12. Jurisdiction of Consumer Forum if there is statutory remedy

In CIVIL APPEAL NO. 7687 OF 2004 General Manager, Telecom v. M. Krishnan & Anr. Decided on 1^st Sept, 2009, the supreme court while setting aside a Full Bench decision of Kerala High Court , has held that jurisdiction of the consumer forum is barred by implication where remedy is provided under a special statute.

In this case dispute was relating to disconnection of telephone. The consumer forum had directed to reconnect the telephone and to pay compensation of Re 5000/-. The Telecom department had filed writ petition before the High Court challenging the jurisdiction of the consumer forum in view of remedy of arbitration provided in Section 7-B of the Indian Telegraph Act regarding disputes in respect of telephone bills. The writ petition was dismissed by the full bench of the High Court.

Section 7-B of the Telegraph Act reads as under:-

"S. 7B Arbitration of Disputes :-

(1) Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person or whose benefit the line, appliance or apparatus is, or has been provided, the dispute shall be determined by arbitration and shall, for the purpose of such determination, be referred to an arbitrator appointed by the Central Government either specifically for the determination of that dispute or generally for the determination of disputes under this Section.

(2) The award of the arbitrator appointed under sub-s. (1) shall be conclusive between the parties to the dispute and shall not be questioned in any Court."

Rule 413 of the Telegraph Rules provides that all services relating to telephone are subject to Telegraph Rules. A telephone connection can be disconnected by the TelegraphAuthority for default of payment under Rule 443 of the Rules.

The apex court held that: “It is well settled that the special law overrides the general law. Hence, in our opinion the High Court was not correct in its approach. In Chairman, Thiruvalluvar Transport Corporation Vs. Consumer Protection Council (1995) 2 SCC 479 it was held that the National Commission has no jurisdiction to adjudicate upon claims for compensation arising out of motor vehicles accidents. We agree with the view taken in the aforesaid judgment.

This decision will have far reaching effect and now in many cases the consumers will be redirected to the authorities from whom the former will not be confident to get fair hearing and justice.

11. Fixation of primary liability on insurer

A bench comprising of Hon’ble M Katju and Hon’ble AK Ganguli, JJ have has criticized the judicial trend of imposing the primary liability on the Insurance Co. to satisfy the award amount in motor accident claims with a liberty to recover from the owner, where it is found that legally the Insurance Co is not liable to indemnify the owner. The bench has referred the matter for constituting a larger bench to decide the following questions:

(1) If an Insurance Company can prove that it does not have any liability to pay any amount in law to the claimants under the Motor Vehicles Act or any other enactment, can the Court yet compel it to pay the amount in question giving it liberty to later on recover the same from the owner of the vehicle?

(2) Can such a direction be given under Article 142 of the Constitution, and what is the scope of Article 142? Does Article 142 permit the Court to create a liability where there is none?

In the instant case even though there was no valid insurance cover at the time of accident, the High Court had directed the insurance company to pay the compensation amount to the claimants with liberty to the Insurance Company to recover the same from the owner of the vehicle.

The referring bench observed that: “No doubt, there are some decisions which have taken the view that even if the insurance company has no liability, yet it must pay and later on recover it from the owner of the vehicle. [See for example National Insurance Co. Ltd. vs. Yellamma & Another (2008) 7 SCC 526, Samundra Devi vs. Narendra Kaur (2008) 9 SCC 100 (vide para 16), Oriental Insurance Co. vs. Brij Mohan (2007) 7 SCC 56 (vide para 13), New India Insurance Co. vs. Darshan Devi (2008) 7 SCC 416 (vide para 21), etc.].”

Doubting the correctness of these decisions the referring bench has opined that:

“We have some reservations about the correctness of the aforesaid decisions of this Court. If the insurance company has no liability to pay at all, then, in our opinion, it can not be compelled by order of the Court in exercise of its jurisdiction under Article 142 of the Constitution of India to pay the compensation amount and later on recover it from the owner of the vehicle. In our view, Article 142 of the Constitution of India does not cover such type of cases. When a person has no liability to pay at all how can it be compelled to pay? It may take years for the insurance company to recover the amount from the owner of the vehicle, and it is also possible that for some reason the recovery may not be possible at all.”

Prima facie, the bench was of the opinion that if the Insurance Company proves that it has no liability to pay compensation to the claimants the Insurance Company can not be compelled to make payment and later on recover it from the owner of the vehicle.

10. Student, not a consumer of Education Board

In CIVIL APPEAL NO. 3911 of 2003 Bihar School Examination Board v. Suresh Prasad Sinha decided on 04/09/2009 the Supreme Court considered the question, whether a statutory School Examination Board comes within the purview of the Consumer Protection Act? The Supreme Court observed that there is some confusion and divergence in the decisions of the National Commission on this issue. In some cases, it has been held that Examination Boards do not come within the purview of the Act. In some other cases, the Commission has held that though holding of examinations is a statutory function, issue of mark-sheets and certificates etc., is an administrative function, and therefore, the Examination Boards are amenable to the jurisdiction of consumer forum if there is negligence amounting to deficiency in service, in such consequential administrative functions.

The definitions of the terms `service' and `deficiency' in clauses (o) and (g) of Section 2 of the Act which are relevant, are extracted below:

"Section 2(o): `Service' means service of any description which is made available to potential users and includes, but not limited to, the provisions of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;

Section 2(g): `Deficiency' means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service."

According to the definition of 'consumer' in Section 2(d) of the Act, a person who hires or avails of any services for a consideration, is a consumer. The following category of service-availors will not be consumers: (i) persons who avail any service for any commercial purpose; (ii) persons who avail any free service; and (iii) persons who avail any service under any contract of service. A consumer is entitled to file a complaint under the Act if there is any deficiency in service provided or rendered by the service-provider.

The Board is a statutory authority established under the Bihar School Examination Board Act, 1952. The function of the Board is to conduct school examinations. This statutory function involves holding periodical examinations, evaluating the answer scripts, declaring the results and issuing certificates. The process of holding examinations, evaluating answer scripts, declaring results and issuing certificates are different stages of a single statutory non-commercial function. It is not possible to divide this function as partly statutory and partly administrative. When the Examination Board conducts an examination in discharge of its statutory function, it does not offer its "services" to an candidate. Nor does a student who participates in the examination conducted by the Board, hires or avails of any service from the Board for a consideration. On the other hand, a candidate who participates in the examination conducted by the Board, is a person who has undergone a course of study and who requests the Board to test him as to whether he has imbibed sufficient knowledge to be fit to be declared as having successfully completed the said course of education; and if so, determine his position or rank or competence vis-`-vis other examinees. The process is not therefore availment of a service by a student, but participation in a general examination conducted by the Board to ascertain whether he is eligible and fit to be considered as having successfully completed the secondary education course. The examination fee paid by the student is not the consideration for availment of any service, but the charge paid for the privilege of participation in the examination.

The Court held that the object of the Act is to cover in its net, services offered or rendered for a consideration. Any service rendered for a consideration is presumed to be a commercial activity in its broadest sense (including professional activity or quasi-commercial activity). But the Act does not intended to cover discharge of a statutory function of examining whether a candidate is fit to be declared as having successfully completed a course by passing the examination. The fact that in the course of conduct of the examination, or evaluation of answer-scripts, or furnishing of mark-sheets or certificates, there may be some negligence, omission or deficiency, does not convert the Board into a service-provider for a consideration, nor convert the examinee into a consumer who can make a complaint under the Act. We are clearly of the view that the Board is not a `service provider' and a student who takes an examination is not a `consumer' and consequently, complaint under the Act will not be maintainable against the Board.

9. Norms for granting interim relief

Hon’ble Dr. B.S. Chauhan, J. in a Special Leave Petition[i] that was filed against refusal of interim relief by the Bombay High Court has elaborately discussed the norms for granting an interim order by the courts, specially by writ courts. Referring catena of judgments his Lordship observed that:

Interim order is passed on the basis of prima facie findings, which are tentative. Such order is passed as a temporary arrangement to preserve the status quo till the matter is decided finally, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing. The object of the interlocutory injunction is, to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial.[ii]

Grant of an interim relief in regard to the nature and extent thereof depends upon the facts and circumstances of each case as no strait-jacket formula can be laid down. There may be a situation wherein the defendant/respondent may use the suit property in such a manner that the situation becomes irretrievable. In such a fact situation, interim relief should be granted.[iii]

Grant of temporary injunction is governed by three basic principles, i.e. prima facie case; balance of convenience; and irreparable injury, which are required to be considered in a proper perspective in the facts and circumstances of a particular case. But it may not be appropriate for any court to hold a mini trial at the stage of grant of temporary injunction.[iv]

In Colgate Palmolive (India) Ltd. Vs. Hindustan Lever Ltd.[v], the Supreme court observed that the other considerations which ought to weigh with the Court hearing the application or petition for the grant of injunctions are as below :

(i) Extent of damages being an adequate remedy;

(ii) Protect the plaintiff's interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor ;

(iii) The court while dealing with the matter ought not to ignore the factum of strength of one party's case being stronger than the others;

(iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case- the relief being kept flexible;

(v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties' case;

(vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant;

(vii) Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise."

In Dalpat Kumar & Anr. Vs. Prahlad Singh & Ors.[vi] the Supreme Court explained the scope of aforesaid material circumstances, but observed as under:-

"The phrases `prima facie case', `balance ofconvenience' and ` irreparable loss' are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man's ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. The facts rest eloquent and speak for themselves. It is well nigh impossible to find from facts prima facie case and balance of convenience."

The Supreme Court in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hira Lal[vii] held that the civil court has a power to grant interim injunction in exercise of its inherent jurisdiction even if the case does not fall within the ambit of provisions of Order 39 Code of Civil Procedure.

In Deoraj vs. State of Maharashtra & Ors.[viii] the Supreme Court Court considered a case where the courts below had refused the grant of interim relief. While dealing with the appeal, the Court observed that ordinarily in exercise of its jurisdiction under Art.136 of the Constitution, this Court does not interfere with the orders of interim nature passed by the High Court. However, this rule of discretion followed in practice is by wayof just self-imposed restriction. An irreparable injury which forcibly tilts th balance in favour of the applicant, may persuade the Court even to grant an interim relief though it may amount to granting the final relief itself. The Court held as under:-

"The Court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the court would not be able to vindicate the cause of justice."

Such a course is permissible when the case of the applicant is based on his fundamental rights guaranteed by the Constitution of India.[ix]

In Bombay Dyeing & Manufacturing Co. Ltd. Vs. Bombay Environmental Action Group & Ors.[x] The Supreme Court observed that:

"The courts, however, have to strike a balance between two extreme positions viz. whether the writ petition would itself become infructuous if interim order is refused, on the one hand, and the enormity of losses and hardships which may be suffered by others if an interim order is granted, particularly having regard to the fact that in such an event, the losses sustained by the affected parties thereby may not be possible to be redeemed."

Anything done in undue haste can also be termed as arbitrary and cannot be condoned in law.[xi] Therefore, continuance or enforcement of such action is liable to be restrained by the court.

After discussing as above, his Lordship B.S. Chauhan, J. In Zenit Mataplast P. Ltd[xii] concluded that the law on the issue emerges to the effect that interim injunction should be granted by the Court after considering all the pros and cons of the case in a given set of facts involved therein on the risk and responsibility of the party or, in case he looses the case, he cannot take an advantage of the same. The order can be passed on settled principles taking into account the three basic grounds i.e. prima facie case, balance of convenience and irreparable loss.

The delay in approaching the Court is of course a good ground for refusal of interim relief, but in exceptional circumstances, where the case of a party is based on fundamental rights guaranteed under the Constitution and there is an apprehension that suit property may be developed in a manner that it acquires irretrievable situation, the Court may grant relief even at a belated stage provided the court is satisfied that the applicant has not been negligent in pursuing the case.[xiii]

---

[i] SLP (Civil) No. 18934 of 2008) Zenit Mataplast P. Ltd v. State of Maharashtra and Ors. Decided on 11.09.2009

[ii] Anand Prasad Agarwalla v. State of Assam vs. Tarkeshwar Prasad & Ors. AIR 2001 SC 2367; and Barak Upatyaka D.U. Karmachari Sanstha (2009) 5 SCC 694)

[iii] M. Gurudas & Ors. Vs. Rasaranjan & Ors. AIR 2006 SC 3275; and Shridevi & Anr. vs. Muralidhar & Anr. (2007) 14 SCC 721

[iv] S.M. Dyechem Ltd. Vs. M/s. Cadbury (India) Ltd., AIR 2000 SC 2114; and Anand Prasad Agarwalla (supra).

[v] AIR 1999 SC 3105

[vi] AIR 1993 SC 276

[vii] AIR 1962 SC 527

[viii] AIR 2004 SC 1975

[ix] All India Anna Dravida Munnetra Kazhagam vs. Chief Secretary, Govt. of Tamil Nadu & Ors. (2009) 5 SCC 452)

[x] (2005) 5 SCC 61

[xi] Madhya Pradesh Hasta Shilpa Vikas Nigam Ltd. V. Devendra Kumar Jain & Ors. (1995) 1 SCC 638; and Bahadursinh Lakhubhai Gohil Vs. Jagdishbhai M. Kamalia & Ors. AIR 2004 SC 1159).

[xii] Supra, note 1

[xiii] Ibid.

8. degrees awarded by Hindi Sahitya Sammelan (2)

there are at least two dozen decisions declaring that Prathma (claimed to be equivalent to High School), Madhyama (claimed to be equivalent to Intermediate) Sahihitya Ratna (claimed to be equivalent to B.A.) Shiksha Visharad ((claimed to be equivalent to B.Ed.) and Vaidya Visharad and Ayurved Ratna ( degrees relating to ayurvedic medicine ) certificates issued by Hindi Sahitya Sammelan are invalid as these are not recognized by competent authorities and Government .

Here are some excerpts from the decisions:

Prathma/ Madhyama

Civil Misc. Writ Petition No. 35578 of 2007 Sushil Kumar Versus State of Uttar Pradesh & others (Decided on 20.8.2007) Hon'ble Ashok Bhushan, J.

---- clarification dated 20.8.2001 and 30.7.2002 issued by the Madhyamik Shiksha Parishad, U.P. Allahabad that the "Prathama Pariksha" from Hindi Sahitya Sammelan is not equivalent to High School .

------- "Prathama Pariksha" of Hindi Sahitya Sammelan cannot be said to be equivalent to High School in accordance with Chapter XIV of the Regulations framed under the U.P. Intermediate Education Act, 1921 as well as the clarifications issued by the Madhyamik Shiksha Parishad. No error has been committed by the District Magistrate in directing for fresh selection. The relief claimed in the writ petition cannot be granted.

Civil Misc. Writ Petition NO. 56890 of 2008 Rajesh Kumar Verma Vs. State of U.P. and others. Hon'ble D.P. Singh, J. Dt:5.11.2008.

The petitioner claims that he was engaged as Gram Rozgar Sewak in 2008 on contract basis for a period of one year and on a complaint, the respondents are not allowing him to continue stating that he has not passed High school examination.
It is apparent that the petitioner, in fact had not passed the High School examination but claimed that he had passed Prathama from Hindi Sahitya Sammelan, Allahabad and claims that it is equivalent to High School. He has annexed certain order of the Government of India and judgement of this Court dated 6.12.2005 rendered in writ petition no. 8579 of 1992.
In the entire record, there is nothing to show that Prathama has been recognized as equivalent to High School examination by the State of U.P. Merely because it has been recognized as equivalent to metric by the Central Government for specific purposes, would not ipso facto mean that it has been recognized by the State Government. Even in the judgement dated 6.12.2005 it has been held that Prathama is not equivalent to High School examination. Learned Standing Counsel has also referred a Government Order dated 20.8.2001, which specifically shows that neither Prathama nor the examinations conducted by the Hindi Sahitya Sammelan have been recognized as equivalent to High School or Intermediate.
Thus, the petitioner was not even eligible to be considered for engagement and therefore no mandate can be issued. In fact, even assuming that he was rightly engaged on contract basis, he cannot enforce the said contract in a petition under Article 226 of the Constitution of India until and unless he can satisfy that the said contract is out come of a statutory rule, so at best he can claim damages from the respondents.

Sahitya Ratna

WRIT - A No. - 12514 of 2000 Raj Pal Singh v. D.D.E. Saharanpur & Others

Hon'ble Rakesh Tiwari,J.

in Chet Ram Gangwar Vs. State of U.P. and others 2009 (7) Additional District Judge 47, wherein paragraph 28 to 30, this court has held that for promotion of the post of Lecturer (Hindi) degree of Sahitya Ratna course from Hindi Sahitya Sammelan cannot be treated as qualification to teach intermediate classes. For the reasons stated above, these facts of the case are covered by the aforesaid judgement --

Shiksha visharad

Civil Misc. Writ Petition No. 15793 of 2007 Smt. Raj Kumari Chauhan v. State of U.P. and others Hon'ble V.K. Shukla, J. decided on 23.03.2007

“Hindi Sahitya Sammelan, Prayag, till date has not taken any recognition as is envisaged under Section 14 of the National Council for Teacher Education Act, 1993, as such Hindi Sahitya Sammelan, Prayag is not recognized institution within the meaning of section 14 of the National Council for Teacher Education Act, 1993, and as such, has no authority, whatsoever, to impart any instruction or offer course or training in the field of teachers education and hold any examination, accordingly.
Consequently, degree of "Shiksha Visharad" issued by Hindi Sahitya Sammelan, Prayag is of no consequence and no credibility could be attached to the same. Thus, petitioner is ineligible candidate so as to appoint as teacher under three-language formula scheme, as she has obtained training qualification from Hindi Sahitya Sammelan, Prayag, which is an unrecognized institution, as such no direction can be issued on her prayer.
Consequently, writ petition lacks substance and the same is dismissed. “

Civil Misc. Writ Petition No.56687 of 2008 Ajeet Kumar Verma Versus State of U.P. and others. Hon'ble V.K. Shukla,J. Dt. 05.11.2008

National Council for Teacher Education established under the National Council for Teacher Education Act, 1993 is competent to lay down norms and guidelines for achieving the planned and coordinated development of teachers' education and for regulating and maintaining proper norms and standards in the teachers' education and training. The validity of National Council for Teacher Education Act, 1993 had been subject matter of challenge before Hon'ble Apex Court in case of Union of India v. Shah Goverdhan L. Kalra Teachers College (2002) 8 SCC 228 and the validity of the same has been upheld.

Sub-Section (4) of Section 17 of National Council for Teacher Education Act, 1993 (sic) provides that where an institution has offered a course or training in teacher education without there being any recognition, said teachers training is not to be treated as a valid qualification for purposes of employment under the Central Government, any State Government or University, or in any school, College or other educational body aided by the Central Government or any State Government.

Petitioner has failed to substantiate before this Court that Hindi Sahitya Sammelan, Prayag, and the instructions like "Shiksha Visharad" imparted by it, have ever been recognised by National Council for Teachers' Education, as such no credibility could be attached to the said certificate and petitioner, who is equipped with un-recognized training qualification, qua him no relief could be accorded.

Civil Misc. Writ Petition No. 16630 of 2005 Smt. Mukesh Kumari Versus State of U.P.
Hon'ble V.K. Shukla,J. 11/03/05 :

Claim of Shiksha Visharads cannot be accepted by any means. The Director, State Council Education Research and Training, U.P. at Lucknow shall see that no one with Shiksha Visharad degree has sneaked in and is getting training, and if any one has succeeded then immediate steps be undertaken for throwing the aforementioned incumbent out.

Judgment in the case of Shailendra Kumar Singh Vs. State of U.P. and others reported in 2004(2) UPLBEC 1716 clearly holds that persons who had obtained the degree of Shiksha Visharad cannot be conferred with any right to be considered is entitled as Assistant Teachers in the Basic School run by Board or not.

See also, Civil Misc. Writ Petition No.57304 of 2008 Surendra Singh Versus State of U.P. and others Hon'ble V.K. Shukla, J. decided on 07/11/08 ;

Civil Misc. Writ Petition No.18683 of 2007 Km. Charanjeet Kaur Sahni and another Versus State of U.P. and others Hon'ble V.K. Shukla, J. 10/04/07

Further see, WRIT - A No. - 36165 of 2007 Rakesh Kumar Singh And Others Vs. State Of U.P. And Others Dated: 8.8.2007;

WRIT - A No. - 52416 of 2007 Mangala Prasad Jaiswal Vs. State Of U.P. And Others dt 26/10/07 ; WRIT - A No. - 56826 of 2007 Smt. Shobha Devi Vs. State Of U.P. And Others 21/11/07 – All decided by Hon’ble Ashok Bhushan,J :

In all these his lordship Ashok Bhushan, J. held that the degree of Shiksha Visharad obtained by the petitioners from Hindi Sahitya Sammelan, Allahabad, does not entitle them to be eligible for applying in the Special B.T.C. Training Course 2007.

Writ Petition No.3672 (MS) of 2008 Nand Kumar Maurya and others Versus State of U.P. and others ( decided on 29/07/2008):

{In support of his contention, learned Standing Counsel has relied on the judgment of Shyam Veer Singh vs. State of U.P. and others [2006 (62) ALR 98], paragraph 10. Relevant portion of the judgment reads as under: -

"The alleged degree of Shiksha Visharad obtained from Hindi Sahitya Sammelan, Praying by the petitioner cannot be said to be a valid qualification for the purpose of appointment in the Basic Schools vide judgment in Shailendra Kumar Singh vs. State of U.P. an d others. This Court has dealt with this issue and has held that the degree of Shiksha Visharad conferred on the petitioner by the Hindi Sahitya Sammelan, Praying, Allahabad, cannot be given valid recognition for the purpose of appointing a teacher in the Basic Schools. Since Shiksha Visharad is not equivalent to B.T.C., on this point also the petition deserves to be dismissed."

Learned Standing Counsel has also relied upon the judgment of State of Rajasthan vs. Lata Arun AIR 2002 Supreme Court 2642 and Shailendra Kumar Singh vs. State of U.P. and others [2004 All.L.J. 1275]. In the aforementioned two cases also it has been held that the Degree of Shiksha Visharad is not a valid qualification.}

Medical degrees ( Vaidya /Vaidya Visharad/Aurvedic Ratna)

Civil Misc. Writ Petition No. 16106 of 2007 Dr. (Smt.) Aradhana Sharma & Anr. v. Union of India&Others Hon. Anjani Kumar, J Hon. Dilip Gupta, J.Date: 29.3.2007

(See also, by same bench ---Civil Misc. Writ Petition No. 17494 of 2007 Kamlesh Haldar &Ors. v. Union of India & Others Date: 5.4.2007)
petitioners had obtained degree of Vaidya and Vaidya Visharad from Hindi Sahitya Sammellan, Prayag and had also got themselves registered with Rajkiya Ayurvedic and Unani Chikitsa Parishad, Bihar. It is on the basis of the aforesaid that the petitioners claim that they are entitled to practice anywhere throughout India. They further contend that on the basis of their experience, they have also right to practice.

The primary question that arises for consideration in the present petition is whether the certificates of Vaid Visharad examination and Aurvedic Ratna examination obtained from the Hindi Sahitya Sammelan, Allahabad in 1987 and 1989 respectively can be treated as valid certificates which would enable the petitioner to practice as Vaid.
The Supreme Court in Delhi Pradesh Registered Medical Practitioners Vs. Delhi Administration Director of Health Services & Ors., JT 1998 (4) SC 395 has held that the degrees of Ayurved Ratn and Vaid Visharad conferred by Hindi Sahitya Sammelan, Prayag are recognised only if they have been awarded up to 1967 and not thereafter. The Court further held :
"............Sub-Section(3) of Section 17 of the Indian Medicine Central Act, 1970, in our view, only envisages that where before the enactment of the said Indian Medicine Central Act, 1970 on the basis of requisite qualification which was then recognised, a person got himself registered as medical practitioner in the disciplines contemplated under the said Act or in the absence of any requirement or registration such person had been practicing for five years or intended to be registered and was also entitled to be registered, the right of such person to practice in the concerned discipline including the privileges of a registered medical practitioner stood protected even though such practitioner did not possess requisite qualification under the said Act of 1970. It may be indicated that such view of ours is reflected from the objects and reasons indicated for introducing sub-section (3) of Section 17 in the Act................
As it is not the case of any of the writ petitioners that had acquired the degree in between 1957 and 1970 or on the date of enforcement of provisions of Section 17(2) of the said Act and got themselves registered or acquired right to be registered, there is no question of getting the protection under sub-section (3) of Section 17 of the said Act."

A Division Bench of this Court in Uma Kant Tiwari & Ors. Vs. State of U.P. & Ors., 2003 (4) AWC 3016 held that as the Degree of Vaidya Visharad and Auyrved Ratna given by the Hindi Sahitya Sammelan, Prayag, Allahabad after 1967 have not been recognised by the Central Council of Indian Medicine under the provisions of the Indian Medicine Central Council Act, 1970, persons cannot claim the right of practice on the basis of these degrees.

A similar view was taken by a Division Bench of this Court in Vijai Kumar Gupta & Ors. Vs. State of U.P. & Ors., (1999) 2 UPLBEC 1063 by holding that a degree from Hindi Sahitya Sammelan after 1967 was not recognised and hence those who obtained the same are not entitled to practice Indian medicine.

The Indian Medicine Central Council Act, 1970 came into force on 21st December, 1970. Section 17 of the Central Act provides (1) that subject to other provisions contained in the Act any qualification included in the Second, Third or Fourth Schedule shall be sufficient qualification for enrollment on any State Register of Indian Medicine, and no person other than practitioner of India medicine, save as provided in Section 28, who possessed recognized medical qualification and is enrolled in the State Register or Central Register for Indian Medicine (a) shall hold office as Vaid, Siddha, Hakim or physician or any other office in Government or in any institution maintained by a local or other authority, and shall practice Indian medicine in any State.-------

------

-------A combined reading of the Indian Medicine Act, 1939, U.P. Indian Medicine Institutions (Miscellaneous and Provisions) Act, 1982 and the Indian Medicine Central Council Act, 1970 shows that only those medical practitioners who hold qualification from the Institutions detailed in the Second Schedule of the Central Act, 1970 and from the Colleges given in the Schedule under U.P. Act of 1939, and U.P. Act, 1982 can be registered after 1970, with the Board of Indian Medicine U.P. and only these qualified persons are entitled to practice in Indian Medicine in the State of U.P.

In Dr. Mukhtiar Chand Vs. State of Punjab (1998) 7 SCC 579; Medical Council of India Vs. State of Rajasthan AIR 1996 SC 2073; Subhashis Bakshi and other Vs. West Bengal Medical Council (2003) 9 SCC 269, the Supreme Court has recognized the right to practice medicine of only those persons, who are qualified and are registered on the Indian Medical Register or on any State Medical Register. In Dr. Mehboob Alam Vs. State of U.P. (2002) Cr. LJ 1218, this Court has held that a person qualified and registered in any branch of medicine cannot practice any other branch. A Division Bench of this Court in Special Appeal No.320 of 2004, Dr. Ravindra Kumar Goel & others Vs. State of U.P. and others, decided on 27.4.2004 has upheld the directions dated 28.1.2004 in contempt petition No.820 of 2002, and has insisted upon the qualifications to practice medicine in the State.

A similar view was taken by a Division Bench of this Court in Vijai Kumar Gupta & Ors. Vs. State of U.P. & Ors., (1999) 2 UPLBEC 1063 by holding that a degree from Hindi Sahitya Sammelan after 1967 was not recognised and hence those who obtained the same are not entitled to practice Indian medicine.

Similar view was taken by a Division Bench headed by Hon. Dr. B.S. Chauhan, J. (Now, elevated to Supreme Court) on 18.4.2006 in Civil Misc. Writ Petition No.20673 of 2006 Dr. Surendra Bahadur alias Dr. Surendra Bahadur Chaudhary Vs. The Union of India & Others .

7. Judicial verdicts on degrees awarded by Hindi Sahitya Sammelan

Often it is seen that students who can not secure admission in a reputed and unsuspicious institution, get attracted to an easier study program offered by an institution that may be either fake or degrees and certificates awarded by them are not recognized by appropriate authorities and governments. There may be that a certificate of such institution is recognized by government for limited purposes. Some times such institutions issue the degrees and certificates making a representation that it is equivalent to popular degrees and certificates. The student get frustrated when he applies for a job and is rejected on the ground that his certificates are not recognized. It is difficult to inquire about such institutions in all respect before seeking admission. However, in this regard following points amongst other can be kept into mind:

(a) An institution may not be fake but some of it’s degrees or certificates may be useless as not having recognition from Education Board/UGC/NCTE/ State Government or other appropriate authority.

(b) There may be that a certificate of an institution is recognized by a Government for some limited purposes but not equivalent to other well known degrees and certificates for all purposes.

(c) A certificate of an institution may be recognized in one State but not in others

(d) A certificate of an institution will not be considered for teaching jobs if it is not recognized by NCTE or other appropriate authority.

(e) An educational institution must be affiliated with an University or Education Board as the case may be, and the degree/certificate and subjects must be approved and recognized by that University or Board

In Uttar Pradesh, I have came across several cases where candidates having certificates and degrees of Hindi Sahitya Sammelan have been declared ineligible, as those certificates and degrees are not recognized by appropriate authority. Majority of cases are relating to Shiksha Visharad degree, which is claimed as equivalent to B.Ed but is not accepted by the Government of UP because it has no recognition from NCTE. Many other degrees and certificates conferred by this institution are also almost useless for job purposes.

In this regard, I have made an analytical research on the basis of case law on disputes relating to many degrees/certificates conferred by Hindi Sahitya Sammelan. It is notable that this institution is very old and popular one, but when there arises a question regarding it’s educational activities, it always creates a confusion as to whether this institution is merely a registered society for research and propagation of Hindi language or is it an institution authorized to impart education and confer degrees like other educational educations?

6. Powers and functioning of Law Commission of India

The Law Commission is empowered to have a few part-time Members and/or Consultants depending upon the need and on the Approval of the Government. The Terms of Reference of the Eighteenth Law Commission are as follows:-

A. Review/Repeal of obsolete laws:

i. To identify laws which are no longer needed or relevant and can be immediately repealed.

ii. To identify laws which are in harmony with the existing climate of economic liberalization which need no change.

iii. To identify laws which require changes or amendments and to make suggestions for their amendment.

iv To consider in a wider perspective the suggestions for revision/amendment given by Expert Groups in various Ministries/Departments with a view to coordinating and harmonizing them.

v. To consider references made to it by Ministries/Departments in respect of legislation having bearing on the working of more than one Ministry/Department.

vi. To suggest suitable measures for quick redressal of citizens grievances, in the field of law.

B. Law and Poverty

i. To examine the Law which affect the poor and carry out post-audit for socio-economic legislation.

ii. To take all such measures as may be necessary to harness law and the legal process in the service of the poor.

C. To keep under review the system of judicial administration to ensure that it is responsive to the reasonable demands of the times and in particular to secure:-

i. Elimination of delays, speedy clearance of arrears and reduction in costs so as to secure quick and economical disposal of cases without affecting the cardinal principle that decisions should be just and fair.

ii. Simplification of procedure to reduce and eliminate technicalities and devices for delay so that it operates not as an end in itself but as a means of achieving justice.

iii. Improvements of standards of all concerned with the administration of justice.

D. To examine the existing laws in the light of Directive Principles of State Policy and to suggest ways of improvement and reform and also to suggest such legislation as might be necessary to implement the Directive Principles and to attain the objective set out in the Preamble to the Constitution.

E. To examine the existing laws with a view to promoting gender equality and suggesting amendments thereto.

F. To revise the Central Acts of General Importance so as to simplify them and to remove anomalies, ambiguities and inequities.

G. To recommend to the Government measure for bringing the statute book up-to date by repealing obsolete laws and enactments or parts thereof which have outlived their utility.

H. To consider and to convey to the Government its views on any other subject relating to law and judicial administration that may be referred to it by the Government through Ministry of Law & Justice (Department of Legal Affairs).

I. To consider the requests for providing research to any foreign countries as may be referred to it by the Government through Ministry of Law and Justice (Department of Legal Affairs).

FOLLOW-UP: The Reports of the Law Commission are considered by the Ministry of Law in consultation with the concerned administrative Ministries and are submitted to Parliament from time to time. They are cited in Courts, in academic and public discourses and are acted upon by concerned Government Departments depending on the Government's recommendations.

The LawCommission of India has forwarded 201 Reports so far on different subjects.

HOW DOES THE COMMISSION FUNCTION?

The Commission's regular staff consists of about a dozen research personnel of different ranks and varied experiences. A small group of secretarial staff looks after the administration side of the Commission's operations.

Basically the projects undertaken by the Commission are initiated in the Commission's meetings which take place frequently. Priorities are discussed, topics are identified and preparatory work is assigned to each member of the Commission. Depending upon the nature and scope of the topic, different methodologies for collection of data and research are adopted keeping the scope of the proposal for reform in mind.

Discussion at Commission meetings during this period helps not only in articulating the issues and focussing the research, but also evolving a consensus among members of the Commission. What emerges out of this preparatory work in the Commission is usually a working paper outlining the problem and suggesting matters deserving reform. The paper is then sent out for circulation in the public and concerned interest groups with a view to eliciting reactions and suggestions. Usually a carefully prepared questionnaire is also sent with the document.

The Law Commission has been anxious to ensure that the widest section of people are consulted in formulating proposals for law reforms. In this process, partnerships are established with professional bodies and academic institutions. Seminars and workshops are organised in different parts of the country to elicit critical opinion on proposed strategies for reform.

Once the data and informed views are assembled, the Commission's staff evaluates them and organises the information for appropriate introduction in the report which is written either by the Member-Secretary or one of the Members or the Chairman of the Commission. It is then subjected to close scrutiny by the full Commission in prolonged meetings. Once the Report and summary are finalised, the Commission may decide to prepare a draft amendment or a new bill which may be appended to its report. Thereafter, the final report is forwarded to the Government.

It is obvious that the success of the Commission's work in law reforms is dependent upon its capacity to assemble the widest possible inputs from the public and concerned interest groups. The Commission is constantly on the look out for strategies to accomplish this goal within the limited resources available to it. In this regard the media plays an important role which the Commission proposes to tap more frequently than before.

The Commission welcomes suggestions from any person, institution or organisation on the issues under consideration of the Commission, which may be sent to the Member-Secretary

5. Dispute regarding number of arbitrators

The Arbitration Tribunal as defined under Section 2(d) of the Act means "a sole arbitrator or a panel of arbitrators".

Section 10 of the Arbitration and conciliation Act, 1996 deals with the composition of Arbitral Tribunals under Chapter III of the said Act. Section 10 (1) and 10 (2) are as under:-

"10. Number of arbitrators. - (1) The parties are free to determine the number of arbitrators, provided that such number shall not be an even number.

(2) Failing the determination referred to in sub-section (1), the arbitral tribunal shall consist of a sole arbitrator."

Section 10(2) makes it very clear that where the number of arbitrator is not determined, the arbitral tribunal shall consist of a sole arbitrator.

In a recent case the arbitration clause was as under:

"12.1 This Subcontract shall be governed by and construed in accordance with the Laws of India. The Courts at Delhi shall have sole jurisdiction.

12.2 The Parties shall endeavour to resolve any dispute or difference amicably through joint negotiation and when necessary by reference to the Chief Executive of EIL and SSE. If any dispute or difference, which cannot be mutually resolved by the parties, the same shall be referred to arbitration inaccordance with the provisions contained in Indian Arbitration and Conciliation Act, 1996 which is generally in accordance with UNCITRAL rules.

12.3 The arbitrator(s) shall give reasoned award in respect of each dispute or difference referred to him. The award as aforesaid shall be final, conclusive and binding on all the Parties of this Subcontract in accordance with the Law.

12.4 The venue of the arbitration shall be at New Delhi, India."

By relying on para 12.2, it was argued that the said clause does not indicate about the number of arbitrators to be appointed while reciting that the matter be referred to arbitration in accordance with the provisions contained in the Indian Arbitration and Conciliation, 1996, which is generally in accordance with the UNCITRAL rules. Therefore, the number of arbitrators should be more than one and since it can not be an even number in view of s. 10 (1), there should be three arbitrators. This plea was opposed inter alia on the grounds that appointment of three arbitrators will be expansive and proceedings will take time as all arbitrator will consult each other regarding convenient time for meetings.

The Supreme Court held that even if UNCITRAL rules are referred the position will remain the same. UNCITRAL model law on International Commercial Arbitration also accepts the same definition of Arbitration Tribunal in Article 2(b). Article 10 of those rules is almost identical with Section 10 of the said Act. Article 2(b) and Article 10 of those rules are extracted herein below:-

"Article 2. Definition and rules of interpretation - For the purposes of this Law:

(a) xxx xxx

(b) "arbitral tribunal" means a sole arbitrator or a panel of arbitrators."

"Article 10. Number of arbitrators - (1) The parties are free to determine the number of arbitrators.

(2) Failing such determination, the number of arbitrators shall be three."

The court said that the definition of Arbitral Tribunal in Section 2(1)(d) of the said Act is verbatim the same as in Article 2(b). Article 10 of the UNCITRAL model law has close similarity with Section 10 of the said Act. Section 10 deviates from Article 10 of the UNCITRAL law only in the sense that Section 10(1) of the Act provides that despite the freedom given to the parties to determine the number of arbitrators such numbers shall not be even number. But in default of determination of the number, Section 10(2) provides the tribunal is to consist of a sole arbitrator. Therefore, scheme of Section 10(2) of the Act is virtually similar to Article 10.2 of the UNCITRAL model law.

Thus, where the Arbitration clause is silent about the number of arbitrators, Section 10(2) of the said Act squarely applies.

It has been also held that a policy decision of a party cannot change the contractual clause. In this case reliance was placed on a standard contract clause which provided that: “.. For Contracts costing upto Rs.10 Crores, a Sole Arbitrator should be appointed. For Contracts costing over Rs.10 Crores, a Committee of Arbitrators should be appointed composed of one Arbitrator to be nominated by the Contractor, one to be nominated by the Owner and the third Arbitrator, who will act as a Chairman but not as umpire, to be chosen jointly by the two nominees. The decision of majority of Arbitrators shall be final and binding on both parties."

Moreover, in this case the contract between the parties was entered into in 2004 and said policy decision came into effect in 2005. Therefore, the said policy decision could not in any way override contract between the parties.

(See, ARBITRATION PETITION NO.3 OF 2009, Sime Darby Engineering SDN. BHD. v. Engineers India Ltd.)

4. Arrears on criminal side in Allahabad High Court

Here is an extract from observations made by a Division Bench of Allahabad High Court while passing an interim order (Bail) in Criminal Appeal No. 2651 of 2009:

“We need to also keep in mind that presently the Central and District jails in U.P. are crowded to the extent of double or more of their sanctioned capacity. As per information received from the I.G. (Prisons), U.P., as on 30.6.09 the combined capacity of the 6 Central Jails for lifers and other convicted prisoners undergoing imprisonment in excess of 7 years was 6893 prisoners, but they are presently housing 13534 convicts. The Naini Central Jail which also doubles as a district jail for Allahabad and Kaushambi, has a capacity for 2060 prisoners, but as a matter fact it is presently housing 4265 prisoners. The result is that Central Jails are now refusing to admit lifers and other long sentence prisoners, and is diverting them to the 53 district jails which are meant for under trials and convicts who are awarded less than 7 years sentence. But the district jails are also already overcrowded. The total capacity of central and district jails is 42540, but they are presently housing 82230 prisoners, which is almost double the planned capacity.
We cannot see the cases of these convicts in jail being decided at any early date in the forseeable future as the Allahabad High Court is functioning with only half its strength at 84, whereas it has a sanctioned strength of 160 Judges, even though as on 4.8.09 there were 7,02,519 cases of all nature, pending in the Allahabad High Court.
The position of pendency of criminal appeals is also very disturbing. According to the High Court's Master Computer 84432 criminal appeals (including 23780 division bench and 60652 single judge appeals) and 11666 government appeals (9749 division bench and 1917 single judge) were pending on 4.8.09. There are a few criminal appeals which are pending since 1978, and from 1982 onwards the single judge and division bench appeals that are pending have been running into four figures. The final disposal of appeals per year is however very low. Division benches are also tied up in fresh and final hearing matters in criminal writs, whose pendency is 18584 and on an average about 133 division bench criminal writs are filed daily, mainly seeking stays of arrests because of the inapplicability of section 438 Cr.P.C and absence of provision for anticipatory bail in the state of U.P. Likelihood of denial of bails by subordinate courts even in petty matrimonial disputes, or where disputes are essentially civil in nature and other minor matters where on occasion respectable persons has been falsely implicated, causes a rush before benches hearing applications under section 482 Cr.P.C. or Criminal Revisions after filing of charge sheets. Consequently 63,323 applications under section 482 CrP.C and 35473 Criminal revisions were also pending as on 4.8.09. On an average about 200 applications under section 482 Cr.P.C. and about 25 Criminal Revisions are filed in the High Court daily.
Although we are conscious of the fact that for maintaining the confidence of the public in the judicial system and for preventing citizens from engaging in private vendetta or taking recourse to extra legal means and seeking the aid of the Mafia it is important that in cases where grave accusations of murder or under section 396 IPC etc. are made, bails should not be granted lightly. But at the same time we cannot lose sight of the fact that in view of the chronic overcrowding in the jails law and order problems, conflicts and suicides and problems of maladministration of jails are being increasingly reported. The Apex Court in Rama Murthy v. State of Karnataka, AIR 1997 SC 1739 has spoken on how jail overcrowding adversely affects health and hygiene conditions of prisoners, and how it results in mixing of hardened criminals involved in serious offences with prisoners involved in minor offences, casting a negative influence on the latter.”