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Poverty can be addressed through healing touch of law: MP HC issues directions for implementation of poverty alleviation schemes

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In a well-written, well-articulated, well-reasoned and well substantiated judgment titled Omnarayan Sharma Vs State of MP & Ors in W.P. No. 1930/2020 (PIL) that was delivered on July 6, 2021, the Gwalior Bench of Madhya Pradesh High Court has issued directions to the District Legal Services Authorities and the State Authority for ensuring implementation of poverty alleviation schemes promulgated under provisions of Legal Services Authority Act, 1987 and NALSA (Effective Implementation of Poverty Alleviation Schemes) Scheme, 2015. It must be apprised here that a Division Bench of Madhya Pradesh High Court comprising of Justice Sheel Nagu and Justice Anand Pathak have observed thus:

“Poverty, which is a Problem (Social Evil) can be addressed through Law (with its healing touch) as its solution to achieve the ultimate destination of Development.” It also must be mentioned here that the remarks came in a petition against alleged corruption and illegality committed by state authorities in construction of toilets under Swachh Bharat Mission in Bhind District.

To start with, a Division Bench of Gwalior Bench of Madhya Pradesh High Court comprising of Justice Anand Pathak who has authored this learned, laudable, latest and landmark judgment for himself and Justice Sheel Nagu first and foremost points out in para 1 that, “The present petition under Article 226 of the Constitution of India has been preferred by the petitioner as Pro Bono Publico projecting himself to be a public spirited citizen and has raised the grievance regarding illegality and irregularity committed by the respondents, especially respondents No. 6 to 13 who according to petitioner have not undertaken any enquiry over the complaint of petitioner regarding corruption / illegality committed in construction of toilets under Swachh Bharat Mission.”

To put things in perspective, the Division Bench then puts forth in para 3 that, “Precisely stated facts of the case are that on 31/12/2019, one Ramu Chaudhary, resident of village Etahar, District Bhind registered a complaint on Chief Minister Helpline Portal that Sarpanch, Secretary and other officers of the Gram Panchayat Ater, District Bhind have embezzled public fund in the name of construction of toilets but neither toilets have been constructed nor any amount for construction has been received by 93 beneficiaries. Despite making complaint by the petitioner on behalf of the beneficiaries to Collector, District Bhind no affirmative steps have been taken.”

While dwelling on the petitioner’s grievance, the Division Bench then enunciates in para 4 that, “It is the grievance of the petitioner that in other blocks of District Bhind also corruption and illegality have been conducted in construction of toilets under Swachh Bharat Mission. Petitioner placed the list of beneficiaries (94 in number) vide Annexure P/3, who did not receive the benefits of toilets nor any amount. Petitioner also referred the screen shot of app. (Pandit Deendayal Shram Seva App) to demonstrate that allegedly amount has been received by the beneficiaries but in fact bogus papers have been prepared and amount has been siphoned off.”

As we see, the Bench then puts forth in para 5 that, “Learned counsel for the respondents/State opposed the prayer and placed certain documents on record. It is the submission of learned counsel for the State that immediately after issuance of notice in this writ petition (on 27/8/2020), CEO, Zila Panchayat, Bhind vide order dated 14/1/2021 (Annexure R/1) constituted a committee to look into the complaint made by petitioner. He also

referred the show cause notice issued by same authority to then Panchayat Secretary, Gram Rojgar Sahayak and other Secretaries, who worked at the relevant point of time including the then Supervisor.

Therefore, as per respondents, enquiry is under process. Learned Government counsel assured this Court that due enquiry would be conducted and if any illegality or irregularity is found then same shall be taken care of earnestly and consequent action shall be taken as per enquiry report.”

Needless to say, after hearing learned counsel for the parties and perusing the record as stated in para 7, the Division Bench then lays bare in para 8 that, “This is a case by way of Pro Bone Publico; whereby, petitioner as public interest litigant raised the question of alleged illegality and corruption brewing in the Gram Panchayat Etahar, Tasil Ater, District Bhind regarding implementation of Swachh Bharat Mission Scheme, which is a flagship scheme of Government of India to solve problems of sanitation and waste management in India by ensuring hygiene across the country. Primary object of this scheme is to eliminate open defecation and improve solid waste management. In the challenging period of COVID-19 Pandemic cleanliness and public hygiene assumed much significance. Therefore, it is the solemn duty of the District and Local Administration as well as local self government to look into the effective implementation of this scheme.”

Simply put, the Division Bench then envisages in para 9 that, “National Legal Services Authority (NALSA) under the provisions of Legal Services Authorities Act, 1987 has framed certain schemes encompassing wide range of subjects and the compendium of the said schemes reflects one such scheme namely NALSA (Effective Implementation of Poverty Alleviation Schemes) Scheme, 2015. This scheme is built on the foundation that poverty is a multi dimensional experience and is not limited to the issues of income. Multi dimensional poverty includes issues like health (including

mental health), access to water, education, sanitation, subsidies and basic services, social exclusion, discrimination etc.”

Furthermore, the Division Bench then makes it clear in para 10 that, “Further, in identifying the specific scheme for implementation at the State and District Level, Legal Services Authorities as per NALSA are expected to be cognizant of the fact that various vulnerable and marginalized groups experience poverty in myriad and unique ways.”

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Be it noted, the Division Bench then points out in para 11 that, “To address this exigency faced by people the Scheme of 2015 as referred above has been conceptualized.

In the scheme, following topics have been discussed: Clause 4.-Objectives of the Scheme:-,

Clause 5.-Identification of Poverty Alleviation Schemes:-,

Clause 6.-Organization of Awareness Programmes:-,

Clause 7.- Legal Services Officers and Para-legal Volunteers:-,

1) Every District Authority and Taluka Legal Services Authority shall designate at least three panel lawyers as Legal Services Officers for

the purpose of this Scheme. 2) District Authorities shall constitute teams of PLVs under a Legal Services Officer to implement this Scheme and the Legal Services Officer will supervise and mentor the PLVs in his team to help the beneficiaries access the various schemes of the Govt.

3) District Authorities shall conduct specialised training programs for panel of lawyers, members working in legal services clinics, members of panchayats, law students and other para-legal volunteers to assist in the implementation of the Scheme, to sensitise them regarding the needs of persons belonging to socially and economically weaker sections and the benefits that they can avail through Poverty

Alleviation Schemes.

Clause 8.- Legal Assistance for Access to Poverty Alleviation Schemes

Legal assistance must be provided to all the Scheme Beneficiaries seeking access to Poverty Alleviation Schemes. Legal Services to be provided by Legal Services Officers or volunteers under this Scheme includes, inter alia:

1) Informing the Scheme Beneficiaries about each of the Poverty

Alleviation Scheme to which they are entitled, and the benefits

thereunder

2) Assisting the Scheme Beneficiary in procuring the documents

required for availing the benefits under any of the Poverty

Alleviation Scheme

3) Informing the Scheme Beneficiary of the name and address of the

designated authority or the officer to be approached for registration

under any of the Poverty Alleviation Schemes

4) Offering to send para-legal volunteers including from the legal

services clinics with Scheme Beneficiaries to the office of the

designated authority or the officer to be approached under any of the

Poverty Alleviation Schemes

5) Informing the Scheme Beneficiary of her option to register a

complaint with the Legal Services Officer or para-legal volunteer,

about any designated authority or officer under any of the Poverty

Alleviation Schemes who refuses to cooperate with the Scheme

Beneficiary in providing her access to the benefits that she is

entitled to under the Poverty Alleviation Scheme.

6) Maintaining a record of all the complaints received under sub-clause(5).

7) Providing Scheme Beneficiaries with the contact number, if

available, of the Legal Services Officer, and availability of the

Legal Services Officer on call during working hours for such Scheme

Beneficiaries to whom contact number is provided.

Clause 9.-Action by Legal Services Officers on complaints;

1) On receiving complaints under sub-clause (5) of clause 8, each

Legal Services Officer shall herself personally accompany the

Complainant Beneficiary to the office of the designated authority or

officer, and assist the Complainant Beneficiary in availing the

benefit that she is entitled to under the Poverty Alleviation Scheme.

2) In case the designated authority or officer fails to register the

Complainant Beneficiary in the Poverty Alleviation Scheme, the Legal

Services Officer shall submit a complaint to the District Authority.

The letter of complaint shall describe the conduct of the designated

authority or officer who refused to register the Complainant

Beneficiary under the Poverty Alleviation Scheme, and circumstances of

such refusal and whether refusal was despite submission of all

necessary documents.

Clause 10.- Action by District Authority and State Authority on complaints:-

1) On receiving a complaint regarding the designated authority or

officer, the District Authority shall seek a report from the concerned

officer regarding the reason for denying the benefits under the

Poverty Alleviation Scheme to the complainant Beneficiary. In the

event that sufficient reason is not provided by the concerned officer

for refusal to register the Complainant Beneficiary in the Poverty

Alleviation Scheme or to provide benefits under the Poverty

Alleviation Scheme, the District Authority shall immediately

communicate to the superior officer in the department the details of

the refusal to provide access to the Poverty Alleviation Scheme.

2) If the superior officer, in the opinion of the District Authority,

also withholds the benefits under the Poverty Alleviation Scheme

without sufficient cause, the District Authority shall then

communicate the same to the State Authority.

3) On receiving such communication from the District Authority, the

State Authority may choose to further pursue the matter with the

concerned department or file appropriate legal proceedings to ensure

that the Complainant Beneficiary receives the benefit under the

Poverty Alleviation Scheme.

4) The District Authority, through para-legal volunteers or legal

services clinics, shall provide regular updates to the Complainant

Beneficiary about the status of the complaint.

Clause 11.-Evaluation of the Scheme:-

1)Every Legal Services Officer shall follow-up with each Scheme

Beneficiary who sought legal assistance under this Scheme and record:

a. if such person was able to register under the Poverty Alleviation

Scheme sought to be registered under and whether such benefits were

being received

b. any grievances experienced by the Scheme Beneficiaries in getting

registered and availing benefits under the various Poverty Alleviation

Schemes.

2) The District Authority shall compile the observations made under

sub-clause (1) for all the Legal Services Officers working under the

Scheme in the district and shall send a copy of such observations in a

complied document to the State Authority every six months.

3) The State Authority shall consolidate the compiled documents

received from all the District Authorities under sub-clause (2) and

hold a meeting every 6 months to review the functioning and

effectiveness of this Scheme. The minutes of such meeting shall be

recorded and published as a public document.

4) If in the meeting under sub-clause (3) the State Authority finds a

substantive or procedural defect in any of the Poverty Alleviation

Schemes which makes seeking benefits under the scheme a problem for

the Scheme Beneficiaries, such defect must be brought to the notice of

the Central Government or the State Government as the case may be for

improving the specific Poverty Alleviation Scheme and / or its

effective implementation.””

To be sure, the Division Bench

then observes in para 12 that, “Perusal of the whole scheme indicates

that certain responsibilities have been bestowed upon the State and

District Legal Services Authorities to train the legal and para-legal

volunteers for providing legal assistance for giving access to

beneficiaries to Poverty Alleviation Scheme and to act upon the

complaints if the benefits have not been extended to him/her or if any

authority refuses to cooperate with the scheme beneficiaries in

providing access to the benefits.”

As it turned out, the Division

Bench then states in para 13 that, “As referred in the Scheme of 2015,

poverty is a multi dimensional experience and it includes basic

services including sanitation etc. and when a duty has been cast upon

Legal Services Authority as per the Legal Services Authority Act, 1987

and Scheme of 2015 then if any complaint is received by the Legal

Services Officer from complainant / Scheme Beneficiary then such

complaint like the present one can be taken care of by the District

Authority as per Clause (9), (10) and (11) of the Scheme of 2015 by

the District Authority and even by the State Authority.”

Quite damningly, the Division

Bench then minces no words to state in para 14 that, “It is being

experienced by this Court that many complaints come regarding poor

implementation, corruption and / or irregularities in Schemes like

MGNREGA and Swachh Bharat Mission regarding construction of toilets or

non-grant of amount to the beneficiaries for construction of toilets,

etc. and by way of Public Interest Litigation, people seek Continuing

Mandamus from this Court, whereas, provisions of Act of 1987 and

Scheme of 2015 are apparently also available to address such

problems.”

Notably, the Division Bench then brings

out in para 15 that, “Clause 10(3) of Scheme of 2015 gives option to

choose between the Persuasion (with the concerned Department) or

Petition (to file appropriate legal proceedings). Here, appropriate

legal proceedings may include complaint before the Lokayukt, if it

comes under the purview of said Authority or private complaint against

the erring persons or to file a Petition on behalf of complainant

under Article 226 of the Constitution of India as Public Interest

Litigation. It can club cause of more than one beneficiaries also.”

In the present context, the

Division Bench then brings out in para 16 that, “Recently, Ministry of

Panchayati Raj, Government of India has undertaken steps in respect of

Online Audit and Social Audit of 20% Gram Panchayats’ in every Janpad

Panchayat and therefore, it appears that Government also intends to

make these Institutions more accountable which are having direct

bearing over day to day welfare of people at large. In pursuance

thereof, a circular has also been issued by Panchayat Raj Directorate,

Madhya Pradesh, Bhopal dated 17/2/2021 to all CEOs of Zila Panchayats

/ Janpad Panchayats to organize camps in this regard.”

Of course, the Division Bench then hastens to

add in para 17 that, “State Authority may contemplate about

preparation of one Software and Mobile Application ( Mobile App.) for

keeping a tab over the complaints received and their outcome. This

Software / Mobile App. may coordinate amongst the concern departments

so that complaints received over the said application (App.) would be

displayed all over. Concerned stakeholders and State Authority /

District Authority would be in a better position to proceed as per the

spirit of Act of 1987 and Scheme of 2015. State Authority even has

power to make regulations as per Section 29-A of the Act 1987 to

provide for all matters for which provision is necessary or expedient

for the purposes of giving effect to the provisions of Act.”

Quite scandalously, the Division

Bench then puts forth in para 18 in simple, suave and straight

language that, “Here, in the case in hand, it appears that certain

beneficiaries allegedly did not receive the benefits under Swachh

Bharat Mission about construction of toilets. As per the allegations,

neither toilets have been constructed by the concern authorities nor

amount has been transferred in their accounts and it is the

allegations that amount of 93 beneficiaries (or may be 94) has been

siphoned off by Sarpanch / Panchayat Secretary / Gram Rojgar Sahayak

etc. Allegations are prima facie serious in nature.”

Quite categorically, the Division Bench then

puts forth in para 19 that, “This Court cannot go into the

authenticity or otherwise of the allegations at this juncture

especially when CEO, Zila Panchayat is seized of the matter vide show

cause notices issued to erring officers / authorities in this regard.

Therefore, at this juncture, any observation would pre-empt the

controversy. However, Collector and CEO, Zila Panchayat, Bhind are

directed to look into the allegations with utmost promptitude and role

of concerned Sarpanch, Panchayat Secretary, Gram Rojgar Sahayak,

Supervisor and any other person involved in the transaction / or

having any responsibility under the Swachh Bharat Mission Scheme

failed or acted mischievously be enquired into in accordance with law.

If any conclusion has not been drawn in the enquiry up till now then

enquiry be conducted expeditiously within two months from the date of

passing of this order and outcome of the enquiry be intimated to the

office of this Court and office shall place the matter under the

caption “Direction” for perusal of this Court and even if conclusion

is drawn then consequential follow up action be informed to office of

this Court.”

Significantly, the Division Bench then

directs in para 20 that, “Before parting, this Court feels it

appropriate to give direction to the District Legal Services Authority

to update the contents of different schemes promulgated under the

different provisions of Legal Services Authority Act, 1987 including

the Scheme in hand i.e. NALSA (Effective Implementation of Poverty

Alleviation Schemes) Scheme, 2015 and ensure that in their respective

jurisdiction (District) Poverty Alleviation Scheme especially Swachh

Bharat Mission Scheme and Mahatma Gandhi National Rural Employment

Guarantee Act, 2005 (MGNREGA), etc. are being properly executed and

intended beneficiaries get the benefits of the scheme and if any

authority refuses to cooperate with the beneficiary in providing him /

her access to the benefits that she is entitled to under any Poverty

Alleviation Scheme, then the responsible authority under District

Legal Services Authority (DALSA) shall proactively take care of the

situation by proceeding as per Clause 9, 10 and 11 of the Scheme,

2015.”

More significantly, the Division Bench then further directs in

para 21 that, “It is further expected from the Authority and its

Office Bearers that they shall constantly organize awareness

programmes as well as training programmes for Panel Lawyers / Legal

Volunteers / Para-legal Volunteers as the case may be in a

constructive and proactive manner. The training must sensitize the

volunteers / activists to the notion that they have to act as Healers

of the Society looking to the great responsibility bestowed upon them

of Poverty Alleviation. Poverty, which is a Problem (Social Evil) can

be addressed through Law (with its healing touch) as its solution to

achieve the ultimate destination of Development.”

Most significantly, the Division

Bench then also directs in para 22 that, “In view of aforesaid

discussion, this Court summarizes the following directions:-

(i) If, any complaint is received regarding inaction, inappropriate

execution, corruption or any matter related thereto which comes under

the purview of Legal Services Authority Act, 1987 and NALSA (Effective

Implementation of Poverty Alleviation Schemes) Scheme, 2015 then

District Legal Service Authority (DALSA) shall proactively take care

of the situation by proceeding as per Clause 9,10 and 11 of the Scheme

of 2015;;

(ii) State Authority / District Authority may file appropriate legal

proceedings as per Clause 10 (3) of Scheme of 2015 by way of complaint

before the Office of Lokayukt as per relevant provisions or may file

Private Complaint against the erring persons or may file a petition if

subject matter requires so by way of a Public Interest Litigation

under Article 226 of the Constitution of India;

(iii) State Authority is requested to contemplate for framing of

suitable regulations as per the provisions of Act of 1987, especially

under Section 29-A for effective implementation of different schemes

of Government of India / State Government fall under NALSA (Effective

Implementation of Poverty Alleviation Schemes) Scheme, 2015. A further

request is made to contemplate about preparation of a Software /

Mobile Application (Mobile App.) for keeping a tab over the complaints

received and their outcome; and

(iv) District Authority and its Office Bearers are expected to

regularly organize awareness / training programmes for Panel Lawyers /

Para-legal Volunteers in a constructive and proactive manner to

sensitize them with the notion that they have to act as Healers of the

Society, looking to the great responsibilities bestowed upon them.

Secretary, SALSA shall coordinate and guide all such awareness /

training programmes.

Moving on, the Division Bench then

holds in para 23 that, “Consequently, petition is disposed of with a

direction to the respondents especially Collector and CEO, Zila

Panchayat Bhind to look into the matter and complete the enquiry, if

not already completed within two months from the date of passing of

this order and if any person is found guilty then consequential follow

up action shall be ensured in accordance with law. If the enquiry is

already concluded then Collector and CEO are directed to place the

enquiry report before the office of this Court so that same can be

placed before this Court for perusal.”

On a final note, the Division Bench while disposing of the petition as stated in para 24 then holds

in para 25 that, “A copy of this order be sent to Principal Secretary,

Panchayat Raj, Government of Madhya Pradesh, Bhopal as well as to

Member Secretary, SALSA, Jabalpur for circulation to all District

Legal Service Authorities (DALSA) for sensitization and implementation

of the concept as referred above by this Court.”

It merits no reiteration that the District Legal Services Authorities and the State Authority must

comply with this brief, brilliant, bold and balanced judgment by a

Division Bench of Gwalior Bench of Madhya Pradesh High Court

comprising of Justice Anand Pathak and Justice Sheel Nagu so that

poverty can be addressed through healing touch of law as has been

directed also. All such measures if implemented honestly in letter and

spirit then it will certainly go a long way in emancipating the

‘poorest of the poor’ which is the crying need of the hour also! There

is no reason why they should not be implemented at the earliest. It

certainly brooks no more delay anymore!

Sanjeev Sirohi, Advocate,

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Legally Speaking

KERALA HC: BAIL GRANTED TO A DOCTOR ACCUSED OF POSTING DEFAMATORY ARTICLES AGAINST LAKSHADWEEP ADMINISTRATIVE OFFICERS

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The Kerala High Court in the case Dr K P Hamsakoya vs Union Territory of Lakshadweep observed and granted an anticipatory bail to a senior doctor who has been accused of posting on facebook defamatory articles against officers of the Administration of Lakshadweep.

The bench comprising of Justice Viju Abraham observed and was essentially dealing with the pre-arrest bail plea of Dr. K P Hamsakoya, who is one of the senior-most doctors serving the Lakshadweep Administration and that presently, he is under suspension.

The Court observed that Dr. Hamsakoya has been accused of posting defamatory articles on Facebook against officers of the Administration of Lakshadweep, thus causing a negative effect amongst the public against the Administration. He has been booked under Sections 505 (1) (b), 505 (2) and 500 of the IPC and Section 66 (A) (b) of the Information Technology Act.

Before the Court, the Counsels Ajit G Anjarlekar, G.P.Shinod, Govind Padmanaabhan, and Atul Mathews appearing argued that he has been falsely implicated in the case and has been booked under the offence punishable under Section 66 (A) (b) of the IT Act (a provision which has been struck down in its entirety by the Apex Court).

It was contended by the court that the offences under Section 500 IPC cannot be registered without a complaint being filed by a person who has been defamed.

The Court while considering the facts and circumstances of the case and the nature of the allegations, the pre-arrest bail was granted by the court to the petitioner and the court dismissed his plea with the following directions:

On August 29, 2022, the petitioner shall surrender before the investigating officer and shall co-operate with the investigation.

The court stated that in the event of the petitioner, he shall be produced before the jurisdictional Magistrate and shall be released on bail on his executing a bond for Rs.50,000/- with two solvent sureties each for the like sum as per the satisfaction of the jurisdictional Court.

It was stated by the court that if any of the aforesaid conditions are violated, the Investigating Officer of Minicoy Police Station, Union Territory of Lakshadweep has been given the liberty to file an application for cancellation of bail before the jurisdictional court.

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Legally Speaking

GUJARAT HC GRANTS RELIEF TO DIPLOMA HOLDERS: STUDENTS CAN’T BE FAULTED FOR PHARMACY COUNCIL’S FAILURE TO APPROVE MEDICAL STORES FOR IMPARTING TRAINING.

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The Gujarat High Court in the case Oza Nikun Dashrathbhai v/s State Of Gujarat observed and has come to the rescue of D.Pharm students who were denied registration as ‘Pharmacist’ by the State Pharmacy Council on the ground that they have not undertaken training from medical stores approved the Pharmacy Practice Regulations, 2015.

The Single bench comprising of Justice AS Supehia observed and noted that the Pharmacy Council of India has not approved any medical store under the Regulation for the purpose of imparting practical training of Diploma to the students in Pharmacy Course like the present petitioners.

Court Observations:

It was observed that the petitioners cannot be faulted for the action of the respondent authorities in not approving the medical stores under regulation 4.4 of the Regulation of 2015 and hence, no option was there to the petitioner to take their training from the respective medical stores.

It was claimed by the petitioner’s student that the State Council was not registering them as Pharmacists despite having undertaken the necessary training of 500 hours for three months from the respective medical stores.

Further, it was observed that the State had admitted that all documents of the Petitioners were genuine, however, the registration was denied solely for the aforesaid reason. Further, one of the governmental circulars had clarified that the process for granting approval of Chemist/ Pharmacy and Druggist will be notified through the online mode. But the same was targeted only at “prospective students” .

It was noted by the High Court that in order to avoid hardship to current students, who had already undergone or undergoing the D.Pharm course while taking the practical training under the Pharmacy, Chemist and Druggist licensed under the Drugs and Cosmetics Act, 1940, as per precedence students will be considered for the registration, provided the students had undergone the D.Pharm course in an institution approved under PCI under section 12 of the Act.

Accordingly, the High Court directed the State Council to register the Petitioners as Pharmacists within three months.

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Legally Speaking

UTTARAKHAND HC SAYS UTTARKASHI’S BAN ON “MEAT SHOPS” WITHIN 500 METRES OF “RIVER GANGA” IN LINE WITH CONSTITUTIONAL SCHEME

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It is interesting to note that while fully, firmly and finally very rightly and commendably upholding the ban that was imposed on meat shops that was enacted by the Zila Panchayat of Uttarkashi District, the Uttarakhand High Court in an extremely remarkable, robust, refreshing and rational judgment titled Naved Qureshi vs State of Uttarakhand & Ors in Writ Petition (MS) No. 2073 of 2016 that was pronounced recently on July 20, 2022 has expressed its consonance with a bye-law of Zila Panchayat, Uttarkashi to the effect that no shop for butchering animals and selling meat within 500m from the bank of river Ganga shall be permitted. It must be noticed here that the Single Judge Bench of Hon’ble Mr Justice Sanjaya Kumar Mishra said quite clearly that keeping in view the “special status” of Uttarakhand and the river Ganga that emerges from District Uttarkashi and the sanctity attached with the river Ganga by majority of population of Uttarakhand, the decision taken by the Zila Panchayat by making the said bye-laws is in line with the scheme of Constitution of India, as envisaged in Part IX. It very rightly ruled that the District Magistrate had not committed any error in not issuing a no objection certificate to the petitioner to run a mutton shop, at a premises situated at 105 metres distance from the bank of Ganga.

At the outset, this extremely laudable, learned, landmark and latest judgment authored by a Single Judge Bench of the Uttarakhand High Court comprising of Hon’ble Mr Justice Sanjaya Kumar Mishra sets the ball rolling by first and foremost putting forth lucidly in para 1 that, “By filing this writ petition, the petitioner has prayed for the following reliefs:

“i. Issue a writ, order or direction in the nature of certiorari calling for the original record and pleased to quash the impugned order dated 08.06.2016 (Annexure – 2) passed by the respondent no. 2 i.e. District Magistrate, Uttarkashi, District Uttarkashi.

ii. Issue a writ, order or direction in the nature of Mandamus directing and commanding the respondents that they shall not interfere in the peaceful business activities i.e. in running the mutton shop in his house situated at the roadside of Gangotri National Highway without any valid reason.

iii. Issue a writ, order or direction in the nature of Prohibition making declaration to the effect that after central enactment of the Food Safety and Standards Act, 2006 the bye-laws no. 3 framed by the respondent Zila Panchayat became illusionary and same are not applicable for the purpose of regulating food safety activities in rural area, therefore, no license from respondent Zila Panchayat is required to do business.””

To put things in perspective, the Bench then envisages in para 2 that, “The facts of the case, not disputed at this stage, are that petitioner is a resident of village Hina Gaon, Police Station – Maneri, District – Uttarkashi. His father was recorded tenure holder having bhumidhari land bearing Khasra Nos. 1555 and 15556, situated in the aforesaid village. He was running a mutton shop since 2006 in a rented accommodation in village – Hina Gaon, after getting license from Zila Panchayat. Though, according to him, license was not required after enforcement of Food Safety and Standards Act, 2006 (hereinafter referred to as “FSS Act, 2006” for brevity). In the year 2012, he also obtained a license from the designated authority under the FSS Act, 2006. Till the year, 2015, he ran his shop at aforesaid rented premises and after construction of his own shop over the bhumidhari land, he shifted his business of butchering and selling mutton into it. On 27.02.2016, respondent no. 3 – Zila Panchayat, Uttarkashi, through Additional Mukhya Adhikari, issued a notice to the petitioner to shift his mutton shop, within 7 days to another place, as his shop is situated 105 metre away from the bank of river Ganga, which is violative of the existing by-laws. As per the by-laws, operation of mutton/chicken shop within 500 metres from the bank of river Ganga is prohibited. On 15.03.2016, petitioner being aggrieved by the notice, preferred a Writ Petition (MS) No. 651 of 2016, which was disposed of, in limine, by this Court by giving opportunity to the petitioner to file a representation before the Authorities and with a direction to the Authorities to dispose of the same. Thereafter, on 09.05.2016, the petitioner served a copy of the aforesaid order on respondents no. 2 and 3 and prayed for issuance of license for the next financial year 2016-17 but the respondent no. 2 – District Magistrate, Uttarkashi vide order dated 09.05.2016 rejected the representation of the petitioner on the basis of the Resolutions of meeting held on 04.05.2016.”

In this same para 2, it is then further mentioned that, “Feeling aggrieved by the aforesaid order dated 09.05.2016 and minutes of meeting dated 04.05.2016, the petitioner preferred a Writ Petition (MS) No. 1383 of 2016 wherein respondents were directed to file counter affidavit within four weeks and the said writ petition is still pending. In the meantime, petitioner again represented before respondent no. 2 – District Magistrate, Uttarkashi to grant him no objection certificate, which was again rejected. The said order of the learned District Magistrate, Uttarkashi is assailed in this writ petition.”

On the one hand, the Bench then points out in para 3 that, “Learned counsel for the petitioner would submit that the only ground on which his application for grant of no objection certificate has been rejected by the District Magistrate, Uttarkashi is that his shop is situated within 500 metre from the bank of river Ganga. According to the petitioner, after passing of the FSS Act, 2006, the jurisdiction of Zila Panchayat is ceased to operate and it is only the Designated Authority, under the FSS Act, 2006 has authority to grant license or reject it in favour of the petitioner for running a shop for selling and butchering the animals. Therefore, he prayed that annexure no. 2 to the writ petition be quashed and it be declared that FSS Act, 2006 shall have overriding effect on the by-laws issued by the Zila Panchayat.”

On the other hand, the Bench then mentions in para 4 that, “Learned counsel for the State would submit that petitioner was granted license by the Designated Authority to run the shop at a particular place but he shifted his shop, after getting the license from the Designated Authority under the FSS Act, 2006, to another place, which came within 500 metre from the bank of river Ganga, therefore, no objection certificate was not granted to him and order passed by District Magistrate, Uttarkashi does not have any infirmity or perversity and requires no interference.”

Furthermore, the Bench then succinctly discloses in para 5 that, “Learned counsel for the State further submits that as per Section 106 (1) of the Uttarakhand Panchayati Raj Act, 2016, the Zila Panchayats have powers to make by-laws. Section 106 of the Uttarakhand Panchayati Raj Act, 2016 is quoted as under:

“106 Powers of Zila Panchayat to make bye-laws (1) A Zila Panchayat may, and where required by the State Government shall, make bye-laws for its own purposes and for the purposes of {Kshettra Panchayats}, applicable to the whole or any part of the rural area of the district, consistent with this Act and with any rule, in respect of matters required by this Act to be governed by bye-laws and for the purposes of promoting or maintaining the health, safety and convenience of the inhabitants of the rural area of the district and for the furtherance of the administration of this Act in the Khand and the district.””

Needless to state, the Bench then notes explicitly in para 6 that, “Article 243 (Part IX) of the Constitution of India provides for formation of Gram Sabha and Gram Panchayat. Article 243 G provides for the powers, authority and responsibilities of Panchayats. For better appreciation of the matter, it is quoted below:

“243G. Powers, authority and responsibilities of Panchayats – Subject to the provisions of this Constitution the Legislature of a State may, by law, endow the Panchayats with such powers and authority and may be necessary to enable them to function as institutions of self government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats, at the appropriate level, subject to such conditions as may be specified therein, with respect to –

(a) the preparation of plans for economic development and social justice;

(b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule.””

Quite ostensibly, the Bench then enunciates in para 7 that, “Thus, it is apparent from the aforesaid Article that the Constitution recognises the Zila Panchayats, as sovereign authorities, having powers to plan for economic development and social justice, as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule. Article 243 G also provides that the Legislature of a State, may by law, endow the Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self government. Entry 4 in the Eleventh Schedule of the Constitution of India provides for animal husbandry, dairying and poultry. Entry 22 provides for markets and fairs. Thus, it is clear that as far as markets and fairs and animal husbandry, dairying and poultry are concerned, the Zila Panchayat, as an institution of self government, may function to regulate animal husbandry etc. as mentioned above.”

Be it noted, the Bench then quite forthrightly holds in para 8 that, “Therefore, the contention of learned counsel for the petitioner that after passing of the FSS Act, 2006, the powers of Zila Panchayat ceased to operate with respect to food items does not appears to be correct. Since, the Zila Panchayats have been granted powers to act as institutions of self government, the provisions made by Zila Panchayat has to be harmoniously constructed with the provisions of the FSS Act, 2006.”

Most significantly, what truly constitutes the cornerstone of this notable judgment is then encapsulated in para 9 wherein it is held that, “In view of the above, this Court is of the opinion that no objection certificate is mandatory to be obtained from the Zila Panchayat or the District Magistrate for running a mutton shop in the present matter. At the same time, keeping in view the special status of State of Uttarakhand and the river Ganga that emerges from District Uttarkashi and the sanctity attached with the river Ganga by majority of population of Uttarakhand, the decision taken by the Zila Panchayat by making by-laws to the effect that no shop for butchering the animals and selling the meat within 500 metres from the bank of river Ganga appears in line with the scheme of Constitution of India, as envisaged in Part IX. Hence, this Court is of the view that respondent no. 2, District Magistrate, Uttarkashi has not committed any error in not issuing no objection certificate to the petitioner to run a mutton shop within 500 metres from the bank of river Ganga.”

Finally, the Bench then concludes aptly by directing in para 10 that, “Accordingly, the writ petition fails and is hereby dismissed. It is observed that any person, who runs a meat shop for selling and butchering the animals in District Uttarkashi, shall obtain no objection certificate from the concerned authority, in the light of by-laws made by the Zila Panchayat and also obtain license from the designated authority.”

In sum, the Uttarakhand High Court has very rightly held that Uttarkashi’s ban on meat shops within 500 meters of the river Ganga is in line with constitutional scheme. So it definitely merits no reiteration of any kind that the same has to be complied with accordingly in its entirety! No denying it!

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GUJARAT HC GRANTS RELIEF TO PHARMACY DIPLOMA HOLDERS

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The Gujarat High Court in the case Oza Nikun Dashrathbhai v/s State Of Gujarat observed and has come to the rescue of D.Pharm students who were denied registration as ‘Pharmacist’ by the State Pharmacy Council on the ground that they have not undertaken training from medical stores approved the Pharmacy Practice Regulations, 2015.

The Single bench comprising of Justice AS Supehia observed and noted that the Pharmacy Council of India has not approved any medical store under the Regulation for the purpose of imparting practical training of Diploma to the students in Pharmacy Course like the present petitioners.

Court Observations

It was observed that the petitioners cannot be faulted for the action of the respondent authorities in not approving the medical stores under regulation 4.4 of the Regulation of 2015 and hence, no option was there to the petitioner to take their training from the respective medical stores.

It was claimed by the petitioner’s student that the State Council was not registering them as Pharmacists despite having undertaken the necessary training of 500 hours for three months from the respective medical stores.

Further, it was observed that the State had admitted that all documents of the Petitioners were genuine, however, the registration was denied solely for the aforesaid reason. Further, one of the governmental circulars had clarified that the process for granting approval of Chemist/ Pharmacy and Druggist will be notified through the online mode. But the same was targeted only at “prospective students” .

It was noted by the High Court that in order to avoid hardship to current students, who had already undergone or undergoing the D.Pharm course while taking the practical training under the Pharmacy, Chemist and Druggist licensed under the Drugs and Cosmetics Act, 1940, as per precedence students will be considered for the registration, provided the students had undergone the D.Pharm course in an institution approved under PCI under section 12 of the Act.

Accordingly, the High Court directed the State Council to register the Petitioners as Pharmacists within three months.

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BASICS, LEGISLATIONS AND NEED FOR A NEW LAW TO DEAL WITH 5G SPECTRUM TECHNOLOGY

Satyajeet A. Desai

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Much like the evolution of humankind over the millennia, the inventions by humans have also evolved with the progress and advances in technology. Right from the invention of the telephone by Graham Bell to the present day wonder phone ; the cellular or mobile phone.

Cellular mobile technology has also benefited greatly from such advances, Think back to the first generation of mobile phones and connectivity options offered and you think of large phone instruments and only voice enabled phones.

Segue to the present day and we have now arrived at the threshold of a major revolution in cellular technology: the 5G network.

What is the 5G network technology? Simply expressed, it is an advancement of technology, but to put it in better terms, what this means is that with higher usage of mobile phones, which have morphed into office equipment or entertainment consoles due to their ease of usage and accessibility, this new technology has the capability of transmitting data at higher speeds, without any perceptible delay ( which is known as low latency in technical terms), which even the current 4G network could not perhaps address.

What are the laws governing 5G network technology? At present, there are no specific regulations or laws that govern this technological advance and it would thus be governed by the existing bouquet of legislations and rules, which are;

Indian Telegraph Act, 1885: This legislation regulates the telecommunication sector, empowering the government to put up infrastructure and licensing of infrastructure.

The Indian Wireless Telegraphy Act, 1933: This legislation regulates the usage of wireless telegraphs in the country.

Telecom Regulatory Authority of India Act, 1997: This act was put into place in order to regulate and settle telecom disputes and an authority know as Telecom Regulatory Authority of India was setup under the legislation . The initial role of the authority was to look into disputes in the sector , its scope was however, expanded to regulate the sector in the country, which in the context of the mobile or cellular technology also includes the grant of licences.

Information Technology Act, 2000: As the name suggests, this act governed information technology, but was later amended in 2008 to include telecom service industry.

Apart from this the guidelines issued by the Government under these enactments would hold the field. Allocation of spectrum would be based upon technical evaluations carried out before granting licences.

What are the requirements to be fulfilled by the applicant telecom companies to obtain 5G spectrum licence? The company must hold a Cellular Mobile Telephone Service Licence or Unified Access Service Licence , Unified Licence with permission/authorisation for access services for the service area for which it has bid for (the region that it has bid for).

Apart from this, the additional or subsidiary conditions that have to be met are:

The company that bids for licenses must have a net worth of Rs. 100 crores for the service area that it has bid for amongst other ancillary requirements.

The stance of the Government: The stance of the Government as reflected on its website https://dot.gov.in/5g-india-2020 is that “ The 5G technology has been conceived as a foundation for expanding the potential of the Networked Society. A digital transformation brought about through the power of connectivity is taking place in almost every industry. The landscape is expanding to include massive scale of “smart things” to be interconnected. Therefore, the manner in which future networks will cope with massively varied demands and a business landscape will be significantly different from today. 

The economic benefits from the 5G technology are also quite immense. As per the OECD (Organization for Economic Cooperation and Development) Committee on Digital Economic Policy, it has been stated that 5G technologies rollout will help in Increasing GDP, Creating Employment, Digitizing the economy.

For India, 5G provides an opportunity for industry to reach out to global markets, and consumers to gain with the economies of scale. Worldwide countries have launched similar Forums and thus, India has joined the race in 5G technologies.

The Government gave the go ahead for 5G spectrum trials as reported on the website,https://www.pib.gov.in/PressReleseDetailm.aspx?PRID=1715927,which stated that-The Department of Telecommunications (DoT), Government of India, approved permissions to Telecom Service Providers (TSPs) for conducting trials for use and applications of 5G technology.  The applicant TSPs include Bharti Airtel Ltd., Reliance JioInfocomm Ltd., Vodafone Idea Ltd. and MTNL.  These TSPs have tied up with original equipment manufacturers and technology providers which are Ericsson, Nokia, Samsung and C-DOT.  In addition, Reliance Jio Infocomm Ltd. will also be conducting trials using its own indigenous technology.

The permissions have been given by DoT as per the priorities and technology partners identified by TSPs themselves.  The experimental spectrum is being given in various bands which include the mid-band (3.2 GHz to 3.67 GHz), millimetre wave band (24.25 GHz to 28.5 GHz) and in Sub-Gigahertz band (700 GHz).  TSPs will also be permitted to use their existing spectrum owned by them (800 MHz, 900 MHz, 1800 MHz and 2500 MHz) for conduct of 5G trials.

The duration of the trials, at present, was for a period of 6 months. This includes a time period of 2 months for procurement and setting up of the equipment.

The permission letters specify that each TSP will have to conduct trials in rural and semi-urban settings also in addition to urban settings so that the benefit of 5G Technology proliferates across the country and is not confined only to urban areas.

The TSPs are encouraged to conduct trials using 5Gi technology in addition to the already known 5G Technology.  It will be recalled that International Telecommunications Union (ITU) has also approved the 5Gi technology, which was advocated by India, as it facilitates much larger reach of the 5G towers and Radio networks .The 5Gi technology has been developed by IIT Madras, Centre of Excellence in Wireless Technology (CEWiT) and IIT Hyderabad.

The objectives of conducting 5G trials include testing 5G spectrum propagation characteristics especially in the Indian context; model tuning and evaluation of chosen equipment and vendors; testing of indigenous technology; testing of applications (such as tele-medicine, tele-education, augmented/ virtual reality, drone-based agricultural monitoring, etc.);and to test 5G phones and devices.

5G technology is expected to deliver improved user experience in terms of data download rates (expected to be 10 times that of 4G), up to three times greater spectrum efficiency, and ultra low latency to enable Industry 4.0. Applications are across a wide range of sectors such as agriculture, education, health, transport, traffic management, smart cities, smart homes, and multiple applications of IOT (Internet of Things).

DoT has specified that the trials will be isolated and not connected with the existing networks of TSPs.  Trials will be on non-commercial basis.  The data generated during the trials shall be stored in India.  TSPs are also expected to facilitate the testing of the indigenously developed use cases and equipment as part of the trials. One hundred applications/ use cases selected by DoT after conducting the recent Hackathon on 5G applications can also be facilitated in these trials. 

Pursuant to the above, trials were carried out successfully, and ultimately, the spectrum auction took place recently and the 5G network is set to be rolled out soon. This is of course, the offering of the network to subscribers for their usage as provided by telecom operators.

Captive usage of 5G spectrum: With huge interest being shown by some business entities for captive consumption of the spectrum, the Government has on 10th August,2022 undertaken to examine the demand for the same. Captive Non-Public Network (CNPN), or in other words, in-house network, in layman terms will help those entities who wish to avail of the same, to have easier and faster in- house capability, thus boosting its efficiency while providing a dedicated platform, different from the one provided to telecom operators. Different as a result of one customer or subscriber who will avail the same directly from the Department of Telecommunications.

Litigatin on 5G- A litigation against the rollout of the 5G spectrum was initiated before the Delhi High Court on the possible environmental hazards , which came to be dismissed.

At present, there is possibly no other litigation pending or initiated as regards the 5G spectrum rollout, maybe due to the freshness or infancy of the same. If there is any future litigation as regards the same, it would in all probablity be in the realm of awarding of spectrum as a larger issue. Another aspect of any probable litigation would be as regards awarding of Captive Non Public Network (CNPN) or captive usage, but that is likely to be litigation almost like the one that we see in the realm of contracts.

The way forward: As mentioned midway in this article, there is no specific law dealing with spectrum technology and the same is governed by the various enactments mentioned above. The pressing requirement is possibly to have a single law dealing with this area, instead of the bouquet of laws holding the field, which will pave the way for smoothening of the sector and help both the Government and parties in the sector to have a level playing field and do away with the uncertainties associated with various laws governing the field which could result into chaos as compared to a single special legislation which would look at existing and future requirements. A specific law is indeed the need of the hour.

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AN ANALYSIS OF UNIFORM CIVIL CODE

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UNIFORM CIVIL CODE

Uniform civil code in general words means “One Nation, One Law”

Uniform civil code: The word is comprised of two words “uniform” and “civil code”

UNIFORM MEANS EQUALLY APPLICABLE ON EVERYONE

Civil code means collection of laws governing personal relationships between people. Few examples of civil code are contracts, property and marriage related laws.

The debate for uniform civil code started back in 1835 with the report of second law commission. During this time Britishers felt the need to unify various personal laws.

The concept of uniform civil code is embodied under article 44 of the Indian constitution in chapter IV (DPSP). The article states that: Uniform civil code for the citizens: The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.

The words incorporated in article 44 imply that the state shall make great effort to implement Uniform civil code throughout the country.

Although directive principles of state policy are not enforceable in a court of Law, it obligates the state to apply the principles in implementation of laws.

The implementation of Uniform civil code was included by the Bhartiya Janta party in its manifesto during 2019 Lok Sabha election. Removal of Article 370 from constitution of India is the major step towards this agenda. India is a diverse country with various religions and various personal laws governing these religions with implementation of UCC all the religions will be governed by one uniform civil code which will reduce the dominance of personal laws over society.

UNIFORM CIVIL CODE AND PERSONAL LAWS

Implementation of UCC has been a matter of dispute from long time because in country like India religious domination plays a crucial role and majority would prefer their dominance over others religions with its personal religious laws. The idea to integrate people of different religions under one civil law can only be possible if it’s for common good rather than for preservation of custom.

Custom as a source of law gives more importance to personal religious laws rather than one uniform law and if custom will be the focus behind this one unified civil law it will dominate one majority religion over minorities. The centre of attraction behind the uniform law should be Justice rather than antediluvian antifeminist customs.

It was contended during the debates of the constituent assembly that uniform civil code infringes the right to religion guaranteed under part III of the constitution of India.

In the case of John Vallamattom v. Union of India(MANU/SC/2003) it was held that directive principles incorporated under Article 44 do not infringe article 25 (freedom of religion) in any way. In addition to this clause (2) of article 25 saves secular activities associated with religious practices from the right available under clause (1) that empowers the state to regulate or restrict them.

Judicial pronouncements and article 25

The necessity of implementation of Unified Civil Code has been often recommended by Supreme Court. In the case of Nikhil soni v. Union of India the court stated unambiguously that trough a practice can be religious in nature but if may not constitute vital component of that religion.

UCC: THE DEBATE OF CONSTITUENT ASSEMBLY

The speech was given against the motion by several Muslim leaders when it was enacted. It was claimed that it violates fundamental right of religion. Dr. B.R Ambedkar even mentioned, “We have a uniform and COMPLETE CRIMINAL CODE OPERATING THROUGHOUT THE COUNTRY. Which is contained in the penal code and the criminal procedure code. this country also has a civil code which is uniform in its content and applicable throughout the country. The only division in which civil law has not invaded is marriage and succession. It is this little corner which we have not been able to invade so far.

UNIFORM CIVIL CODE IN GOA

Uniform civil code is contained under part IV of the Indian Constitution therefore not enforceable but Goa is the only state which has implemented Uniform civil code in its territory.

The Apex court in Jose Paulo coutinho v. Maria Luiza Valentina Pareira stated that the Uniform civil code of Goa is an ideal for applicability of uniform laws on different religions. However the personal laws in Goa are not uniform in all aspects.

Uniform civil code & elimination of gender biasness

The concept of Uniform civil code is highly associated with elimination of gender bias; every personal law is strongly prejudiced against women in some way or the other. The personal laws are highly patriarchal and male dominant in nature. No personal law is ideally suited to become a model for UCC.

Personal laws are mainly derived their authority and source from customs, but the combined effort of legislature and judiciary have played a major role towards achievement of UCC through legislations and precedents.

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