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Terry DCruz (Manager)     22 March 2013

Need an opinion

 

  • ·         Government issued a notification prohibiting certain commercial activities under its delegated power in a special ACT. During 2007
  • ·         The notification was challenged in High Court .
  • ·         It was struck down by Single as well as Double bench during 2009.
  • ·         Government preferred an SLP.
  • ·         Interim order was passed by the SC to implement the notification but Govt. could not implement and changed the notification by amendment in 2013 wherin the prohibition contained in 2007 notification was removed.
  • ·         In the light of amended notification SLP disposed off as infructuous.
  • Between 2007 to 2013 many commercial units were forcibly closed subsequent to earlier notification. After final order (amendment of notification) all businesses are re-opened.

Now the question is the businesses which were closed after 2009 are they entitle to claim damages?



Learning

 8 Replies

Jaideep Singh Khattar (Advocate - associate)     23 March 2013

In my opinion, damages cannot be claimed since at that time, in 2007 when the business was started, it was not legal. The business subsequently being legal because the notification was struck down does not mean that it gives a right or claim damages. However if the business was started before the notification was issued and due to the notification loss has been caused, then damages may be claimed, but again this could well be a facts and circumstances case and no broad rule can be made. 

Regards,

Jaideep

Terry DCruz (Manager)     23 March 2013

@Jaideep Sigh Khattar - All the businesses were started to run much before the 2007 Notification with proper approval and valid licences but they were forcibly closed after 2007. 

Rama chary Rachakonda (Secunderabad/Highcourt practice watsapp no.9989324294 )     23 March 2013

You can file in the civil courts for damages.

Manish Udar (www.Mehnat.IN)     23 March 2013

How can the SLP be dismissed as being infructuous? After all the question of the affected business owners  claiming damages depends upon the decision in this case. File an appropriate SLP or review petition in the supreme court.

www.mehnat.in

Jaideep Singh Khattar (Advocate - associate)     23 March 2013

You can't file slp or review petition. You may files civil suit for damages, but then our courts are generally not very favourable of passing orders wherein the government has to compensate. 

Anupam Yadav (Technical)     23 March 2013

Is there any ruling if the reply/permition  of any aplication not delivered to the applicant in the given time in written.... then it is self approved...? in Central Civil Services rule(admin). As i am working in Ord. Equip Factory as Post tailor.

Can any one increase his ability to get promotion through LDCE whether the course is regular... and necessary to take exam through LDCE. 

The required qualification of the LDCE is B.Tech ( Textile/Leather) or B Sc (Chemistry as one of the major seubject.. Could the permission  be given to the applicant in the above case for B Sc ( Honours) i.e. B. Sc. again only by 01 Subject i.e. Chemistry for one year course ???

Rajendra Shrivastava (advocate)     24 March 2013

not at all.

D Bhattacharya (Advocate)     24 March 2013

The business owners will be entitled to damages, provided the government fails to establish its bonafide in bringing the notification and amended notification. The apt procedure is to file a civil suit before the court of ordinary jurisdiction, having jurisdiction to try the matter. However, in the given facts of the case, a question will arise as to limitation because a time period of 4-5 years have already passed. It needs to be seen as to when the cause of action lastly arose duly. If the bar of limitation pervades in, the business owners will fail in their pursuit to claim damages.


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