It is a case where the car was painted to match the original colour before being handed to the complainant. It was not stated in the report that the car was old or involved in an accident prior to repainting. Instead, it is a case of typical scratches that were bound to appear during the vehicle’s trailer transportation from the factory to the agency, according to state commission Haryana Panchkula. SC affirms that there was no manufacturing flaw in this instance.     

Dr Prem Lata Legal Head VOICE

Case Title: In Re Article 370 of the Constitution of India

Citation: 2023 Live Law (SC) 1050

Appearance for the Petitioners: 

Senior Advocates Kapil Sibal, Gopal Subramanium, Zaffar Shah, Rajeev Dhavan, Dushyant Dave, Chander Uday Singh, Dinesh Dwivedi, Shekhar Naphade, Nitya Ramakrishnan, Gopal Sankaranarayanan, Menaka Guruswamy, Prashanto Chandra Sen, Sanjay Parikh and Advocate Warisha Farasat argued.

Appearance for the Union of India :

 Attorney General for India R Venkataramani, Solicitor General of India Tushar Mehta, Additional Solicitor General KM Nataraj, ASG Vikramjeet Banerjee and Advocate Kanu Agarwal.

Appearance For the Intervenors backing the Union: 

Senior Advocates Harish Salve, Rakesh Dwivedi, V Giri, Guru Krishnakumar; Advocates Archana Pathak Dave, VK Biju and Charu Mathur.

 Before  The Supreme Court of India Original Writ / Appellate Jurisdiction Writ Petition (Civil) No. 1099 Of 2019

With Writ Petition (C) No. 871 of 2015 With Writ Petition (C) No. 722 of 2014 With SLP (C) No. 19618 of 2017 ,With Writ Petition (C) No. 1013 of 2019 With Writ Petition (C) No. 1082 of 2019 With Writ Petition (C) No. 1068 of 20 With Writ Petition (C) No. 1037 of 2019 With Writ Petition (C) No. 1062 of 2019 With Writ Petition (C) No. 1070 of 2019 With Writ Petition (C) No. 1104 of 2019 With Writ Petition (C) No. 1165 of 2019 With Writ Petition (C) No. 1210 of 2019 With Writ Petition (C) No. 1222 of 2019 With Writ Petition (C) No. 396 of 2017 With Writ Petition (C) No. 756 of 2017 With Writ Petition (C) No. 398 of 2018 With Writ Petition (C) No. 924 of 2018 With Writ Petition (C) No. 1092 of 2018 With Writ Petition (C) No. 1162 of 2018 With Writ Petition (C) No. 1048 of 2019 With Writ Petition (C) No. 1268 of 2019 And With Writ Petition (C) No. 1368 of 2019. 

The Supreme Court on December 11th,2023 upheld the validity of the Union Government’s 2019 decision to repeal the special status of Jammu and Kashmir (J&K) under Article 370 of the Constitution.

ISSUES IN QUESTION:

Part –A 

The Recommendation of J&K Constituent Assembly was not necessary for the President to declare Article 370 inoperative.

Background of the case:

• Changes made to Article 367

Some changes were made by Adding a clause to  article 367 through notification issued by the President (Constitution Order 272) specifying “that the references to the “Constituent Assembly of Jammu and Kashmir” should be read as the “Legislative Assembly of Jammu and Kashmir” and the “Government of J&K” can be construed as the “Governor of J&K”. 

  It is appropriate to mention that these changes enabled the President to issue the next Constitution Order, CO 273, to declare Article 370 inoperative without obtaining the recommendation of the J&K Constituent Assembly (which was dissolved in 1957) as stipulated in the proviso to Article 370(3).)

• SC invalidated changes to Art 367

The Supreme Court nullified a segment of the notification issued by the President (Constitution Order 272). This decision was based on the assertion that the alterations to Article 367 constituted an amendment with a significant impact on Article 370. The court disapproved of this action, citing the failure to adhere to the appropriate procedure for such amendments.

Refusing to endorse this backdoor method of amendment, the CJI DY Chandrachud wrote in the judgment:

“While the ‘interpretation’ clause can be used to define or give meaning to particular terms, it cannot be deployed to amend a provision by bypassing the specific procedure laid down for its amendment. This would defeat the purpose of having a procedure for making an amendment”

Supreme court reiterated that the amendments to Constitutional provisions have to be carried out by following the procedure prescribed under Article 368. That is through passing an amendment bill in the Parliament with the backing of the prescribed majority.

• SC further Validated Constitution Order 273  

Despite invalidating the changes made to Article 367 through Constitution Order 272, the Court upheld the repeal of J&K’s special status. Supreme Court held that the President did not require the recommendation of the J&K Constituent Assembly to issue a declaration that Article 370 was inoperative. Thus, Constitution Order 273 was upheld. 

Although the Court held as invalid the Constitutional Order 272 to the extent it changed the meaning of ‘J&K Constituent Assembly’ as ‘J&K Legislative Assembly’ and ‘J&K Government’ as ‘Governor’, this conclusion did not affect the outcome of the judgment since the Court held that the recommendation of J&K Constituent Assembly was not necessary for the President to declare Article 370 as inoperative.

Part-B

Parliament can carve out a Union Territory from a state.

Background of the case:

Basic question raised in the writs:

The powers under Article 356 (the perception of Article 356) should only be employed to restore normalcy in the State facing a breakdown of the Constitutional machinery and should not be wielded to institute fundamental and enduring changes (referred to by the petitioners as ‘irreversible changes’ as an emergency provision) 

1. The Executive and legislative alterations concerning Jammu and Kashmir—such as the repeal of its special status, the separation of Ladakh, and its conversion into a Union territory—all transpired during a period of President’s rule, in the absence of a State Legislature or Government with all decisions unilaterally made by the Union.

In a certain sense, the Presidential proclamation under Article 356 facilitated these decisions by empowering the Union Government to act on behalf of the State, without political consensus at the State level. 

1. Further, the Presidential proclamation suspended the operation of the provisos to Article 3, which mandated the concurrence of the J&K assembly to pass a reorganization Act. Consequently, the Parliament could bifurcate J&K and downgrade it to a Union Territory without soliciting the views of the elected body representing the people of J&K.

Law on the issue -Requirements for permitting above act to the central Government during president Rules 

“Actions which are taken during the subsistence of a Proclamation must bear a proximate relationship with the need to discharge the exigencies of governance 

The ultimate object and purpose of the constitutional arrangement envisaged in the article is to restore the functioning of the constitutional machinery in the state.

 Legislative and executive action has to bear a proximate relationship to the object and purpose underlying the suspension of the constitutional machinery in the state”

The court rejected the argument of petitioners that Union cannot take actions of irreversible consequences in the State during Presidential rule. The Court further held that the views of the concerned State regarding the proposed reorganization, expressed as per proviso to Article 3, are not binding on the Parliament.

“..The views of the Legislature of the State are not binding on Parliament in terms of the first proviso to Article 3. The views of the Legislature of the State under the first proviso to Article 3 are recommendatory to begin with,” the Court held. The precedent laid down by a 5-judge bench in Babulal Parate v. State of Bombay (1959) was followed in this regard. 

Therefore, the Court held that the Parliament passing the reorganization Act when the State Assembly was dissolved and the State was placed under Presidential rule was not a mala fide exercise, since the views of the State legislature are not binding in any case.

“..The views of the Legislature of the State are not binding on Parliament in terms of the first proviso to Article 3. The views of the Legislature of the State under the first proviso to Article 3 are recommendatory to begin with”

Reference was made to the judgment in Babulal Parate v. State of Bombay (1959) that the views of the State legislature regarding the reorganisation of that State were not binding on the Parliament. 

Finally Supreme Court held:

1. The Parliament has the authority to carve out a Union Territory from a State, without the consent of the State. 
2. Union Government has the power to make irreversible and fundamental changes to a State’s policy when it is placed under the President’s rule
3. The Parliament has not downgraded a State while carving into a Union Territory. It is held on the basis of Union Government’s assurance, albeit without a specified timeframe, that the statehood of Jammu and Kashmir would be restored. Hence it is not downgrading the state into Union Territory.
4. The Court did not adjudicate upon the validity of the reorganisation of J&K into Union Territory (UT). However, the carving out of Ladakh as UT was upheld.
5. The views of the State are merely recommendatory and not binding on the Parliament.

Justice Sanjiv Khanna, in his separate but concurring judgment, sounded a word of caution, by saying:

“Conversion of a State into Union Territory has grave consequences, amongst others; it denies the citizens of the State an elected state government and impinges on federalism. Conversion/creation of a Union Territory from a State has to be justified by giving very strong and cogent grounds. It must be in strict compliance with Article 3 of the Constitution of India”.

• Court Need Not Adjudicate on Validity Of President’s Rule

The court held that it need not adjudicate on the validity of the presidential proclamations announcing President’s Rule in the State since petitioners did not challenge the same. In any case, the court found that no material relief could be given as the President’s Rule was withdrawn in October 2019.

• Every decision of Union when State is Under President’s Rule cannot be Challenged

The court held that there are limitations on power of the Union and States when proclamation of presidential rule was in force. It stated that the scope of the power of the Union depends on the circumstances. The court added that the exercise of power under Article 356 must have a reasonable nexus with the object of the proclamation. Further, the court stated that there were innumerable decisions taken by the Union on behalf of States. Thus, it added, “Every decision taken by Union on behalf of State during Presidential rule is not open to challenge…this will lead to the administration of state to a standstill…“

Part-C

Article 370 was a temporary provision

The Supreme Court on December 11 upheld the validity of the Union Government’s 2019 decision to repeal the special status of Jammu and Kashmir (J&K) under Article 370 of the Constitution. The Court held 

1. That the State of J&K had no internal sovereignty and the concurrence of the State Government was not required to apply the Indian Constitution to the State of J&K. It was held that Article 370 was a temporary provision.
2. That the carving out of Ladakh as UT was upheld. 
3. The Court also issued a direction to the Election Commission of India to take steps to hold elections to the J&K Legislative Assembly by September 30, 2024.

“We direct that steps shall be taken by the Election Commission of India to conduct elections to the Legislative Assembly of Jammu and Kashmir constituted under Section 14 of the Reorganisation Act by 30 September 2024. Restoration of statehood shall take place at the earliest and as soon as possible,” stated the judgment of CJI DY Chandrachud.

1. In his judgement, Justice SK Kaul recommended the setting up of an impartial “Truth and Reconciliation Committee” to investigate and report on the violations of human rights both by the State and non-state actors at least since 1980s and recommend measures for reconciliation. 
2. He added that the exercise of the committee shall be carried out in a time-bound manner. However, considering the sensitivities of the matter, he held that it was for the government to decide the manner in which the Truth and Reconciliation Commission must be set up.

Part-D

Justice Kaul Recommends “Truth & Reconciliation Commission” to report Human Rights Violations in Jammu & Kashmir

Key points of Justice Sanjay Krishan Koul Recommendations 

1. Justice Sanjay Kishan Kaul, in his judgment approving the repeal of the special status of Jammu and Kashmir under Article 370 of the Constitution, recommended the setting up of a “Truth and Reconciliation Commission” to investigate and report on the human rights violations carried out by both the State and non-State actors in the Kashmir valley at least since 1980s.
2. That the valley of Kashmir carried a “historical burden” and the people residing there have been victims of conflicts particularly migration of “one part of the population” – Kashmiri Pandits- to other parts. Since the situation threatened the sovereignty and integrity of India, the Army had to be called in.

“Army is meant to fight battles with enemies of the State and not really to control the law-and-order situation within the State. But then, these were peculiar times. The entry of the Army created its own ground realities and, in their endeavour, to preserve the integrity of the State and the nation against foreign incursions, the men, women and the children of the State paid a heavy price,” Justice Kaul said.

1. That the first step to heal the wounds and to restore the social fabric was to “achieve a collective understanding of the human rights violations perpetuated both by the State and non-State Actors against the people of the region.”
2. The Commission must be set up before memory escapes. The exercise must be time-bound. 

Question 1: Is it possible to include pertinent legal provisions in the petition or complaint? (A. Kapur, Advocate)

Answer: Typically, a petition or complaint entails presenting factual details supported by relevant documents. Legal precedents, citations, and judgments are usually attached and discussed during oral arguments. However, in the initial drafting of a complaint, particularly when asserting a deficiency in service, it is beneficial to reference specific provisions. This may include defining the complainant as per statutory definitions, citing product liability clauses, invoking express warranty terms, and addressing unfair trade practices or misleading advertisements as defined within the applicable legal framework.

Question 2: In a scenario where the builder is insisting on taking possession without obtaining the completion certificate, what recourse or actions can I take? (Rajput Baghela)

Answer: Initially, you have the option to decline taking possession in the absence of a completion certificate, as there could be unfinished work or unfulfilled administrative/legal prerequisites for which the certificate may have been rejected or not applied for by the builder.

Alternatively, if there is significant delay and the homebuyer decides to accept possession without the completion certificate, there is a possibility that the local authorities may impose additional taxes as a consequence of this default. Legal precedent suggests that such penal taxes should be the responsibility of the builder, and seeking legal recourse through the court system may be necessary.

Another avenue is to approach consumer commissions or the Real Estate Regulatory Authority (RERA) at this stage. Seeking possession with a completion certificate and claiming compensation for the delay can be pursued through these channels.

Question 3: Following a 45-day notice period, the opposing party (OP) presents the excuse that the policy record of the complainant is not traceable, requesting additional time to locate the records. The commission has requested evidence of the service made. Is it the consumer’s responsibility to track the service of the notice in this situation? (Advocate Raj Jain)

Answer: Beyond the 45-day period following the issuance of a proper notice with accompanying documents, the excuse provided by the opposing party becomes untenable. The commission’s request for proof of service aims to verify that the notice was served appropriately. Once confirmation of proper notice is established, the commission can utilize its authority to proceed against the opposing party through expert means.

While it is not the complainant’s obligation to track the service of the notice, the complainant can assist the court when seeking ex parte proceedings against the opposing party.

Question 4: Can we ask for govt. documents also through RTI? (Dilip Kumar)

Answer: Yes, you can request government documents through the Right to Information (RTI) Act. The RTI Act allows citizens to seek information from public authorities, including government departments and agencies. The Act aims to promote transparency and accountability in the functioning of government organizations.

To request government documents through RTI:

1. Identify the Public Authority: Clearly identify the government department or public authority from which you want to obtain the documents.
2. Draft an RTI Application: Prepare a formal RTI application stating your request for specific documents. Be clear and specific in your request.
3. Provide Contact Information: Include your name, postal address, and contact details in the application. This information is crucial for the public authority to communicate with you.
4. Pay the Prescribed Fee: In many cases, there is a nominal fee associated with filing an RTI application. The fee amount varies and is specified by the relevant government rules.
5. Submit the Application: Submit the RTI application to the designated officer of the concerned public authority. This can often be done through post or online, depending on the procedures in your region.
6. Follow up on the Request: Keep track of the progress of your RTI application. Public authorities are generally required to respond within a specified time frame, typically 30 days, though this can vary by jurisdiction.

Remember that there are certain exemptions and limitations to the information that can be provided under RTI. Additionally, the process may have some variations depending on the specific rules and regulations of the country or region you are in. Check the local RTI guidelines for more details.

Question 5: How does the procedure for execution differ between a civil court and a consumer commission? Please elaborate on the distinctions. (Smitha, Bangalore)

Answer:  The execution procedure for orders by a consumer commission is identical; both locations adhere to the provisions outlined in Order XXI of the CPC (Code of Civil Procedure) 1908. Consumer commissions are endowed with the authority of a First-Class Magistrate to employ this procedure, as stipulated by Sections 71 and 72 within the Act. The procedure remains consistent, encompassing steps such as issuing notices, issuing warrants, initiating non-bailable warrants through the police, effecting arrests by the police, imposing fines by the commission, and issuing orders for property attachment.

Question 6: What is the process for pursuing and establishing medical negligence cases? (Vinod Yadav)

Answer: The process remains consistent for all cases brought before consumer commissions, especially in medical instances where medical literature, expert opinions, and treatment records are essential. The significance of multiple affidavits for evidence cannot be understated. Courts may accept or solicit more than one expert opinion, contributing to a prolonged process.

Proving negligence is based on a comprehensive examination of facts, circumstances, treatment records, medical literature, and expert opinions. The actions of paramedical staff, the presence of necessary infrastructure in the hospital or nursing home, and the availability of requisite facilities are also taken into account to arrive at a reasoned conclusion.

Question 6: Flipkart deficient in services for sending improper order item. Can I file FIR against Flipkart?

Facts :Placed an order for value Rs 7983 on 30.11.2023Flipkart confirms delivery on 25.12.2023 but product never received 

Answer: Allahbad HC quashed fir filed FIR filed against Flipkart finding him not guilty under criminal law Section 79(2) or 79(3)of Indian Technology Act 2000(amended 2008)exempt from liability if act done exercising ‘due diligence ‘

Section 85 and 86 of CP Act 2019 finds the intermediary responsible to receive notice on behalf of sellers on their web,facilitate in  providing all information and whereabouts known to them for consumers and courts 

Flipcart is not inventory based e commerce entity ,its marketbased platform ,hence not liable for product defect.

Question 7: Do I have to pay full year fee when studied for half year.( Amit Parmar)

Admission in LLB in private college Due to tragedy in family left after half year.College insisting for full year fee.

Answer: As per Supreme Court Judgment in case of Usmania Islamia Academy v State of Karnataka

• Institute can take fee for one semester and not for full course or full year.Accordingly college cannot ask to pay more even if they show rules. Any undertaking if not legal or against the SC orders has no value before the law.College cannot retain original certificates  
• College cannot hold original certificates of the candidate if one leaves the college or course. UGC Circular 2007 issued Following above judgment 

Question 8: Can a single member file case consumer complaint  against co-operative society. ( Harsh Tripathi )

Answer:

• Yes single member or more than one members can file consumer complaint against Co operative society.
• Consumer Commissions are additional remedy to consumers though co-operative society issues are resolved through Registrara of Societies as an Arbitrator.But Arbitration clause inCo-operative Societies act does not bar Consumer Commissions  

Question 9: Builder constructed small market complex adjacent to Residential complex and calls it Dispensary &Gym Room.Can there be a consumer complaint. (Mr Pramod)

Answer:

• Yes, Homebuyers of the society can file complaint for wrongly stating small market complex as dispensary & Gym Room. Approval of such complex from the authorities can be checked and complained.
• In case no formal information of such complex displayed on their web with the housing project ,it is unfair and misleading under CP Act 2019.

Question 10: My evidence is over before the court, matter is fixed for OP evidence. Not coming for last three dates.(Guddu Sasaram Rohtas)

Answer: Submit an application before the court praying to proceed ex party against OP.

Question 11: What is the difference between written Arg and oral arg?( Mittar Pal Sharma)

Answer: Written Arguments are written submission of your entire case including reference to OP’s your stand with given evidence etc. You can refer case law also favoring your case and also enclose citation/case law. 

Verbal is the same thing you put before the court and court may ask anything while you argue your case related to your case and argument.

Question 12: In one case order has been passed in favor of my client but the same case is going on before civil court also. Will this order be valid and what will happen to civil case. ( Advocate )

Answer: Withdraw civil case immediately, then this order is final. One cannot enrich oneself by claiming for the same thing at two places.

Question 13: Admission in two courses but now pursuing only regular, not appeared in any exam or practical in distance course at IGNU.Any problem? (Vivek Anad)

Answer: As long as two courses or degrees both are not regular, you can maintain both. It’s your outlook how you manage exams scheduling If already pursuing one, other is no more on your cards.

Question 14: I have lost job due to OP conduct but having no proof of job, appointment letter or salary slip .How to prove incidental loss ,matter in the court? ( Ph. 9921560386 No Name)

Answer: It’s difficult to prove without documents. Your affidavit alone will not work as secondary evidence unless some substantial facts can be proved.

Question 15: Am I eligible for PGT teacher/Completed MA distance in year 21-23 and also B.Ed. regular in the same session 21-23? (@abhizarasizindagi8871)

Answer: Two things to be seen –both degrees are not done in regular mode because you cannot be present at two places at the same time. UGC guidelines do not permit. Another point is if you meet the qualifying criteria for the post, you are eligible. But we cannot spell out other rules or criteria set by your selection board.

Question 16: Allured by Country Vacation club stating I have won a gift, paid 10,000/- in 2010 for becoming member. Later realized my mistake, they are not refunding money? (@mirmasarathali4922)

Answer: Check the terms you have signed while becoming member. If membership was yearly then it goes by now. But surely you have saved yourself by not losing more.

Question 18: Builder not refunding maintenance I paid in advance for 5 years after society is formed, purchased flat 7 months back ? (@vihardayala3104)

Answer: Maintenance is done by builder till possession given to society ,thereafter society is to look after maintenance affair.In future you have to pay to society. You can claim if some amount given which was not as per your agreement.

Question 19: I am PVR Privilage plus Member of latest and updated version of Cinema App. Privilege voucher section found blank while making payment for snackes? (Raj Maykar)

Answer:

• Contact Authorities at cinema hall for clarification and rectification 
• Write to NCH about your issue and help in solution 
• You have a consumer issue for deficiencies in services,/for misleading information through apps and alluring which amounts to unfair trade practices   Option open to you for legal notice or consumer complaint

Question 20: Difference between information under RTI & Under CP Act 2019.(Guru Kripa)

Have Two fold query-

 (a) If Information not received through RTI ,Can I file appeal against it to Consumer Commission 

(b)When you have not filed any application under RTI,hence want to get  direct through CP Act Because consumer protection Act gives right to the consumers to be informed.

Answer: Understand the difference between information through RTI and information through CP Act.

Under RTI you may apply to any ministry ,office ,organisations covered under RTI for any information if you are entitled to get that/directly concerned with the information you want 

Under CP Act information word has come under the definition of services .While filing case for deficiency in services, you will have the right to know everything about the services you have hired by making payment. Consumer commission is a court and decides the cases filed before it and its scope is to deal with goods ,services and unfair trade practices. While dealing with these areas every information court gets from OP related to that particular case and provide you .    

Question 21: Can there be a second appeal in Consumer commissions.( H.K Tripathi)

Answer: There can be only one appeal before consumer commissions under consumer protection Act. However there can be a revision petition challenging that the particular commission has either not exercised the jurisdiction or exceeded its jurisdiction while deciding the cas.Any other point regarding jurisdiction can be raised through revision petition .

Question 22: Want to do two regular courses .One diploma and one degreeat the same time from different universities.One is attending and another is non-attending mode. (Debotree)

Answer:

check with following guidelines for your answer.

UGC Guidelines issued on April 2022 for Pursuing Two Academic Programmes Simultaneously 

1. A student can pursue two full time academic programmes in physical mode provided that in such cases, class timings for one programme do not overlap with the class timings of the other programme. 
2. A student can pursue two academic programmes, one in full time physical mode and another in Open and Distance Learning (ODL)/Online mode; or up to two ODL/Online programmes simultaneously. 
3. Degree or diploma programmes under ODL/Online mode shall be pursued with only such HEIs which are recognized by UGC/Statutory Council/Govt. of India for running such programmes. 
4. Degree or diploma programmes under these guidelines shall be governed by the Regulations notified by the UGC and also the respective statutory/professional councils, wherever applicable. 
5. These guidelines shall come into effect from the date of their notification by the UGC. No retrospective benefit can be claimed by the students who have already done two academic programmes simultaneously prior to the notification of these guidelines. 

The above guidelines shall be applicable only to the students pursuing academic programmes other than Ph.D. programme.

Question 23: I have been selected for Govt jobbut my Btechis going on ,its 8th semester In our college there are no classes are held.If I join job ,will my degree become invalid (Jeet Roy)

Answer:

Your question is not about guidelines but your decision under a peculiar circumstances. 

Reasonably you cannot be present at your job as well as college. If college is not conducting classes, you can with your common sense join job. Other option is join job and take some leave. I don’t find any risk but take decision at your own risk , its not legal advise without checking documents and details.

Question 24: My sister has done Regular B.Ed in 2010-2011.Also MA from distance during 2010-2012. Are both these degree valid. ( Allhuakbar)

Answer:

1. Check with UGC Guidelines April 2022  

2. A student can pursue two academic programmes, one in full time physical mode and another in Open and Distance Learning (ODL)/Online mode; or up to two ODL/Online programmes simultaneously.

Click the link to see Questions and Answers December 2023

  Dr Prem Lata, Legal Head VOICE 

The facts leading to the above judgment by NC are as hereunder

Referred clauses from Contract act

Liability of the Principal for the act of his Agent