Sale deed : non payment of part of sale consideration is not a ground for cancellation of a registered Sale deed******
The division bench of Supreme Court comprising of Justice L. Nageswara and Justice Indu Malhotra while dismissing an appeal filed against the order of Gujarat High Court which affirmed the decision of trail court under Order 7 Rule 11(d) of Civil Procedure Code holding that the suit is barred by limitation as it is filed after expiry of more than 3 years i.e.after 5 years from the registration of the Sale deed. The bench referred to the Judgment in Vidhyadhar v. Manikrao and held that price paid or promised part paid or part promised in section 54 of T.P.A indicates that actual payment of the whole of the price at the time of the ex*****on of the Sale Deed is not a sine qua non for the completion of the Sale.
The court dismissed the appeal and also imposed a costs of Rs. 1 lakh on the appellant as well.

09/07/2020

****Calcutta High Court functioning suspended till July 13, ...J&K HC closed for two days****

The High Courts of *Calcutta and Jammu and Kashmir* have been closed temporarily, due to Covid scare.

Judicial and administrative functioning of the Calcutta High Court has been suspended from tomorrow, i.e. *July 10, 2020* till July 13, 2020 (Monday), on account of new phase of lock down in the city.

Through a notification issued by the Registrar General, the Chief Justice has directed to close the High Court for *sanitization purposes* as "considerable part" of the city have been declared as containment zones.

"It is hereby notified for information of all concerned that the Hon'ble the Chief Justice, High Court, Calcutta has been pleased to suspend the judicial and administrative works of High Court, Calcutta from 10.07.2020 (Friday) to 13.07.2020 (Monday) on account of new phase of lock down in Kolkata declaring considerable part of it as containment zones as also to conduct a thorough sanitization process in the 3(three) Buildings of Calcutta High Court," the notification reads.

As per the latest update, there are 2,814 active Covid cases in Kolkata.

The premises of the Srinagar wing of the J&K High Court were shut yesterday, after some CRPF personnel deployed there tested COVID positive. The High Court has been closed for two days, i.e. July 8 and 9, for sanitization purpose.

Urgent cases listed on 8th and 9th of July, 2020 in Srinagar wing of the High Court of J&K shall be taken up for consideration on 10th of July 2020. Dates in other matters will be given by the concerned Bench Secretary and will be posted on the website of the High Court of J&K on 11th of July 2020.

Recently, the Gujarat High Court was also closed down for three days, after few of its staff members tested Covid positive.

08/07/2020

***Govt. Ban on online classes stayed by Karnataka high court... Says it violates Right to Education***

The High Court of Karnataka on Wednesday expressed the *prima facie* view that State *Government orders* banning online classes encroached upon the *Fundamental Right to Life and Education* conferred by *Article 21* and *21A* of the Constitution of India.

"Prima facie we are of the view that both orders of *June 15 and June 27*, encroached upon the Fundamental Right conferred by Article 21 and 21A of the Constitution of India", observed a division bench comprising Chief Justice Abhay Srinivas Oka and Justice Nataraj Rangaswamy.

The Court said that the executive orders passed by the Government under Article 162 of the Constitution cannot curtail the fundamental rights under Articles 21 and 21A.

Therefore, the bench passed an interim direction staying the government orders issued on June 15 and June 27 to the extent they imposed ban/embargo on conduct of online classes by the schools from LKG to Class X.

The Court clarified that the order should not be construed to mean that authorities of school have right to make online education compulsory or will have right to charge extra fees for conducting online classes.

"Our order should not be construed to mean that students who do not opt for online education should be deprived of their normal education as and when the schools are able to start education", the bench added.

The order came in a bunch of writ petitions, which challenged the government decision.

"There cannot be any dispute that academic term for this year has already commenced. Only way of providing education was by providing facility of online coaching/online training", the bench said.

The bench held that there was no "rational basis" for passing orders banning online education.

The fact that state is not able to extend online education to certain category of schools is not a ground to hold that the so called "elite schools" should not extend online education to their students, added the bench.

The bench further said that it was difficult for the Government to derive support from the opinion expressed by NIMHANS, Bangalore.

The Government ordered on June 15 that no schools should impart online education until the expert committee constituted by the Government submitted its suggestions regarding the viability of online classes.

Later on June 27, the Government modified the order allowing online classes for limited hours for students from lower KG to Standard V, following the guidelines laid down by the authorities.

The State said that the ban was only an interim measure, until the government explored options to ensure that no student was deprived of education on account of lack of access to internet.

As per statistics given to the Court by the Government, around 1.45 crore students are there in the state. Around 44 lakh students are enrolled in government schools, 13.60 lakh in private aided schools and around 45 lakh students are studying in private unaided schools. Among them, 58.61 lakh students are in urban areas and 45.88 lakh students are in Rural areas.

Defending the government decision, Advocate General Prabhuling Navadgi had submitted :

"It is the state's endeavour to ensure that not a single student is deprived of education. If eight students are taking online classes and two are not, then they will be left out. These are all factors which need to be considered. The students between 0-6 years is a more delicate subject which needs to be dealt with not only from the point of view of education or fundamental rights but also child psychology. How Children are going to react to online classes?. Because kindergarten is not only about schooling but more about parenting. These are formative years, whatever we teach them today will lay the foundation of their personality".

Senior Advocate Uday Holla and Advocate Pradeep Nayak, appearing for the petitioners, had submitted that the government decision was violative of right to education of the students.

The petitioners also raised the argument that the government lacked powers to control the schools affiliated to CBSE/ICSE boards.

07/07/2020

****BCI MOVES SUPREME COURT FOR LOANS UPTO RS. 3 LAKHS FOR ADVOCATES****

The Bar Council of India has filed a writ petition in the *Supreme Court* highlighting the financial difficulties faced by lawyers on account of the country wide lockdown.

Stating that *BCI* does not have the funds to help the lawyers in need, it has sought directions to the Central *Government and all States/UTs* to "arrange financial assistance by way of interest free loan of up to Rs.3 lakhs each to advocates enrolled with the respective Bar Council of each State through the said Bar Council repayable in reasonable monthly installments atleast 12 months after normal court functioning commences".

The petition, filed through Advocate S N Bhat, also seeks a direction to Union of India and the respective State Governments to "financially support the needy advocates through respective Bar Association by depositing the amount directly in the accounts of the said advocates after receiving the necessary details from the respective Bar Association".

The writ petition states that the prolonged closure of the courts and tribunals all over the country since March 2020 due to the lock-down has deprived the majority of the advocates their only source of income. It is highlighted that most of the advocates, especially youngsters, have no savings and are solely dependent on the working of courts for their livelihood.

"The situation of some of them is so grim that it may not be an exaggeration to say that they face virtual starvation and they require urgent and immediate financial aid and succor", the plea states.

The petition states that 16,000 out of 64,000 advocates practising in Delhi, applied for the Rs 5000 financial assistance granted by the Bar Council of Delhi. Stating that this fact alone points to the poignant situation prevailing at present, the petition mentions that advocates cannot take up any other avocation for earning livelihood.

The plea states that "Advocates form essential and integral part of the justice delivery system" and "it is necessary to look after the well-being of this important segment of the system".

"Therefore, it is general public interest that the respondents authorities are directed to make available requisite assistance to the needy advocates in view of the prevailing circumstances", the plea reads.

Sating that the Disaster Management Act, 2005 provides for meeting the contingencies rising during disaster, the petition states :

"The provisions of the said Act, in particular Section 13 provide for grant of financial relief including loans on concessional terms to persons affected by disaster. The government has already taken steps in this regard for giving relief to certain sections of the society including entrepreneurs. In the circumstances, it is necessary that appropriate relief is given to the suffering lawyers also".

BCI stresses that the proceeds of the Advocates Welfare Stamp duty collected at the time of filing of the vakalatnama in courts goes to the coffers of the Governments of the respective States and therefore they have the obligation to come to the aid of advocates.

It is stated that State Bar Councils do not have adequate funds to help the advocates in an effective and meaningful manner.

"It is now felt that the assistance schemes formulated by the State Bar Councils are wholly inadequate looking at the enormity of the problem faced by the lawyers due to the closures of the courts and the tribunals since March, 2020 and only the partial re-opening of the judicial fora", the plea states.

The BCI stated that its funds are only sufficient to meet its "regular expenses" and that it receives "only a fraction of the one-time enrolment fee paid by the advocates at the time of enrolment."

"The Bar Council of India also does not possess the necessary financial resources to help the needy advocates at this hour of crisis though the Bar Council of India acutely realises the necessity to come to the aid of the advocates. The Bar Council of India does not get any subscription money from the advocates periodically. The Bar Council of India receives only a fraction of the one-time enrolment fee paid by the advocates at the time of enrolment and the funds at the command of the Bar Council of India are barely sufficient to meet its regular expenses", the plea states.

The petition prays for intervention from the Supreme Court stating that it is necessary to secure the meaningful enjoyment of right to life under Article 21 of the Constitution by advocates.

"..this Hon'ble Court has always acted as the parens patriae of the legal community in the country and tended to the needs and welfare of the members of the legal community as a whole. Therefore, this Hon'ble Court may pass appropriate directions to obviate the difficulties afflicting a section of the lawyers at present", states the petition.

05/07/2020

Imp. Facts...

04/07/2020

Important facts...

03/07/2020

****NEET EXAM ON SEPTEMBER 13 & JEE ON SEPTEMBER 27***"

"Keeping in mind the safety of students and to ensure quality education," Union Cabinet Minister Dr. Ramesh Pokhriyal Nishank on Friday announced that the Joint Entrance Examinations *(JEE)* and the National Eligibility Cum Entrance Test *(NEET)* have been postponed till September.

The Medical entrance examination that was initially scheduled to be held in "May 2020* has been *postponed* till September 13, in view of the Covid crisis.

JEE Main examination will be held between *September 1 and September 6*, and the JEE Advanced exam will be held on September 27.

The decision comes during the pendency of a petition in the Supreme Court, seeking for allocation of Test Centres for NEET in foreign countries or to postpone the examination until the COVID-19 pandemic subsists..

The petition had been filed by Advocate-on-Record Pallavi Pratap on behalf of parents of students who are applicants for the NEET UG 2020 entrance examination and reside in Doha, Qatar.

03/07/2020

***BCI expresses its support for conducting CLAT in regional languages****

The Bar Council of India has constituted a 7 member committee comprising of representatives of Law Schools and other stakeholders to examine the issue of conducting the CLAT Exam for admission into the National Law Schools in regional languages in addition to the English language. The Delhi High Court had directed the statutory body to consider the demand made by Pratham Koushik Naveen Koushik and Arun Bhardwaj for conducting the CLAT in regional languages as well. The petitioner contended that lack of English language doesn't determine the intelligence, ability, acumen, dedication and IQ etc. Therefore prima facie the exam should be conducted in the vernacular languages too. Also the All India Bar Examination is also conducted by the Bar Council of India in 11 languages including English.

02/07/2020

****Rajasthan High Court dismisses plea to initiate contempt proceedings against BJP spokesperson Prem Shukla****

The Division Bench of Justice Goverdhan Bardhar and Justice Chandra Kumar Songara of Rajasthan High Court dismissed a petition to initiate contempt proceedings against BJP's national spokesperson Prem Shukla allegedly for insulting Justice S Murlidhar, a then judge of Delhi High Court. The bench observed that the remarks were made during the course of debate and were not intended to interfere in the administration of justice.

02/07/2020

**"Denotification of containment/ Red zones in jammu***

District Administration Jammu today *denotified Containment Red Zones* in the district as per ‘the guidelines/instructions issued by State Executive Committee of Department of Disaster Management, Relief Rehabilitation & Reconstruction under Government Order No 63-JK(DMRRR) of 2020 dated 24/06/2020 regarding de-notification of Red Zones/ Containment Zones in the J&K UT’.

As per an order issued here by Deputy Commissioner Sushma Chauhan as Chairperson District Disaster Management Authority (DDMA), Jammu, vide powers conferred upon her under Disaster Management Act, 2005, the de-notified Red/Containment Zones in District Jammu are *Bathindi and Sunjwan* areas and *Municipal Ward *No 52, 53, 54 of Trikuta Nagar Jammu* falling under PS Trikuta Nagar.