Article 227 - Quash

 

Important Points

1. Superintendence
2. Forum-neutral 
1. power can be exercised both over civil courts as well as criminal courts
3. Power u/s A227 - Wide & Comprehensive

A 227

1. is one of superintendence and is visitorial in nature and will 
1. not be exercised unless there exists a clear jurisdictional error and that maifest or
2. substantial injustice would be caused if power is not exercised in favor of petitioner.
2. Every Hight Court SHALL have the SUPERINTENDENCE over all the courts and Tribunals throughout the territories in relation to which it exercises jurisdiction.
3. The text of the provision is FORUM-NEUTRAL - power under the A227 can be exercised both over civil courts as well as Criminal courts
4. Power u/s Section 482 CrPC can be exercised ONLY with reference to criminal proceeding before criminal court
5. Power u/s A227 is much wider and comprehensive
6. Many cases High court has struck off suits from the file of civil courts on certain grounds even though the parties had remedy under O7 R11 of CPC to seek rejection of plaint

Leading Cases

1. Dr P. Pathamanthan & Others Vs V.Monica & Others (2021) (2) CTC 57
1. Justice N. Anand Venkatesh held the proceeding under Protection of women against Domestic Violence Act ( Act 43 of 2005) are CIVIL in nature
2. Petition u/s 482 CrPC WILL NOT lie to quash them
3. Also laid down the remedies AVAILABLE to aggrieved parties
1. All respondents are NOT accused 
2. NOTICE under Form 3 of DV Rules 2006 have to be issued NOT summons under Section 61 CrPC
3. ALL respondents NEED NOT APPEAR unless compelling reasons are shown otherwise the counsels presence is SUFFICIENT.
4. Magistrate SHOULD apply mind and not all respondents need to be issued notice - so that relatives are not harassed
5. Section 29 - APPEAL TO SESSION court - within 30days
6. Section 25 - POWER OF MAGISTRATE to modify, alter & revoke - change of circumstances 
7. Order 4 Rule 17 CPC - amend the petition
8. Order 1 Rule 10(2) CPC - add/ remove respondents 
9. Article 227 if there exists a clear jurisdictional error and that manifest or substantial injustice
2. Pepsi Foods Ltd Vs Special Judicial Magistarte ( 1998) 5 SCC 649
1. Para 25

Nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory.

 

if in a case like the present on the court finds that the appellants could not invoke its jurisdiction under A226, the court can certainly treat the petition one under A227 or section 482 of the code.

 

It may not however, be lost sight of that provision exist in the code of revision and appeal but sometime for immediate relief section 482 of the code or A227 may have to be restored to for correcting some grave errors that might be committed by the subordinate courts.

 

The present petition though filed in the Hight court as one under A226 and 227 could well be treated under A227 of the Constitution

Court Registry - Limits and powers

 

Important Points

1. Numbering by Court Registry is a Administrative task
2. Maintainability is under the realm of court and NOT registry
3. Non listing of petition irrespective of the seriousness of alleged offense impinges on rights and liberties of the accused.

Leading Cases

1. P. Surendran Vs State by Inspector of Police ( 2019 9 SCC 154 )

Para 10 - The act of NUMBERING a petition is purely ADMINISTRATIVE.

 

The Objections taken by the Madras Hight Court Registry on the aspect of MAINTAINABILITY requires JUDICIAL application of mind by utilizing appropriate judicial standard .......  In this context,

 

we accept the statement of the Attorney General, that the determination in this case is a judicial function and the Hight court Registry could not have rejected the numbering.

 

Para 11 - Therefore, we hold that the High Court Registry could not have exercised such judicial power to answer the maintainability of the petition, when the same was in the realm of the Court.

 

As the power of judicial function cannot be delegated to the Registry, we cannot sustain the order, rejecting the numbering/registration of the Petition , by the Madras High Court Registry.

 

Accordingly, the Madras High court registry is directed to number the petition and place it before an appropriate bench. 




2. Chunni Lal Gabba Vs Assistant Director ( Directorate of Enforcement ) SLP 11581/2021 - link 
1. In SC - a SLP filed requesting to allow hearing of Bail u/s 439 CrPC pending since 1y
2. SC 
1. Normally SC won't interfere
2. But constrained to pass order where the Bail application is not being listed for hearing for past 1y.
3. The accused has Right to hearing of his application for bail
4. In fact denial to hearing is INFRINGEMENT of his rights and liberties guaranteed to accused.
5. Non Listing defeats the Administration of Justice
6.  Non listing of application of regular bail, irrespective of seriousness or lack of, of the offense attributed to the accused, Impinges on liberty of the person in custody.
7. the right of the accused of hearing of application for bail is not taken away by not entertaining such application on the mentioning memo.

Child Custody

 Child Custody in India

Statues

1. Guardians and wards Act - 1890
2. The Hindu Minority and Guardianship Act - 1956 - link

Important Points

1. A parent cannot be guest in the life of their child
2. Visitation granted for limited hours may not be sufficient for the child to have comfortable time with father / mother 
3. Such act of parent in separating a child from the other parent should be nipped in the bud otherwise the separated parent ends up becoming a guest in life of the child.
4. Overnight custody must be encouraged wherever possible and mere meeting and spending time with parent for couple of hours in court premises will not serve any purpose of visitation as child will be under psychological pressure and will not be comfortable.
5. Laws are made for citizens and citizens are not made for law.
6. Love and affection of both the parents are considered to be the basic human right of a child. 
1. Thus the element of the access of the child to a non-custodial parent assumes critical salience.

Questions

1. What are the various modes of Custody?
1. Law provides 2 types relief for a child in matrimonial disputes
1. Access - to both parents ( custodian and non custodian)
2. Custody - Interim and permanent 
2. Law also provides for maintenance and well being of child
1. Section 125 of Code of Criminal Procedure 1973 
2. Section 26 of Hindu Marriage Act 1955
2. What provisions under law Custody can be applied?
1. GWA - Section 7 and 12
2. Interim Custody - Both parents can seek custody, gender balanced.
1. Section 26 of Hindu Marriage Act 1955
2. Section 21 of Prevention of Domestic Violence Act 2005

“Section 21. Custody orders.—Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any STAGE of hearing of the application for protection order or for any other relief under this Act grant TEMPORARY custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent:

 Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit.”

3. Can a Writ of Habeas corpus be applied in Custody of Child matters?
1. Ordinarily it is NOT allowed to DIRECTLY file Habeas Corpus with Supreme Court u/s A32 and High Court of State u/s A226 of Constitution of India.
2. Writ of habeas corpus can very well be pressed into service for granting the custody of a child to a spouse if the welfare of child dictates
3. Habeas corpus  proceedings is not to justify or examine the legality of the custody.
4. HC is a medium through which the custody of the child is addressed to the discretion of the court.
5. HC is prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by law is either NOT available or is ineffective.
6. Use of Habeas corpus - direct return of the child or decline to change the custody of the child
1. Gohar Begam vs Suggi  1960 SIR 93
1. recovery of a illegitimate female infant of an unmarried sunni muslim mother, took note of the position under Mohammedan Law that the mother  of an illegitmate female infant is entitled to the custody and refusal to restore sucha a child to mother would result in illegal detention u/s Section 491 of CrPC
2. Veena Kapoor Vs Varinder Kumar Kapoor 1981 3 SCC 92
3. Yashita sahu Vs State of Rajastanh 2020 3 SCC 67
1. Elizabeth Dinshw Vs Aryand M Dinshwa
2. Nithya Anand Raghavan Vs State of Delhi
3. Lahari sakhamuri vs sobhan Kodali
4. What are the consideration while granting child custody?
1. Paramount welfare of child
2. Mental maturity, needs & wishes of child
3. Opportunity for wholesome growth 
4. Access to siblings and ordinary conditions of residence.
5. Virtual Visitation?
6. Child custody is continuous matters?
7. Access to Grandparents of child?
8. What are remedies on violation of custody orders?
9. What of child to mother who has eloped with non husband?
10. Joint Custody and Shared Parenting?
11. Applicability of International custody orders in India?
12. What is Parental Alienation
13. What factors don't favor Child custody petitions?
1. Inconsistent mindset 
2. mother wanted child to speak against his father
3. Change of advocates - her thinking towards legal advice and legal proceedings is unstable.

Rules

• Favoring mothers
• Tender year rule
• Section 6 of Hindu Minority and Guardianship Act 1956 - father is first natural guardian followed by mother. 
• in case the minor is below 5y, the child custody shall ordinarily lie with mother.

Arguments of custodian parent to support their conduct & actions

1. Even if court comes to a conclusion that the mother is guilty of disobeying the orders of this Hon'ble court, she may be pardoned and requested to take a lenient view 
1. since interest of child is paramount important
2. actions done by her in welfare of the child only 
3. Mother tenders unconditional apology.
2. The issue of welfare of the minor cannot be determined on SOLE parameter of work commitment of one parent and availability of ample time with another
3. The fact applicant is busy , cannot be construed to be UNFAVORABLY judge her suitability to have custody of minor.

Arguments to remove custody of one parent

1. There is material prima facie available indicating custody to the respondent is detrimental to the well being of the minor.

Case Law 

1. Vivek Singh Vs Romani Singh 2017 3 SCC 231
1. Both parents are entitled to have custody of the child
2. The child cannot be denied legitimate right of having company of his mother and father 
3. Child cannot be deprived of his right to have their love, affection and care
2. Gaurav Nagpal Vs Sumedha Nagpal
1. Principles in relation to custody of minor child
1. Welfare of minor child is the first and paramount consideration and in order to determine child custody the jurisdiction exercised by the court reset on its own inherent equality powers where courts acts as parens partiae.
2. Absolute right of parents over the destinies and lives of their children, in modern changes social conditions must yield to the consideration of their welfare.
3. As human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court.
3. Nil ratan Kundu Vs Abhijit Kundu 
1. Law relating to custody of a child is fairly well-settled and it is this.
2. In deciding a difficult and complex question as to custody of minor, a court of law should keep in mind relevant statutes and the rights flowing therefrom. 
3. But such cases cannot be decide solely by interpreting legal provisions. it is a humane problem and is required to be solved with human touch. 
4. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. 
5. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian the court is exercising parens patriae jurisdiction and is expected nay bound to give due weight to a child 
1. Ordinary comfort
2. contentment
3. health
4. education
5. intellectual development
6. favorable surroundings
6. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally or we may say even more important essential and indispensable consideration.
7. if the minor is old enough to form an intelligent preference or judgment, the court MUST consider such preference as well, though the FINAL decision should rest with the court as to what is conducive to the welfare of the minor.

Sources

1. Parental Alienation - Four Factor Model - link
2. The Nehru Center

1. Kailash Satyarthi - link

Electricity Law

 

Statutory Law

1. Indian Electricity Act - 1910 - link
2. Electricity  (Supply) Act - 1948 - link
3. Electricity is List III  CONCURRENT LIST of the Schedule 7 of Constitution of India.
4. Sale of Goods Act
1. SC Electricity is a good though you can only perceive it and use it.
5. The Electricity Regulatory Commission Act - 1998 - link
6. The Electricity Act 2003 - link
7. Electricity Supply Code

Types of Power

1. Thermal
2. Nuclear
3. Hydro
4. Wind
5. Bio
6. Solar

Historically

1. Generation, transmitting, distribution, consumption, fixing price - where all state actors 
2. 1980 - Private Enterprises entry into
3. 1998 - World Bank - if you don't reform no one will invest in India 

Players In the Market

The Electricity Regulatory Commission Act

1. Creation of Independent Regulator
2. Object 
1. Generation will increase - Ex : Karnataka now has surplus power
2. Power consumption increasing - how to meet? Increase supply
3. Generating, Distribution, consumption - deregulation 
4. Consumer would get good quality and pay proper price
5. System works smoothly and 
3. Regulatory Body

Electricity has to be consumed, it is chancala . it cannot be stored. 

Mismatch between consumption and supply

Regulation

1. Generation 
2. Consumer - Transparent methodology for fixing pricing

Section 126 - Unauthorized Use

1. Usage of Electricity by unauthorized means, - ARTIFICIAL Means 
1. Interfere with metering equipment - put a magnet near router
2. By means NOT authorized by use
1. Commercial / Domestic use
3. For purpose OTHER than actually taken supply
1. Giving supply to neighbor
2. Put under high Demand

What can they do when Unauthorized Use?

1. Inspect the house
2. if unauthorized use
3. Make provisional assessment is made
4. File objection
5. Authorities have to hear
6. if Unauthorized used if found? Rate payable is double per unit

Factors involved in calculation of Electricity Charges

1. Kilo watt Hours
2. Max Power drawing any point of time
3. Fixed Charge - You may ask at time for usage, the electricity Generation company has to make good for that.

Part 14 of Electricity Act

1. Dishonestly - mental intention - mens rea - person should act dishonestly
1. Taps overhead, under ground
2. Tampers meter
3. Destroy the meter
2. Theft 
1. There must be Mens Rea
2. there must be will full action
3. How do you punish ?
1. Can they both theft ( 153 IPC ) and unauthorized used be parallely applied. - 2013 8 SCC 49
2. what will any one will counter
1. Consumer court
2. deficient of service
3. Harassment by the authority
3. It should follow ombudsman and appeal
4. There are Special Courts for section 153 u/s the act
1. Expeditious disposal cases against Society 
2. Special knowledge for the Judges - Specialization of Judges.
3. Procedure and punishment 
4. Criminal Courts - Don't have power of review its own order
5. Civil Courts - O47 CPC- Review its own order under certain condition on suo moto or application.
6. Though it is a criminal proceeding - the Special court has power to REVIEW the order.
7. Effective deterant
5. Enable recovery of Dues 
1. The power Transmission corporation - Recovery of Dues of 1976
2. How it is to be recovered 

What is reason for billing loss

1. Technical loss
1. Power has to go through conductor 
2. based on thickness and size depends on quantum and Voltage transmission
3. Consumption Indian - 220Volts, USA - 110Volts, Europe - 220V
4. 11K volts per hr - transmission - higher voltage lesser the the resistance.
5. There is Step up and Step Down the voltages - Transformers 4k, 1k, when it comes to my area it comes at 440V - 
2. Commercial loss - theft cases - where there is consumption but not paid
1. Regulator is pushing to meter everything

Court Cases

1. Judicial review of Administrative action - ILR 2009 Karnataka 294 - Assessment procedure natural justice has to be formed - notice, reply, adjudication, payment.
2. 2013 8 SCC 49
3. Civil Liability, Damage Liability, Criminal Liability - Three parallel proceeding can coexist Independently
1. 2006 8 SCC 629
2. 2011 10 SCC 779
4. Theft Vs Unauthorized Use
1.  2019 SCCOnline 1077

Nani Palkhivala - India has grown not because of government but in spite of the government

Source

1. https://www.youtube.com/watch?v=OThbQP3CRFE