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65c446ce118495003898477c | blog | PolicyInternal Security: Examining the Working of the Home MinistryVinayak Krishnan- March 20, 2018Each year during the Budget Session, Rajya Sabha examines the working of certain ministries. This year it has identified four ministries for discussion, which includes the Ministry of Home Affairs. In light of this, we analyse some key functions of the Ministry and the challenges in carrying out these functions.What are the key functions of Ministry of Home Affairs?The Ministry of Home Affairs (MHA) is primarily responsible for: (i) maintenance of internal security, (ii) governance issues between the centre and states, and (iii) disaster management. It also discharges several other key functions that include: (i) border management, (ii) administration of union territories, (iii) implementation of provisions relating to the official languages, and (iv) conducting the population census every ten years.Under the Constitution, ‘public order’ and ‘police’ are state list subjects. The MHA assists the state governments by providing them: (i) central armed police forces, and (ii) financial assistance for modernising state police forces, communication equipment, weaponry, mobility, training and other police infrastructure.What is the role of the central armed police forces?The MHA manages seven central police forces: (i) Central Reserve Police Force (CRPF) which assists in internal security and law and order, (ii) Central Industrial Security Force (CISF) which protects vital installations (like airports) and public sector undertakings, (iii) National Security Guards which is a special counter-terrorism force, and (iv) four border guarding forces, namely, Border Security Force (BSF), Indo-Tibetan Border Police (ITBP), Sashastra Seema Bal (SSB) and Assam Rifles (AR).As of January 2017, thetotal sanctioned strengthof the seven CAPFs was 10. 8 lakhs. However, 15% of these posts (i.e., about 1.6 lakhs posts) were lying vacant. The vacancy in the CAPFs has remained above 7% for the last five years (see Table 1). In 2017, the Sashastra Seema Bal had the highest vacancy (57%). The CRPF, which accounts for 30% of the total sanctioned strength of the seven CAPFs, had a vacancy of 8%.How does MHA assist the police forces?In Union Budget 2018-19, Rs1,07,573crore has been allocated to the Ministry of Home Affairs. The Ministry has estimated to spend 82% of this amount onpolice. The remaining allocation is towards grants to Union Territories, and other items including disaster management, rehabilitation of refugees and migrants, and the Union Cabinet.The MHA has been implementingModernisation of Police Forces (MPF)scheme since 1969 to supplement the resources of states for modernising their police forces. Funds from the MPF scheme are utilised for improving police infrastructure through construction of police stations, and provision of modern weaponry, surveillance, and communication equipment. Some other important objectives under the scheme include upgradation of training infrastructure, police housing, and computerisation.The scheme has undergone revision over the years. A total allocation of Rs 11,946 crore was approved for the MPF scheme, for a five-year period between 2012-13 to 2016-17. Following the recommendations of the 14th Finance Commission (to increase the share of central taxes to states), it was decided that the MPF scheme would be delinked from central government funding from 2015-16 onwards. However, in September 2017, the Union Cabinet approved an outlay of Rs25,060 croreunder the scheme, for the period 2017-18 to 2019-20. The central government will provide about 75% of this amount, and the states will provide the remaining 25%.The Comptroller and Auditor General (CAG) has found that weaponry in several state police forces is outdated, and there is a shortage of arms and ammunitions.An audit ofRajasthan police force(2009-14) found that there was a shortage of 75% in the availability of modern weapons against the state’s requirements. In case ofWest BengalandGujaratpolice forces, CAG found a shortage of 71% and 36% respectively. Further, there has been a persistent problem ofunderutilisation of modernisation fundsby the states. Figure 1 shows the level of utilisation of modernisation funds by states between 2010-11 and 2016-17.What are the major internal security challenges in India?Maintaining internal security of the country is one of the key functions of the MHA. The major internal security challenges that India faces are: (i) terrorist activities in the country, (ii) cross-border terrorism in Jammu and Kashmir, (iii) Left Wing Extremism in certain areas, and (iv) insurgency in the North-Eastern states.Between 2015 and 2016, the number of cross-border infiltrations in Jammu and Kashmir increased by almost three times, from 121 to 364. On the other hand, incidents of insurgency inLeft Wing Extremismareas have decreased from 1,048 in 2016 to 908 in 2017.The Standing Committee on Home Affairs noted in2017-18that security forces in Jammu and Kashmir are occupied with law and order incidents, such as stone pelting, which gives militants the time to reorganise and perpetrate terror attacks. The Committee recommended that the MHA should adopt a multi-pronged strategy that prevents youth from joining militancy, curbs their financing, and simultaneously launch counter-insurgency operations.In relation to Left Wing Extremism,the Standing Committee (2017)observed that police and paramilitary personnel were getting killed because of mine blasts and ambushes. It recommended that the MHA should make efforts to procure mine-resistant vehicles. This could be done through import or domestic manufacturing under the ‘Make in India’ programme.What is the MHA’s role in border management?India has a land border of over 15,000 kms, which it shares with seven countries (Pakistan, China, Bangladesh, Nepal, Myanmar, Bhutan, and Afghanistan). Further, it has a coastline of over 7,500 kms. The MHA isresponsible for: (i) management of international lands and coastal borders, (ii) strengthening of border guarding, and (iii) creation of infrastructure such as roads, fencing, and lighting of borders.Construction of border outposts is one of the components of infrastructure at border areas. TheStanding Committee on Home Affairs(2017) noted that the proposal to construct 509 outposts along the India-Bangladesh, and India-Pakistan borders had been reduced to 422 outposts in 2016. It recommended that such a reduction should be reconsidered since 509 outposts would reduce the inter-border outpost distance to 3.5 kms, which is important for the security of the country.How is coastal security carried out?Coastal securityis jointly carried out by the Indian Navy, Indian Coast Guard, and marine police of coastal states and Union Territories. The MHA is implementing the Coastal Security Scheme to strengthen the marine police of nine coastal states and four Union Territories by enhancing surveillance, and improve patrolling in coastal areas. Under this scheme, the Ministry sought to construct coastal police stations, purchase boats, and acquire vehicles for patrolling on land, among other objectives.TheStanding Committee on Home Affairs (2017)observed that the implementation of Phase-II of this scheme within the set time-frame has not been possible. It also noted that there was lack of coordination between the Indian Navy, the Indian Coast Guard, and the coastal police. In this context, the Committee recommended that the Director General, Indian Coast Guard, should be the nodal authority for coordinating operations related to coastal security.ParliamentFirst no-confidence motion of the 17th Lok Sabha discussed todayNiranjana Menon- August 8, 2023Discussion on the first no-confidence motion of the 17thLok Sabha began today. No-confidence motions and confidence motions are trust votes, used to test or demonstrate the support of Lok Sabha for the government in power. Article 75(3) of the Constitution states that the government is collectively responsible to Lok Sabha. This means that the government must always enjoy the support of a majority of the members of Lok Sabha. Trust votes are used to examine this support. The government resigns if a majority of members support a no-confidence motion, or reject a confidence motion.So far, 28 no-confidence motions (including the one being discussed today) and 11 confidence motions have beendiscussed. Over the years, the number of such motions has reduced. The mid-1960s and mid-1970s saw more no-confidence motions, whereas the 1990s saw more confidence motions.Figure1: Trust votes in ParliamentNote: *Term shorter than 5 years; **6-year term.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.The no-confidence motion being discussed today wasmovedon July 26, 2023. A motion of no-confidence is moved with the support of at least 50 members. The Speaker has the discretion to allot time for discussion of the motion. TheRules of Procedurestate that the motion must be discussed within 10 days of being introduced. This year, the no-confidence motion wasdiscussed13 calendar days after introduction. Since the introduction of the no-confidence motion on July 26, 12 Bills have been introduced and 18 Bills have been passed by Lok Sabha. In the past, on four occasions, the discussion on no-confidence motions began seven days after their introduction. On these occasions, Bills and other important issues were debated before the discussion on the no-confidence motion began.Figure2: Members rise in support of the motion of no-confidence in Lok SabhaSource: Sansad TV, Lok Sabha, July 26, 2023; PRS.Figure3: Number of days from introduction to discussion on no-confidence motionsNote: Number of days implies calendar days.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.On average, no-confidence motions (excluding the one being discussed today) have been discussed for 13 hours over three days. Discussions have lasted longer than 20 hours on four instances, most recently in 2003. Today’s no-confidence motion was allotted 12 hours discussion time by theBusiness Advisory Committee.Following the discussion, the motion is put to vote. 26 out of 27 no-confidence motions (excluding the one being discussed today) have been voted upon and rejected. This means that no government has ever had to resign following a vote of no-confidence. On one occasion, in 1979, the discussion on a no-confidence motion against the Morarji Desai government remained inconclusive. He resigned before the motion was put to vote. 50% of all no-confidence motions (14 out of 28) were discussed between 1965 and 1975. Of these, 12 were against governments headed by Indira Gandhi.Figure4: Duration of discussion on no-confidence motionsNote: This graph excludes the no confidence motion moved on July 26, 2023.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.In comparison, confidence motions have a more varied history. The first motion, brought in 1979 to demonstrate confidence in Charan Singh’s government, was not discussed at all. The Prime Minister resigned before the discussion could take place. Since then, 11 confidence motions have been discussed in Lok Sabha, with nine occurring in the 1990s. During this period, several coalition governments were formed, and Prime Ministers sought to prove their majority throughconfidence motions. These motions have been discussed, on average, for 12 hours over two days.Figure5: Duration of discussion of confidence motionsSource: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.Of the 11 confidence motions discussed in Lok Sabha, seven were accepted. On three instances, governments had to resign as they could not prove that they had the support of the majority. On one instance in 1996, the motion was not put to vote. Following an eleven-hour discussion on this confidence motion, Prime Minister Atal Bihari Vajpayee announced his intention to resign on the floor of the House. He resigned 16 days into his term.Vajpayee became Prime Minister again in 1999, and faced another confidence motion. This time, it was put to vote. The motion was defeated by a margin of one vote. This has been the closest result on a trust vote in the history of Lok Sabha. The next closest result was when a motion of no-confidence against P V Narasimha Rao’s government was defeated by 14 votes in 1993. In most cases, results have been in favour of the government by a large margin.«12345678910» |
65c447dd118495003898487e | blog | ParliamentDisruptions in ParliamentRohit- March 9, 2010Indiscipline and disruptions in Parliament are much talked about issues. Not only are disruptions a waste of Parliament's valuable time, these significantly taint the image of this esteemed institution. Commotion in Rajya Sabha over the introduction of Women's Reservation Bill and the subsequent suspension of 7 MPs has brought this issue back to the forefront. We thought it might be useful to research and highlight instances in the past when the House had had to deal with similar situations. According to the Rules of Conduct and Parliamentary Etiquette of the Rajya Sabha,"The House has the right to punish its members for their misconduct whether in the House or outside it. In cases of misconduct or contempt committed by its members, the House can impose a punishment in the form of admonition, reprimand, withdrawal from the House, suspension from the service of the House, imprisonment and expulsion from the House."Mild offences are punished by admonition or reprimand (reprimand being the more serious of the two). Withdrawal from the House is demanded in the case of gross misconduct. 'Persistent and wilful obstructions' lead the Chairman to name and subsequently move a motion for suspension of the member. A member can be suspended, at the maximum, for the remainder of the session only. In an extreme case of misconduct, the House may expel a member from the House. According to a comment in the above rule book,"The purpose of expulsion is not so much disciplinary as remedial, not so much to punish members as to rid the House of persons who are unfit for membership."There have been several instances in the past when the Parliament has exercised its right to punish members. We pulled together a few instances:Rajya SabhaUnruly behaviour – Some instances3-Sep-62Shri Godey Murahari was suspended for the remainder of the session on 3 Septemebr 1962. He was removed by the Marshal of the House25-Jul-66Shri Raj Narain and Shri Godey Murahari were suspended for one week by two separate motions moved on 25 July 1966, by the Leader of the House (Shri M.C. Chagla) and adopted by the House. After they refused to withdraw, they were removed by the Marshal of the House. Next day, the Chairman expressed his distress and leaders of parties expressed their regret at the incident12-Aug-71The Minister of Parliamentary Affairs (Shri Om Mehta) moved a motion on 12 August 1971, for the suspension of Shri Raj Narain for the remainder of the session. The motion was adopted. Shri Raj Narain, on refusing to withdraw, was removed by the Marshal of the HouseSource: Rajya Sabha, Rules of Conduct and Parliamentary EtiquetteExpulsion – All instances (three in total)15-Nov-76Shri Subramanian Swamy was expelled on 15 November 1976 on the basis of the Report of the Committee appointed to investigate his conduct and activities. The Committee found his conduct derogatory to the dignity of the House and its members and inconsistent with the standards which the House expects from its members23-Dec-05Dr. Chhattrapal Singh Lodha was expelled on 23 December 2005, for his conduct being derogatory to the dignity of the House and inconsistent with the Code of Conduct, consequent on the adoption of a motion by the House agreeing with the recommendation contained in the Seventh Report of the Committee on Ethics21-Mar-06Dr. Swami Sakshi Ji Maharaj was expelled on 21 March 2006, for his gross misconduct which brought the House and its members into disrepute and contravened the Code of Conduct for members of Rajya Sabha, consequent on the adoption of a motion by the House agreeing with the recommendation of the Committee on Ethics contained in its Eighth ReportSource: Rajya Sabha, Rules of Conduct and Parliamentary EtiquetteLok SabhaUnruly behaviour – Some instances15-Mar-89Commotion in the House over the Thakkar Commission report (Report of Justice Thakkar Commission of Inquiry on the Assassination of the Late Prime Minister Smt. Indira Gandhi; revelations published in Indian Express before report tabled in Parliament) led to 63 MPs being suspended for a week. An opposition member belonging to the Janata Group (Syed Shahabuddin) who had not been suspended, submitted that he also be treated as suspended and walked out of the House. Three other members (GM Banatwalla, MS Gill and Shaminder Singh) also walked out in protest.20-Jul-89Demand for resignation of Govt. because of the adverse remarks made against it by the CAG in his report on Defence Services for the year 1988-89 saw commotion in the House. Satyagopal Misra dislodged microphone placed before the Chair and threw it in the pit of the House. (Sheila Dikshit was the Minister of State for Parliamentary Affairs). No member was suspended.Source: Subhash Kashyap, Parliamentary Procedure (Second Edition)ParliamentFirst no-confidence motion of the 17th Lok Sabha discussed todayNiranjana Menon- August 8, 2023Discussion on the first no-confidence motion of the 17thLok Sabha began today. No-confidence motions and confidence motions are trust votes, used to test or demonstrate the support of Lok Sabha for the government in power. Article 75(3) of the Constitution states that the government is collectively responsible to Lok Sabha. This means that the government must always enjoy the support of a majority of the members of Lok Sabha. Trust votes are used to examine this support. The government resigns if a majority of members support a no-confidence motion, or reject a confidence motion.So far, 28 no-confidence motions (including the one being discussed today) and 11 confidence motions have beendiscussed. Over the years, the number of such motions has reduced. The mid-1960s and mid-1970s saw more no-confidence motions, whereas the 1990s saw more confidence motions.Figure1: Trust votes in ParliamentNote: *Term shorter than 5 years; **6-year term.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.The no-confidence motion being discussed today wasmovedon July 26, 2023. A motion of no-confidence is moved with the support of at least 50 members. The Speaker has the discretion to allot time for discussion of the motion. TheRules of Procedurestate that the motion must be discussed within 10 days of being introduced. This year, the no-confidence motion wasdiscussed13 calendar days after introduction. Since the introduction of the no-confidence motion on July 26, 12 Bills have been introduced and 18 Bills have been passed by Lok Sabha. In the past, on four occasions, the discussion on no-confidence motions began seven days after their introduction. On these occasions, Bills and other important issues were debated before the discussion on the no-confidence motion began.Figure2: Members rise in support of the motion of no-confidence in Lok SabhaSource: Sansad TV, Lok Sabha, July 26, 2023; PRS.Figure3: Number of days from introduction to discussion on no-confidence motionsNote: Number of days implies calendar days.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.On average, no-confidence motions (excluding the one being discussed today) have been discussed for 13 hours over three days. Discussions have lasted longer than 20 hours on four instances, most recently in 2003. Today’s no-confidence motion was allotted 12 hours discussion time by theBusiness Advisory Committee.Following the discussion, the motion is put to vote. 26 out of 27 no-confidence motions (excluding the one being discussed today) have been voted upon and rejected. This means that no government has ever had to resign following a vote of no-confidence. On one occasion, in 1979, the discussion on a no-confidence motion against the Morarji Desai government remained inconclusive. He resigned before the motion was put to vote. 50% of all no-confidence motions (14 out of 28) were discussed between 1965 and 1975. Of these, 12 were against governments headed by Indira Gandhi.Figure4: Duration of discussion on no-confidence motionsNote: This graph excludes the no confidence motion moved on July 26, 2023.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.In comparison, confidence motions have a more varied history. The first motion, brought in 1979 to demonstrate confidence in Charan Singh’s government, was not discussed at all. The Prime Minister resigned before the discussion could take place. Since then, 11 confidence motions have been discussed in Lok Sabha, with nine occurring in the 1990s. During this period, several coalition governments were formed, and Prime Ministers sought to prove their majority throughconfidence motions. These motions have been discussed, on average, for 12 hours over two days.Figure5: Duration of discussion of confidence motionsSource: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.Of the 11 confidence motions discussed in Lok Sabha, seven were accepted. On three instances, governments had to resign as they could not prove that they had the support of the majority. On one instance in 1996, the motion was not put to vote. Following an eleven-hour discussion on this confidence motion, Prime Minister Atal Bihari Vajpayee announced his intention to resign on the floor of the House. He resigned 16 days into his term.Vajpayee became Prime Minister again in 1999, and faced another confidence motion. This time, it was put to vote. The motion was defeated by a margin of one vote. This has been the closest result on a trust vote in the history of Lok Sabha. The next closest result was when a motion of no-confidence against P V Narasimha Rao’s government was defeated by 14 votes in 1993. In most cases, results have been in favour of the government by a large margin.«12345678910» |
65c446a91184950038984759 | blog | LegislationExplainer: The Citizenship (Amendment) Bill, 2019Roshni Sinha- December 9, 2019The Minister of Home Affairs introduced the Citizenship (Amendment) Bill, 2019 today in Lok Sabha. It is scheduled to be taken up for discussion and passing by the House later today. The Bill amends the Citizenship Act, 1955, and seeks to make foreign illegal migrants of certain religious communities coming from Afghanistan, Bangladesh, and Pakistan eligible for Indian citizenship. In this blog, we look at the criteria for determining citizenship in India, discuss how the Bill proposes to change the criteria, and highlight other key changes proposed by the Bill.How is citizenship acquired in India?In India, citizenship is regulated by the Citizenship Act, 1955. The Act specifies that citizenship may be acquired in India through five methods – by birth in India, by descent, through registration, by naturalisation (extended residence in India), and by incorporation of territory into India.[1]Can illegal migrants acquire citizenship?An illegal migrant is prohibited from acquiring Indian citizenship. An illegal immigrant is a foreigner who either enters India illegally, i.e., without valid travel documents, like a visa and passport, or enters India legally, but stays beyond the time period permitted in their travel documents. An illegal migrant can be prosecuted in India, and deported or imprisoned.In September 2015 and July 2016, the central government exempted certain groups of illegal migrants from being imprisoned or deported.[2]These are illegal migrants who came into India from Afghanistan, Bangladesh, or Pakistan on or before December 31, 2014, and belong to the Hindu, Sikh, Buddhist, Jain, Parsi, or Christian religious communities.How does the Bill seek to change the criteria for determining citizenship?The Bill proposes that the specified class of illegal migrants from the three countries will not be treated as illegal migrants, making them eligible for citizenship. On acquiring citizenship, such migrants shall be deemed to be Indian citizens from the date of their entry into India and all legal proceedings regarding their status as illegal migrants or their citizenship will be closed.The Act allows a person to apply for citizenship by naturalisation, if the person meets certain qualifications. One of the qualifications is that the person must have resided in India or been in central government service for the last 12 months and at least 11 years of the preceding 14 years. For the specified class of illegal migrants, the number of years of residency has been relaxed from 11 years to five years.Are the provisions of the Bill applicable across the country?The Bill clarifies that the proposed amendments on citizenship to the specified class of illegal migrants will not apply to certain areas. These are: (i) the tribal areas of Assam, Meghalaya, Mizoram, and Tripura, as included in the Sixth Schedule to the Constitution, and (ii) the states regulated by the “Inner Line” permit under the Bengal Eastern Frontier Regulations 1873. These Sixth Schedule tribal areas include Karbi Anglong (in Assam), Garo Hills (in Meghalaya), Chakma District (in Mizoram), and Tripura Tribal Areas District. Further, the Inner Line Permit regulates visit of all persons, including Indian citizens, to Arunachal Pradesh, Mizoram, and Nagaland.Is the differentiation among the specified class of illegal migrants and all other illegal migrants reasonable?The Bill makes only certain illegal migrants eligible for citizenship. These are persons belonging to the six specified religious communities, from the three specified countries, who entered India on or before December 31, 2014, and do not reside in the Sixth Schedule areas or in the states regulated by the Inner Line Permit states. This implies that all other illegal migrants will not be able to claim the benefit of citizenship conferred by the Bill, and may continue to be prosecuted as illegal migrants. Any provision which distinguishes between two groups may violate the standard of equality guaranteed under Article 14 of the Constitution, unless one can show a reasonable rationale for doing so.[3]The Bill provides differential treatment to illegal migrants on the basis of (a) their country of origin, (b) religion, (c) date of entry into India, and (d) place of residence in India. The question is whether these factors serve a reasonable purpose to justify the differential treatment. We examine this below.The Bill classifies migrants based on their country of origin to include only Afghanistan, Pakistan and Bangladesh. While the Statement of Objects and Reasons (SoR) in the Bill reasons that millions of citizens of undivided India were living in Pakistan and Bangladesh, no reason has been provided to explain the inclusion of Afghanistan. The SoR also states that these countries have a state religion, which has resulted in religious persecution of minority groups. However, there are other countries which may fit this qualification. For instance, two of India’s neighboring countries, Sri Lanka (Buddhist state religion)[4]and Myanmar (primacy to Buddhism)[5], have had a history of persecution of Tamil Eelams (a linguistic minority in Sri Lanka), and the Rohingya Muslims, respectively.[6],[7],[8]Further, there are other religious minorities from Pakistan, Afghanistan and Bangladesh, such as the Ahmadiyya Muslims in Pakistan (considered non-Muslims in that country)[9], and atheists in Bangladesh[10]who have faced religious persecution and may have illegally migrated to India. Given that the objective of the Bill is to provide citizenship to migrants escaping from religious persecution, it is not clear why illegal migrants belonging to other neighbouring countries, or belonging to religious minorities from these three specified countries, have been excluded from the Bill.The Bill also creates further differentiation between the specified class of illegal migrants based on when they entered India (before or after December 31, 2014), and where they live in India (provisions not applicable to Sixth Schedule and Inner Line Permit areas). However, the reasons provided to explain the distinction is unclear. Note that certain restrictions apply to persons (both citizens and foreigners) in the Sixth Schedule areas and in the states regulated by the Inner Line Permit. Once an illegal migrant residing in these areas acquires citizenship, he would be subject to the same restrictions in these areas, as are applicable to other Indian citizens. Therefore, it is unclear why the Bill excludes illegal migrants residing in these areas.How does the Bill change the regulations for Overseas Citizens of India?The Bill also amends the provisions on registration of Overseas Citizens of India (OCI). OCI cardholders are foreigners who are persons of Indian origin. For example, they may have been former Indian citizens, or children of current Indian citizens. An OCI enjoys benefits such as the right to travel to India without a visa, or to work and study here. At present, the government may cancel a person’s OCI registration on various grounds specified in the Act. In case of a cancellation, an OCI residing in India may be required to leave the country. The Bill adds another ground for cancelling OCI registration — violation of any law notified by the central government.However, the Bill does not provide any guidance on the nature of laws which the central government may notify. The Supreme Court has noted that this guidance is necessary to set limits on the authority’s powers and to avoid any arbitrariness in exercise of powers.[11]Therefore, the powers given to the government under the Bill may go beyond the permissible limits of valid delegation.Note:The blog has been updated to remove the following issue: “Second, the Bill delegates the power to notify laws and not offences. This may result in the cancellation of OCI for minor violations. For instance, the government may want to cancel the registration of an OCI who is found guilty of sedition, under the Indian Penal Code, 1861. However, since the government cannot notify one offence, it will need to notify the entire Indian Penal Code, which would include minor offences such as rash and negligent driving.”[1]. Section 2(1)(b) of the Citizenship Act, 1955.[2]. State of West Bengal vs Anwar Ali Sarkar, AIR 1952 SC 75.[3]. State of West Bengal vs Anwar Ali Sarkar, AIR 1952 SC 75.[4]. Article 9 of the Constitution of the Democratic Socialist Republic of Sri Lanka states: “The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14(1)(e).”[5]. Articles 361 and 362 of the Constitution of the Republic of the Union of Myanmar state the following. “361. The Union recognizes special position of Buddhism as the faith professed by the great majority of the citizens of the Union. 362. The Union also recognizes Christianity, Islam, Hinduism and Animism as the religions existing in the Union at the day of the coming into operation of this Constitution.”[6]. It is estimated that there are over a lakh Sri Lankan refugees in India, two-thirds of them in government camps. Seehttps://timesofindia.indiatimes.com/city/chennai/why-lankan-refugees-are-reluctant-to-go-back-home/articleshow/65591130.cms[7]. “Myanmar Rohingya: What you need to know about the crisis”, BBC News, April 24, 2018,https://www.bbc.com/news/world-asia-41566561.[8]. “Why India is refusing refuge to Rohingyas”, Times of India, September 6, 2017,https://timesofindia.indiatimes.com/india/why-india-is-refusing-refuge-to-rohingyas/articleshow/60386974.cms.[9]. The Second Amendment to the Constitution of Pakistan passed in 1974 effectively declared Ahmaddiyas as non-Muslims.[10]. For example, seehttps://www.theguardian.com/world/2016/jun/11/bangladesh-murders-bloggers-foreigners-religion.[11]. Hamdard Dawakhana and Anr., v. The Union of India (UOI) and Ors., AIR1960SC554; Confederation of Indian Alcoholic Beverage Companies and Ors. vs. The State of Bihar and Ors., 2016(4) PLJR369.Read MoreParliamentFirst no-confidence motion of the 17th Lok Sabha discussed todayNiranjana Menon- August 8, 2023Discussion on the first no-confidence motion of the 17thLok Sabha began today. No-confidence motions and confidence motions are trust votes, used to test or demonstrate the support of Lok Sabha for the government in power. Article 75(3) of the Constitution states that the government is collectively responsible to Lok Sabha. This means that the government must always enjoy the support of a majority of the members of Lok Sabha. Trust votes are used to examine this support. The government resigns if a majority of members support a no-confidence motion, or reject a confidence motion.So far, 28 no-confidence motions (including the one being discussed today) and 11 confidence motions have beendiscussed. Over the years, the number of such motions has reduced. The mid-1960s and mid-1970s saw more no-confidence motions, whereas the 1990s saw more confidence motions.Figure1: Trust votes in ParliamentNote: *Term shorter than 5 years; **6-year term.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.The no-confidence motion being discussed today wasmovedon July 26, 2023. A motion of no-confidence is moved with the support of at least 50 members. The Speaker has the discretion to allot time for discussion of the motion. TheRules of Procedurestate that the motion must be discussed within 10 days of being introduced. This year, the no-confidence motion wasdiscussed13 calendar days after introduction. Since the introduction of the no-confidence motion on July 26, 12 Bills have been introduced and 18 Bills have been passed by Lok Sabha. In the past, on four occasions, the discussion on no-confidence motions began seven days after their introduction. On these occasions, Bills and other important issues were debated before the discussion on the no-confidence motion began.Figure2: Members rise in support of the motion of no-confidence in Lok SabhaSource: Sansad TV, Lok Sabha, July 26, 2023; PRS.Figure3: Number of days from introduction to discussion on no-confidence motionsNote: Number of days implies calendar days.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.On average, no-confidence motions (excluding the one being discussed today) have been discussed for 13 hours over three days. Discussions have lasted longer than 20 hours on four instances, most recently in 2003. Today’s no-confidence motion was allotted 12 hours discussion time by theBusiness Advisory Committee.Following the discussion, the motion is put to vote. 26 out of 27 no-confidence motions (excluding the one being discussed today) have been voted upon and rejected. This means that no government has ever had to resign following a vote of no-confidence. On one occasion, in 1979, the discussion on a no-confidence motion against the Morarji Desai government remained inconclusive. He resigned before the motion was put to vote. 50% of all no-confidence motions (14 out of 28) were discussed between 1965 and 1975. Of these, 12 were against governments headed by Indira Gandhi.Figure4: Duration of discussion on no-confidence motionsNote: This graph excludes the no confidence motion moved on July 26, 2023.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.In comparison, confidence motions have a more varied history. The first motion, brought in 1979 to demonstrate confidence in Charan Singh’s government, was not discussed at all. The Prime Minister resigned before the discussion could take place. Since then, 11 confidence motions have been discussed in Lok Sabha, with nine occurring in the 1990s. During this period, several coalition governments were formed, and Prime Ministers sought to prove their majority throughconfidence motions. These motions have been discussed, on average, for 12 hours over two days.Figure5: Duration of discussion of confidence motionsSource: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.Of the 11 confidence motions discussed in Lok Sabha, seven were accepted. On three instances, governments had to resign as they could not prove that they had the support of the majority. On one instance in 1996, the motion was not put to vote. Following an eleven-hour discussion on this confidence motion, Prime Minister Atal Bihari Vajpayee announced his intention to resign on the floor of the House. He resigned 16 days into his term.Vajpayee became Prime Minister again in 1999, and faced another confidence motion. This time, it was put to vote. The motion was defeated by a margin of one vote. This has been the closest result on a trust vote in the history of Lok Sabha. The next closest result was when a motion of no-confidence against P V Narasimha Rao’s government was defeated by 14 votes in 1993. In most cases, results have been in favour of the government by a large margin.«12345678910» |
65c447791184950038984829 | blog | MiscellaneousGovt. gives itself the master key to access sensitive personal informationChakshu Roy- May 9, 2011The government has given itself the “master key” to access major consumer databases maintained by companies in different sectors. Undernew regulationsmade underthe Information Technology Act, government can ask companies to share sensitive personal information about their customers. Sensitive personal information would cover medical records and history, information about physical, physiological and mental health, sexual orientation, credit and debit cards, biometric information and passwords. Under the new rules any government agency required under law to obtain information for the purpose of verifying identity, or for prevention, detection, investigation, prosecution, and punishment of offences can ask a company to give sensitive personal information held by it about an individual. There are no checks on this power, except that the request for information be made in writing, and stating clearly the reason for seeking the information. Usually information requests have certain inbuilt checks. For example,search warrantsin criminal cases are issued by a court. Tapping of telephones or interception of electronic communication can only be authorised by theUnion or the State Home Secretaryafter following a prescribed process. The new Bill for Unique Identification Number (UID) permits such use only by the order of a court, or for national security (by an order of an authorised officer of at least Joint Secretary rank in the central government).ParliamentFirst no-confidence motion of the 17th Lok Sabha discussed todayNiranjana Menon- August 8, 2023Discussion on the first no-confidence motion of the 17thLok Sabha began today. No-confidence motions and confidence motions are trust votes, used to test or demonstrate the support of Lok Sabha for the government in power. Article 75(3) of the Constitution states that the government is collectively responsible to Lok Sabha. This means that the government must always enjoy the support of a majority of the members of Lok Sabha. Trust votes are used to examine this support. The government resigns if a majority of members support a no-confidence motion, or reject a confidence motion.So far, 28 no-confidence motions (including the one being discussed today) and 11 confidence motions have beendiscussed. Over the years, the number of such motions has reduced. The mid-1960s and mid-1970s saw more no-confidence motions, whereas the 1990s saw more confidence motions.Figure1: Trust votes in ParliamentNote: *Term shorter than 5 years; **6-year term.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.The no-confidence motion being discussed today wasmovedon July 26, 2023. A motion of no-confidence is moved with the support of at least 50 members. The Speaker has the discretion to allot time for discussion of the motion. TheRules of Procedurestate that the motion must be discussed within 10 days of being introduced. This year, the no-confidence motion wasdiscussed13 calendar days after introduction. Since the introduction of the no-confidence motion on July 26, 12 Bills have been introduced and 18 Bills have been passed by Lok Sabha. In the past, on four occasions, the discussion on no-confidence motions began seven days after their introduction. On these occasions, Bills and other important issues were debated before the discussion on the no-confidence motion began.Figure2: Members rise in support of the motion of no-confidence in Lok SabhaSource: Sansad TV, Lok Sabha, July 26, 2023; PRS.Figure3: Number of days from introduction to discussion on no-confidence motionsNote: Number of days implies calendar days.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.On average, no-confidence motions (excluding the one being discussed today) have been discussed for 13 hours over three days. Discussions have lasted longer than 20 hours on four instances, most recently in 2003. Today’s no-confidence motion was allotted 12 hours discussion time by theBusiness Advisory Committee.Following the discussion, the motion is put to vote. 26 out of 27 no-confidence motions (excluding the one being discussed today) have been voted upon and rejected. This means that no government has ever had to resign following a vote of no-confidence. On one occasion, in 1979, the discussion on a no-confidence motion against the Morarji Desai government remained inconclusive. He resigned before the motion was put to vote. 50% of all no-confidence motions (14 out of 28) were discussed between 1965 and 1975. Of these, 12 were against governments headed by Indira Gandhi.Figure4: Duration of discussion on no-confidence motionsNote: This graph excludes the no confidence motion moved on July 26, 2023.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.In comparison, confidence motions have a more varied history. The first motion, brought in 1979 to demonstrate confidence in Charan Singh’s government, was not discussed at all. The Prime Minister resigned before the discussion could take place. Since then, 11 confidence motions have been discussed in Lok Sabha, with nine occurring in the 1990s. During this period, several coalition governments were formed, and Prime Ministers sought to prove their majority throughconfidence motions. These motions have been discussed, on average, for 12 hours over two days.Figure5: Duration of discussion of confidence motionsSource: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.Of the 11 confidence motions discussed in Lok Sabha, seven were accepted. On three instances, governments had to resign as they could not prove that they had the support of the majority. On one instance in 1996, the motion was not put to vote. Following an eleven-hour discussion on this confidence motion, Prime Minister Atal Bihari Vajpayee announced his intention to resign on the floor of the House. He resigned 16 days into his term.Vajpayee became Prime Minister again in 1999, and faced another confidence motion. This time, it was put to vote. The motion was defeated by a margin of one vote. This has been the closest result on a trust vote in the history of Lok Sabha. The next closest result was when a motion of no-confidence against P V Narasimha Rao’s government was defeated by 14 votes in 1993. In most cases, results have been in favour of the government by a large margin.«12345678910» |
65c447721184950038984821 | blog | LegislationThe Draft Land Titling Bill, 2011Vivake- June 23, 2011The Department of Land Resources in the Ministry of Rural Development has released a draft version of The Land Titling Bill, 2011 on its website. This draft is a major revision of the original draft Bill released in 2010. Public comments on this draft are invited before June 24, 2011. A copy of the draft can be foundhere. The Bill provides for the registration of all immovable property to establish a system of conclusive, electronically recorded titles. It also provides for a mechanism to invite objections and for the resolution of disputes through special tribunals. The property record will be considered as conclusive ownership by the person mentioned. This will help resolve uncertainties in property transactions. Given that land is a state subject, the Bill is meant to be a model law for adoption by the states individually. The framework of the bill is explained below.I.Land Titling Authority and Preparation of RecordsThe Bill establishes a Land Titling Authority at the State level. The Authority’s task is to prepare a record of all immovable properties in its jurisdiction. These records will contain (a) survey data of boundaries of each property; (b) a unique identification number for each property, which may be linked to a UID number; (c) any record created by an officer of the state or UT government authorised by the laws of that state to make such records; and (d) a record of Title over each property.II.Title Registration Officer and Registration ProcessThe Bill provides for the government to create Title Registration Offices at various places, and for a Title Registration Officer (TRO) to function under the supervision of the Land Titling Authority. The TRO will have powers of a civil court and is charged with the task of creating e a Register of Titles. Steps for the registering of titles include: (a) notification of available land records data by the TRO, (b) invitation to persons with interest in such properties to make objections to the data, and (c) registration of properties by the TRO for which no dispute is brought to his notice in writing. In the case the absoluteness of the title to a property is disputed, the TRO will make an entry into the Register of Titles to that effect and refer the case to the District Land Titling Tribunal (discussed below)III.District Land Titling Tribunal and State Land Titling Appellate TribunalThe Bill proposes to set up a District Land Titling Tribunal, consisting of one or more serving officers not below the rank of Joint Collector / Sub Divisional Magistrate of the District. The government may also establish one or more State Land Titling Appellate Tribunals, to be presided over by serving Judicial Officers in the rank of District Judge. Revisions to the orders of the State Land Titling Appellate Tribunal may be made by a Special Bench of the High Court. The Bill bars civil courts from having jurisdiction to entertain proceedings in respect to matters that the TRO, District Land Titling Tribunal, and State Land Titling Appellate Tribunal are empowered to determine.IV.Completion of Records and NotificationWhen preparation of the Record for whole or part of a specific are is complete, it will be notified. Any person aggrieved by the notified entry in the Register of Titles may file an objection before the District Land Titling Tribunal within three years of the notification. Additionally, the person may file an application with the TRO for an entry to be made in the Register of Titles. The TRO shall do so when the application has been admitted to the Tribunal. Minor errors in the Title of Registers can be rectified through an application to the TRO.V.Register of TitlesAfter completion of records is notified by the Authority, the Register of Titles is prepared and maintained by the Authority. For each property, the Register will include: (a) general description, map, and locational details of the immovable property; (b) descriptive data such as a unique identification number, plot number, total area, built up and vacant area, address, site area, and undivided share in the land; (c) detail of survey entry, provisional title record, conclusive title record and status, mortgage, charges, other rights and interests in the property; (d) details of transfer of the property and past transactions; and (e) disputes pertaining to the property. Entries in the Register of Titles will serve as conclusive evidence of ownership. These entries shall be maintained in electronic form, indemnified, and kept in the public domain.ParliamentFirst no-confidence motion of the 17th Lok Sabha discussed todayNiranjana Menon- August 8, 2023Discussion on the first no-confidence motion of the 17thLok Sabha began today. No-confidence motions and confidence motions are trust votes, used to test or demonstrate the support of Lok Sabha for the government in power. Article 75(3) of the Constitution states that the government is collectively responsible to Lok Sabha. This means that the government must always enjoy the support of a majority of the members of Lok Sabha. Trust votes are used to examine this support. The government resigns if a majority of members support a no-confidence motion, or reject a confidence motion.So far, 28 no-confidence motions (including the one being discussed today) and 11 confidence motions have beendiscussed. Over the years, the number of such motions has reduced. The mid-1960s and mid-1970s saw more no-confidence motions, whereas the 1990s saw more confidence motions.Figure1: Trust votes in ParliamentNote: *Term shorter than 5 years; **6-year term.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.The no-confidence motion being discussed today wasmovedon July 26, 2023. A motion of no-confidence is moved with the support of at least 50 members. The Speaker has the discretion to allot time for discussion of the motion. TheRules of Procedurestate that the motion must be discussed within 10 days of being introduced. This year, the no-confidence motion wasdiscussed13 calendar days after introduction. Since the introduction of the no-confidence motion on July 26, 12 Bills have been introduced and 18 Bills have been passed by Lok Sabha. In the past, on four occasions, the discussion on no-confidence motions began seven days after their introduction. On these occasions, Bills and other important issues were debated before the discussion on the no-confidence motion began.Figure2: Members rise in support of the motion of no-confidence in Lok SabhaSource: Sansad TV, Lok Sabha, July 26, 2023; PRS.Figure3: Number of days from introduction to discussion on no-confidence motionsNote: Number of days implies calendar days.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.On average, no-confidence motions (excluding the one being discussed today) have been discussed for 13 hours over three days. Discussions have lasted longer than 20 hours on four instances, most recently in 2003. Today’s no-confidence motion was allotted 12 hours discussion time by theBusiness Advisory Committee.Following the discussion, the motion is put to vote. 26 out of 27 no-confidence motions (excluding the one being discussed today) have been voted upon and rejected. This means that no government has ever had to resign following a vote of no-confidence. On one occasion, in 1979, the discussion on a no-confidence motion against the Morarji Desai government remained inconclusive. He resigned before the motion was put to vote. 50% of all no-confidence motions (14 out of 28) were discussed between 1965 and 1975. Of these, 12 were against governments headed by Indira Gandhi.Figure4: Duration of discussion on no-confidence motionsNote: This graph excludes the no confidence motion moved on July 26, 2023.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.In comparison, confidence motions have a more varied history. The first motion, brought in 1979 to demonstrate confidence in Charan Singh’s government, was not discussed at all. The Prime Minister resigned before the discussion could take place. Since then, 11 confidence motions have been discussed in Lok Sabha, with nine occurring in the 1990s. During this period, several coalition governments were formed, and Prime Ministers sought to prove their majority throughconfidence motions. These motions have been discussed, on average, for 12 hours over two days.Figure5: Duration of discussion of confidence motionsSource: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.Of the 11 confidence motions discussed in Lok Sabha, seven were accepted. On three instances, governments had to resign as they could not prove that they had the support of the majority. On one instance in 1996, the motion was not put to vote. Following an eleven-hour discussion on this confidence motion, Prime Minister Atal Bihari Vajpayee announced his intention to resign on the floor of the House. He resigned 16 days into his term.Vajpayee became Prime Minister again in 1999, and faced another confidence motion. This time, it was put to vote. The motion was defeated by a margin of one vote. This has been the closest result on a trust vote in the history of Lok Sabha. The next closest result was when a motion of no-confidence against P V Narasimha Rao’s government was defeated by 14 votes in 1993. In most cases, results have been in favour of the government by a large margin.«12345678910» |
65c446f211849500389847a2 | blog | LegislationThe Insolvency and Bankruptcy Code: All you need to knowAravind Gayam- May 10, 2016The Insolvency and Bankruptcy Code, 2016 is listed for passage in Rajya Sabha today. Last week, Lok Sabha passed the Code with changes recommended by the Joint Parliamentary Committee that examined the Code.[1],[2]We present answers to some of the frequently asked questions in relation to the Insolvency and Bankruptcy Code, 2016.Why do we need a new law?As of 2015, insolvency resolution in India took 4.3 years on an average. This is higher when compared to other countries such as United Kingdom (1 year) and United States of America (1.5 years).Figure 1provides a comparison of the time to resolve insolvency for various countries. These delays are caused due to time taken to resolve cases in courts, and confusion due to a lack of clarity about the current bankruptcy framework.What does the current Code aim to do?The 2016 Code applies to companies and individuals. It provides for a time-bound process to resolve insolvency. When a default in repayment occurs, creditors gain control over debtor’s assets and must take decisions to resolve insolvency within a 180-day period. To ensure an uninterrupted resolution process, the Code also provides immunity to debtors from resolution claims of creditors during this period. The Code also consolidates provisions of the current legislative framework to form a common forum for debtors and creditors of all classes to resolve insolvency.Who facilitates the insolvency resolution under the Code?The Code creates various institutions to facilitate resolution of insolvency. These are as follows:Insolvency Professionals: A specialised cadre of licensed professionals is proposed to be created. These professionals will administer the resolution process, manage the assets of the debtor, and provide information for creditors to assist them in decision making.Insolvency Professional Agencies: The insolvency professionals will be registered with insolvency professional agencies. The agencies conduct examinations to certify the insolvency professionals and enforce a code of conduct for their performance.Information Utilities: Creditors will report financial information of the debt owed to them by the debtor. Such information will include records of debt, liabilities and defaults.Adjudicating authorities: The proceedings of the resolution process will be adjudicated by the National Companies Law Tribunal (NCLT), for companies; and the Debt Recovery Tribunal (DRT), for individuals. The duties of the authorities will include approval to initiate the resolution process, appoint the insolvency professional, and approve the final decision of creditors.Insolvency and Bankruptcy Board: The Board will regulate insolvency professionals, insolvency professional agencies and information utilities set up under the Code. The Board will consist of representatives of Reserve Bank of India, and the Ministries of Finance, Corporate Affairs and Law.What is the procedure to resolve insolvency in the Code?The Code proposes the following steps to resolve insolvency:Initiation: When a default occurs, the resolution process may be initiated by the debtor or creditor. The insolvency professional administers the process. The professional provides financial information of the debtor from the information utilities to the creditor and manage the debtor’s assets. This process lasts for 180 days and any legal action against the debtor is prohibited during this period.Decision to resolve insolvency: A committee consisting of the financial creditors who lent money to the debtor will be formed by the insolvency professional. The creditors committee will take a decision regarding the future of the outstanding debt owed to them. They may choose to revive the debt owed to them by changing the repayment schedule, or sell (liquidate) the assets of the debtor to repay the debts owed to them. If a decision is not taken in 180 days, the debtor’s assets go into liquidation.Liquidation: If the debtor goes into liquidation, an insolvency professional administers the liquidation process. Proceeds from the sale of the debtor’s assets are distributed in the following order of precedence: i) insolvency resolution costs, including the remuneration to the insolvency professional, ii) secured creditors, whose loans are backed by collateral, dues to workers, other employees, iii) unsecured creditors, iv) dues to government, v) priority shareholders and vi) equity shareholders.What are some issues in the Code that require consideration?The Bankruptcy Board (regulator) will regulate insolvency professional agencies (IPAs), which will further regulate insolvency professionals (IPs). The rationale behind multiple IPAs overseeing the functioning of their member IPs, instead of a single regulator is unclear. The presence of multiple IPAs operating simultaneously could enable competition in the sector. However, this may also lead to a conflict of interest between the regulatory and competitive goals of the IPAs. This structure of regulation varies from the current practice where the regulator directly regulates its registered professionals. For example, the Institute of Chartered Accountants of India (which regulates chartered accountants) is directly responsible for regulating its registered members.The Code provides an order of priority to distribute assets during liquidation. It is unclear why: (i) secured creditors will receive their entire outstanding amount, rather than up to their collateral value, (ii) unsecured creditors have priority over trade creditors, and (iii) government dues will be repaid after unsecured creditors.The smooth functioning of the Code depends on the functioning of new entities such as insolvency professionals, insolvency professional agencies and information utilities. These entities will have to evolve over time for the proper functioning of the system. In addition, the NCLT, which will adjudicate corporate insolvency has not been constituted as yet, and the DRTs are overloaded with pending cases.The Insolvency and Bankruptcy Code, 2016,http://www.prsindia.org/administrator/uploads/media/Bankruptcy/Bankruptcy%20Code%20as%20passed%20by%20LS.pdf.Report of the Joint Committee on the Insolvency and Bankruptcy Code, 2015, April 28, 2016,http://164.100.47.134/lsscommittee/Joint%20Committee%20on%20Insolvency%20and%20Bankruptcy%20Code,%202015/16_Joint_Committee_o n_Insolvency_and_Bankruptcy_Code_2015_1.pdfAversionof this blog appeared in the Business Standard on May 7, 2016.ParliamentFirst no-confidence motion of the 17th Lok Sabha discussed todayNiranjana Menon- August 8, 2023Discussion on the first no-confidence motion of the 17thLok Sabha began today. No-confidence motions and confidence motions are trust votes, used to test or demonstrate the support of Lok Sabha for the government in power. Article 75(3) of the Constitution states that the government is collectively responsible to Lok Sabha. This means that the government must always enjoy the support of a majority of the members of Lok Sabha. Trust votes are used to examine this support. The government resigns if a majority of members support a no-confidence motion, or reject a confidence motion.So far, 28 no-confidence motions (including the one being discussed today) and 11 confidence motions have beendiscussed. Over the years, the number of such motions has reduced. The mid-1960s and mid-1970s saw more no-confidence motions, whereas the 1990s saw more confidence motions.Figure1: Trust votes in ParliamentNote: *Term shorter than 5 years; **6-year term.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.The no-confidence motion being discussed today wasmovedon July 26, 2023. A motion of no-confidence is moved with the support of at least 50 members. The Speaker has the discretion to allot time for discussion of the motion. TheRules of Procedurestate that the motion must be discussed within 10 days of being introduced. This year, the no-confidence motion wasdiscussed13 calendar days after introduction. Since the introduction of the no-confidence motion on July 26, 12 Bills have been introduced and 18 Bills have been passed by Lok Sabha. In the past, on four occasions, the discussion on no-confidence motions began seven days after their introduction. On these occasions, Bills and other important issues were debated before the discussion on the no-confidence motion began.Figure2: Members rise in support of the motion of no-confidence in Lok SabhaSource: Sansad TV, Lok Sabha, July 26, 2023; PRS.Figure3: Number of days from introduction to discussion on no-confidence motionsNote: Number of days implies calendar days.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.On average, no-confidence motions (excluding the one being discussed today) have been discussed for 13 hours over three days. Discussions have lasted longer than 20 hours on four instances, most recently in 2003. Today’s no-confidence motion was allotted 12 hours discussion time by theBusiness Advisory Committee.Following the discussion, the motion is put to vote. 26 out of 27 no-confidence motions (excluding the one being discussed today) have been voted upon and rejected. This means that no government has ever had to resign following a vote of no-confidence. On one occasion, in 1979, the discussion on a no-confidence motion against the Morarji Desai government remained inconclusive. He resigned before the motion was put to vote. 50% of all no-confidence motions (14 out of 28) were discussed between 1965 and 1975. Of these, 12 were against governments headed by Indira Gandhi.Figure4: Duration of discussion on no-confidence motionsNote: This graph excludes the no confidence motion moved on July 26, 2023.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.In comparison, confidence motions have a more varied history. The first motion, brought in 1979 to demonstrate confidence in Charan Singh’s government, was not discussed at all. The Prime Minister resigned before the discussion could take place. Since then, 11 confidence motions have been discussed in Lok Sabha, with nine occurring in the 1990s. During this period, several coalition governments were formed, and Prime Ministers sought to prove their majority throughconfidence motions. These motions have been discussed, on average, for 12 hours over two days.Figure5: Duration of discussion of confidence motionsSource: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.Of the 11 confidence motions discussed in Lok Sabha, seven were accepted. On three instances, governments had to resign as they could not prove that they had the support of the majority. On one instance in 1996, the motion was not put to vote. Following an eleven-hour discussion on this confidence motion, Prime Minister Atal Bihari Vajpayee announced his intention to resign on the floor of the House. He resigned 16 days into his term.Vajpayee became Prime Minister again in 1999, and faced another confidence motion. This time, it was put to vote. The motion was defeated by a margin of one vote. This has been the closest result on a trust vote in the history of Lok Sabha. The next closest result was when a motion of no-confidence against P V Narasimha Rao’s government was defeated by 14 votes in 1993. In most cases, results have been in favour of the government by a large margin.«12345678910» |
65c4474e11849500389847fb | blog | LegislationGeneral Anti Avoidance Rule (GAAR)Vishnu- May 17, 2012The issue of the General Anti Avoidance Rule (GAAR) hasdominated the newsrecently and there are fears thatGAAR will discourage foreign investmentin India. However, tax avoidance can hinder public finance objectives and it is in this context GAAR was introduced in this year’s Budget. Last week, the Finance Minister pushed back the implementation of GAAR by a year.What is GAAR?GAAR was first introduced in theDirect Taxes Code Bill 2010. The original proposal gave the Commissioner of Income Tax the authority to declare any arrangement or transaction by a taxpayer as ‘impermissible’ if he believed the main purpose of the arrangement was to obtain a tax benefit. The 2012-13Finance Bill(Bill), that was passed by Parliament yesterday, defines ‘impermissible avoidance arrangements’ as an arrangement that satisfies one of four tests. Under these tests, an agreement would be an ‘impermissible avoidance arrangement’ if it (i) creates rights and obligations not normally created between parties dealing at arm’s length, (ii) results in misuse or abuse of provisions of tax laws, (iii) is carried out in a way not normally employed for bona fide purpose or (iv) lacks commercial substance. As per the Bill, arrangements which lack commercial substance could involve round trip financing, an accommodating party and elements that have the effect of offsetting or cancelling each other. A transaction that disguises the value, location, source, ownership or control of funds would also be deemed to lack commercial substance. The Bill as introduced also presumed that obtaining a tax benefit was the main purpose of an arrangement unless the taxpayer could prove otherwise.Why?GAAR was introduced to address tax avoidance and ensure that those in different tax brackets are taxed the correct amount. In many instances of tax avoidance, arrangements may take place with the sole intention of gaining a tax advantage while complying with the law. This is when the doctrine of ‘substance over form’ may apply. ‘Substance over form’ is where real intention of parties and the purpose of an arrangement is taken into account rather than just the nomenclature of the arrangement. Many countries, like Canada and South Africa, have codified the doctrine of ‘substance over form’ through a GAAR – type ruling.Issues with GAARAcommon criticism of GAARis that it provides discretion and authority to the tax administration which can be misused. The Standing Committee responded to GAAR in theirreport on the Direct Taxes Code Billin March, 2012. They suggested that the provisions should ensure that taxpayers entering genuinely valid arrangements are not harassed. They recommended that the onus should be on tax authorities, not the taxpayer, to prove tax avoidance. In addition, the committee suggested an independent body to act as the approving panel to ensure impartiality. They also recommended that the assessing officer be designated in the code to reduce harassment and unwarranted litigation.GAAR AmendmentsOn May 8, 2012 the Finance Minister amended the GAAR provisions following the Standing Committee’s recommendations. The main change was to delay the implementation of GAAR by a year to “provide more time to both taxpayers and the tax administration to address all related issues”. GAAR will now apply on income earned in 2013-14 and thereafter. In addition, the Finance Minister removed the burden upon the taxpayer to prove that the main purpose of an alleged impermissible arrangement was not to obtain tax benefit. These amendments were approved with the passing of the Bill. In hisspeech, the Finance Minister stated that a Committee had also been formed under the Chairmanship of the Director General of Income Tax. The Committee will suggest rules, guidelines and safeguards for implementation of GAAR. The Committee is expected to submit its recommendations by May 31, 2012 after holding discussions with various stakeholders in the debate.ParliamentFirst no-confidence motion of the 17th Lok Sabha discussed todayNiranjana Menon- August 8, 2023Discussion on the first no-confidence motion of the 17thLok Sabha began today. No-confidence motions and confidence motions are trust votes, used to test or demonstrate the support of Lok Sabha for the government in power. Article 75(3) of the Constitution states that the government is collectively responsible to Lok Sabha. This means that the government must always enjoy the support of a majority of the members of Lok Sabha. Trust votes are used to examine this support. The government resigns if a majority of members support a no-confidence motion, or reject a confidence motion.So far, 28 no-confidence motions (including the one being discussed today) and 11 confidence motions have beendiscussed. Over the years, the number of such motions has reduced. The mid-1960s and mid-1970s saw more no-confidence motions, whereas the 1990s saw more confidence motions.Figure1: Trust votes in ParliamentNote: *Term shorter than 5 years; **6-year term.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.The no-confidence motion being discussed today wasmovedon July 26, 2023. A motion of no-confidence is moved with the support of at least 50 members. The Speaker has the discretion to allot time for discussion of the motion. TheRules of Procedurestate that the motion must be discussed within 10 days of being introduced. This year, the no-confidence motion wasdiscussed13 calendar days after introduction. Since the introduction of the no-confidence motion on July 26, 12 Bills have been introduced and 18 Bills have been passed by Lok Sabha. In the past, on four occasions, the discussion on no-confidence motions began seven days after their introduction. On these occasions, Bills and other important issues were debated before the discussion on the no-confidence motion began.Figure2: Members rise in support of the motion of no-confidence in Lok SabhaSource: Sansad TV, Lok Sabha, July 26, 2023; PRS.Figure3: Number of days from introduction to discussion on no-confidence motionsNote: Number of days implies calendar days.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.On average, no-confidence motions (excluding the one being discussed today) have been discussed for 13 hours over three days. Discussions have lasted longer than 20 hours on four instances, most recently in 2003. Today’s no-confidence motion was allotted 12 hours discussion time by theBusiness Advisory Committee.Following the discussion, the motion is put to vote. 26 out of 27 no-confidence motions (excluding the one being discussed today) have been voted upon and rejected. This means that no government has ever had to resign following a vote of no-confidence. On one occasion, in 1979, the discussion on a no-confidence motion against the Morarji Desai government remained inconclusive. He resigned before the motion was put to vote. 50% of all no-confidence motions (14 out of 28) were discussed between 1965 and 1975. Of these, 12 were against governments headed by Indira Gandhi.Figure4: Duration of discussion on no-confidence motionsNote: This graph excludes the no confidence motion moved on July 26, 2023.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.In comparison, confidence motions have a more varied history. The first motion, brought in 1979 to demonstrate confidence in Charan Singh’s government, was not discussed at all. The Prime Minister resigned before the discussion could take place. Since then, 11 confidence motions have been discussed in Lok Sabha, with nine occurring in the 1990s. During this period, several coalition governments were formed, and Prime Ministers sought to prove their majority throughconfidence motions. These motions have been discussed, on average, for 12 hours over two days.Figure5: Duration of discussion of confidence motionsSource: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.Of the 11 confidence motions discussed in Lok Sabha, seven were accepted. On three instances, governments had to resign as they could not prove that they had the support of the majority. On one instance in 1996, the motion was not put to vote. Following an eleven-hour discussion on this confidence motion, Prime Minister Atal Bihari Vajpayee announced his intention to resign on the floor of the House. He resigned 16 days into his term.Vajpayee became Prime Minister again in 1999, and faced another confidence motion. This time, it was put to vote. The motion was defeated by a margin of one vote. This has been the closest result on a trust vote in the history of Lok Sabha. The next closest result was when a motion of no-confidence against P V Narasimha Rao’s government was defeated by 14 votes in 1993. In most cases, results have been in favour of the government by a large margin.«12345678910» |
65c446d61184950038984784 | blog | LegislationThe Anti-Defection Law ExplainedVibhor Relhan- December 6, 2017On Monday, December 4, the Chairman of Rajya Sabha disqualified two Members of Parliament (MPs) from the House under the Tenth Schedule of the Constitution (better known as the anti-defection law) for having defected from their party.[1]These members were elected on a Janata Dal (United) ticket. The Madras High Court is also hearing petitions filed by 18 MLAs who were disqualified by the Speaker of the Tamil Nadu Assembly in September 2017 under the anti-defection law. Allegations of legislators defecting in violation of the law have been made in several other states including Andhra Pradesh, Arunachal Pradesh, Goa, Manipur, Nagaland, Telangana and Uttarakhand in recent years.[2]In this context, we explain the anti-defection law.What is the anti-defection law?Aaya Ram Gaya Ramwas a phrase that became popular in Indian politics after a Haryana MLA Gaya Lal changed his party thrice within the same day in 1967. The anti-defection law sought to prevent such political defections which may be due to reward of office or other similar considerations.[3]The Tenth Schedule was inserted in the Constitution in 1985. It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House. A legislator is deemed to have defected if he eithervoluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote.This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House. The law applies to both Parliament and state assemblies.Are there any exceptions under the law?Yes, legislators may change their party without the risk of disqualification in certain circumstances. The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger. In such a scenario, neither the members who decide to merge, nor the ones who stay with the original party will face disqualification.Various expert committees have recommended that rather than the Presiding Officer, the decision to disqualify a member should be made by the President (in case of MPs) or the Governor (in case of MLAs) on the advice of the Election Commission.[4]This would be similar to the process followed for disqualification in case the person holds an office of profit (i.e. the person holds an office under the central or state government which carries a remuneration, and has not been excluded in a list made by the legislature).How has the law been interpreted by the Courts while deciding on related matters?The Supreme Court has interpreted different provisions of the law. We discuss some of these below.The phrase ‘Voluntarily gives up his membership’ has a wider connotation than resignationThe law provides for a member to be disqualified if he ‘voluntarily gives up his membership’. However, the Supreme Court has interpreted that in the absence of a formal resignation by the member, the giving up of membership can be inferred by his conduct.[5]In other judgments, members who have publicly expressed opposition to their party or support for another party were deemed to have resigned.[6]In the case of the two JD(U) MPs who were disqualified from Rajya Sabha on Monday, they were deemed to have ‘voluntarily given up their membership’ by engaging in anti-party activities which included criticizing the party on public forums on multiple occasions, and attending rallies organised by opposition parties in Bihar.[7]Decision of the Presiding Officer is subject to judicial reviewThe law initially stated that the decision of the Presiding Officer is not subject to judicial review. This condition was struck down by the Supreme Court in 1992, thereby allowing appeals against the Presiding Officer’s decision in the High Court and Supreme Court.[8]However, it held that there may not be any judicial intervention until the Presiding Officer gives his order.In 2015, the Hyderabad High Court, refused to intervene after hearing a petition which alleged that there had been delay by the Telangana Assembly Speaker in acting against a member under the anti-defection law.[9]Is there a time limit within which the Presiding Officer has to decide?The law does not specify a time-period for the Presiding Officer to decide on a disqualification plea. Given that courts can intervene only after the Presiding Officer has decided on the matter, the petitioner seeking disqualification has no option but to wait for this decision to be made.There have been several cases where the Courts have expressed concern about the unnecessary delay in deciding such petitions.[10]In some cases this delay in decision making has resulted in members, who have defected from their parties, continuing to be members of the House. There have also been instances where opposition members have been appointed ministers in the government while still retaining the membership of their original parties in the legislature.[11]In recent years, opposition MLAs in some states, such as Andhra Pradesh and Telangana, have broken away in small groups gradually to join the ruling party. In some of these cases, more than 2/3rdof the opposition has defected to the ruling party.In these scenarios, the MLAs were subject to disqualification while defecting to the ruling party in smaller groups. However, it is not clear if they will still face disqualification if the Presiding Officer makes a decision after more than 2/3rdof the opposition has defected to the ruling party. The Telangana Speaker in March 2016 allowed the merger of the TDP Legislature Party in Telangana with the ruling TRS, citing that in total, 80% of the TDP MLAs (12 out of 15) had joined the TRS at the time of taking the decision.[12]In Andhra Pradesh, legislators of the main opposition party recently boycotted the entire 12-day assembly session. This boycott was in protest against the delay of over 18 months in action being taken against legislators of their party who have allegedly defected to the ruling party.[13]The Vice President, in his recent order disqualifying two JD(U) members stated that all such petitions should be decided by the Presiding Officers within a period of around three months.Does the anti-defection law affect the ability of legislators to make decisions?The anti-defection law seeks to provide a stable government by ensuring the legislators do not switch sides. However, this law also restricts a legislator from voting in line with his conscience, judgement and interests of his electorate. Such a situation impedes the oversight function of the legislature over the government, by ensuring that members vote based on the decisions taken by the party leadership, and not what their constituents would like them to vote for.Political parties issue a direction to MPs on how to vote on most issues, irrespective of the nature of the issue. Several experts have suggested that the law should be valid only for those votes that determine the stability of the government (passage of the annual budget or no-confidence motions).[14]————————————————————[1]Parliamentary Bulletin-II, December 4, 2017,http://164.100.47.5/newsite/bulletin2/Bull_No.aspx?number=57066andhttp://164.100.47.5/newsite/bulletin2/Bull_No.aspx?number=57067.[2]MLA Defection Politics Not New, Firstpost, March 13, 2017,http://www.firstpost.com/politics/bjp-forms-govt-in-goa-manipur-mla-defection-politics-not-new-telangana-ap-perfected-it-3331872.html.[3]The Constitution (52ndAmendment) Act, 1985,http://indiacode.nic.in/coiweb/amend/amend52.htm.[4]Report of the Committee on Electoral Reforms, 1990,http://lawmin.nic.in/ld/erreports/Dinesh%20Goswami%20Report%20on%20Electoral%20Reforms.pdfand the National Commission to review the working of the Constitution (NCRWC), 2002,http://lawmin.nic.in/ncrwc/ncrwcreport.htm.[5]Ravi Naik vs Union of India, 1994,https://indiankanoon.org/doc/554446/.[6]G.Viswanathan Vs. The Hon’ble Speaker, Tamil Nadu Legislative Assembly, Madras& Another, 1996,https://indiankanoon.org/doc/1093980/and Rajendra Singh Rana vs. Swami Prasad Maurya and Others, 2007,https://indiankanoon.org/doc/1620629/and Parliamentary Bulletin-II, December 4, 2017,http://164.100.47.5/newsite/bulletin2/Bull_No.aspx?number=57066.[7]Parliamentary Bulletin-II, December 4, 2017,http://164.100.47.5/newsite/bulletin2/Bull_No.aspx?number=57066.[8]Kihoto Hollohon vs. Zachilhu and Others, 1992,https://indiankanoon.org/doc/1686885/.[9]Sabotage of Anti-Defection Law in Telangana, 2015,https://www.epw.in/journal/2015/50/commentary/sabotage-anti-defection-law-telangana.html.[10]Speaker, Haryana Vidhan Sabha Vs Kuldeep Bishnoi & Ors., 2012,https://indiankanoon.org/doc/45034065/and Mayawati Vs Markandeya Chand & Ors., 1998,https://indiankanoon.org/doc/1801522/.[11]Anti-Defecton Law Ignored, November 30, 2017,http://www.news18.com/news/politics/anti-defection-law-ignored-as-mlas-defect-to-tdp-trs-in-andhra-pradesh-and-telangana-1591319.htmland It’s official Minister Talasani is still a TDP Member, March 27, 2015,http://www.thehansindia.com/posts/index/Telangana/2015-03-27/Its-Official-Minister-Talasani-is-still-a-TDP-member/140135.[12]Telangana Legislative Assembly Bulletin, March 10, 2016,http://www.telanganalegislature.org.in/documents/10656/19317/Assembly+Buletin.PDF/a0d4bb52-9acf-494f-80e7-3a16e3480460; 12 TDP MLAs merged with TRS, March 11, 2016,http://www.thehindu.com/news/national/telangana/12-tdp-mlas-merged-with-trs/article8341018.ece.[13]The line TD leaders dare not cross, December 4,http://www.thehindu.com/todays-paper/tp-national/tp-andhrapradesh/the-line-td-leaders-dare-not-cross/article21257521.ece[14]Report of the National Commission to review the working of the Constitution, 2002,http://lawmin.nic.in/ncrwc/ncrwcreport.htm, Report of the Committee on electoral reforms, 1990,http://lawmin.nic.in/ld/erreports/Dinesh%20Goswami%20Report%20on%20Electoral%20Reforms.pdfand Law Commission (170th report), 1999,http://www.lawcommissionofindia.nic.in/lc170.htm.ParliamentFirst no-confidence motion of the 17th Lok Sabha discussed todayNiranjana Menon- August 8, 2023Discussion on the first no-confidence motion of the 17thLok Sabha began today. No-confidence motions and confidence motions are trust votes, used to test or demonstrate the support of Lok Sabha for the government in power. Article 75(3) of the Constitution states that the government is collectively responsible to Lok Sabha. This means that the government must always enjoy the support of a majority of the members of Lok Sabha. Trust votes are used to examine this support. The government resigns if a majority of members support a no-confidence motion, or reject a confidence motion.So far, 28 no-confidence motions (including the one being discussed today) and 11 confidence motions have beendiscussed. Over the years, the number of such motions has reduced. The mid-1960s and mid-1970s saw more no-confidence motions, whereas the 1990s saw more confidence motions.Figure1: Trust votes in ParliamentNote: *Term shorter than 5 years; **6-year term.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.The no-confidence motion being discussed today wasmovedon July 26, 2023. A motion of no-confidence is moved with the support of at least 50 members. The Speaker has the discretion to allot time for discussion of the motion. TheRules of Procedurestate that the motion must be discussed within 10 days of being introduced. This year, the no-confidence motion wasdiscussed13 calendar days after introduction. Since the introduction of the no-confidence motion on July 26, 12 Bills have been introduced and 18 Bills have been passed by Lok Sabha. In the past, on four occasions, the discussion on no-confidence motions began seven days after their introduction. On these occasions, Bills and other important issues were debated before the discussion on the no-confidence motion began.Figure2: Members rise in support of the motion of no-confidence in Lok SabhaSource: Sansad TV, Lok Sabha, July 26, 2023; PRS.Figure3: Number of days from introduction to discussion on no-confidence motionsNote: Number of days implies calendar days.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.On average, no-confidence motions (excluding the one being discussed today) have been discussed for 13 hours over three days. Discussions have lasted longer than 20 hours on four instances, most recently in 2003. Today’s no-confidence motion was allotted 12 hours discussion time by theBusiness Advisory Committee.Following the discussion, the motion is put to vote. 26 out of 27 no-confidence motions (excluding the one being discussed today) have been voted upon and rejected. This means that no government has ever had to resign following a vote of no-confidence. On one occasion, in 1979, the discussion on a no-confidence motion against the Morarji Desai government remained inconclusive. He resigned before the motion was put to vote. 50% of all no-confidence motions (14 out of 28) were discussed between 1965 and 1975. Of these, 12 were against governments headed by Indira Gandhi.Figure4: Duration of discussion on no-confidence motionsNote: This graph excludes the no confidence motion moved on July 26, 2023.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.In comparison, confidence motions have a more varied history. The first motion, brought in 1979 to demonstrate confidence in Charan Singh’s government, was not discussed at all. The Prime Minister resigned before the discussion could take place. Since then, 11 confidence motions have been discussed in Lok Sabha, with nine occurring in the 1990s. During this period, several coalition governments were formed, and Prime Ministers sought to prove their majority throughconfidence motions. These motions have been discussed, on average, for 12 hours over two days.Figure5: Duration of discussion of confidence motionsSource: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.Of the 11 confidence motions discussed in Lok Sabha, seven were accepted. On three instances, governments had to resign as they could not prove that they had the support of the majority. On one instance in 1996, the motion was not put to vote. Following an eleven-hour discussion on this confidence motion, Prime Minister Atal Bihari Vajpayee announced his intention to resign on the floor of the House. He resigned 16 days into his term.Vajpayee became Prime Minister again in 1999, and faced another confidence motion. This time, it was put to vote. The motion was defeated by a margin of one vote. This has been the closest result on a trust vote in the history of Lok Sabha. The next closest result was when a motion of no-confidence against P V Narasimha Rao’s government was defeated by 14 votes in 1993. In most cases, results have been in favour of the government by a large margin.«12345678910» |
65c446a41184950038984754 | blog | PolicyRecommendations of the 15th Finance Commission for 2020-21Rohin Garg- February 3, 2020The Finance Commission is a constitutional body formed by the President of India to give suggestions on centre-state financial relations. The 15thFinance Commission is required to submit two reports. Thefirst reportwill consist of recommendations for the financial year 2020-21. The final report with recommendations for the 2021-26 period will be submitted by October 30, 2020. In this post, we explain the key recommendations of the report.What is the amount of tax devolution to the states, and how is it being calculated?The Finance Commission uses certain criteria when deciding the devolution to states. For example, income distance criterion has been used by the 14thand 15thFinance Commissions. Under this criterion, states with lower per capita income would be given a higher share to maintain equity among states. Another example is Demographic Performance criterion which has been introduced by the 15thFinance Commission. The Demographic Performance criterion is to reward efforts made by states in controlling their population.The 15thFinance Commission used the following criteria while determining the share of states: (i) 45% for the income distance, (ii) 15% for the population in 2011, (iii) 15% for the area, (iv) 10% for forest and ecology, (v) 12.5% for demographic performance, and (vi) 2.5% for tax effort. For 2020-21, the Commission has recommended a total devolution of Rs 8,55,176 crore to the states, which is 41% of the divisible pool of taxes. This is 1% lower than the percentage recommended by the 14thFinance Commission.Table 1 below compares the new criteria with the criteria recommended by the 14thFinance Commission.Table 1: Criteria for devolution (2020-21)Criteria14thFC2015-2015thFC2020-21Income Distance50.045.0Population 197117.5-Population 201110.015.0Area15.015.0Forest Cover7.5-Forest and Ecology-10.0Demographic Performance-12.5Tax Effort-2.5Total100100Sources: Report for the year 2020-21, 15thFinance Commission; PRS.Uttar Pradesh and Bihar have received the largest devolutions for 2020-21, receiving Rs 1,53,342 crore, and Rs 86,039 crore respectively. Karnataka and Kerala saw the largest decreases in the share of the divisible pool with a decrease of 0.49% and 0.25% respectively. Table 2 below displays the state-wise breakdown of the share in the divisible pool and the total devolution.Table 3: Share of states in the centre’s taxesState14thFinance Commission15thFinance CommissionDevolution for FY 2020-2021Share out of 42%Share in divisible poolShare out of 41%Share in divisible pool(In Rs crore)Andhra Pradesh1.814.311.694.1135,156Arunachal Pradesh0.581.380.721.7615,051Assam1.393.311.283.1326,776Bihar4.069.674.1310.0686,039Chhattisgarh1.293.071.43.4229,230Goa0.160.380.160.393,301Gujarat1.33.11.393.429,059Haryana0.461.10.441.089,253Himachal Pradesh0.30.710.330.86,833Jammu and Kashmir0.781.86---Jharkhand1.323.141.363.3128,332Karnataka1.984.711.493.6531,180Kerala1.052.50.81.9416,616Madhya Pradesh3.177.553.237.8967,439Maharashtra2.325.522.526.1452,465Manipur0.260.620.290.726,140Meghalaya0.270.640.310.776,542Mizoram0.190.450.210.514,327Nagaland0.210.50.230.574,900Odisha1.954.641.94.6339,586Punjab0.661.570.731.7915,291Rajasthan2.315.52.455.9851,131Sikkim0.150.360.160.393,318Tamil Nadu1.694.021.724.1935,823Telangana1.022.430.872.1318,241Tripura0.270.640.290.716,063Uttar Pradesh7.5417.957.3517.931,53,342Uttarakhand0.441.050.451.19,441West Bengal3.087.333.087.5264,301Total42100411008,55,176Sources: Reports of 14thand 15thFinance Commission; PRS.What are the various grants recommended by the 15thFinance Commission?The Terms of Reference of the Finance Commission require it to recommend grants-in-aid to the States. These grants include: (i) revenue deficit grants, (ii) grants to local bodies, and (iii) disaster management grants.14 states are estimated to face a revenue deficit post-devolution. To make up for this deficit, the Commission has recommended revenue deficit grants worth Rs 74,341 crore to these 14 states. Additionally, three states (Karnataka, Mizoram, and Telangana) have received special grants worth Rs 6,674 crore. The special grants are being given to compensate for a decline in the sum of tax devolution and revenue deficit grants in 2020-21 as compared to 2019-20.The Commission has recommended a total of Rs 90,000 crore for grants to the local bodies in 2020-21. This amounts to an increase over the Rs 87,352 crore allocated for 2019-20 for the same. The new allocation is 4.31% of the divisible pool. Of this sum, Rs 60,750 crore has been recommended for rural local bodies, and Rs 29,250 crore for urban local bodies. These grants will be made available to all three tiers of Panchayat- village, block, and district.To promote local-level mitigation activities, the Commission has recommended the setting up of National and State Disaster Management Funds. Recommended grants for the State Disaster Risk Management Fund is Rs 28,983 crore, while the allocation for the National Disaster Risk Management Fund is Rs 12,390 crore.Apart from these, guidelines for performance-based grants and sector-specific grants have been outlined. The Commission has recommended a grant of Rs 7,375 crore for nutrition in 2020-21. Sectors for which sector-specific grants will be provided in the final report include: (i) nutrition, (ii) health, (iii) pre-primary education, (iv) judiciary, and (v) railways.For more details, please see oursummaryof the report.Read MoreParliamentFirst no-confidence motion of the 17th Lok Sabha discussed todayNiranjana Menon- August 8, 2023Discussion on the first no-confidence motion of the 17thLok Sabha began today. No-confidence motions and confidence motions are trust votes, used to test or demonstrate the support of Lok Sabha for the government in power. Article 75(3) of the Constitution states that the government is collectively responsible to Lok Sabha. This means that the government must always enjoy the support of a majority of the members of Lok Sabha. Trust votes are used to examine this support. The government resigns if a majority of members support a no-confidence motion, or reject a confidence motion.So far, 28 no-confidence motions (including the one being discussed today) and 11 confidence motions have beendiscussed. Over the years, the number of such motions has reduced. The mid-1960s and mid-1970s saw more no-confidence motions, whereas the 1990s saw more confidence motions.Figure1: Trust votes in ParliamentNote: *Term shorter than 5 years; **6-year term.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.The no-confidence motion being discussed today wasmovedon July 26, 2023. A motion of no-confidence is moved with the support of at least 50 members. The Speaker has the discretion to allot time for discussion of the motion. TheRules of Procedurestate that the motion must be discussed within 10 days of being introduced. This year, the no-confidence motion wasdiscussed13 calendar days after introduction. Since the introduction of the no-confidence motion on July 26, 12 Bills have been introduced and 18 Bills have been passed by Lok Sabha. In the past, on four occasions, the discussion on no-confidence motions began seven days after their introduction. On these occasions, Bills and other important issues were debated before the discussion on the no-confidence motion began.Figure2: Members rise in support of the motion of no-confidence in Lok SabhaSource: Sansad TV, Lok Sabha, July 26, 2023; PRS.Figure3: Number of days from introduction to discussion on no-confidence motionsNote: Number of days implies calendar days.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.On average, no-confidence motions (excluding the one being discussed today) have been discussed for 13 hours over three days. Discussions have lasted longer than 20 hours on four instances, most recently in 2003. Today’s no-confidence motion was allotted 12 hours discussion time by theBusiness Advisory Committee.Following the discussion, the motion is put to vote. 26 out of 27 no-confidence motions (excluding the one being discussed today) have been voted upon and rejected. This means that no government has ever had to resign following a vote of no-confidence. On one occasion, in 1979, the discussion on a no-confidence motion against the Morarji Desai government remained inconclusive. He resigned before the motion was put to vote. 50% of all no-confidence motions (14 out of 28) were discussed between 1965 and 1975. Of these, 12 were against governments headed by Indira Gandhi.Figure4: Duration of discussion on no-confidence motionsNote: This graph excludes the no confidence motion moved on July 26, 2023.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.In comparison, confidence motions have a more varied history. The first motion, brought in 1979 to demonstrate confidence in Charan Singh’s government, was not discussed at all. The Prime Minister resigned before the discussion could take place. Since then, 11 confidence motions have been discussed in Lok Sabha, with nine occurring in the 1990s. During this period, several coalition governments were formed, and Prime Ministers sought to prove their majority throughconfidence motions. These motions have been discussed, on average, for 12 hours over two days.Figure5: Duration of discussion of confidence motionsSource: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.Of the 11 confidence motions discussed in Lok Sabha, seven were accepted. On three instances, governments had to resign as they could not prove that they had the support of the majority. On one instance in 1996, the motion was not put to vote. Following an eleven-hour discussion on this confidence motion, Prime Minister Atal Bihari Vajpayee announced his intention to resign on the floor of the House. He resigned 16 days into his term.Vajpayee became Prime Minister again in 1999, and faced another confidence motion. This time, it was put to vote. The motion was defeated by a margin of one vote. This has been the closest result on a trust vote in the history of Lok Sabha. The next closest result was when a motion of no-confidence against P V Narasimha Rao’s government was defeated by 14 votes in 1993. In most cases, results have been in favour of the government by a large margin.«12345678910» |
65c4474d11849500389847fa | blog | LegislationChanges recommended by the Standing Committee on Land Acquisition and Rehabilitation and Resettlement Bill, 2011Sana- May 18, 2012(Co-authored by Sana Gangwani and Pallavi Bedi)The Standing Committee Report on the Land Acquisition and R&R Bill, 2011 was tabled in the Lok Sabha on May 17, 2012. The major changes to the Bill recommended by the Committee include:Land may not be acquired for use by private companies and PPPs.The role of the local governments should be expanded and made more participatory in the acquisition and R&R process. The role of Gram Sabhas should not be limited to consultation, but their consent should be obtained at different stages.The Clause giving wide discretion to the government in notifying any project as infrastructure project should be deleted.Threshold for R&R provisions should be fixed by the states and not the central government since sale and purchase of land is a state subject in the Constitution (Item 18, State List).There should be a restriction on the acquisition of agricultural land. The limit on the acquisition of such land should be fixed by the state governments.For a detailed comparison of the Bill with the recommendations of the Standing Committee seehere.ParliamentFirst no-confidence motion of the 17th Lok Sabha discussed todayNiranjana Menon- August 8, 2023Discussion on the first no-confidence motion of the 17thLok Sabha began today. No-confidence motions and confidence motions are trust votes, used to test or demonstrate the support of Lok Sabha for the government in power. Article 75(3) of the Constitution states that the government is collectively responsible to Lok Sabha. This means that the government must always enjoy the support of a majority of the members of Lok Sabha. Trust votes are used to examine this support. The government resigns if a majority of members support a no-confidence motion, or reject a confidence motion.So far, 28 no-confidence motions (including the one being discussed today) and 11 confidence motions have beendiscussed. Over the years, the number of such motions has reduced. The mid-1960s and mid-1970s saw more no-confidence motions, whereas the 1990s saw more confidence motions.Figure1: Trust votes in ParliamentNote: *Term shorter than 5 years; **6-year term.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.The no-confidence motion being discussed today wasmovedon July 26, 2023. A motion of no-confidence is moved with the support of at least 50 members. The Speaker has the discretion to allot time for discussion of the motion. TheRules of Procedurestate that the motion must be discussed within 10 days of being introduced. This year, the no-confidence motion wasdiscussed13 calendar days after introduction. Since the introduction of the no-confidence motion on July 26, 12 Bills have been introduced and 18 Bills have been passed by Lok Sabha. In the past, on four occasions, the discussion on no-confidence motions began seven days after their introduction. On these occasions, Bills and other important issues were debated before the discussion on the no-confidence motion began.Figure2: Members rise in support of the motion of no-confidence in Lok SabhaSource: Sansad TV, Lok Sabha, July 26, 2023; PRS.Figure3: Number of days from introduction to discussion on no-confidence motionsNote: Number of days implies calendar days.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.On average, no-confidence motions (excluding the one being discussed today) have been discussed for 13 hours over three days. Discussions have lasted longer than 20 hours on four instances, most recently in 2003. Today’s no-confidence motion was allotted 12 hours discussion time by theBusiness Advisory Committee.Following the discussion, the motion is put to vote. 26 out of 27 no-confidence motions (excluding the one being discussed today) have been voted upon and rejected. This means that no government has ever had to resign following a vote of no-confidence. On one occasion, in 1979, the discussion on a no-confidence motion against the Morarji Desai government remained inconclusive. He resigned before the motion was put to vote. 50% of all no-confidence motions (14 out of 28) were discussed between 1965 and 1975. Of these, 12 were against governments headed by Indira Gandhi.Figure4: Duration of discussion on no-confidence motionsNote: This graph excludes the no confidence motion moved on July 26, 2023.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.In comparison, confidence motions have a more varied history. The first motion, brought in 1979 to demonstrate confidence in Charan Singh’s government, was not discussed at all. The Prime Minister resigned before the discussion could take place. Since then, 11 confidence motions have been discussed in Lok Sabha, with nine occurring in the 1990s. During this period, several coalition governments were formed, and Prime Ministers sought to prove their majority throughconfidence motions. These motions have been discussed, on average, for 12 hours over two days.Figure5: Duration of discussion of confidence motionsSource: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.Of the 11 confidence motions discussed in Lok Sabha, seven were accepted. On three instances, governments had to resign as they could not prove that they had the support of the majority. On one instance in 1996, the motion was not put to vote. Following an eleven-hour discussion on this confidence motion, Prime Minister Atal Bihari Vajpayee announced his intention to resign on the floor of the House. He resigned 16 days into his term.Vajpayee became Prime Minister again in 1999, and faced another confidence motion. This time, it was put to vote. The motion was defeated by a margin of one vote. This has been the closest result on a trust vote in the history of Lok Sabha. The next closest result was when a motion of no-confidence against P V Narasimha Rao’s government was defeated by 14 votes in 1993. In most cases, results have been in favour of the government by a large margin.«12345678910» |
65c447f0118495003898488d | blog | MiscellaneousPresidential Reference in the 2G caseSimran-As pernews reports, the union government has filed a Presidential Reference in relation to the 2G judgment. In this judgment the Supreme Court had cancelled 122 2G licences granting access to spectrum and had ordered their re-allocation by means of an auction. It also held that use of first cum first serve policy (FCFS) to allocate natural resources was unconstitutional. It had held that natural resources should be allocated through auctions. As per the news report, the Presidential Reference seeks clarity on whether the Supreme Court could interfere with policy decisions. This issue has been discussed in a number of cases. For instance, the Supreme Court inDirectorate of Film Festivals v. Gaurav Ashwin Jain[1]held that Courts cannot act as an appellate authority to examine the correctness, suitability and appropriateness of a policy. It further held that Courts cannot act as advisors to the executive on policy matters which the executive is entitled to formulate. It stated that the Court could review whether the policy violates fundamental rights, or is opposed to a Constitutional or any statutory provision, or is manifestly arbitrary. It further stated that legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review. InSuresh Seth vs. Commissioner, Indore Municipal Corporation[2]a three judge bench of the Court observed that, “this Court cannot issue any direction to the Legislature to make any particular kind of enactment. Under our constitutional scheme Parliament and Legislative Assemblies exercise sovereign power or authority to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation.” In the present case it may be argued that whereas the Court was empowered to declare a policy such as FCFS as unconstitutional, it did not have the jurisdiction to direct auctioning of spectrum and other natural resources. The Presidential Reference may conclusively determine the Court’s jurisdiction in this regard. However, it has beenurged by a few expertsthat this Presidential Reference amounts to an appeal against the decision of the Court. They have argued that this could be done only through a Review Petition (which has already been admitted by the Court). The advisory jurisdiction of the Court invoked through Presidential References, is governed by Article 143 of the Constitution. Under Article 143 of the Constitution of India, the President is empowered to refer to the Supreme Court any matter of law or fact. The opinion of the Court may be sought in relation to issues that have arisen or are likely to arise. A Presidential Reference may be made in matters that are of public importance and where it is expedient to obtain the opinion of the Supreme Court. The Court may refuse to answer all or any of the queries raised in the Reference. A Presidential Reference thus requires that the opinion of the Court on the issue should not have been already obtained or decided by the Court. In theGujarat Election Case[3]the Supreme Court took note of Presidential References that were appellate in nature. Thus, a Presidential Reference cannot be adopted as a means to review or appeal the judgment of the Supreme Court. Against judgments of the Court the mechanisms of review is the only option. This position was also argued by Senior Advocate Fali S. Nariman in theCauvery Water Case[4], where the Court refused to give an opinion. Whether the Court had the authority to determine a policy, such as FCFS, as unconstitutional is not disputed. However, there are conflicting judgments on the extent to which a Court can interfere with the executive domain. It would be interesting to see whether the Court would give its opinion on this issue. In the event it does, it may bring higher level of clarity to the relationship between the executive and the judiciary.[1]AIR 2007 SC 1640[2]AIR2006SC767[3](2002) 8 SCC 237[4](1993) Supp 1 SCC 96(II)ParliamentFirst no-confidence motion of the 17th Lok Sabha discussed todayNiranjana Menon- August 8, 2023Discussion on the first no-confidence motion of the 17thLok Sabha began today. No-confidence motions and confidence motions are trust votes, used to test or demonstrate the support of Lok Sabha for the government in power. Article 75(3) of the Constitution states that the government is collectively responsible to Lok Sabha. This means that the government must always enjoy the support of a majority of the members of Lok Sabha. Trust votes are used to examine this support. The government resigns if a majority of members support a no-confidence motion, or reject a confidence motion.So far, 28 no-confidence motions (including the one being discussed today) and 11 confidence motions have beendiscussed. Over the years, the number of such motions has reduced. The mid-1960s and mid-1970s saw more no-confidence motions, whereas the 1990s saw more confidence motions.Figure1: Trust votes in ParliamentNote: *Term shorter than 5 years; **6-year term.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.The no-confidence motion being discussed today wasmovedon July 26, 2023. A motion of no-confidence is moved with the support of at least 50 members. The Speaker has the discretion to allot time for discussion of the motion. TheRules of Procedurestate that the motion must be discussed within 10 days of being introduced. This year, the no-confidence motion wasdiscussed13 calendar days after introduction. Since the introduction of the no-confidence motion on July 26, 12 Bills have been introduced and 18 Bills have been passed by Lok Sabha. In the past, on four occasions, the discussion on no-confidence motions began seven days after their introduction. On these occasions, Bills and other important issues were debated before the discussion on the no-confidence motion began.Figure2: Members rise in support of the motion of no-confidence in Lok SabhaSource: Sansad TV, Lok Sabha, July 26, 2023; PRS.Figure3: Number of days from introduction to discussion on no-confidence motionsNote: Number of days implies calendar days.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.On average, no-confidence motions (excluding the one being discussed today) have been discussed for 13 hours over three days. Discussions have lasted longer than 20 hours on four instances, most recently in 2003. Today’s no-confidence motion was allotted 12 hours discussion time by theBusiness Advisory Committee.Following the discussion, the motion is put to vote. 26 out of 27 no-confidence motions (excluding the one being discussed today) have been voted upon and rejected. This means that no government has ever had to resign following a vote of no-confidence. On one occasion, in 1979, the discussion on a no-confidence motion against the Morarji Desai government remained inconclusive. He resigned before the motion was put to vote. 50% of all no-confidence motions (14 out of 28) were discussed between 1965 and 1975. Of these, 12 were against governments headed by Indira Gandhi.Figure4: Duration of discussion on no-confidence motionsNote: This graph excludes the no confidence motion moved on July 26, 2023.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.In comparison, confidence motions have a more varied history. The first motion, brought in 1979 to demonstrate confidence in Charan Singh’s government, was not discussed at all. The Prime Minister resigned before the discussion could take place. Since then, 11 confidence motions have been discussed in Lok Sabha, with nine occurring in the 1990s. During this period, several coalition governments were formed, and Prime Ministers sought to prove their majority throughconfidence motions. These motions have been discussed, on average, for 12 hours over two days.Figure5: Duration of discussion of confidence motionsSource: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.Of the 11 confidence motions discussed in Lok Sabha, seven were accepted. On three instances, governments had to resign as they could not prove that they had the support of the majority. On one instance in 1996, the motion was not put to vote. Following an eleven-hour discussion on this confidence motion, Prime Minister Atal Bihari Vajpayee announced his intention to resign on the floor of the House. He resigned 16 days into his term.Vajpayee became Prime Minister again in 1999, and faced another confidence motion. This time, it was put to vote. The motion was defeated by a margin of one vote. This has been the closest result on a trust vote in the history of Lok Sabha. The next closest result was when a motion of no-confidence against P V Narasimha Rao’s government was defeated by 14 votes in 1993. In most cases, results have been in favour of the government by a large margin.«12345678910» |
65c446c71184950038984775 | blog | PolicyExplained: Recent changes in MSPsSuyash Tiwari- July 16, 2018Recently, the Cabinet Committee on Economic Affairsapproved an increase in the Minimum Support Prices (MSPs)for Kharif crops for the 2018-19 marketing season. Subsequently, the Commission for Agricultural Costs and Prices (CACP) released itsprice policy reportfor Kharif crops for the marketing season 2018-19.The central government notifies MSPs based on the recommendations of the CACP. These recommendations are made separately for the Kharif marketing season (KMS) and the Rabi marketing season (RMS). Post harvesting, the government procures crops from farmers at the MSP notified for that season, in order to ensure remunerative prices to farmers for their produce.In this blog post, we look at how MSPs are determined, changes brought in them over time, and their effectiveness for farmers across different states.How are Minimum Support Prices determined?The CACP considers various factors such as the cost of cultivation and production, productivity of crops, and market prices for the determination of MSPs. TheNational Commission on Farmers(Chair: Prof. M. S. Swaminathan) in 2006 had recommended that MSPs must be at least 50% more than the cost of production. In this year’sbudget speech, the Finance Minister said that MSPs would be fixed at least at 50% more than the cost of production.The CACP calculates cost of production at three levels: (i) A2, which includes cost of inputs such as seeds, fertilizer, labour; (ii) A2+FL, which includes the implied cost of family labour (FL); and (iii) C2, which includes the implied rent on land and interest on capital assets over and above A2+FL.Table 1 shows the cost of production as calculated by the CACP and the approved MSPs for KMS 2018-19. For paddy (common), the MSP was increased from Rs 1,550/quintal in 2017-18 to Rs 1,750/quintal in 2018-19. This price would give a farmer a profit of 50.1% on the cost of production A2+FL. However, the profit calculated on the cost of production C2 would be 12.2%. It has beenarguedthat the cost of production should be taken as C2 for calculating MSPs. In such a scenario, this would have increased the MSP to Rs 2,340/quintal, much above the current MSP of Rs 1,750/quintal.Which are the major crops that are procured at MSPs?Every year, MSPs are announced for 23 crops. However, public procurement is limited to a few crops such as paddy, wheat and, to a limited extent, pulses as shown in Figure 1.The procurement is also limited to a few states. Three states which produce 49% of the national wheat output account for 93% of procurement. For paddy, six states with 40% production share have 77% share of the procurement. As a result, in these states,farmers focus on cultivating these crops over other crops such as pulses, oilseeds, and coarse grains.Due to limitations on the procurement side (both crop-wise and state-wise), all farmers do not receive benefits of increase in MSPs. The CACP has noted in its 2018-19price policy reportthat the inability of farmers to sell at MSPs is one of the key areas of concern. Farmers who are unable to sell their produce at MSPs have to sell it at market prices, which may be much lower than the MSPs.How have MSPs for major crops changed over time?Higher procurement of paddy and wheat, as compared to other crops at MSPs tilts the production cycle towards these crops. In order to balance this and encourage the production of pulses, there is a larger proportional increase in the MSPs of pulses over the years as seen in Figure 2. In addition to this, it is also used as a measure to encourage farmers to shift from water-intensive crops such as paddy and wheat to pulses, which relatively require less water for irrigation.What is the effectiveness of MSPs across states?The MSP fixed for each crop is uniform for the entire country. However, the production cost of crops vary across states. Figure 3 highlights the MSP of paddy and the variation in its cost of production across states in 2018-19.For example, production cost for paddy at the A2+FL level is Rs 702/quintal in Punjab and Rs 2,102/quintal in Maharashtra. Due to this differentiation, while the MSP of Rs 1,750/quintal of paddy will result in a profit of 149% to a farmer in Punjab, it will result in a loss of 17% to a farmer in Maharashtra. Similarly, at the C2 level, the production cost for paddy is Rs 1,174/quintal in Punjab and Rs 2,481/quintal in Maharashtra. In this scenario, a farmer in Punjab may get 49% return, while his counterpart in Maharashtra may make a loss of 29%.Figure 4 highlights the MSP of wheat and the variation in its cost of production across states in 2017-18. In the case of wheat, the cost of production in Maharashtra and West Bengal is much more than the cost in rest of the states. At the A2+FL level, the cost of production in West Bengal is Rs 1,777/quintal. This is significantly higher than in states like Haryana and Punjab, where the cost is Rs 736/quintal and Rs 642/quintal, respectively. In this case, while a wheat growing farmer suffers a loss of 2% in West Bengal, a farmer in Haryana makes a profit of 136%. The return in Punjab is even higher at 1.5 times or more the cost of production.ParliamentFirst no-confidence motion of the 17th Lok Sabha discussed todayNiranjana Menon- August 8, 2023Discussion on the first no-confidence motion of the 17thLok Sabha began today. No-confidence motions and confidence motions are trust votes, used to test or demonstrate the support of Lok Sabha for the government in power. Article 75(3) of the Constitution states that the government is collectively responsible to Lok Sabha. This means that the government must always enjoy the support of a majority of the members of Lok Sabha. Trust votes are used to examine this support. The government resigns if a majority of members support a no-confidence motion, or reject a confidence motion.So far, 28 no-confidence motions (including the one being discussed today) and 11 confidence motions have beendiscussed. Over the years, the number of such motions has reduced. The mid-1960s and mid-1970s saw more no-confidence motions, whereas the 1990s saw more confidence motions.Figure1: Trust votes in ParliamentNote: *Term shorter than 5 years; **6-year term.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.The no-confidence motion being discussed today wasmovedon July 26, 2023. A motion of no-confidence is moved with the support of at least 50 members. The Speaker has the discretion to allot time for discussion of the motion. TheRules of Procedurestate that the motion must be discussed within 10 days of being introduced. This year, the no-confidence motion wasdiscussed13 calendar days after introduction. Since the introduction of the no-confidence motion on July 26, 12 Bills have been introduced and 18 Bills have been passed by Lok Sabha. In the past, on four occasions, the discussion on no-confidence motions began seven days after their introduction. On these occasions, Bills and other important issues were debated before the discussion on the no-confidence motion began.Figure2: Members rise in support of the motion of no-confidence in Lok SabhaSource: Sansad TV, Lok Sabha, July 26, 2023; PRS.Figure3: Number of days from introduction to discussion on no-confidence motionsNote: Number of days implies calendar days.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.On average, no-confidence motions (excluding the one being discussed today) have been discussed for 13 hours over three days. Discussions have lasted longer than 20 hours on four instances, most recently in 2003. Today’s no-confidence motion was allotted 12 hours discussion time by theBusiness Advisory Committee.Following the discussion, the motion is put to vote. 26 out of 27 no-confidence motions (excluding the one being discussed today) have been voted upon and rejected. This means that no government has ever had to resign following a vote of no-confidence. On one occasion, in 1979, the discussion on a no-confidence motion against the Morarji Desai government remained inconclusive. He resigned before the motion was put to vote. 50% of all no-confidence motions (14 out of 28) were discussed between 1965 and 1975. Of these, 12 were against governments headed by Indira Gandhi.Figure4: Duration of discussion on no-confidence motionsNote: This graph excludes the no confidence motion moved on July 26, 2023.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.In comparison, confidence motions have a more varied history. The first motion, brought in 1979 to demonstrate confidence in Charan Singh’s government, was not discussed at all. The Prime Minister resigned before the discussion could take place. Since then, 11 confidence motions have been discussed in Lok Sabha, with nine occurring in the 1990s. During this period, several coalition governments were formed, and Prime Ministers sought to prove their majority throughconfidence motions. These motions have been discussed, on average, for 12 hours over two days.Figure5: Duration of discussion of confidence motionsSource: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.Of the 11 confidence motions discussed in Lok Sabha, seven were accepted. On three instances, governments had to resign as they could not prove that they had the support of the majority. On one instance in 1996, the motion was not put to vote. Following an eleven-hour discussion on this confidence motion, Prime Minister Atal Bihari Vajpayee announced his intention to resign on the floor of the House. He resigned 16 days into his term.Vajpayee became Prime Minister again in 1999, and faced another confidence motion. This time, it was put to vote. The motion was defeated by a margin of one vote. This has been the closest result on a trust vote in the history of Lok Sabha. The next closest result was when a motion of no-confidence against P V Narasimha Rao’s government was defeated by 14 votes in 1993. In most cases, results have been in favour of the government by a large margin.«12345678910» |
694be7d0-d206-58f0-a3e3-313cbd0b7f75 | court_cases | Orissa High CourtABLAPL/7830/2020 on 28 August, 2020Author:Biswajit MohantyBench:Biswajit MohantyABLAPL No.7830 of 2020\n\n\n\n\n03. 28.08.2020 Heard Mr. B.K. Ragada, learned counsel\n representing Sri B.K. Mishra, learned counsel for the\n petitioner and Mr. Pani, learned Additional Standing Counsel\n through Video Conferencing Mode.\n In this application underSection 438, Cr.P.C.,\n the petitioner has prayed for grant of anticipatory bail as he\n is apprehending arrest for the alleged commission of offences\n underSections 376 (2)(n)/313/506/323/34, I.P.C. in\n connection with Mahila P.S. Case No.52 of 2020\n corresponding to G.R. Case No.786 of 2020 now pending in\n the Court of learned S.D.J.M., Sadar, Cuttack.\n Mr. Ragada submits that the petitioner who\n happens to be a senior citizen has been falsely implicated in\n the present case and moreover a perusal of the F.I.R. would\n show that there is exists no allegation against him vis-à-vis\n the offences underSections 376 (2)(n)/313, I.P.C. Lastly, he\n submits that the petitioner being permanent resident of\n village Kanheipur under Chauliganj Police Station in the\n district of Cuttack, there is no chance of his absconding\n from the process of justice if he is released on bail.\n Perused the F.I.R.\n Considering the submissions made, nature of\n allegations, the surrounding facts and there being hardly\n any material to suggest that the petitioner is likely to\n abscond/tamper with prosecution evidence, if released on\n bail, the prayer for anticipatory bail is allowed and\n accordingly it is directed that in the event of his arrest, he\n shall be released on bail by executing bail bond of\n Rs.20,000/- (rupees twenty thousand) with one solvent\n surety for the like amount to the satisfaction of the arresting\n officer subject to conditions that he shall appear before the\n I.O. as and when directed by him/her for the purpose of\n investigation, shall not directly or indirectly induce any\n person acquainted with the facts of the case and shall not\n commit similar types of offences. Violation of any of the\n conditions of the bail shall entail cancellation of the same.\n The ABLAPL is accordingly disposed of.\n Learned counsel for the parties may utilize the\n soft copy of this order available in the High Court's Website\n or print out thereof at par with certified copy in the manner\n prescribed vide Court's Notice No.4587 dated 25.03.2020.\n\n\n\n\n ..................................\n Biswajit Mohanty, J.kcb |
957862d0-40c3-54b9-9587-b3bed7729cdb | court_cases | Calcutta High CourtM/S. Calendula Teledata Private ... vs Principal Commissioner Of Income ... on 1 February, 2022OD-8\n\n\n IN THE HIGH COURT AT CALCUTTA\n SPECIAL JURISDICTION (INCOME TAX)\n ORIGINAL SIDE\n\n\n ITAT/375/2017\n IA NO: GA/1/2017(Old No.GA/3679/2017)\n\n M/S. CALENDULA TELEDATA PRIVATE LIMITED\n VERSUS\n PRINCIPAL COMMISSIONER OF INCOME TAX-II & ANR.\n\n\n\n\nBEFORE :\nTHE HON'BLE JUSTICE T.S. SIVAGNANAM\n And\nTHE HON'BLE JUSTICE HIRANMAY BHATTACHARYYA\n\nDate : 1st February, 2022\n\n\n Ms. Sucharita Biswas, Adv.\n ... for RespondentThe Court : Ms. Sucharita Biswas, learned standing Counsel,\n\nappearing for the respondent/revenue, submitted that on 4th January,\n\n2022 the review application filed by the appellant/assessee was\n\ndirected to be tagged along with this appeal. However, in the order the\n\ncase number has been mentioned as Review Application No. 47 of\n\n2017 instead of RVWO No. 47 of 2017. Hence, the Registry is directed\n\nto tag the said review application being RVWO No.47 of 2017 along\n\nwith this appeal and let it be listed tomorrow (2.2.2022).2Print the name of Sucharita Biswas, standing counsel for the\n\nrespondent in the cause list.(T.S. SIVAGNANAM, J.)\n\n\n\n (HIRANMAY BHATTACHARYYA, J.)\n\n\n\n\nSN/S.Pal\nAR(CR) |
67052ae5-ffc9-5425-8ba3-0e20d92c1bd6 | court_cases | Telangana High CourtAmmula Kamala Deepti vs The State Of Telangana And 4 Others on 23 December, 2020Author:A.Abhishek ReddyBench:A.Abhishek ReddyTHE HON'BLE SRI JUSTICE A.ABHISHEK REDDY\n\n WRIT PETITION No.12067 of 2020\nORDER:This writ petition is filed challenging the action of respondent\n\nNos.2 to 4 in issuing fresh sanction vide File No.2/C16/06419/2020\n\npermit No.2/C16/06659/2020, dated 25.06.2020, for construction of\n\nfifth floor on the existing structure, which was constructed as per the\n\nsanctioned plan vide permit dated 28.06.2017, in favour of respondent\n\nNo.5, in the premises bearing H.No.3-6-379/1, Kashish Avenue, Street\n\nNo.2, Himayath Nagar, Hyderabad.Heard the learned counsel for the petitioner, the learned\n\nGovernment Pleader for Municipal Administration and Urban\n\nDevelopment for respondent No.1, the learned Standing Counsel for\n\nGHMC for respondent Nos.2 to 4, and Sri L. Ravi Chander, learned\n\nSenior Counsel appearing on behalf of Sri Deepak Misra, learned\n\ncounsel for respondent No.5. With their consent, the Writ Petition is\n\ndisposed of at the stage of admission itself.The case of the petitioner, in brief, is that the petitioner and her\n\nbrother, who is presently residing in USA, have purchased a flat bearing\n\nNo.201 in the subject apartment under a registered sale deed. It is\n\nstated that the builder and the owner of the land entered into a\n\nregistered Development Agreement-cum-Irrevocable General Power of\n\nAttorney, dated 16.03.2017, for development of the subject property\n\nand that based on the said Development Agreement, the builder has\n\nobtained building permit dated 28.06.2017 for construction of stilt plus\n\nfour upper floors. The grievance of the petitioner is that respondent\n\nNo.5, after the sale of the flats, has again made an application seeking\n\nfresh permission for construction of fifth floor on the existing structure,2and the same was granted to him vide the impugned building permit\n\ndated 25.06.2020.Learned counsel for the petitioner has vehemently argued that the\n\nbuilding permission issued to respondent No.5 is without any basis and\n\ncontrary to the provisions of theTelangana Apartments (Promotion of\n\nConstruction and Ownership) Act, 1987(for short, 'the Act') and that as\n\nperSection 9of the Act, the respondent No.5 is not entitled to seek any\n\nfresh permission or make any constructions once the flats are sold. The\n\nlearned counsel has stated that even the Transferable Development\n\nRight (TDR) Certificate, based on which respondent No.5 has obtained\n\npermission, is without any basis and contrary to the Scheme of\n\nissuance of the TDR Certificate. Learned counsel states that once\n\nrespondent No.5 has sold the flats in the subject apartment, he does\n\nnot have any exclusive right to deal with the said property again and\n\ncannot make any further constructions without obtaining the signature\n\nof the flat owners. The learned counsel has relied on the judgment of\n\nthis Court inCSR Estates, Flat Owners Welfare Association v.\n\nHyderabad Urban Development Authority1to buttress his contention\n\nthat once the flats are sold to third parties, the developer/owner of an\n\napartment building cannot make any further constructions or raise\n\nadditional floors without obtaining permission or No Objection\n\nCertificate from the flat owners.Per contra, Sri L. Ravi Chander, learned Senior Counsel\n\nappearing on behalf of Sri Deepak Misra, learned counsel for\n\nrespondent No.5, has stated that the petitioner was well aware about\n\nthe construction of fifth floor that is sought to be made by respondent\n\nNo.5 and the same is evident from the sale deed dated 19.02.2020\n\n\n\n\n1 AIR 1999 AP 613executed in her favour. The learned Senior Counsel has taken this\n\nCourt through the recitals in the sale deed, which reads as under:"Later on the Developer have applied for Sanction Plan\n for construction of a Residential Building comprising Stilt Floor\n + 5 Upper Floors from the Greater Hyderabad Municipal\n Corporation vide Inward No.2/C20/05854/2017, Dated\n 28.06.2017 and constructed the said Building and named it\n as "KASHISH AVENUE", the Entire Floor bearing Flat No.201\n on Second Floor has fallen to the share of the Developer\n herein."The learned Senior Counsel has taken this Court through the 'No\n\nObjection cum Declaration' given by the petitioner herself, wherein she\n\nhas given consent for construction of the fifth floor, and has stated that\n\nfor the reasons best known to her, the petitioner has changed her mind\n\nand has started creating hurdles. The learned Senior Counsel states\n\nthat the petitioner was well aware about the intention of respondent\n\nNo.5 with regard to construction of the fifth floor and pursuant to the\n\nsame, the respondent Nol.5 has applied for building permission and\n\nthen only the permission has been granted. The learned Senior Counsel\n\nhas distinguished the judgment relied on by the petitioner on the\n\nground that the same was rendered prior to the issuance of\n\nG.O.Ms.No.168, Municipal Administration and Urban Development (M)\n\nDepartment, dated 07.04.2012, whereby the Government has come up\n\nwith the Scheme of giving Transferable Development Rights (TDR) to the\n\npersons, who have surrendered the land without any compensation.\n\nLearned Senior Counsel states that the petitioner, fully knowing well\n\nabout the contents of the sale deed, cannot now turn back and state\n\nthat she is not aware of the contents and she was made to sign the\n\ndocument at the last moment is only an afterthought. Learned Senior\n\nCounsel has stated that irrespective of the fact as to whether the\n\nexecutant of the document has read the document or not, once the4executant has signed the document, the same terms and conditions in\n\nthe said document are binding on him, more so, when it is a registered\n\nsale deed. That in the present case, the registered sale deed has been\n\nexecuted in the month of February, 2020. The learned Senior Counsel\n\nhas, therefore, prayed to dismiss the writ petition.Heard the learned counsel for the petitioner as well as the learned\n\ncounsel for the respondents and perused the record.A perusal of the record discloses that one Smt. B.Narasamma has\n\nsurrendered her land for the purpose of road widening and the GHMC\n\nauthorities have issued Development Right Certificate to her on\n\n05.03.2020 permitting her to utilise the Transferable Development\n\nRight (TDR) Value of 1692 Square Yards of area either on the said site\n\nor elsewhere and the said Narasamma, in turn, has transferred the TDR\n\nto the owners of the subject premises namely Smt.P. Sai Kumari and\n\nSmt.P. Kavitha facilitating them to obtain sanction for construction of\n\nfifth floor. The official respondents, upon verification of the said TDR\n\nCertificate and in pursuance of Rule 17 of the Rules issued in\n\nG.O.Ms.No.168, date 07.04.2012, have granted permission to\n\nrespondent No.5 for constructing fifth floor in the subject premises.Rule 17 of the Rules issued in G.O.Ms.No.168, date 07.04.2012\n\nreads as under:"17. Grant of Transferable Development Right:(a) Transferable Development Right (TDR) can be awarded only\n when such lands are transferred to the local body/ Urban\n Development Authority as the case may be by way of\n registered gift deed. The award would be in the form of a\n TDR certificate issued by the Competent Authority / Sanction\n Authority.(b) Grant of TDR can be considered by the Competent Authority\n / Sanctioning Authority for the following areas subject to the\n owners complying with the conditions of development above,\n as per the following norms:5(i) For the Master Plan Road / Road Development\n Plan undertaken and developed: equivalent to\n 200% of the built up area of such areas surrendered.For conservation and development of lakes/water\n bodies/nalas foreshores & Recreational buffer\n development with greenery, etc: equivalent to\n 100% of the built up are of such recreational buffer\n area developed at his cost.(ii) For Heritage buildings and heritage precincts\n maintained with adaptive reuse: equivalent to\n 100% of built up area of such site area.(c) The TDR may be arrived at on the basis of relative land value\n and equivalent amount in both export and Import areas, as\n per the Registration Department records. The Competent\n Authority shall have the discretion in the matter of\n applicability of TDR. The TDR shall not be allowed in\n unauthorised buildings/structures/constructions and shall\n be considered only after the land is vested with the local\n authority / UDA. The TDR certificate issued would be valid\n or utilised / disposed only with the concerned local body\n area and as per the guidelines and conditions prescribed.(d) GUIDELINES ON TRANSFERABLE DEVELOPMENT RIGHT:In order to adopt uniform guidelines throughout the State the\n following conditions and guidelines are prescribed:(i) As and when the owner of the building intends to\n construct the building in the remaining area of the site,\n he is entitled to construct the building as per the\n provisions of these Building Rules. In the event the\n owner doesn't take up any construction, the owner is\n entitled for TDR which can be used/disposed\n depending on the convenience.(ii) A composite Register shall be maintained by the\n Sanctioning Authority as per the proforma enclosed at\n Annexure - VIII on the award of TDR and its\n sale/disposal and utilisation. A responsible officer\n shall be the custodian of the Register.(iii) At the time of sale/disposal/utilisation of a particular\n TDR, the utilisation details of the sale/disposal need to\n be entered at relevant columns in the register and that\n therefore the relevant file need to be referred to the\n custodian of the Register for making necessary entries6in the register. The custodian is held responsible to\n enter relevant details in the register and also to enter\n utilisation details in the TDR. When TDR Certificate is\n sold/utilised totally, the same shall be surrendered by\n the owners and the custodian shall take possession of\n the Certificate and make necessary entries in the\n register. As per Government Orders, TDR award is to\n be arrived on the basis of relevant land value at both\n export and import areas as per prevailing registration\n value.(iv) TDR can either be sold or can be utilised by the same\n owner depending on convenience.(v) TDR can be allowed to be utilised for construction of\n one additional floor over the normal permissible floors\n without insisting additional setbacks subject to\n compliance of other norms.(vi) Every TDR sold or disposed shall be accompanied by a\n prescribed agreement on Rs.100/- non-judiciary stamp\n paper between the person disposing the TDR and the\n person who intend to utilise the TDR. Draft agreement\n as per Annexure-XI."The proposition of law put forth by the petitioner is no doubt true,\n\nbut, depending upon the facts of the case, the same has to be applied.\n\nThe settled proposition of law is that once the developer or the\n\ncontractor or the owner of an apartment building sells the flats to third\n\npersons, he cannot alter or change or add any further floors or portions\n\nwithout the permission or No Objection Certificate from the other\n\nowners of the flats in that building. However, in the instant case, the\n\npetitioner was well aware at the time of execution of the sale deed itself\n\nthat the developer/owner was intending to construct fifth floor and that\n\nthe petitioner has also given "No Objection cum Declaration" to that\n\neffect. The petitioner, for the reasons best known to her, has come up\n\nwith the present writ petition seeking to cancel the permission granted\n\nto respondent No.5 for construction of fifth floor.7Even though the learned counsel for the petitioner has argued\n\nthat his client had to sign the said document at the last moment and\n\ntherefore she did not have time to read the document before registration\n\nof the document, the above contention cannot be countenanced, and\n\nhas to be brushed aside as it is a settled proposition of law that once\n\nthe executant of a document has appended his/her signature on the\n\ndocument, he/she cannot wriggle out of the contents therein on the\n\npretext that he/she has not read the documents before signing on the\n\nsame. The petitioner is bound by the contents of the document. The\n\nonly remedy available to the petitioner is to approach the Civil Court\n\nseeking a declaration that the said clause is not binding on her.Another important point is that the schedule of the property of\n\nflat sold to the petitioner, appended to the registered sale deed, shows\n\nthat the undivided share of land in the premises which has fallen to the\n\nshare of the petitioner is 73.4 Sq. Yards which translates to 1/5th only,\n\nwhich clearly implies that the building will have five floors. Moreover, it\n\nis to be noted that except the petitioner, none of the other flat owners\n\napproached this High Court, which clearly shows that they have also\n\ngiven their consent for construction of fifth floor. Once all the flat\n\nowners including the petitioner have given their consent for\n\nconstruction of fifth floor, the respondent Corporation has granted the\n\npermission vide the impugned permission dated 25.06.2020, it cannot\n\nbe said that the permission so granted is without any basis and\n\ncontrary toSection 9of the Act and the Scheme of TDR issued in\n\nG.O.Ms.No.168 dated 07.04.2012.This Court does not find any merit in the present writ petition for\n\nthe afore-mentioned facts and circumstances and the same is dismissed\n\naccordingly.8The miscellaneous petitions pending, if any, shall stand closed.\n\nThere shall be no order as to costs._________________________\n A.ABHISHEK REDDY, J\nDate: 23.12.2020.Note : Issue C.C. in two days.B/o\n va |
835f7f76-7e78-54d2-8ab3-3466e25b4e54 | court_cases | Manipur High CourtChabungbam Rajmani Singh vs Smt. Thokchom (O) Jeclean Devi on 11 September, 2023Author:Ahanthem Bimol SinghBench:Ahanthem Bimol SinghSHOUGRA Digitally signed by\nKPAM\n SHOUGRAKPAM IN. 33\n DEVANANDA\nDEVANAN SINGH\n Date: 2023.09.11\nDA SINGH 14:05:03 +05'30'\n IN THE HIGH COURT OF MANIPUR\n AT IMPHAL\n CRP(CRPArt. 227) No. 1 of 2023\n Chabungbam Rajmani Singh ... Petitioner\n Vs.\n Smt. Thokchom (O) Jeclean Devi ... RespondentB E F O R E\n HON'BLE MR. JUSTICE AHANTHEM BIMOL SINGH\n\n 11-09-2023\n Mr. Dayali Elangbam, learned counsel appearing for the\n petitioner prays for granting two weeks' time for filing rejoinder affidavit.Mr. N. Vijay Kumar, learned counsel appearing for the\n respondent has no objection.As prayed for, list this case again on 09-10-2023.\n Earlier interim order shall continue till the next date.JUDGE\n Devananda |
a6b55d31-3774-5013-bd5a-c7a45677109e | court_cases | Central Administrative Tribunal - DelhiSh Mahabir Singh vs M/O Communications on 6 January, 20201 OA No.97/2015\n\n\n Central Administrative Tribunal\n Principal Bench\n\n OA No. 97/2015\n\n\n Order reserved on : 17.12.2019\n Order pronounced on: 06.01.2020\n\nHon'ble Mrs. Justice Vijay Lakshmi, Member (J)\nHon'ble Mr. Pradeep Kumar, Member (A)\n\n\nSh. Mahabir Singh, Retired as Ex Head Clerk,\nS/o Sh. Fateh Singh\nAged about 74 years,\nR/o H.No.108, Village Tiggipur,\nP.O. Bakhtawar Pur,\nDelhi-110036.\n ... Applicant\n\n(By Advocate: Sh. T.D.Yadav)\n\n VERSUS\n\n1. Union of India through\n Director General,\n Govt. of India,\n Ministry of Communication,\n Deptt. of Posts, New Delhi.\n\n2. Chief Engineer (Civil),\n Deptt. of Posts,\n Dak Bhawan,\n New Delhi.\n\n3. Chief Post Master General,\n Delhi Postal Circle,\n New Delhi.\n\n4. Executive Engineer,\n Postal Civil Division,\n Jhandewalan, New Delhi-1.\n ... Respondents\n\n(By Advocate: Sh. R.K.Sharma)\n 2 OA No.97/2015\n\n\n ORDERBy Hon'ble Mr. Pradeep Kumar, Member (A)\n\n\n Applicant herein is a senior citizen. He was appointed\n\nas a Peon in the scale of R.70-85 on 18.01.1965. He was\n\npromoted as LDC in the pay scale of Rs.110-180 on\n\n06.10.1966 and as UDC in the pay scale of Rs.330-560 on\n\n25.07.1977. Thereafter he was promoted as Head Clerk in\n\nthe pay scale of Rs.1400-2300 on 01.09.1997 and\n\nsuperannuated on 31.03.1998 on attaining 58 years of age.Options were called from non-Gazetted staff recruited\n\nupto 01.10.1986 for placement in Telecom wing. However, he\n\nhad given option for continuation in Department of Post (Civil\n\nWing) and this was allowed w.e.f. 01.04.1993 vide OM dated\n\n22.11.1994.2. Department of Post vide letter dated 22.07.1993 decided\n\nto extend the TBOP/BCR Scheme to clerical staff of\n\nadministrative offices w.e.f. 26.06.1993. TBOP involves one\n\nfinancial upgradation in the pay scale of next higher post in\n\ndepartmental hierarchy if someone is not promoted for 16\n\nyears and BCR involves second financial upgradation if\n\nsomeone is not promoted for 26 years.He requested for grant of Time Bound One Promotion\n\n(TBOP) and for grant of Biennial Cadre Review (BCR). This\n\nwas not agreed to. He along with 11 others filed OA3 OA No.97/2015No.886/HR/1998 at Chandigarh which was allowed vide\n\norder dated 06.02.2002. The Chandigarh Bench of this\n\nTribunal passed following directions:"6. In the facts and circumstances of the case and if one\n has regard to the reasons stated above, no logic is\n available with the respondents not to extend the benefit\n of TBOP and BCR Schemes to the applicants when it has\n been made (Circle Offices) in the Deptt. of Posts.\n Annexures A/1 and A/2 are liable to be quashed and set\n aside and as such we direct accordingly. Respondents\n are directed to consider cases of the applicants for their\n promotion to the next higher grade of Rs.1400-2300\n (unrevised) under TBOP Scheme and Rs.1600-2660\n (unrevised) under BCR, second promotion scheme on\n completion of 16 years and 26 years service respectively\n from the due dates from which other equally situated\n employees of Deptt. of Posts in the cadre of the applicants\n have been promoted with consequential benefits, if\n otherwise they are found eligible, in terms of the\n provisions contained in the related Schemes.\n Respondents are further directed to implement the above\n direction within a period of three months from service of\n these orders."3. Respondents preferred a writ in Hon‟ble High Court and\n\ndecided to implement the Tribunal‟s order, subject to outcome\n\nof Writ vide letter dated 29.07.2003. Accordingly,\n\nTBOP/BCR benefit, both were extended together w.e.f.\n\n26.06.1993 vide order dated 15.12.2003. Applicant pleads\n\nthat the said Writ is yet to be decided.4. Applicant represented on 27.08.2004 to grant BCR\n\nbenefit w.e.f. 01.07.1993 instead of 26.06.1993. This was\n\nagreed vide order dated 08.11.2004 and the earlier order\n\ndated 12.08.2004 was modified.4 OA No.97/2015Accordingly, basic pay was fixed at Rs.1700/- as of\n\n01.07.1993 in the scale of Rs.1600-50-2660. Applicant,\n\nhowever, pleads that it ought to have been fixed at Rs.1800/-\n\nas of 26.06.1993 as was given to one Sh. Lal Chand, Ex Head\n\nClerk vide order dated 16.05.2006. As per this order, Sh. Lal\n\nChand was given following fixation as of 26.06.1993:As LDC/UDC in pay scale of\n Rs.1200-2040 Rs.1640/-Placement as Postal Assistant in pay scale\n of Rs.975-1660 Rs.1660/-TBOP benefit given in pay scale of\n Rs.1400-2300 Rs.1720/-BCR benefit given in pay scale of\n Rs.1600-2660 Rs.1800/-This fixation order also specified as under:"The above fixation is subject to the final decision of the\n Hon‟ble Punjab & Haryana High Court Chandigarh. In the\n ongoing appeal filed in CW/8767/CAT/2002 against the\n impugned orders dated 06.02.2002 of the Hon‟ble CAT\n Chandigarh Bench, Chandigarh."5. Applicant has been pleading for grant of benefits at par\n\nwith Sh. Lal Chand, vide his representation dated\n\n14.02.2006, 22.08.2007, 28.08.2007, 27.08.2009,\n\n14.09.2011, 26.09.2011, 22.10.2011 & 22.01.2014. This\n\nhas not been agreed so far. Hence the applicant filed this\n\nOA.5 OA No.97/20156. Applicant brings out that Department of Post has\n\nissued OM on 28.01.2011 in relation to 5thCPCand 6thCPCrecommendations. The impact of this letter is summarized\n\nas under:Designation Head Clerk OS-II OS-I OS\n\n4thCPCw.e.f. 1400-2300 1400-2600 1600-2660 1640-2900\n01.01.19865thCPCw.e.f. These two scales are These two scales are\n01.01.1996 merged and post is merged and post is\n designated as Assistant in designated as OS in scale\n scale of Rs.1600-2660 of Rs.1640-2900\n New scale as per 5thCPCNew scale as per 5thCPCwas Rs.5000-8000 was Rs.5500-9000\n6CPCw.e.f. These two scales are merged and revised pay scale given\n th\n\n01.01.2006 PB-2 + GP Rs.4200/- or (Rs.9300-34800 + GP\n Rs.4200)7. Respondents opposed the OA on the following grounds:(i) He has not exhausted departmental remedies and as\n\nsuch OA is violative ofSection 20of CAT (Procedure) Rules.(ii) OA is not maintainable as it is self contradictory.(iii) OA is barred by limitation as applicant is seeking benefit\n\nfrom 2006 whereas he filed the OA in 2015. Following was\n\nspecifically averred in counter reply:"3. ...... As per the Hon‟ble Supreme Court in the case\n ofD.C.S.Negi vs. U.O.I.& ors., [SLP (Civil)\n No.7956/2011 decided on 07.03.2011] has given a\n categorical direction tht the Central Administrative\n Tribunal is duty bound to consider the limitation issue as\n per the provisions ofAdministrative Tribunals Act, even if\n this issue is not raised by the respondent authorities.\n The explanation offered by the applicant is that he belongs\n to Rajasthan State and came to know about benefits given\n to persons similarly situated in the judgment dated\n 16.11.2010 in OA-3765/2009 later in point of time. Only6 OA No.97/2015thereafter he could approach a legal practitioner for legal\n help and on his advice he had sent a legal notice on\n 22.09.2011 which is not yet responded to. It is seen that\n there is no valid ground to condone the delay.In the case\n of BSNL vs. Ghanshyam Dass & Ors., AISLJ IV-2011(1)\n 472 it was held by the Apex Court that fence sitters cannot\n be given any benefit."8. It was further pleaded that in compliance to order dated\n\n06.02.2002 passed in OA No.886/1998 by Chandigarh\n\nBench of this Tribunal, TBOP/BCR benefit was granted w.e.f.\n\n26.06.1993 vide order dated 12.08.2004. This pay fixation\n\nwas revised vide order dated 08.11.2004 at the request of\n\napplicant to grant him TBOP/BCR benefit w.e.f. 01.07.1993.\n\nLater on, this was partially revised vide order dated\n\n12.10.2009. Pay fixation granted is correct.As per this fixation, applicant was drawing Rs.1600/- in\n\nthe scale of Rs.1200-2040 as of 26.06.1993. On grant of\n\nTBOP benefit to the scale of Rs.1400-2300, he was fixed at\n\nRs.1680 as of 26.06.1993 and on grant of BCR benefit to the\n\nscale of Rs.1600-2660, he was fixed at Rs.1750 w.e.f.\n\n26.06.1993. Subsequent pay fixations were accordingly\n\ndone. These are correct and nothing further is due.9. Matter has been heard. Sh. T.D.Yadav, learned counsel\n\nrepresented the applicant and Sh. R.K.Sharma, learned\n\ncounsel represented the respondents.10. (a) Applicant‟s grievance is in reference to pay fixation\n\ndone on grant of TBOP/BCR benefit where he claims that he7 OA No.97/2015needs to be at par with one Sh. Lal Chand, who also retired\n\nas Head Clerk. (Applicant mentioned that Sh. Lal Chand had\n\ntaken voluntary retirement in 2002).(b) Before grant of TBOP/BCR benefit, Sh. Lal Chand with\n\nwhom applicant is comparing himself, was fixed at Rs.1640 in\n\nthe scale of Rs.1200-2040 as of 26.06.1993. It is only\n\nnatural that when Sh. Lal Chand was given TBOP/BCR\n\nbenefits his fixation will be with respect to this basic pay of\n\nRs.1640.(c) As against this, applicant was drawing Rs.1600/- in the\n\npay scale of Rs.1200-2040 as of 26.06.1993, before grant of\n\nTBOP/BCR. Naturally his subsequent fixation under\n\nTBOP/BCR will be with respect to this basic pay and they\n\nmay not be same as that of Sh. Lal Chand.(d) Despite repeated queries as to how his case is similar to\n\nthat of Sh. Lal Chand, applicant who was present in person or\n\nhis counsel, both could not bring out anything except\n\ncontinuously pleading that applicant needs to be at par with\n\nSh. Lal Chand.(e) In absence of anything produced in support of his claim,\n\nit has to be concluded that claim of applicant is without\n\nmerit.8 OA No.97/201511. Accordingly, OA is dismissed being devoid of merit. No\n\ncosts.( Pradeep Kumar) ( Justice Vijay Lakshmi)\n Member (A) Member (J)\n\n„sd‟ |
2458220e-9090-5d44-bcb1-154b3935398d | court_cases | Manipur High CourtAssha Kasomwoshi vs State Of Manipur & 2 Ors on 12 August, 2021Author:Ahanthem Bimol SinghBench:Ahanthem Bimol SinghItem No. 44\n (through video conferencing)\n\n\n IN THE HIGH COURT OF MANIPUR\n AT IMPHAL\n\n WP(C) No. 318 of 2021\nAssha Kasomwoshi\n\n .... Petitioner/s\n - Versus -\nState of Manipur & 2 Ors.\n\n .... Respondent/sBEFORE\n HON'BLE MR. JUSTICE AHANTHEM BIMOL SINGH\n\n12.08.2021\n\n Heard Mr. Tungrei Ngakang, learned counsel appearing for the\n\npetitioner and Mr. P. Tamphamani, learned counsel appearing for all the\n\nrespondents.It has been submitted by the counsel appearing for the\n\nrespondents that counter affidavit on behalf of respondent No. 2 has already\n\nbeen filed and that the respondent No. 1 will rely on the counter affidavit filed\n\non behalf of the respondent No. 1 at the time of hearing on the present case.The learned counsel for the respondents further prayed that he\n\nmay be given 2 (two) weeks time for filing counter affidavit on behalf of the\n\nrespondent No. 3.Prayer is allowed.List this case again on 08.09.2021.JUDGE\n\n Sapana\n\n\n KABORAMBDigitally signed by KABORAMBAM SAPANACHANUDN: c=IN, o=High court of manipur, ou=HIGHCOURT OF MANIPUR,AM SAPANA\n pseudonym=fac69f56cfb99637988d4ed4d2833\n 5819d52f60cbfb17e1e086c00bb91513a07,\n postalCode=795002, st=MANIPUR,\n serialNumber=0328258e1d925a01c24115d784\n\n\n CHANU d05b91f8b833880e581a92f723fa8ae8ec1012,\n cn=KABORAMBAM SAPANA CHANU\n Date: 2021.08.12 15:59:38 +05'30' |
eafc2c5e-bf41-558c-aeec-e0236f0a87c7 | court_cases | Telangana High CourtMohammed Shoukat Ali vs The State Of Telangana on 30 November, 2021Author:Satish Chandra SharmaBench:Satish Chandra Sharma,A.Rajasheker ReddyTHE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA\n AND\n THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY\n\n WP.Nos. 19928, 20022, 21277, 21314, 21344, 21352, 21362, 21523, 21545,\n 21547, 21555, 21569, 21831, 21886, 21899, 21914, 21939, 22297, 22310,\n 22322, 22325, 22330, 22333, 22349, 22369, 22376, 22388, 22390, 22392,\n 22416. 22423, 22425, 22432, 22447, 22480, 22482, 22498, 22507, 22560,\n 22569, 22573, 22586, 22635, 22708, 22728, 22732, 22762, 22764, 22785,\n 22808, 22846, 22850, 22868, 22895, 22897, 22898, 22930, 22941, 22969,\n 22983, 23000, 23036, 23058, 23069, 23128, 23132, 23182, 23186, 23209,\n 23257, 23284, 23286, 23292, 23321, 23350, 23358, 23476, 23490, 23528,\n 23599, 23629, 23633, 23802, 24088, 24273, 24285, 24467, 24475, 24591,\n 24698, 24927, 24929, 25049, 25073, 25074, 25083, 25114, 25124, 25131,\n 25203, 25206, 25267, 25272, 25305, 25472, 25558, 25702, 25713, 25740,\n 25898, 25905, 25933, 25984, 26196, 26368, 26467, 26570, 26618, 26738,\n 26972, 27044, 27138, 27279, 27364, 27406, 27459, 28100 and 28704 of\n 2021\n\n\nCOMMON ORDER:(Per the Hon'ble the Chief Justice Satish Chandra Sharma)\n\n\n(1) Regard being had to the similitude in the controversy\n\ninvolved in the present cases, the writ petitions were\n\nanalogously heard and by a common order, they are being\n\ndisposed of by this Court.(2) Facts of the Writ Petition No.19928 of 2021 are\n\nnarrated hereunder.The petitioner before this Court, which is a\n\nproprietorship firm engaged in the business of wholesale\n\ndistribution and retailing of chewing/chewable tobacco\n\nproducts and cigarettes, has filed this present writ\n\npetition being aggrieved by the Notification No.505/FSS-\n\n1/2021, dated 06.01.2021 issued by the respondent\n\nNo.3/Commissioner of Food Safety, Telangana in exercise\n\nof powers conferred underSection 30of the Food Safety\n\nand Standards Act, 2006 (hereinafter called 'FSS Act22006'). The petitioner has challenged the impugned\n\nNotification on the ground that it is illegal, arbitrary,\n\nunconstitutional, ultra vires theCigarettes and Other\n\nTobacco Products (Prohibition of Advertisement and\n\nRegulation of Trade and Commerce, Production, Supply\n\nand Distribution) Act, 2003(hereinafter called, 'COTPA\n\n2003') and is in violation of principles of natural justice\n\nand is also in violation ofArticles 14and19(1)(g)of the\n\nConstitution of India.(3) The learned counsel for the petitioner stated before\n\nthis Court that the petitioner's business is broadly\n\nconcerned with pure tobacco and scented tobacco, which\n\nare marketed under the brand names Phoolchap (pure\n\ntobacco) and VI Tobacco (scented tobacco).\n\n\n(4) In the other connected matters, the petitioners are\n\ncarrying on the business either of wholesale distribution\n\nor sale of pan masala mixed with tobacco and other allied\n\nproducts. The petitioners' contention is that the COTPA\n\n2003 is a central legislation dealing exclusively with\n\ntobacco industry, traceable to Entry 52, List I of the\n\nSeventh Schedule of the Constitution of India and it\n\nprovides a comprehensive legislation which governs the\n\nlaw on tobacco products and is occupying the field. It has3been stated that the COTPA 2003 deals with tobacco\n\nproducts and therefore, the products mentioned in the\n\nimpugned Notification issued underFSS Act2006 are\n\ncovered in the list of products specified in the Schedule of\n\nCOTPA 2003.(5) The petitioners further contended that the legislative\n\npolicy in respect of tobacco products as evident from the\n\nprovisions of COTPA 2003 is not to impose a complete ban\n\non tobacco products and it certainly regulates and\n\nimposes restrictions on the trade and business with\n\nrespect to advertising the products, smoking in public\n\nplaces and pictorial warnings on the ill-effects of\n\nconsuming tobacco on packaging material of those\n\nproducts etc. It has been further contended that the\n\nlegislative policy is to permit trade and business in\n\ntobacco products subject to reasonable restrictions. It has\n\nbeen further contended that the country's taxing statutes\n\nalso permit trade and business in tobacco products and\n\ntax is levied under theCentral Goods and Services Tax\n\nAct, 2017. Meaning thereby, the statute does not prohibit\n\ntrade and business in tobacco products at all.\n\n\n(6) The petitioners further contended that theFSS Act2006 is an Act that regulates food standards and the4production, distribution and consumption of food. It is a\n\ngeneral law that covers all aspects pertaining to food\n\nsafety, traceable to Entry 18 ofList III of the Seventh\n\nSchedule of the Constitution of India and the FSS Act2006 does not define 'tobacco products' nor it provides\n\nany power for prohibition in the trade and business of\n\nsuch products. It has been further contended that COTPA\n\n2003 being a special law pertaining to subject matter of\n\n'tobacco products' and 'tobacco industry' that overrides\n\ntheFSS Act2006 which is a general law pertaining to\n\n'food products and food safety' and therefore, the\n\nprovisions of theFSS Act2006 cannot impinge or\n\nencroach upon any subject matter, that is exclusively\n\ngoverned by the COTPA 2003.(7) The petitioners further contended that the\n\nRegulations made under theFSS Act2006 cannot travel\n\nbeyond the field covered by theFSS Act2006 and they\n\ncannot encroach upon the areas covered by the COTPA\n\n2003. It has been further contended that in exercise of\n\npowers conferred underSection 92of the FSS Act 2006,\n\nthe Food Safety and Standards Authority of India has\n\nissued Regulations titled 'the Food Safety and Standards\n\n(Prohibition and Restrictions on Sales) Regulations, 2011\n\n(hereinafter called, 'Food Safety Regulations, 2011'). The5Regulation 2.3.4 of the said Regulations provides that\n\ntobacco and nicotine shall not be used as ingredients in\n\nany food stuffs and that the tobacco per se is not treated\n\nas food and therefore, theFSS Act2006 nor the Food\n\nSafety Regulations, 2011 framed thereunder empowers\n\nthe Authorities to impose a ban in respect of trade and\n\nbusiness of tobacco.(8) The petitioners further contended that the impugned\n\nNotification is ultra vires theFSS Act2006 and is also\n\ncontrary to COTPA 2003. It has been further contended\n\nthat under the Food Safety and Standards (Food Products\n\nStandards and Food Additives) Regulations, 2011, 'pan\n\nmasala' is defined underRegulation 2.11.5 as 'the food\n\ngenerally taken as such or in conjunction with pan'. It\n\nlists out the substances that pan masala should be free\n\nfrom. The treatment of pure pan masala as food under the\n\nRegulations only implies that except to the extent\n\nspecifically covered under the special law COTPA 2003,\n\nthe provisions of theFSS Act2006 and Rules/Regulations\n\nmade thereunder govern pan masala. Insofar as the pan\n\nmasala in combination with tobacco finds place in the\n\nSchedule of COTPA 2003 and the said product is outside\n\nthe reach of the provisions of theFSS Act2006. It has\n\nbeen further contended that the tobacco products6mentioned in the impugned Notification are exclusively\n\nregulated by the COTPA 2003, they are not all covered by\n\ntheFSS Act2006 and therefore, the impugned Notification\n\nis ultra vires theFSS Act2006 and the COTPA 2003.\n\n\n(9) The petitioners further contended that the\n\nrespondent No.3/Commissioner of Food Safety, Telangana\n\nis jurisdictionally incompetent to issue any such\n\nNotification in exercise of powers conferred underSection\n\n30(2)of the FSS Act 2006 as the products mentioned in\n\nthe Notification are not covered by theFSS Act2006 and\n\nthey are covered under the Schedule appended to the\n\nCOTPA 2003. It has been further contended that the\n\nimpugned Notification deprives the petitioners and other\n\nconnected persons of their valuable rights guaranteed\n\nunderArticle 19(1)(g)of the Constitution of India.\n\n\n(10) The petitioners further contended that earlier also,\n\nsuch Notifications were issued by the State Government\n\nand this Court has quashed the criminal proceedings by\n\npassing a detailed Judgment in Criminal Petition No.3731\n\nof 2018 and batch, vide Judgment dated 27.08.2018 and\n\ntherefore, no criminal proceedings can be initiated against\n\nthe petitioners and against other persons who are involved\n\nin the trade of pan masala/tobacco. Reference has also7been made to other Judgments delivered by the High\n\nCourt of Andhra Pradesh in Criminal Petition No.5421 of\n\n2019 and batch decided on 18.12.2019. The petitioners\n\nstated that apprehending criminal action on the basis of\n\nthe Notification which is void ab initio, the petitioners\n\napproached this Court by filing a writ petition underArticle 226of the Constitution of India seeking protection\n\nof the fundamental rights guaranteed underArticles 14,\n\n19(1)(g)and21of the Constitution of India. It has been\n\nfurther contended that in earlier years, similar\n\nNotifications were issued by the State Government and\n\nthe interim orders have been granted in all matters.\n\nHowever, as the validity of the Notifications was only for a\n\nperiod of one year, the Notifications expired by afflux of\n\ntime.(11) The petitioners have raised various grounds before\n\nthis Court for setting aside the impugned Notification.\n\n\n(12) It has been contended by the learned counsel for the\n\npetitioners that the COTPA 2003 is a comprehensive code\n\nand a special law dealing with all aspects of the tobacco\n\nproducts and tobacco industry, whereas theFSS Act2006\n\ndeals with the broad area of food safety and standards.The FSS Act2006 even though enacted subsequent to the8COTPA 2003 does not either expressly or impliedly seek to\n\noverride the COTPA 2003. Therefore, the application of the\n\nwell settled principle that special law prevails over general\n\nlaw, even if the general law is subsequent, the COTPA\n\n2003 will prevail over theFSS Act2006 when it comes to\n\nregulation of tobacco products. Thus, the power conferred\n\nunderSection 30(2)of the FSS Act 2006 does not extend\n\nto prohibit the tobacco products, which is the sole\n\nprerogative of the COTPA 2003.(13) It has been further contended that the Rules,\n\nRegulations and Notifications should not only conform to\n\nthe parent statute but also shall not be contrary to any\n\nother statute since subordinate legislation cannot violate a\n\nplenary legislation. The impugned Notification in banning\n\ntrade or business in tobacco products, imposes a\n\nprohibition which is beyond the limited extent of\n\nprohibition imposed underSection 6of the COTPA 2003\n\n(i.e., sale to persons under 18 years of age and in an area\n\nwithin 100 yards of an educational institution).\n\n\n(14) It has been further contended that if any prohibition\n\non the trade or business of tobacco products is to be\n\nimposed in addition to what is covered underSection 6of\n\nthe COTPA 2003, the same can be done only by an9amendment to the COTPA 2003. However, by issuing the\n\nimpugned Notification, the respondent No.3/the\n\nCommissioner of Food Safety has added a new head of\n\nprohibition which is otherwise absent in the COTPA 2003,\n\nwhich has been done under the garb of exercising power\n\nunderSection 30of the FSS Act 2006. It is nothing but\n\ndoing an act indirectly which is not permissible directly\n\nandRegulation 2.3.4 of the Food Safety Regulations, 2011\n\ndoes not empower the respondent No.3/Commissioner of\n\nFood Safety to ban the products covered under the COTPA\n\n2003. It has been further contended that theFSS Act2006 cannot encroach upon the field covered by the\n\nCOTPA 2003 and therefore, the Regulations made under\n\ntheFSS Act2006 cannot do the same, hence the\n\nprohibition underRegulation 2.3.4 can extend to any food\n\nwhich is consumed, except the products specifically\n\ncovered under the COTPA 2003. It has been further\n\nargued that the exercise of power underSection 30of the\n\nFSS Act 2006 and theRegulation 2.3.4 of the Food Safety\n\nRegulations, 2011 amounts to colourable exercise of\n\npower, which is impermissible. It has been further\n\ncontended thatRegulation 2.3.4 of the Food Safety\n\nRegulations, 2011 does not cover chewing tobacco. The\n\nsaid Regulation makes a dichotomy between 'tobacco' on10one hand and 'food products' on the other hand, which\n\nimplies that chewing/chewable tobacco products were\n\nnever intended to be covered under the Food Safety\n\nRegulations, 2011. Thus, by no stretch of imagination, the\n\nimpugned Notification covers chewing/chewable tobacco\n\nproducts. The issuance of the impugned Notification is a\n\ncomplete non-application of mind and the same violates\n\ntheArticle 14of the Constitution of India.\n\n\n(15) The petitioners further contended that since the\n\nimpugned Notification is ultra vires theFSS Act2006 and\n\nthe COTPA 2003, the restriction imposed on the\n\npetitioners' rights to carry on trade and business in\n\nchewing/chewable tobacco products has no legal basis.\n\nMeaning thereby, the prohibition imposed is without\n\nbacking of law as mandated underArticle 19(6)of the\n\nConstitution of India. Thus, the prohibition imposed by\n\nvirtue of the impugned Notification is in violation of the\n\npetitioners' fundamental right to carry out trade and\n\nbusiness underArticle 19(1)(g)of the Constitution of\n\nIndia. The petitioners further contended thatSection 6of\n\nthe COTPA 2003 imposes a complete ban in respect of\n\nextremely vulnerable or important subjects (i.e., to protect\n\nindividuals under the age of 18 years and students and\n\nprotect individuals from the harm of passive smoking), it11imposes less onerous restrictions on the rest of the\n\nsubjects limited to the manner in which tobacco products\n\nare advertised. The very fact that the respondent\n\nNo.5/Union of India enacted the COTPA 2003 where\n\nprohibition is not imposed but restrictions are imposed on\n\nvarious facets of the trade in tobacco implies that there\n\nare less intrusive measures than complete prohibition.\n\nUnmindful of this well thought out legislative scheme and\n\nintent, the respondent No.3/the Commissioner of Food\n\nSafety has imposed a wholesale ban on trade/business in\n\ntobacco products. This does not stand the test of\n\nproportionality and as such, it is not a reasonable\n\nrestriction within the meaning ofArticle 19(6)of the\n\nConstitution of India.(16) The petitioners further contended that by virtue of\n\nthe impugned Notification, the petitioners and other\n\nconnected persons face an imminent threat of criminal\n\nproceedings being initiated by the Authorities concerned\n\nand are being arrested as is obvious from the various\n\ncases foisted in the earlier years against them and other\n\npersons under the garb of implementation of similar\n\nNotifications. Even the entities and persons to whom the\n\npetitioners supply its products also face a threat. This is a\n\ndirect infringement on the right to liberty guaranteed12underArticle 21of the Constitution of India. The\n\npetitioners further contended that a complete ban on\n\ntrade and business adversely affects the livelihood of the\n\npetitioners and other connected persons.\n\n\n(17) The petitioners further contended that the impugned\n\nNotification was issued without asking for the views of the\n\npersons engaged in the trade or business of the tobacco\n\nproducts and it is mandatory to grant opportunity of\n\nhearing to the affected stakeholders before passing an\n\nadministrative order. Therefore, the issuance of the\n\nimpugned Notification violates the principles of natural\n\njustice. The petitioners further contended thatSection 31of the FSS Act 2006 mandates every food business\n\noperator to obtain a license, such a requirement is not\n\nmade applicable for the persons carrying on business in\n\nthe products covered under the COTPA 2003. In fact, the\n\nsame was clarified by the respondent No.6/Food Safety\n\nand Standard Authority of India by its letter dated\n\n10.10.2012 to a query raised by a person engaged in the\n\ntrade of such products in Delhi. Similar clarification has\n\nalso been issued by the Food Safety Authority of\n\nUttarakhand. The petitioners further contended that while\n\nthe Food Safety Regulations, 2011 provide safety\n\nstandards with respect to every type of food extending13even to pan masala, they are absolutely silent in respect of\n\nchewing/chewable tobacco products in which the\n\npetitioners are engaged in. No standards for labelling or\n\npackaging chewing tobacco products are set out. Thus, it\n\nis crystal clear that those products were never\n\ncontemplated within the meaning of 'food' under theFSS\n\nAct2006. Thus, the Regulation making Authority under\n\ntheFSS Act2006 itself does not treat the above products\n\nas falling within the meaning of 'food'.(18) The petitioners further contended that interpretingSection 30(2)(a)of the FSS Act 2006, the power to issue a\n\nNotification such as the impugned Notification would lead\n\nto a paradoxical situation where the respondent No.3/the\n\nCommissioner of Food Safety can issue a Notification in\n\none area of the State and not in another, with respect to\n\ntobacco products, which is otherwise permitted. Similarly,\n\nthe Commissioner of Food Safety of one State may issue a\n\nNotification banning tobacco products while that of\n\nanother State may not and this situation exists in case of\n\nchewing/chewable tobacco products. The State of\n\nTelangana has issued the impugned Notification extending\n\nthe ban to chewing tobacco and pure tobacco products,\n\nwhereas the State of Karnataka and several other States\n\nhave not issued similar Notifications. The petitioners14further contended that the non-obstante clause underSection 89of the FSS Act 2006 does not enable the\n\nauthorities under the said statute to override the\n\nprovisions of the COTPA 2003, since it is settled law that\n\neven a non-obstante clause in a subsequent general law\n\ncannot override a prior special law. The petitioners further\n\ncontended that the prohibition that can be imposed underSection 30(2)(a)of the FSS Act 2006 can be for a\n\nmaximum period of one year. This itself reflects that the\n\npower therein was given to be exercised under some\n\nemergent extraordinary circumstances and not in a\n\nroutine manner. However, the respondent No.3/the\n\nCommissioner of Food Safety, Telangana by repeatedly\n\nissuing those Notifications year after year and ensuring\n\nthat a product is banned in perpetually, is nothing but\n\nabusing the power conferred on it and it also amounts to\n\ncolourable exercise of power.(19) The petitioners have further contended that various\n\nwrit petitions have been decided by different High Courts\n\nand the matter is pending before the Hon'ble Supreme\n\nCourt and as the Hon'ble Supreme Court is seized of the\n\nissue, the present petitions be decided after Judgment is\n\ndelivered by the Hon'ble Supreme Court. However, the fact\n\nremains that in respect of the impugned Notification, no15writ petition is pending before the Hon'ble Supreme Court\n\nand no order has been brought to the notice of this Court\n\nrestraining this Court to decide the issue. On the\n\ncontrary, there is an order passed by the Hon'ble Supreme\n\nCourt in S.L.P.Nos.4879 and 5743 of 2021, dated\n\n11.05.2021, directing this Court to decide the matters at\n\nan early date.(20) The learned counsel for the petitioners have placed\n\nreliance upon the following Judgments in respect of the\n\ncontentions canvassed on behalf of the petitioners in the\n\npresent petition as well as other connected matters.Ch.Tika Ramji v. State of U.P.1,State of Madras v. Gannon\n\nDunkerley2,Calcutta Gas Company Limited v. State of West\n\nBengal3,Ramavatar Budhaiprasad v. Assistant Sales Tax\n\nOfficer,Akola4, Kannan Devan Hills Produce Company Limited\n\nv. State of Kerala5,Shah Ashu Jaiwant v. State of Maharashtra6,Ishwari Khetan Sugar Mills (Private) Limited v. State of U.P.7,D.C.Wadhwa v. State of Bihar8, Collector of Central Excise,\n\nBombay-I v. M/s.Parle Exports9, India Cement Limited v. State\n\nof Tamil Nadu10,Synthetics & Chemicals Limited v. Stateof11956 SCR 39321959 SCR 37931962 Supp (3) SCR 14(1962) 1 SCR 2795(1972) 2 SCC 2186(1976) 2 SCC 997(1980) 4 SCC 1368(1987) 1 SCC 3789(1989) 1 SCC 34510(1990) 1 SCC 1216U.P.11, State of Andhra Pradesh v. McDowell & Co.,12,SIEL\n\nLimited v. Union of India13,ITC Limited v. Agricultural Produce\n\nMarket Committee14,S.Samuel, M.D., Harrisons Malayalam v.\n\nUnion of India15, Gulati & Co., v. Commissioner of Sales Tax16,\n\nandDharampal Satyapal Limited v. State of Assam17.\n\n\n(21) The respondent No.3/Commissioner of Food Safety,\n\nTelangana has filed a detailed counter affidavit and it has\n\nbeen stated that the petitioners are engaged in the\n\nwholesale business of the products like chewing tobacco.\n\nThe products contain pure tobacco, flavoured tobacco and\n\nscented tobacco. It has been stated that the chewing\n\ntobacco products flavoured with some spices such as\n\ncardamom, menthol, clove etc., includes scented tobacco.\n\nThis also includes edible perfumes and therefore, as per\n\ntheFSS Act2006, the spices and other edible perfumes\n\nadded to the chewing tobacco comes under the definition\n\nof 'food'. It has been stated that the law of the land is very\n\nclear and theFSS Act2006 read with Regulations framed\n\nthereunder provides that no food product shall contain\n\ntobacco and nicotine as ingredient. The stand of the\n\nrespondent No.3 is that the petitioner while obtaining GST11(1990) 1 SCC 10912(1996) 3 SCC 70913(1998) 7 SCC 2614(2002) 9 SCC 23215(2004) 1 SCC 25616(2014) 14 SCC 28617(2018) 2 Gauhati Law Reports 16817number and GST certificate has stated that he is doing\n\nbusiness to sell unmanufactured tobacco, refuse tobacco,\n\nnot stem or strippe, flue cured Virginia tobacco, but the\n\npetitioner is selling chewing tobacco products flavoured\n\nwith some spices, such as cardamom, menthol, clove etc.,\n\nscented tobacco comprising edible perfumes. In the other\n\nwrit petitions, the petitioners are dealing with gutka or\n\npan masala, which certainly contain tobacco.(22) It has been further stated that the Hon'ble Supreme\n\nCourt in the case of Ankur Gutka v. Indian Asthma Care\n\nSociety (SLP No.16308 of 2007, vide order dated\n\n07.12.2010) has directed the learned Solicitor General of\n\nIndia to instruct concerned Ministries to approach\n\nNational Institute of Public Health to undertake a\n\ncomprehensive analysis and study of contents of gutka,\n\ntobacco, pan masala and similar articles manufactured in\n\nthe country and harmful affects on human health. The\n\nMinistry of Health and Family Welfare, in the light of the\n\ndirections issued by the Hon'ble Supreme Court, in\n\nconsultation with the National Institute of Health and\n\nFamily Welfare (NIHFW) constituted a Committee of\n\nTechnical Experts and submitted a Report on the contents\n\nof gutka, tobacco, pan masala and other similar articles\n\nmanufactured in the country as well as in respect of18Areca-Nut or Betel Quid or Supari. The Report includes\n\nthe harmful affect on human body. As per the Report\n\nsubmitted by NIHFW, the term 'smokeless tobacco'\n\nincludes large variety of commercially or non-\n\ncommercially available products and mixtures that\n\ncontain tobacco as the principal constituent and are used\n\neither orally (through the mouth) or nasally (through the\n\nnose) without combustion. As per the Report, three forms\n\nof smokeless tobacco, which are commonly used in India\n\nare as under:-(1) Tobacco alone (with aroma and flavourings) - e.g.\n Creamy or dry snuff, Gudakhu, Gul, Mishri, Red\n tooth power.(2) Betel quid with tobacco (includes areca nut, slaked\n lime, catechu and tobacco with spices) - e.g. Gutkha.(3) Tobacco with other components (lime, sodium\n bicarbonate, ash) - e.g. Khaini, Zarda, Maras,\n Naswar.(23) The respondent No.3 has further stated that as per\n\nthe NIHFW Health Report, there are as many as 3095\n\nchemical components in smokeless tobacco products and\n\nout of them, 28 are proven carcinogen. The major and\n\nmost abundant group of carcinogens is the tobacco -specific N-nitrosamines (TSNA) and no safe level of this\n\nchemical has been ascribed so far. The other carcinogens\n\nreportedly present in smokeless tobacco include volatile\n\nN-nitrosamines, certain volatile aldehydes, poly-nuclear19aromatic hydrocarbons, certain lactones, urethane, metals\n\nand radioactive polonium. The Report also reveals that\n\nhigh level of Nitrosamines is present in the branded\n\nIndian smokeless tobacco products. The Laboratory\n\nReports also establish that the smokeless tobacco\n\navailable in India contains substantive quantities of two\n\npotent carcinogens (nitrosamines and benzo-a-pyrene)\n\nand heavy metals. The presence of high levels of heavy\n\nmetals (Lead, Cadmium, Chromium, Arsenic and Nickel)\n\nis also reported. The Report establishes that the tobacco\n\nand other tobacco related products cause oral,\n\nesophageal, stomach, pancreatic, throat and renal\n\ncancers. It also causes periodontal diseases, hypertension\n\nand cardiovascular diseases, nervous system diseases,\n\nmetabolic abnormalities. It also affects reproductive\n\norgans in men and women and is also responsible for pre-\n\nterm and low birth babies. The Expert Committee in its\n\nReport dated 23.09.1997 recommended prohibition of\n\nconsumption of pan masala/gutka/chewing tobacco as\n\nthe ingredient in any food items as they are injurious to\n\npublic health and the Central Committee of Food\n\nStandards in its Meeting dated 26th and 27th of November,\n\n1997 unanimously resolved to ban use of chewing tobacco\n\nin pan masala/gutka. It has been further stated that20Global Audit Tobacco Survey of India is the Global\n\nStandard for systematic monitoring of audit tobacco use\n\n(smoking and smokeless) in the country and the survey\n\nconducted in the year 2016-17 by the International\n\nInstitute for Population Sciences (IIPS), Mumbai reveals\n\nthat almost 27 crores of adults in India used tobacco in\n\nsome form or the other. Among them, 20 crores use only\n\nsmokeless tobacco products.(24) It has been brought to the notice of this Court that\n\ntobacco is a prominent risk factor for 6 to 8 leading\n\ncauses of death and almost 40% of the Non\n\nCommunicable Diseases (NCD) including cancers,\n\ncardiovascular diseases and lung disorders are directly\n\nattributable to tobacco use. The number of deaths every\n\nyear in India which is attributable to tobacco use is\n\nalmost 14 lakhs and 50% of cancers in males and 20%\n\ncancers in females can be directly attributed to tobacco\n\nuse (ICMR Study). According to the World Health\n\nOrganization (WHO) Global Report on "Tobacco\n\nAttributable Mortality, 2012", 7% of all deaths (for ages 30\n\nand over) in India are attributable to tobacco use. It has\n\nbeen further brought to the notice of this Court that a\n\nstudy titled "Economic Burden of Tobacco Related\n\nDiseases in India" (2014) commissioned by the Ministry of21Health and Family Welfare, the total economic costs\n\nattributable to tobacco use from all diseases in India in\n\nthe year 2011 for persons aged 35 to 69 years amounted\n\nto Rs.1,04,500/- crores. The estimated cost was 1.16% of\n\nthe GDP and was 12% more than the combined state and\n\ncentral government expenditures on health in 2011-12.\n\n\n(25) The respondent No.3 further stated that theFSS Act2006 is enacted with the objective to consolidate the laws\n\nrelating to food and for laying down standards for articles\n\nof food and to regulate their manufacture, storage,\n\ndistribution, sale and import, to ensure availability of safe\n\nand wholesome food for human consumption and for\n\nmatters connected therewith or incidental thereto. The\n\nrespondent No.3 has dealt with the salient provisions of\n\ntheFSS Act2006 and the definition of the word 'food' is\n\ndefined underSection 3(j)of the FSS Act 2006. It has been\n\nfurther stated that the Gutkas including tobacco and\n\ntobacco certainly fall within the definition of 'food' as it is\n\nintended for human consumption. It has been further\n\nstated that the Hon'ble Supreme Court in the case ofState\n\nof Tamil Nadu v. R.Krishnamurthy18has held that a product\n\nbe classified as 'food' in case it is used for human\n\nconsumption or in preparing human food.The respondent18(1980) 1 SCC 16722No.3 has further brought to the notice of this Court that\n\nthe Hon'ble Supreme Court in the case ofGodawat Pan\n\nMasala Products I.P., Limited v. Union of India19has held that\n\ngutka, pan masala and supari are food articles.Further,\n\nthe Allahabad High Court in the case of Manohar Lal v.\n\nState of U.P., (Criminal Revision No.318 of 1982) and in the\n\ncase ofKhedan Lal and Sons v. State of U.P.,20relying on the\n\ndecision of the Hon'ble Supreme Court in the case ofR.Krishnamurthy(supra), has held that 'chewing tobacco' is\n\nan article of food.(26) The respondent No.3 has further stated that the\n\nFood Safety Regulations, 2011 was notified on 01.08.2011\n\nin exercise of powers conferred underSection 92read withSection 26of the FSS Act 2006 andRegulation 2.3.4 of\n\nthe Food Safety Regulations, 2011 prohibit the use of\n\ntobacco and nicotine in all food products. It has been\n\nfurther stated that theFSS Act2006 also defines the word\n\n'ingredient' and 'food additive' and tobacco is certainly an\n\nadditive, which is commonly sold under various brand\n\nnames.(27) The respondent No.3 has brought to the notice of\n\nthis Court that the Hon'ble Supreme Court in19(2004) 7 SCC 68201980 CriLJ 134623S.L.P.No.16308 of 2007, vide order dated 03.04.2013\n\ndirected the Secretaries, Health Department of all\n\nStates/Union Territories to file affidavits of total\n\ncompliance of the ban imposed on manufacturing and\n\nsale of gutka and pan masala with tobacco and/or\n\nnicotine. It has been further stated that in the light of the\n\naforesaid order passed by the Hon'ble Supreme Court, all\n\nthe State Governments/Union Territories have issued\n\nnecessary orders/Notifications underRegulation 2.3.4 or\n\nunderSection 30of the FSS Act 2006 banning the sale of\n\ngutka and pan masala (containing tobacco or nicotine).\n\n\n(28) The respondent No.3 has further stated that in order\n\nto circumvent the ban on the sale of gutka, the\n\nmanufacturers are selling pan masala (without tobacco)\n\nwith flavoured chewing tobacco in separate sachets but\n\noften conjoint and sold together by the same vendors from\n\nthe same premises, so that consumers can buy the pan\n\nmasala and flavoured chewing tobacco and mix them both\n\nand consume the same. It has been further stated that\n\ninstead of earlier 'ready to consume mixes', chewing\n\ntobacco companies are selling gutka in twin packs to be\n\nmixed as one. Reference has also been drawn towards the\n\norder passed by the Hon'ble Supreme Court in the case of\n\nCentral Areca-nut Marketing Corporation v. Union of India24(Transfer Case Civil No.1 of 2010, dated 23.09.2016)\n\ndirecting the Authorities to ensure total ban and its\n\ncompliance on manufacturing and sale of gutka and pan\n\nmasala with tobacco and/or nicotine. The respondents\n\nhave further stated that in the light of the Order passed\n\nby the Hon'ble Supreme Court, the letter dated\n\n05.12.2016 was issued by the Ministry of Health\n\nrequesting all the State Governments/Union Territories to\n\npass necessary orders to ensure that the Order passed by\n\nthe Hon'ble Supreme Court has been complied with.\n\n\n(29) The respondent No.3 has further stated that the\n\nCOTPA 2003 is an Act enacted to discourage the use of\n\ntobacco with great emphasis on protection of children and\n\nyoung people from being addicted to the use of tobacco\n\nand prohibits smoking in public places, sale of tobacco\n\nproducts to minors and within 100 yards of any\n\neducational institution, direct and indirect advertisement,\n\npromotion and sponsorship of tobacco products and\n\nmandates display of pictorial health warnings on tobacco\n\nproduct packages. The respondent No.3 has further stated\n\nthat the petitioners' arguments on the subject that there\n\nis a conflict between the COTPA 2003 and theFSS Act2006 is misconstrued and they occupy different fields\n\naltogether.The respondent No.3 has placed reliance upon25the judgments of the Hon'ble Supreme Court inAjay\n\nKumar Banerjee v. Umed Singh21,Khoday Distilleries Limited v.\n\nState of Karnataka22,P.N.Krishnalal v. State of Kerala23,S.Prakash v. K.M.Kurian24,Allahabad Bank v. Canara Bank25,\n\nand Kerala Bar Hotels Association v. State of Kerala (Civil Appeal\n\nNo.4157 of 2015, dated 29.12.2015), Centre forPublic Interest\n\nLitigation v. Union of India (W.P. (C) No.681of 2004, dated\n\n22.10.2013), State of Maharastra v. Sayyed Subhan (Criminal\n\nNo.1195 of 2018, dated 20.09.2018), the High Court of\n\nJharkhand at Ranchi in the case of Fariyaad Foundation v.\n\nGovernment of Jharkhand (W.P. (PIL) No.954 of 2019), the\n\nHigh Court of Madhya Pradesh, Indore Bench in the case\n\nof Amarchand Upadhyay v. Union of India (W.P.No.10998 of\n\n2012), the High Court of Patna in the case of Lal Babu\n\nYadav v. the State of Bihar (WP (Civil) No.10297 of 2012,\n\ndated 10.07.2012) and the High Court of Bombay in the\n\ncase of M/s.DhariwalIndustries Limited v. the State of\n\nMaharashtra (W.P.No.1631of 2012 and other connected\n\nmatters).(30) The respondent No.3 in the light of the various\n\nJudgments of the Hon'ble Supreme Court and some High\n\nCourtsreferred abovehas stated that the Notification\n\nissued by the State Government has been issued strictly21AIR 1984 SC 113022(1995) 1 SCC 574231995 Supp (2) SCC 18724AIR 1999 SC 209425AIR 2000 SC 153526in consonance with the statutory provisions governing the\n\nfield under theFSS Act2006 and the gutka containing\n\ntobacco and tobacco are great thereat to the public health.\n\nIt is having a grave negative impact on public health and\n\ntherefore, the State Government has rightly imposed\n\nreasonable restrictions in the matter of manufacture,\n\ndistribution, storage, transport and sale of gutka or pan\n\nmasala, which contains tobacco and nicotine as\n\ningredients and chewing tobacco products like chap\n\ntobacco, khaini, kharra, scented/flavoured tobacco. The\n\nrespondent No.3 has further stated that the petitioners\n\nhave not been able to make out any case before this Court\n\nand the restriction imposed by the State is a reasonable\n\nrestriction and does not warrant any interference.\n\n\n(31) The respondent No.6/Food Safety and Standards\n\nAuthority of India has also filed a detailed counter\n\naffidavit and it has been stated that theFSS Act2006 was\n\nenacted by the Parliament for laying down scientifically\n\nbased standards for articles of food and to regulate their\n\nmanufacture, storage, distribution, sale and import and to\n\nensure availability of safe and wholesome food for human\n\nconsumption. It has been further stated thatSection 92of\n\nthe FSS Act 2006 empowers the authority to make\n\nregulations with the previous approval of the Central27Government and after previous publication to carry out\n\nthe objects of theFSS Act2006 and in exercise of powers\n\nconferred, the Authority notified the Food Safety\n\nRegulations, 2011. The Regulations provide for prohibition\n\nand restrictions on sale of certain products. It has been\n\nfurther stated that as per the Food Safety Regulations,\n\n2011, the product should not contain any substance\n\nwhich is injurious to health and tobacco and nicotine\n\nshall not be used as an ingredient in any food product and\n\ntherefore, as reasonable restrictions have been imposed in\n\nthe interest of public at large, the question of interference\n\nby this Court in respect of the impugned Notification does\n\nnot arise. It has been further stated that the Food Safety\n\nRegulations, 2011 have been issued in accordance with\n\nlaw in exercise of powers conferred underSection 92read\n\nwithSection 16of the FSS Act 2006 and the Regulations\n\nprovide for no anti-caking agent shall be used in any food\n\nexcept where anti-caking agent is specifically permitted.\n\nAs per the Food Safety Regulations, 2011 use of anti-\n\ncaking agent in pan masala is not permitted.\n\n\n(32) The respondent No.6 has also stated that as per the\n\nmandate ofSection 89of the FSS Act 2006, the Act has\n\nthe overriding effect on all legislations including the\n\nCOTPA 2003 and the former takes precedence over the28latter Act. The respondent No.6 has alsoplaced reliance\n\nuponthe definition clause, which defines 'food' and it has\n\nbeen argued vehemently that pan masala with tobacco\n\nand tobacco certainly fall under the definition of 'food' as\n\nthey are intended for human consumption.The\n\nrespondent No.6 has alsoplaced reliance uponthe\n\nJudgments of the Hon'ble Supreme Court in the case ofP.K.Tejani v. M.R.Dange26,R.Krishnamurthy(supra), Krishan\n\nGopal Sharma v. Government of NCT of Delhi27, Godawat Pan\n\nMasala Products I.P. Limited (supra), Laxmikant v. Union of\n\nIndia28 and the Judgment of the High Court of Kerala in\n\nW.P.No.12352 of 2012 and other connected matters.\n\n\n\n(33) The respondent No.6 has also brought to the notice\n\nof this Court that Minutes of the Expert Committee\n\nconstituted by the Ministry of Health and Family Welfare\n\nwhich has recommended a complete ban on gutka\n\ncontaining tobacco/tobacco products/tobacco. It has been\n\nstated that large number of people are dying out of cancer\n\nand the action taken by the State Government is in\n\nconsonance with the directions issued by the Hon'ble\n\nSupreme Court from time to time. Therefore, a prayer has\n\nbeen made for dismissal of the writ petitions.26(1974) 1 SCC 16727(1996) 4 SCC 51328(1997) 4 SCC 73929(34) Heard the learned counsel for the parties and\n\nperused the record. The writ petitions are being disposed\n\nof at admission stage with the consent of the parties.\n\n\n(35) The petitioners before this Court are aggrieved by\n\nNotification No.505/FSS-1/2021, dated 06.01.2021\n\nissued by the respondent No.3/Commissioner of Food\n\nSafety, Telangana in exercise of powers conferred underSection 30of the FSS Act 2006. The Notification dated\n\n06.01.2021 is reproduced as under:-"GOVERNMENT OF TELANGANA\n Office of the Commissioner of Food Safety,\n Directorate Institute of Preventive Medicine,\n Public Health Labs, Food (Health) Administration,\n Telangana State, Narayanaguda,\n Hyderabad - 500 029.Food Safety and Standards - Imposition of\n Act, 2006\n prohibitionu/s 30(2)of the said Act on manufacture,\n storage, distribution, transportation and sale of\n Gutka/Pan masala which contains tobacco and nicotine\n as ingredients and Chewing Tobacco products like chop\n tobacco, pure tobacco, Khaini, Kharra, Scented\n tobacco/Flavoured tobacco or by whatever name locally it\n is called packed in sachets/pouches/package in the entire\n State of Telangana - Orders - Issued.Ref: 1.Food Safety and Standards Act, 2006.2. Regulations 2.3.4 of FSS (Prohibition and\n Restriction on Sales) Regulations 2011.3. G.O.Ms.No.01 of Health, Medical & Family\n Welfare (C2) Dept., dated 04.01.2016.***\n The Government of India has enactedFood Safety\n and Standards Act2006(FSS Act) to regulate and monitor\n the manufacturing, processing, packing, storage,\n transport, distribution, sale of any food or food ingredient,\n so as to ensure availability of safe and wholesome food for\n human consumption.30Whereassection 3(1)(j)of FSS Act 2006 defines that\n"Food" means any substance, whether processed, partially\nprocessed or unprocessed, which is intended for human\nconsumption and includes primary food, to the extent\ndefined in clause 3 (ZK) genetically modified or engineered\nfood or food containing such ingredients, infant food,\npackaged drinking water, alcoholic drink, chewing gum,\nand any substance, including water used into the food\nduring its manufacture, preparation or treatment but does\nnot include any animal feed, live animals unless they are\nprepared or processed for placing on the market for\nhuman consumption, plants prior to harvesting, drugs\nand medicinal products, cosmetics, narcotic or\npsychotropic substances.The Hon'ble Supreme Court of India inGodawat Pan\nMasala v. UoI(2004) 7 SCC 68, while dealing case on\nprohibition on sale of Gutka in the States on 02.08.2004\nvide Civil Appeal No.4674 of 2004 (SLP (C) No.24449 of\n2002) held that Gutka or panmasala having tobacco or\nnicotine are food items. Gutka/Panmasala which contain\ntobacco and nicotine as ingredients and Chewing Tobacco\nproducts like Chap Tobacco, Pure Tobacco, Khaini,\nKharra, Scented Tobacco/Flavoured Tobacco packed in\npouches/sachets/containers etc., or by whatever name it\nis called inherently falls within the definition of "food" as\ndefined underSection 3(1)(j)of the FSS Act, 2006.Scientific Reports/opinions of ICMR (Indian Council\nof Medical Research) and NIHFW (National Institute of\nHealth and Family Welfare) demonstrate the extremely\nharmful effects of consumption of Gutka/ Panmasala/\nChewing Tobacco such as Cancers (Oral) pre-malignant\nlesions/conditions) - Oesophageal Cancer, Stomach\nCancer, Pancreatic Cancer, Throat (pharynx and larynx)\ncancer, renal cancer, Non cancerous - deterioration of\nOral-dental health, Hypertension & Cardiovascular31diseases, Consumption of such products is injurious to\nhealth.As persection 18(1)(a)of the FSS Act 2006, it is the\nGovernment's endeavour to achieve an appropriate level of\nprotection of human life and health.Whereas regulation 2.3.4 of FSS (Prohibition and\nrestriction on sales) Regulations 2011 made under theFSS Act2006 mandates that tobacco and nicotine shall\nnot be used as ingredients in any food products.Whereas the Commissioner of Food Safety has the\npower coupled with duty to prohibit in the interest of\npublic health, the manufacture, storage, transportation,\ndistribution, sale of any articles of food, either in whole of\nthe state or any area or part thereof for such period, not\nexceeding one year as per clause (a) of sub-section (2) ofSection 30of FSS Act, 2006.Accordingly the following notification will be\npublished in the Extraordinary issue of the Telangana\nState Gazette.NOTIFICATION\n\n\n Notification No.505/FSS-1/2021 : In exercise of the\npowers conferred under clause (a) of Sub-section (2) ofSection 30of Food Safety and Standards Act, 2006 read\nwith 2.3.4 of Food Safety and Standards (Prohibition and\nRestriction on Sales) Regulation 2011 and in the interest\nof public health, the Commissioner of Food Safety,\nTelangana State hereby prohibits the manufacture,\nstorage, distribution, transportation and sale of\nGuitka/Pan masala which contains tobacco and nicotine,\nas ingredients and chewing Tobacco products like chap\nTobacco, Pure tobacco, Khaini, Kharra, Scented\ntobacco/flavoured tobacco packed in pouches/sachets/\ncontainers etc., or by whatever name it is called in the32entire State of Telangana for a period of one year with\n effect from 10th January, 2021."(36) The petitioners have challenged the impugned\n\nNotification on the ground that it is illegal,\n\nunconstitutional and ultra vires the COTPA 2003 and is\n\nalso in violation of natural justice and fair play. The\n\nundisputed facts of the case reveal that the Notification\n\nimposes prohibition of manufacture, storage, distribution,\n\ntransportation and sale of gutka/pan masala which\n\ncontains tobacco and nicotine as ingredients and chewing\n\ntobacco products like chap tobacco, pure tobacco, khaini,\n\nkharra, scented tobacco/flavoured tobacco or by whatever\n\nname locally it is called, packed in sachets/pouches/\n\npackages in the entire State of Telangana. Meaning\n\nthereby, the sachets/pouches containing scented\n\ntobacco/tobacco and/or pan masala, which contain\n\ntobacco and nicotine are the subject matter of the\n\nNotification.(37) It is an undisputed fact that the tobacco is the main\n\ncause of cancer and the statistics pertaining to tobacco\n\nrelated mortality and cancer are detailed as under:-"Global\n According to the World Health Organisation\n (WHO), tobacco kills more than 8 million people each year.More than 7 million of those deaths are the result of direct33tobacco use while around 1.2 million are the result of non-\nsmokers being exposed to second-hand smoke.\n\n\nNational- According to the National Health Mission under\nthe Ministry of Health and Family Welfare, Government of\nIndia, mortality due to tobacco in India is established at\nupwards of 13.5 lakhs (Report on Global Adult Tobacco\nSurvey GAT 2, 2016-17). If the current trend continues\nand effective steps are not taken to control tobacco\nconsumption, it is estimated that by the year 2020,\ntobacco use will account for 13% of all deaths in India\nevery year.- According to Cancer Statistics, 2020: Report for\nNational Cancer Registry Programmes, India, based on\npopulation-based cancer registries (PBCR) data, almost\none-third of the cancers were known to be associated with\nthe use of tobacco in India. India State-level Disease\nBurden Initiative cancer collaborators estimated that\ntobacco use was the highest contributing risk factor for\ncancer in India.- Available estimates in India show that smoking-\nattributable annual deaths were about 930,000, while the\nsmokeless tobacco (SLT) attributable annual deaths were\nabout 350,000, together accounting for about 12,80,000\ndeaths per year or approximately 3500 deaths every day.\n(According to Jha P, Jacob B, Gajalakshmi V et al, A\nNationally Representative Case-Control Study of Smoking\nand Death in India. New England Journal of Medicine,\n2008; 358 and Sinha DN, Palipudi KM, Gupta PC, et al.\nSmokeless tobacco use: a meta-analysis of risk and\nattributable mortality estimates for India. Indian J Cancer.\n2014; 51 Suppl 1: S73-77).- As per the WHO Global Report (2012) on "Mortality\nattributable to tobacco', 7% of all deaths (for ages 30 and\nover) in India are attributable to tobacco.34Telangana- The age adjusted mortality rate (AAMR) of\n Hyderabad District - reported for 2014-16 - is 4.8 per\n 100,00 males and 2.0 per 100,000 females. Also, the\n relative proportion of cancer sites associated with the use\n of Tobacco in Hyderabad is 42.2% in males and 13.5% in\n females. (According to ICMR-NCDIR, Report on Sites of\n Cancer Associated with Tobacco use in India-Findings\n from the National Cancer Registry Programme, 2021,\n Bengaluru, India)- As per ICMR-NCDIR, Profile of Cancer and Related\n factors - Telangana (2021), the prevalence of current\n tobacco use (smoking and/or smokeless) in adults over 15\n years of age (for 2016) is as follows:Total - 17.8% Males - 25.9% Females - 9.8%"National Family Health Survey - 5 (2019-2021)- The recent survey conducted by NFHS-5 reveals\n that the tobacco usage among males across India was\n 38%, in rural areas accounting for 42.7% of users. The\n urban users of tobacco among men and women accounted\n for 28.8% and 5.4% respectively. The usage of tobacco is\n resulting in various kinds of cancers like breast cancers,\n cervical cancers and cancers of other organs.(38) The relevant statutory provisions under theFSS Act2006, which are necessary for proper adjudication of the\n\npresent writ petitions, are reproduced as under:-"3 (i) "extraneous matter" means any matter\n contained in an article of food which may be carried from\n the raw materials, packaging materials or process systems\n used for its manufacture or which is added to it, but such\n matter does not render such article of food unsafe;3 (j) "food" means any substance, whether\n processed, partially processed or unprocessed, which is35intended for human consumption and includes primary\nfood, to the extent defined in clause 3 (ZK) genetically\nmodified or engineered food or food containing such\ningredients, infant food, packaged drinking water,\nalcoholic drink, chewing gum, and any substance,\nincluding water used into the food during its manufacture,\npreparation or treatment but does not include any animal\nfeed, live animals unless they are prepared or processed\nfor placing on the market for human consumption, plants\nprior to harvesting, drugs and medicinal products,\ncosmetics, narcotic or psychotropic substances.Provided that the Central Government may declare,\nby notification in the Official Gazette, any other article as\nfood for the purposes of this Act having regards to its use,\nnature, substance or quality.3 (k) "food additive" means any substance not\nnormally consumed as a food by itself or used as a typical\ningredient of the food, whether or not it has nutritive\nvalue, the intentional additional of which to food for a\ntechnological (including organoleptic) purpose in the\nmanufacture, processing, preparation, treatment, packing,\npackaging, transport or holding of such food results, or\nmay be reasonably expected to result (directly or\nindirectly), in it or its by-products becoming a component\nof or otherwise affecting the characteristics of such food\nbut does not include "contaminants" or substances added\nto food for maintaining or improving nutritional qualities;3 (y) "ingredient" means any substance, including a\nfood additive used in the manufacture or preparation of\nfood and present in the Final product, possibly in a\nmodified form;3 (zc) "manufacture" means a process or adoption or\nany treatment for conversion of ingredients into an article\nof food, which includes any sub-process, incidental or\nancillary to the manufacture of an article of food;363 (zd) "manufacturer" means a person engaged in\nthe business of manufacturing any article of food for sale\nand includes any person who obtains such article from\nanother person and packs and labels it for sale or only\nlabels it for such purposes;3 (zk) "primary food" means an article of food, being\na produce of agriculture or horticulture or animal\nhusbandry and dairying or aquaculture in its natural\nform, resulting from the growing, raising, cultivation,\npicking, harvesting, collection or catching in the hands of\na person other than a farmer or fisherman;16 (1) Duties and functions of Food Authority.- (1) It shall\n\nbe the duty of the Food Authority to regulate and monitor\nthe manufacture, processing, distribution, sale and import\nof food so as to ensure safe and wholesome food.18(1)(a) General principles to be followed in administration\nof Act.- The Central Government, the State Governments,\n\nthe Food Authority and other agencies, as the case may\nbe, while implementing the provisions of this Act shall be\nguided by the following principles, namely.-(1) (a) endeavour to achieve an appropriate level of\nprotection of human life and health and the protection of\nconsumers' interests, including fair practices in all kinds\nof food trade with reference to food safety standards and\npractices;26. Responsibilities of the food business operator.-(1) Every food business operator shall ensure that the\narticles of food satisfy the requirements of this Act and the\nrules and regulations made thereunder at all stages of\nproduction, processing, import, distribution and sale\nwithin the businesses under his control.(2) No food business operator shall himself or by an\nperson on his behalf manufacture, store, sell or distribute\nany article of food -(i) which is unsafe;37(ii) to (v) xxxxx30. Commissioner of Food Safety of the State.- (1) The\n\nState Government shall appoint the Commissioner of Food\nSafety for the State for efficient implementation of food\nsafety and standards and other requirements laid down\nunder this Act and the rules and regulations made\nthereunder.(2) The Commissioner of Food Safety shall perform\nall or any of the following functions, namely:-(a) prohibit in the interest of public health, the\n manufacture, storage, distribution or sale of\n any article of food, either in the whole of the\n State or any area or part thereof for such\n period, not exceeding one year, as may be\n specified in the order notified in this behalf\n in the Official Gazette;(b) carry out survey of the industrial units\n engaged in the manufacture or processing of\n food in the State to find out compliance by\n such units of the standards notified by the\n Food Authority for various articles of food;(c) conduct or organise training programmes for\n the personnel of the office of theCommissioner of Food Safety and, on a wider\n scale, for different segments of food chain for\n generating awareness on food safety;(d) ensure an efficient and uniform\n implementation of the standards and other\n requirements as specified and also ensure a\n high standard of objectivity, accountability,\n practicability, transparency and credibility;(e) sanction prosecution for offences punishable\n with imprisonment under this Act;(f) such other functions as the State\n Government may, in consultation with the\n Food Authority, prescribe.38(3) The Commissioner of food Safety may, by Order,\ndelegate, subject to such conditions and restrictions as\nmay be specified in the Order, such of his powers and\nfunctions under this Act (except the power to appoint\nDesignated Officer, Food Safety Officer and Food Analyst)\nas he may deem necessary or expedient to any officer\nsubordinate to him.97. Repeal and savings.- (1) With effect from such date\n\nas the Central Government may appoint in this behalf, the\nenactment and orders specified in the Second Schedule\nshall stand repealed:Provided that such repeal shall not affect-(i) the previous operations of the enactment\n and orders under repeal or anything duly\n done or suffered thereunder; or(ii) any right, privilege, obligation or liability\n acquired, accrued or incurred under any of\n the enactment or Orders under repeal; or(iii) any penalty, forfeiture or punishment\n incurred in respect of any offences\n committed against the enactment and\n Orders under repeal; or(iv) any investigation or remedy in respect of any\n such penalty, forfeiture or punishment and\n any such investigation, legal proceedings or\n remedy may be instituted, continued or\n enforced and any such penalty, forfeiture or\n punishment may be imposed, as if this Act\n had not been passed:(2) If there is any other law for the time being in force in\nany State, corresponding to this Act, the same shall upon\nthe commencement of this Act, stand repealed and in\nsuch case, the provisions ofsection 6of the General\nClauses Act, 1897 (10 of 1897) shall apply as if such\nprovisions of the State law had been repealed.\n (3) Notwithstanding the repeal of the aforesaid enactment\nand Orders, the licenses issued under any such39enactment or Order, which are in force on the date of\n commencement of this Act, shall continue to be in force\n till the date of their expiry for all purposes, as if they had\n been issued under the provisions of this Act or the rules\n or regulations made thereunder.(4) Notwithstanding anything contained in any other law\n for the time being in force, no court shall take cognizance\n of an offence under the repealed Act or Orders after the\n expiry of a period of three years from the date of the\n commencement of this Act."(39) The aforesaid statutory provisions make it very clear\n\nthat 'food' as defined underSection 3(j)of FSS Act 2006,\n\nmeans any substance, whether processed, partially\n\nprocessed or unprocessed, which is intended for human\n\nconsumption and includes primary food, to the extent\n\ndefined in clause 3 (ZK) genetically modified or engineered\n\nfood or food containing such ingredients, infant food,\n\npackaged drinking water, alcoholic drink, chewing gum,\n\nand any substance, including water used into the food\n\nduring its manufacture, preparation or treatment but does\n\nnot include any animal feed, live animals unless they are\n\nprepared or processed for placing on the market for\n\nhuman consumption, plants prior to harvesting, drugs\n\nand medicinal products, cosmetics, narcotic or\n\npsychotropic substances. Keeping in view the aforesaid\n\ndefinition of 'food', which is a very wide and exhaustive\n\ndefinition and includes any substance whether processed,40partially processed or unprocessed, which is intended for\n\nhuman consumption, certainly includes smokeless\n\ntobacco products like gutka, pan masala, kharra, khaini\n\nor any other similar product like chewing\n\ntobacco/flavoured tobacco within the definition of 'food'\n\nunder theFSS Act2006.(40) The Hon'ble Supreme Court in the case ofR.Krishnamurthy(supra) has held that all that is required\n\nto classify a product as 'food' is that it has to be used\n\ncommonly for human consumption or in preparation of\n\nhuman food.Not only this, the Hon'ble Supreme Court in\n\nthe case ofGodawat Pan Masala Products(supra) has held\n\nthat gutka, pan masala and supari as food articles.The\n\nAllahabad High Court in the case of Manohar Lal v. State of\n\nU.P., (Criminal Revision No.318 of 1982) and in the case ofKhedan Lal and Sons(supra) has held that 'chewing tobacco'\n\nis an article of food.(41) The Food Safety Regulations, 2011 was notified on\n\n01.08.2011 in exercise of powers conferred underSection\n\n92read withSection 26of the FSS Act 2006 andRegulation 2.3.4 of the said Regulations expressly\n\nprohibits use of tobacco and nicotine in all food products\n\nand the same is reproduced as under.41"2.3.4 Product not to contain any substance which\n may be injurious to health: Tobacco and nicotine shall not\n be used as ingredients in any food products."(42) Not only this, theFSS Act2006 defined 'ingredient'\n\nand 'food additive' and therefore, gutka/pan masala\n\nwhich contains tobacco and other kinds of tobacco\n\nproducts like chap tobacco, pure tobacco, khaini, kharra,\n\nscented tobacco or flavoured tobacco do fall within the\n\ndefinition of 'food'.(43) The Hon'ble Supreme Court in S.L.P. No.16308 of\n\n2007, dated 03.04.2013 has passed the following order."Ms. Indira Jaisingh, learned Additional Solicitor\n General invited the Court's attention to notifications\n issued by the Government of 23 States and the\n Administrators of 5 Union Territories for imposing\n complete ban on Gutkha and Pan Masala with tobacco\n and/or nicotine and then stated that notwithstanding the\n ban, the manufacturers have devised a subterfuge for\n selling Gutkha and Pan Masala in separate pouches and\n in this manner the ban is being flouted.Ms. Indira Jaisingh also placed before the Court\n xerox copy of D.P.No.P.16012/12/11-Part I dated\n 27.08.2012 sent by the Special Secretary, Ministry of\n Health and Family Welfare, Government of India to the\n Chief Secretaries of all the States except the States of\n Madhya Pradesh, Kerala, Bihar, Rajasthan, Maharashtra,\n Haryana, Chattisgarh and Jharkhand and submitted that\n the Court may call upon the remaining States and Union\n Territories to issue necessary notifications.42In view of the statement made by the learned\n Additional Solicitor General, we order issue of notice to the\n Chief Secretaries of the States and the Administrators of\n the Union Territories which have so far not issued\n notification in terms of 2006 Act to apprise this Court with\n the reasons as to why they have not taken action\n pursuant to letter dated 27.08.2012.We also direct the Secretaries, Health Department of\n all the 23 States and 5 Union Territories to file their\n affidavits within four weeks on the issue of total\n compliance of the ban imposed on manufacturing and sale\n of Gutkha and Pan Masala with tobacco and/or nicotine.Put up on 03.05.2013.The Registry is directed to send copies of this order\n to the Chief Secretaries and the Secretaries, Health\n Department as also the Administrators of Union\n Territories, Secretaries of the Central and State Pollution\n Control Board. Copies be also sent to the Commissioners\n of 9 Municipal Corporations named hereinabove. The\n copies of order be sent by fax within four days from\n today."(44) The aforesaid order makes it very clear that the\n\nSecretaries, Health Department of all States/Union\n\nTerritories were directed to report compliance of complete\n\nban in respect of manufacturing and sale of gutka and\n\npan masala with tobacco and/or nicotine.\n\n\n(45) Various States and Union Territories have issued\n\nnecessary orders/notifications underRegulation 2.3.4 of\n\nthe Food Safety Regulations, 2011 read withSection 30of43theFSS Act2006 banning sale of gutka and pan masala\n\n(containing tobacco or nicotine). It is unfortunate that in\n\nspite of issuance of such notifications, in order to\n\ncircumvent the ban of sale of gutka, the manufacturers\n\nare selling pan masala (without tobacco) with flavoured\n\nchewing tobacco in separate sachets and they are sold\n\ntogether by the same vendor in the same premises so that\n\nthe consumer can buy pan masala and the flavoured\n\nchewing tobacco, mix them and consume them. They are\n\nbeing sold in twin packs to be mixed as one.\n\n\n(46) Learned counsel for the petitioners has argued before\n\nthis Court that there is a conflict between the COTPA\n\n2003 and theFSS Act2006 and no impugned Notification\n\ncould have been issued under theFSS Act2006. The\n\narguments canvassed by the learned counsel for the\n\npetitioners are misplaced. The COTPA 2003 has been\n\nenacted with an aim and object to prohibit the\n\nadvertisement of, and to provide for the regulation of trade\n\nand commerce in, and production, supply and\n\ndistribution of, cigarettes and other tobacco products with\n\nan aim to discourage the use or consumption of tobacco.\n\nThe object for theFSS Act2006 is to ensure safe and\n\nwholesome food for the people. The primary concern and\n\npurpose of theFSS Act2006 is that promotion of public44health and protection of the right to life of the citizens of\n\nthe country and the purpose, aim and the object of the\n\nFood Safety Regulations, 2011 is to ensure safety/health\n\nof citizens of this country by prohibiting any article of food\n\nwhich are injurious to the health of general public. It is an\n\nundisputed fact that tobacco products which are subject\n\nmatter of the impugned Notification are injurious to\n\ngeneral health of the public.(47) Learned counsel for the petitioners have argued\n\nbefore this Court that there is a conflict between theFSS\n\nAct2006 and COTPA 2003.Section 89of the FSS Act\n\n2006 makes it very clear that it has overriding effect of all\n\nthe legislations including the COTPA 2003.The FSS Act2006 has been enacted later to the COTPA 2003 and\n\ntherefore, theFSS Act2006 will prevail over the COTPA\n\n2003. The law laid on the aforesaid issue is no longer res\n\nintegra. The Hon'ble Supreme Court inAllahabad Bank(supra),Anay Kumar Banerjee(supra) andS.Prakash(supra)\n\nhas held as under:-"a. Where two Central Acts appear to be seemingly\n in conflict with each other, the endeavour of Court should\n be to harmonize the two Acts seemingly in conflict.b. Where there is a direct conflict (repugnancy)\n between two special Acts, both being special laws, the\n following rules shall apply:(i) The later Act will prevail over the earlier Act.45(ii) If there is a provision in one of the Acts giving\n overriding effect then that Act will prevail.(iii) A later Act, even if it is a general Act, can prevail\n over an earlier special Act, in the case of a\n repugnancy if there is no express provision to the\n contrary in the earlier special Act."(48) The Hon'ble Supreme Court in the case ofR.Krishnamurthy(supra) has held as under:-"7. According to the definition of "food" which we\n have extracted above, for the purposes of the Act, any\n article used as food or drink for human consumption and\n any article which ordinarily enters into or is used in the\n composition or preparation of human food is "food". It is\n not necessary that it is intended for human consumption\n or for preparation of human food. It is also irrelevant that\n it is described or exhibited as intended for some other use.\n It is enough if the article is generally or commonly used\n for human consumption or in the preparation of human\n food. It is notorious that there are, unfortunately, in our\n vast country, large segments of population, who, living as\n they do, far beneath ordinary subsistence level, are ready\n to consume that which may otherwise be thought as not\n fit for human consumption. In order to keep body and\n soul together, they are often tempted to buy and use as\n food, articles which are adulterated and even unfit for\n human consumption but which are sold at inviting prices,\n under the pretence or without pretence that they are\n intended to be used for purposes other than human\n consumption. It is to prevent the exploitation and self-\n destruction of these poor, ignorant and illiterate persons\n that the definition of "food" is couched in such terms as\n not to take into account whether an article is intended for\n human consumption or not. In order to be "food" for the\n purposes of the Act, an article need not be "fit" for human\n consumption; it need not be described or exhibited as\n intended for human consumption; it may even be46otherwise described or exhibited; it need not even be\n necessarily intended for human consumption; it is enough\n if it is generally or commonly used for human\n consumption or in the preparation of human food. Where\n an article is generally or commonly not used for human\n consumption or in the preparation of human food but for\n some other purpose, notwithstanding that it may be\n capable of being used, on rare occasions, for human\n consumption or in the preparation of human food, it may\n be said, depending on the facts and circumstances of the\n case, that it is not "food". In such a case the question\n whether it is intended for human consumption or in the\n preparation of human food may become material. But\n where the article is one which is generally or commonly\n used for human consumption or in the preparation of\n human food, there can be no question but that the article\n is "food". Gingerly oil, mixed or not with groundnut oil or\n some other oil, whether described or exhibited as an\n article of food for human consumption or as an article for\n external use only is "food" within the meaning of the\n definition contained inSection 2(v)of the Act."(49) Keeping in view the aforesaid definition, the articles\n\nmentioned in the impugned Notification are certainly\n\nincluded within the definition of 'food' and this Court does\n\nnot find any reason to interfere with the impugned\n\nNotification.(50) Learned counsel for the petitioners has placed heavy\n\nreliance upon the Judgment delivered in the case ofGodawat Pan Masala Products(supra). However, the said\n\nJudgment was delivered prior to enactment of theFSS Act472006 and the Regulations made thereunder. The\n\ndefinition of 'food' under thePrevention of Food\n\nAdulteration Act, 1954and theFSS Act2006 are\n\nreproduced as under:-"Definition of 'food' under thePrevention of Food\n Adulteration Act, 1954:2(v) "food" means any article used as food or drink\n for human consumption other than drugs and water and\n includes-(a) any article which ordinarily enters into, or is\n used in the composition or preparation of,\n human food,(b) any flavouring matter or condiments, and(c) any other article which the Central\n Government may, having regard to its use,\n nature, substance or quality, declare, by\n notification in the Official Gazette, as food for\n the purposes of this Act.Definition of 'food' under theFSS Act2006:-"3 (j) any substance, whether processed, partially\n processed or unprocessed, which is intended for human\n consumption and includes primary food, to the extent\n defined in clause 3 (ZK) genetically modified or engineered\n food or food containing such ingredients, infant food,\n packaged drinking water, alcoholic drink, chewing gum,\n and any substance, including water used into the food\n during its manufacture, preparation or treatment but does\n not include any animal feed, live animals unless they are\n prepared or processed for placing on the market for\n human consumption, plants prior to harvesting, drugs\n and medicinal products, cosmetics, narcotic or\n psychotropic substances;Provided that the Central Government may declare,\n by notification in the Official Gazette, any other article as48food for the purposes of this Act having regards to its use,\n nature, substance or quality."(51) The definition of 'food' under theFSS Act2006 is a\n\nvery wide and exhaustive definition and as per the\n\ndefinition under theFSS Act2006, any substance, which\n\nis intended for human consumption is included in the\n\ndefinition of 'food'. Not only this, even in the case ofGodawat Pan Masala Products(supra), the Hon'ble Supreme\n\nCourt has held that pan masala or gutka to be covered\n\nunder the definition of 'food'. However, only on a limited\n\nissue of jurisdiction, it was held that the power of\n\nprohibition is only vested with the Central Government\n\nand not with the State Food and Health Authorities. The\n\ndefinition of 'food' has witnessed a sea change and\n\nkeeping in viewSection 89of the FSS Act 2006, as theFSS Act2006 is having overriding effect over the other\n\nstatutes, the respondent No.3/ Commissioner of Food\n\nSafety, Telangana was well within his competence to issue\n\nthe impugned Notification banning the food items which\n\nare subject matter of the Notification.The Hon'ble\n\nSupreme Court in the case of Laxmikant (supra), held as\n\nunder:-"10. Therefore, the International Conference held\n in collaboration with the World Health Organisation was of\n the opinion that the ban on use of tobacco in toothpaste\n and toothpowder should totally be imposed since it is49prone to cancer. Under these circumstances, the view\n taken by the Government of India imposing total\n prohibition on the use of tobacco in the preparation of\n toothpowder and toothpaste is well justified in the public\n interest covered byArticle 19(6)of the Constitution,\n though it offends the right to carry on trade guaranteed\n underArticle 19(1)of the Constitution. The imposition of\n total ban is in the public interest."(52) In the aforesaid case, total ban on use of tobacco in\n\ntoothpaste and toothpowder was upheld by the Hon'ble\n\nSupreme Court even though offended the right to carry on\n\ntrade guaranteed underArticle 19(1)of the Constitution of\n\nIndia as the imposition of ban was on public interest.\n\n\n(53) The matter relating to imposition of restrictions on\n\nsale of pan masala containing tobacco and other tobacco\n\nproducts was considered by the Bombay High Court in the\n\ncase of M/s.DhariwalIndustries Limited(supra). A prayer\n\nwas also made to declareRegulation 2.3.4 andRegulation\n\n3.1.7 of the Food Safety Regulations, 2011 as ultra vires\n\nand a prayer was also made for granting an interim relief.\n\nVarious grounds were raised before the Division Bench of\n\nthe Bombay High Court for grant of stay and the Bombay\n\nHigh Court in paragraph 61 has held as under:-"61. After taking into consideration the provisions ofPrevention of Food Adulteration Act, 1954and the Rules\n thereunder,Food Safety and Standard Act, 2006, the\n Regulations made thereunder, the Cigarettes Act, 2003,\n the judgment of the Supreme Court in Ghodawat case and50the material on record, and after considering the rival\n submissions and the decisions cited at the Bar, we are of\n the view that this is not a fit case for granting any of the\n interim reliefs prayed for by the petitioners. Hence, prayer\n for interim stay against the implementation of the\n impugned statutory order dated 19th July 2021 issued by\n the Food Safety Commissioner, Maharashtra State in\n public interest in exercise of the power conferred bySection 30(2)(a)of the Food Safety and Standards Act,\n 2006 is rejected."(54) No interim relief was granted in respect of the\n\nRegulations. Challenges were made throughout India and\n\nvarious orders have been passed by the State of Telangana\n\nby which a prayer for grant of interim relief was rejected.\n\nThe Bombay High Court in its recent Judgment in the\n\ncase ofMohammad Yamin Naeem Mohammad v. State of\n\nMaharashtra29, in similar circumstances, has exhaustively\n\ndealt with legislative competence of the State and the\n\nrestrictions imposed by the State Government. Paragraphs\n\n40 to 45 of the said Judgment are reproduced as under:-"40. A lot has been said about COPTA, holding the\n field as against the FSSA. In this regard, it is material to\n note, that COPTA was enacted on 18/5/2003, in whichSection 3 (p)defines "tobacco products" to mean the\n products specified in the schedule. The schedule at Serial\n No. 8, specifies Pan Masala or any chewing material\n having tobacco as one of its ingredients (by whatever\n named called) and at Serial No. 8 specifies Gutkha. To\n understand basic difference between the provisions of\n COPTA and FSSA, it is necessary to consider what is292021 SCC OnLine Bom 2651contemplated bySections 5,6and7of COTPA, which for\nready reference are reproduced as under:--5. Prohibition of advertisement of cigarettes and other\ntobacco products.-(1) No person engaged in, or purported to be engaged in\nthe production, supply or distribution of cigarettes or any\nother tobacco products shall advertise and no person\nhaving control over a medium shall cause to be advertised\ncigarettes or any other tobacco products through that\nmedium and no person shall take part in any\nadvertisement which directly or indirectly suggests or\npromotes the use or consumption of cigarettes or any\nother tobacco products.(2) No person, for any direct or indirect pecuniary benefit,\nshall--(a) display, cause to display, or permit or\n authorise to display any advertisement of\n cigarettes or any other tobacco product; or(b) sell or cause to sell, or permit or authorise to\n sell a film or video tape containing\n advertisement of cigarettes or any other\n tobacco product; or(c) distribute, cause to distribute, or permit or\n authorise to distribute to the public any\n leaflet, hand-bill or document which is or\n which contains an advertisement of\n cigarettes or any other tobacco product; or(d) erect, exhibit, fix or retain upon or over any\n land, building, wall, hoarding, frame, post or\n structure or upon or in any vehicle or shall\n display in any manner whatsoever in any\n place any advertisement of cigarettes or any\n other tobacco product:Provided that this sub-section shall not apply in\n relation to--(a) an advertisement of cigarettes or any other\n tobacco product in or on a package52containing cigarettes or any other tobacco\n product;(b) advertisement of cigarettes or any other\n tobacco product which is displayed at the\n entrance or inside a warehouse or a shop\n where cigarettes and any other tobacco\n products are offered for distribution or sale.\n (3) No person, shall, under a contract or otherwise\npromote or agree to promote the use or consumption of--(a) cigarettes or any other tobacco product; or(b) any trade mark or brand name of cigarettes\n or any other tobacco product in exchange for\n a sponsorship, gift, prize or scholarship\n given or agreed to be given by another\n person.6. Prohibition on sale of cigarette or other tobacco products\nto a person below the age of eighteen years and in particular\narea.-No person shall sell, offer for sale, or permit sale of,\n\ncigarette or any other tobacco product- (a) to any person\nwho is under eighteen years of age, and (b) in an area\nwithin a radius of one hundred yards of any educational\ninstitution.7. Restrictions on trade and commerce in, and production,\nsupply and distribution of cigarettes and other tobacco products.-\n (1) No person shall, directly or indirectly, produce,\n supply or distribute cigarettes or any other tobacco\n products unless every package of cigarettes or any\n other tobacco products produced, supplied or\n distributed by him bears thereon, or on its label [such\n specified warning including a pictorial warning as may\n be prescribed.(2) No person shall carry on trade or commerce in\n cigarettes or any other tobacco products unless every\n package of cigarettes or any other tobacco products\n sold, supplied or distributed by him bears thereon, or\n on its label, the specified warning.(3) No person shall import cigarettes or any other\n tobacco products for distribution or supply for a53valuable consideration or for sale in India unless every\n package of cigarettes or any other tobacco products so\n imported by him bears thereon, or on its label, the\n specified warning.(4) The specified warning shall appear on not less than\n one of the largest panels of the package in which\n cigarettes or any other tobacco products have been\n packed for distribution, sale or supply for a valuable\n consideration.(5) No person shall, directly or indirectly, produce,\n supply or distribute cigarettes or any other tobacco\n products unless every package of cigarettes or any\n other tobacco products produced, supplied or\n distributed by him indicates thereon, or on its label, the\n nicotine and tar contents on each cigarette or as the\n case may be on other tobacco products along with the\n maximum permissible limits thereof:Provided that the nicotine and tar contents shall not\n exceed the maximum permissible quantity thereof as\n may be prescribed by rules made under this Act.41. It would thus be apparent thatSection 5deals with\nprohibition of advertisement of cigarettes and other\ntobacco products;Section 6deals with prohibition on sale\nto person below the age of 18 years and in particular area;Section 7deals with restrictions on trade and commerce\nin, production, supply and distribution of cigarettes and\nother products, unless every package bears the specified\nwarning;Section 8provides the manner in which specified\nwarning shall be made;Section 9provides the language of\nthe warning;Section 10provides size of letters and figures\nof the warning;Section 11provides the testing laboratory\nfor nicotine and tar contents;Section 13provides for the\npower to seize, whereasSection 14provides for\nconfiscation;Section 15speaks of an option to pay cost in\nlieu of confiscation;Section 17provides for adjudication;Section 18provides for an opportunity based upon the54principles of natural justice;Section 18provides for an\nappeal. The other provisions provide for punishment and\nforfeiture. What is material to be noted is that COPTA has\nnot been given any overriding effect upon any other law,\nholding the field or which may be enacted. The regulatory\nmechanism in COPTA is restricted to ensuring that the\nsale, storage, distribution, of cigarettes and other tobacco\nproducts is not without the warning label and is to\npersons above the restricted age and to discourage the use\nof tobacco. COPTA does not deal with the long term effects\nof smoking and consumption of tobacco and other\nproducts on the health of citizens.42. As against this, the FSSA is a more comprehensive\nAct, dealing with the larger issue of Safety and Standards\nof Food in the country and in view ofRegulation 2.3.4,\nprohibiting use of tobacco and nicotine as ingredients in\nany food products in the Food Safety and Standards\n(Prohibition and Restrictions On Sales) Regulations, 2011;\nby including Pan Masala inRegulation 2.11.5, Anti-caking\nagents inRegulation 3.1.7 in the Food Safety and\nStandards (Food Products Standards and Food Additives)\nRegulations, 2011, has included tobacco and tobacco\nproducts, including Gutkha and Pan Masala within the\ndefinition of food as enumerated inSection 3 (j)of the\nFSSA.43.In fact, inRaju Laxman Pachapure v. The State of\nKarnataka, [(2012) 2 FAC 378] itself, relied upon by\nMr. Bhangde, learned Senior Counsel for the petitioners,\nthe Court, while considering the provisions of thePrevention of Food Adulteration Act, 1954, the harbinger\nof the FSSA, in juxtaposition with those of COPTA, placing\nreliance upon the judgment inGodawat Pan\nMasala(supra) noticed the difference between the two\nenactments, as under:"25. It is true the Apex Court inGodawat Pan\n Masala's case held that mere traces of magnesium55carbonate formed during consumption of product along\n with lime cannot be banned, but in the instant case\n anticaking agent viz., magnesium carbonate is not\n found during consumption but the analytical report\n discloses that magnesium carbonate is contained in the\n very sample which, in our considered opinion may be\n either externally added or present in the raw materials.\n Whatsoever the case may be, the report discloses that\n there is usage of anticaking agent viz., magnesium\n carbonate in the food article in question namely gutka.\n That apart Supreme Court in the very same decision\n held that the provisions of PFA Rules framed and\n directions issued thereunder cannot be said as not\n applicable merely because licence is contemplated for\n manufacture of gutka under the Cigarettes and other\n Tobacco Products (Prohibition of Trade and Commerce,\n Production, Supply and Distribution) Act, 2003.The\n PFA Actwas legislated for the prevention of\n adulteration of food whereas Cigarettes and other\n Tobacco Products (Prohibition of Trade and Commerce,\n Production, Supply and Distribution) Act, 2003 is\n intended to prohibit advertising and to regulate the\n trade and as such there is no conflict between the\n legislative objects between the two enactments."(emphasis supplied)44.Section 89of the FSSA being material is\nreproduced as under:"89. Overriding effect of this Act over all other food related\n laws.-- The provisions of this Act shall have effect\n\n notwithstanding anything inconsistent therewith\n contained in any other law for the time being in force or\n in any instrument having effect by virtue of any law\n other than this Act."(emphasis supplied)45. It is thus material to note thatSection 89of the\nFSSA, gives the provisions of the FSSA, an overriding56effect on all other food related laws. Once it is held that\n tobacco and other products, fall within the definition of\n food as enumerated inSection 3 (j)of the FSSA, the\n overriding effect ofSection 89of the FSSA, would make\n the FSSA hold the field instead of COPTA. Joshy\n K.V. v. State of Kerala, Rep. by the Secretary to the\n Department of Health and Welfare, Government Secretariat,\n Thiruvananthapuram [(2013) 1 KLJ 428], Omkar Agency,\n through itsProprietor v. the Food Safety and Standards\n Authority of India[2016 SCC OnLine Pat 9231] and Sanjay\n Anjay Stores v. the Union of India, [2017 SCC OnLine Cal\n 16323], which take a contrary view, according to us, do\n not lay down the correct law.(55) The Division Bench of the Bombay High Court has\n\ndealt with all the issues, similar to the issues raised in the\n\npresent writ petitions. In the considered opinion of this\n\nCourt, the question of interference by this Court in\n\nrespect of Notification which is bound to save human lives\n\ncannot be faulted with in any manner. The entire globe is\n\nfacing COVID-19 pandemic and the death rate on account\n\nof gutka/pan masala and other tobacco products is more\n\nthan the deaths which are taking place on account of\n\npandemic. The people are suffering from cancer and other\n\ndiseases and the restriction imposed is in larger public\n\ninterest and is a reasonable restriction and in no way\n\noffends the right to carry on trade guaranteed under the\n\nConstitution.57(56) In the light of the aforesaid, this Court does not find\n\nany reason to interfere with the impugned Notification and\n\nresultantly, the writ petitions are dismissed.\n\nMiscellaneous petitions, if any pending, shall stand\n\ndismissed. There shall be no order as to costs._____________________________\n SATISH CHANDRA SHARMA, CJ\n\n\n\n __________________________\n A.RAJASHEKER REDDY, J\n\n\n30.11.2021\nPln\n\nNote: LR copy be marked.(By Order)\n Pln |
3d0776b8-4d8c-5dcc-bd9d-f3ca9c021133 | court_cases | Calcutta High CourtMd. Niaz Ahmed And Ors vs State Of West Bengal And Ors on 29 September, 2021Author:Shampa SarkarBench:Shampa SarkarOD-3\n ORDER SHEET\n\n WPO No. 901 of 2021\n\n IN THE HIGH COURT AT CALCUTTA\n CONSTITUTIONAL WRIT JURISDICTION\n ORIGINAL SIDE\n\n\n MD. NIAZ AHMED AND ORS.\n Versus\n STATE OF WEST BENGAL AND ORS.\n\n\n BEFORE:\n The Hon'ble JUSTICE SHAMPA SARKAR\n Date : 29th September, 2021.\n\n\n Appearance :\n Md. Yamin Ali, Adv.\n For the petitioners.\n\n Mr. Alok Kumar Ghosh, Adv.\n Ms. Manisha Nath, Adv.\n For K.M.C.\n\n The Court :- The report filed by the Kolkata Municipal Corporation\n\nis kept on record.\n\n None appears on behalf of the respondent nos. 11 to 14.Affidavit of service filed in Court today be taken on record.\n\n This writ petition is disposed of in the absence of the said\n\nrespondents as no adverse orders are being passed affecting their rights.Mr. Ghosh, learned Advocate appearing for the Corporation,\n\nsubmits that pursuant to the complaint of the petitioners, an inspection\n\nwas made and a stop work notice has already been issued upon the\n\nperson responsible. According to Mr. Ghosh, pursuant to the inspection,2some deviations, have been found including construction of an additional\n\nfloor without a sanction. As the Kolkata Municipal Corporation has\n\nalready taken cognizance of the complaint and prima facie found some\n\nirregularity, no further order need be passed in the writ petition save and\n\nexcept that the Corporation shall conduct an inspection and a hearing in\n\npresence of the parties. Copies of the report shall be supplied to the\n\nparties and thereafter the proceedings shall be disposed of upon hearing\n\nthe parties, as per law. A reasoned order shall be passed and\n\ncommunicated to the parties. The representatives of the respondent nos.\n\n11 to 14 shall be heard mandatorily. On conclusion of the proceedings,\n\nthe Corporation shall act and proceed in accordance with law.The entire exercise shall be completed within a period of five\n\nmonths from the date of communication of this order.The Corporation has already issued stop work notice and police\n\nshall ensure that notice is complied with.(SHAMPA SARKAR, J\n\nsnn. |
bfcb8a01-e65f-5e08-a2fe-0d5db134d692 | court_cases | Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member services -- Free for one month.\n\nUttarakhand High Court\nWPMS/506/2022 on 16 March, 2022 Office Notes,\n reports, orders or\nSL. proceedings or\n Date COURT'S OR JUDGES'S ORDERS\nNo directions and\n Registrar's order\n with Signatures\n 16.03.2022 WPMS No.506 of 2022\n Hon'ble Alok Kumar Verma, J.\n Mr. Hari Mohan Bhatia, learned\n counsel for the petitioner and Mr.\n Aazmeen Seikh, learned Standing\n Counsel for the Union of\n India/respondent nos. 1 to 3.\n Mr. Hari Mohan Bhatia, the learned\n counsel for the petitioner, submitted that\n on 28.02.2022, the National Testing\n Agency, the respondent no.3, declared\n the result of All India Sainik School\n Examination, 2022 (for admission to\n Class IX in Sainik Schools).\n On 01.03.2022, at 12.22 p.m., the\n father of the petitioner (minor)\n downloaded the result from the website,\n in which the petitioner obtained 326\n marks out of maximum 400 marks. On\n the very same day, i.e. on 01.03.2022 at\n about 20.00 hrs, the father of the\n petitioner again downloaded the result\n from the website, in which it is shown\n that the petitioner has obtained 226\n marks out of 400 marks.\n The learned counsel for the\n petitioner submitted that there are only\n six seats for General Category.\n The learned counsel for the\n respondent nos. 1 to 3 requested one\n week's time to get instructions in this\n matter.\n Issue notice to the respondent no.4.\n Steps to be taken forthwith by\n normal mode as well as dasti.\n Post this case on 25.03.2022.\n Till then, the respondent no.4,\n Principal, Sainik School, Ghorakhal,\n Bhowali, District Nainital is directed to\nkeep one seat vacant for Class IX.\n Let a certified copy of this order be\nsupplied to the learned counsel for the\nparties today itself on payment of usual\ncharges.\n\n (Alok Kumar Verma, J.)\n 16.03.2022\n\nNeha |
33cbf12f-aadd-5ed2-81b6-45fbf5f81be6 | court_cases | National Green TribunalMsh Sheikh vs State Of Gujarat Through The Secretary on 24 August, 2023Item No.4 (Pune Bench)\n\n BEFORE THE NATIONAL GREEN TRIBUNAL\n WESTERN ZONE BENCH, PUNE\n\n (By Video Conferencing)\n\n ORIGINAL APPLICATION NO. 110 OF 2023 (WZ)\n [Earlier Application No.362/2019 (LP)]\n\n MSH Sheikh, President BWRC .... Applicant\n\n Versus\n\n State of Gujarat ....Respondent\n\n\n Date of hearing : 24.08.2023\n\n\n CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER\n HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER\n\n Applicant : Ms. Shilpa Chohan, Advocate\n\n Respondents : Mr. Saurabh Kulkarni, Advocate for the Project\n Proponent - M/s Praharit Pigments LLP\n Mr. Kishan Patel, Advocate holding for Mr. Maulik\n Nanavati, Advocate for respondent No. 2 - GPCB\n\n\n ORDER1. The present matter was initially registered as Original Application\n\n No.362/2019 on a Letter Petition, which had been sent to this Tribunal\n\n by Mr. MSH Sheikh (applicant), which has now been registered as\n\n Original Application No.110/2023 (WZ), after having been transferred\n\n from the Principal Bench. A letter dated 17.06.2023 regarding transfer of\n\n this matter is found to be there on record, send by the NGT, Principal\n\n Bench.2. Earlier, when the matter was being considered before the Principal\n\n Bench, final judgment was passed on 26.09.2019 with following\n\n directions:(i) The SPCB may assess and recover compensation on `Polluter Pays'\n principle in accordance with law from the generator of the waste as\n well as the transporter. Pending such assessment, the SPCB may[NPJ] Page 1 of 3recover a sum of Rs.50 lakhs as interim compensation jointly and\n severally from the generator as well as the transporter without\n prejudice to the remedies of the heirs of the deceased and the\n injured.(ii) The Chief Secretary, State of Gujarat may look into the conduct of the\n SPCB in failing to perform its statutory duty in taking stringent\n action. As already noted, the SPCB had withdrawn the closure\n notice inspite of such serious incident of two deaths and grievous\n injury of another person and also damage to the environment,\n without even recovering any compensation for such damage,\n showing the Board in extremely poor light.(iii) To ensure effective environment governance, review of the\n manning/revamping of the GPCB may be undertaken within one\n month and initiating disciplinary or other action for the acts of\n omission and commission of key functionaries of the GPCB may be\n considered. Compliance report before this Tribunal be filed within\n one month by e-mail at[email protected].(iv) The interim compensation, recovered in pursuance of above, may be\n deposited withthe CPCB for being spent for restoration of the\n environment."3. Against that order, Civil Appeal No.8249 of 2019 (Praharit\n\n Pigments LLP Vs. The State of Gujarat and others) was preferred before\n\n the Hon'ble Supreme Court, wherein the Hon'ble Supreme Court has\n\n passed order on 17.05.2023, as follows:"This appeal arises out of an order passed by the National\n Green Tribunal (for short `the NGT'), directing the Gujarat State\n Pollution Control Board (for short `the Board') to assess and recover\n the compensation from the appellant and further directing the Board\n to recover Rs.50,00,000/- as an interim compensation. There were\n also further directions issued by the NGT.The above directions were issued on the basis of the report of\n the Joint Committee, dated 08.06.2019. The limited grievance of the\n appellant is that the appellant was never heard before the Joint\n Committee. They were also not heard before the NGT and were not\n even made a party before the NGT.In view of the above, the appeal is allowed and the impugned\n order is set aside and the matter is remitted back to the NGT. The\n respondent no.2 herein, who was the complainant before the NGT,[NPJ] Page 2 of 3shall implead the appellant herein as a party to the proceedings.\n The NGT shall direct the Joint Committee to hear the appellant and\n thereafter pass orders in accordance with law.Pending application(s), if any, shall stand disposed of."4. Since a direction in the above order of the Hon'ble Supreme Court\n\n says that the complainant before the NGT shall implead the appellant i.e.\n\n Praharit Pigments LLP as aparty, we direct the learned counsel for the\n\n applicant to implead "Praharit Pigments LLP" as one of the respondents\n\n before proceeding further.5. We direct the Registry to prepare memo of parties showing the\n\n complainant as applicant herein and State of Gujarat and Gujarat State\n\n Pollution Control Board as respondent Nos.1 and 2 and newly impleaded\n\n "Praharit Pigments LLP", which has been directed to be impleaded, as\n\n respondent No.3, within a week.6. "Praharit Pigments LLP" - respondent No. 3 is being represented by\n\n learned counsel Mr. Saurabh Kulkarni, who is directed to file the reply-\n\n affidavit within four weeks. We direct the Registry to transmit a copy of\n\n the complaint, copy of the Joint Committee report and that of FIR to the\n\n learned counsel for respondent No.3 today only through e-mail.7. From the side of respondent No.2 - GPCB, learned counsel Mr.\n\n Kishan Patel holding brief of learned counsel Mr. Maulik Nanavati, has\n\n appeared. He is also directed to file reply-affidavit, if so required.8. Put up this matter for next consideration on 09.10.2023.Dinesh Kumar Singh, JM\n\n\n\n\n Dr. Vijay Kulkarni, EM\n\n August 24, 2023\n O.A. No.110/2023(WZ)\n npj[NPJ] Page 3 of 3 |
d4c09635-1e76-5485-86f1-c6204e0b9bf2 | court_cases | Rajasthan High CourtVijay Vaishnav vs National Health Mission on 28 April, 2020Author:Ashok Kumar GaurBench:Ashok Kumar GaurHIGH COURT OF JUDICATURE FOR RAJASTHAN\n BENCH AT JAIPUR\n\n S.B. Civil Writ Petition No. 5428/2020\n\nVijay Vaishnav, 01, Parshvnath Colony, Near To Panchayat\nSamiti, Talera, Bundi.\n ----Petitioner\n Versus\nNational Health Mission, Mission Director, Directorate, Medical\nAnd Health Services, C-Scheme, Tilak Marg, Jaipur.\n ----RespondentFor Petitioner(s) : Mr.Rishabh Khandelwal\nFor Respondent(s) : Mr.Vivek Tyagi, Dy.GC\n\n\n\n HON'BLE MR. JUSTICE ASHOK KUMAR GAUR\n\n Order\n\n28/04/2020\n\n Heard learned counsel for the parties through video\n\nconferencing.Learned counsel for the petitioner submitted that the\n\npetitioner was granted admission in MD/MS Course in Ayurved\n\nwithout seeking 'NOC', as per the interim order passed by the\n\nCoordinate Bench of this Court vide order dated 24 th September,\n\n2019 in SB Civil Writ Petition No.14163/2019.Learned counsel further submitted that now by the impugned\n\norder dated 12th March, 2020, the respondent - State Government\n\nhas issued an order, whereby it has been directed that disciplinary\n\nproceedings/action will be taken against the petitioner, as he had\n\nnot sought 'NOC' before joining the course and further, the\n\npetitioner was working on contractual basis only and as such, not\n\nentitled for grant of 'NOC'.(Downloaded on 28/04/2020 at 08:34:27 PM)(2 of 2) [CW-5428/2020]\n\n\n\n Learned counsel for the respondents submitted that the\n\n factual report is being collected and due to outbreak of\n\n 'Coronavirus', the Officer In-charge has not been able to make any\n\n contact with him.Learned counsel for the respondents sought some time to file\n\n response to the writ petition.This Court, prima facie, finds that due to interim order\n\n passed by the Coordinate Bench of this Court on 24 th September,\n\n 2019, the petitioner is already pursuing his MD/MS Course in\n\n Ayurved and now any action, which is taken against him to\n\n terminate his service, will not be appropriate.Learned counsel for the respondents is directed to file reply\n\n to the writ petition within three weeks.Let this case be listed after three weeks along with the\n\n connected matters.In the meanwhile, the respondents are restrained to take\n\n any action against the petitioner in pursuance of the order dated\n\n 12th March, 2020 and services of the petitioner may not be\n\n discontinued only on account of not getting 'NOC' from his\n\n employer.(ASHOK KUMAR GAUR),J\n\n Preeti Asopa /Himanshu/24(Downloaded on 28/04/2020 at 08:34:27 PM)Powered by TCPDF (www.tcpdf.org) |
115dd886-b5a9-5047-8684-8808052cfaed | court_cases | Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member services -- Free for one month.\n\nIncome Tax Appellate Tribunal - Delhi\nFine Strips Pvt. Ltd., Delhi vs Acit, Central Circle- 13, New Delhi on 27 January, 2020\n आयकर अपीलीय अिधकरण, द ली यायपीठ "डी", द ली म\n IN THE INCOME TAX APPELLATE TRIBUNAL\n DELHI BENCH 'D', NEW DELHI\n सु ी सुषमा चावला, उपा , एवं ी एन. के. िबलै ा, लेखा सद के सम ,\n BEFORE MS. SUSHMA CHOWLA, VICE PRESIDENT\n &\n Sh. N.K. BILLAIYA, ACCOUNTANT MEMBER\n\n आयकर अपील सं. / ITA No.5457/Del/2018\n िनधा रण वष / Assessment Year: 2015-16\n\nFine Strips Pvt. Ltd.\nC-186, IInd Floor, Nirman Vihar,\nDelhi-110092\nPAN-AABCF5921H ..........अपीलाथ /Appellant\n\nvs\nACIT,\nCircle-13,\nNew Delhi ............. थ / Respondent\n\n अपीलाथ क ओर से / Appellant by : None\n\n यथ क ओर से / Respondent by : Sh. Pradeep Singh Gautam, Sr. DR\n\n\nसुनवाई क तारीख / घोषणा क तारीख /\nDate of Hearing: 13.01.2020 Date of Pronouncement: 27 .01.2020\n\n\n आदेश / ORDER\nPER SUSHMA CHOWLA, VP\n\n The appeal filed by the assessee is against the order of CIT(A)-XXVI,\n\nNew Delhi, dated 18/06/2018, relating to assessment year 2015-16.\n 2 ITA No.5457/Del/2018\n Assessment Year: 2015-16\n\n\n\n\n2. In this appeal, the assessee is aggrieved by the order of CIT(A) for\n\ndeciding the appeal ex-parte qua the assessee and without going into the\n\nmerits of the addition.\n\n\n3. None appeared on behalf of the assessee and we find that the CIT(A)\n\nhas passed the ex-parte order without allowing sufficient opportunity of\n\nhearing and without going into the merits of the case.\n\n\n4. The learned DR for the Revenue on the other hand pointed out that\n\nsufficient opportunity has been afforded to the assessee.\n\n\n5. We have heard Ld. DR for the Revenue and perused the record.\n\nUnder the provisions of Section 250(6) of the Income tax Act, 1961 (in short\n\n"Act"), it is incumbent upon the CIT(A) to decide the appeal after hearing\n\nthe parties and state the points for determination, the decision thereon and\n\nalso the reasons for the decision. While deciding the appeal, CIT(A) has no\n\npower to dismiss the appeal for non prosecution by relying on the ratio/s\n\nlaid down in CIT vs. B.N. Bhattacharya & Another 118 ITR 461 (SC) and\n\nLate Tukoji Rao Holker vs. CWT 223 ITR 480 (MP). In these facts and\n\ncircumstances, where the CIT(A) had dismissed the appeal by applying the\n\nabove said ratios, the order of the learned CIT(A) suffers from infirmity. The\n\nCIT(A) while deciding the issue on merits have also to give reasons for\n\ncoming to the conclusion and in the absence of the same, the order of the\n\nCIT(A) again suffers from infirmity. In the present appeal, we find that the\n 3 ITA No.5457/Del/2018\n Assessment Year: 2015-16\n\n\n\n\nCIT(A) has dismissed the appeal ex-parte qua the assessee and had failed to\n\ndecide the appeal by passing reasoned assessment order.\n6. Accordingly, we set aside the matter back to the file of the CIT(A) with\n\ndirection to the CIT(A) to decide the issue on merits by a reasoned order,\n\nafter affording reasonable opportunity of hearing to the assessee. Further\n\nthe assessee is also directed to appear before the CIT(A) and participate in\n\nthe appellate proceedings. The appeal is thus decided on this preliminary\n\nissue without going into the merits of the addition.\n\n\n7. Hence this appeal is restored back to the file of CIT(A) to decide the\n\nissue on merits after affording reasonable opportunity of hearing to the\n\nassessee. The assessee is also directed to comply with notices issued by the\n\nCIT(A). The preliminary issue raised in this appeal is thus decided in favour\n\nof assessee. Since the appeal is being decided on the preliminary issue, we\n\nare not addressing the issue raised on merit.\n\n\n8. In the result, this appeal of the assessee is allowed.\n\n\n Order pronounced in the open court 27th day of January, 2020.\n\n\n Sd/- Sd/-\n\n (N. K. BILLAIYA) (SUSHMA CHOWLA)\nलेखा सद य/ACCOUNTANT MEMBER उपा /VICE PRESIDENT\n\n द ली / दनांक Dated : 27th January, 2020.\nS. Shekhar, Sr. P.S.\n 4 ITA No.5457/Del/2018\n Assessment Year: 2015-16\n\n\n\n\nआदे श की ितिलिप अ े िषत/Copy of the Order is forwarded to :\n 1. अपीलाथ / The Appellant\n 2. थ / The Respondent\n 3. आयकर आयु (अपील) / The CIT(A)\n 4. मु आयकर आयु / The Pr. CIT\n 5. िवभागीय ितिनिध, आयकर अपीलीय अिधकरण, िद ी / DR, ITAT, Delhi\n 6. गाड" फाईल / Guard file.\n\n आदे शानु सार/ BY ORDER,\n\n\n\n\n सहायक रिज() ार, आयकर अपीलीय अिधकरण ,िद ी\n Assistant Registrar, ITAT, Delhi |
2d167d32-1c8f-52bc-9375-4447c9a65d9f | court_cases | Central Information CommissionGovind Singh Rana S/O Devpal Singh Rana vs National Insurance Company Limited on 19 February, 2020के ीय सूचना आयोग\n Central Information Commission\n बाबा गंगनाथ माग, मुिनरका\n Baba Gangnath Marg, Munirka\n नई द ली, New Delhi - 110067\n\nिशकायत सं या / Complaint No.:- CIC/NINCL/C/2018/121880-BJ\n\nMr. Govind Singh Rana\n .... िशकायतकता /Complainant\n VERSUS\n बनाम\n\nCPIO\nDy. Manager / PIO\nNational Insurance Co. Ltd., Divisional Office - I\n16/96, the Mall, Kanpur - 208001\n\n ... ितवादीगण /Respondent\nDate of Hearing : 18.02.2020\nDate of Decision : 19.02.2020\n\nDate of filing of RTI application 28.09.2017\nCPIO's response Not on Record\nDate of filing the First appeal 22.01.2018\nFirst Appellate Authority's response 31.01.2018\nDate of diarised receipt of Complaint by the Commission 06.04.2018\n\n ORDERFACTS:The Complainant vide his RTI application sought information on 04 points in respect of\nPolicy/Tag Number (as mentioned in the RTI application), the details of the Investigating officer\nwho investigated the death of livestock (buffalo) of the policy-holder; and other details related\nthereto.Dissatisfied with the response of the CPIO, the Complainant approached the FAA (not on\nCommission's record). The FAA, vide its order dated 31.01.2018, directed the CPIO to furnish\ncomplete information on points 01 to 04 as mentioned in First Appeal dated 22.01.2018 and\ndisposed off the Appeal.HEARING:Facts emerging during the hearing:The following were present:Complainant: Absent;Respondent: Mr. Dinesh Kumar, CPIO and Sr. Div. Manager and Mr. Rajendra Kumar, CPIO\nand Sr. Branch Manager through VC;Page 1 of 6The Complainant remained absent during the hearing. The Commission was in receipt of a\nwritten submission from the Complainant dated 04.02.2020 wherein while reiterating the\nbackground of the case, he submitted that despite FAA's order, complete and satisfactory\ninformation was not provided by the CPIO even after depositing a sum of Rs. 110/- as\nphotocopying charges. He further submitted that false and misleading information was provided\nby the CPIO. Moreover, due to wrong and misleading information which was provided beyond\nthe stipulated time-period, he could not make his case before the Consumer Forum, which\nultimately caused immense loss. Therefore, it was prayed to the Commission to initiate penal\naction against the erring CPIO for not furnishing the requisite information and to provide him\ncompensation for mental harassment/loss caused to him. He further prayed to the Commission to\nconsider the above submissions in his absence and dispose of the instant Complaint based on the\nfacts/documents put forth. In its reply, the Respondent informed the Commission that the CPIO\nvide its letter dated 01.11.2017 had furnished information to the Complainant. The FAA had\nalso sent a reply on 31.01.2018. Thereafter, on receipt of notice of hearing from the\nCommission, a detailed reply along with the report of the Investigating Officer,\nMr. Jitendra Kumar Dwivedi, Investigating Officer / Panel Advocate dated 04.02.2020 had also\nbeen dispatched to the Complainant. The Live Stock Insurance Claim filed by the Complainant\nhad been rejected on technical grounds and therefore he had been filing complaint in this regard.The Commission was in receipt of a written submission from the Respondent dated 04.02.2020\nwherein it was submitted that the CPIO had provided information vide its letter dated\n27.04.2018. A copy complete correspondence along with the policy claim file was enclosed for\nthe Commission's reference and the same was also endorsed to the Complainant. The\nRespondent further admitted that due to inadvertent typographical mistakes, the appointed\ninvestigating officer had wrongly entered the details in Health Certificate.The Commission referred to the definition of informationu/s 2(f)of the RTI Act, 2005 which is\nreproduced below:"information" means any material in any form, including records, documents, memos, e-\n mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report,\n papers, samples, models, data material held in any electronic form and information\n relating to any private body which can be accessed by a public authority under any other\n law for the time being in force."Furthermore, a reference can also be made to the relevant extract ofSection 2 (j)of the RTI Act,\n2005 which reads as under:"(j) right to information" means the right to information accessible under this Act which\n is held by or under the control of any public authority and includes ........"In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC\n497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under:35..... "It is also not required to provide 'advice' or 'opinion' to an applicant, nor\n required to obtain and furnish any 'opinion' or 'advice' to an applicant. The reference to\n 'opinion' or 'advice' in the definition of 'information' insection 2(f)of the Act, only\n refers to such material available in the records of the public authority. Many public\n authorities have, as a public relation exercise, provide advice, guidance and opinion toPage 2 of 6the citizens. But that is purely voluntary and should not be confused with any obligation\n under theRTI Act."Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative\nOfficer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010)\nhad held as under:6. "....Under the RTI Act"information" is defined underSection 2(f)which provides:"information" means any material in any form, including records, documents, memos, e-\n mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report,\n papers, samples, models, data material held in any electronic form and information\n relating to any private body which can be accessed by a public authority under any other\n law for the time being in force."This definition shows that an applicant underSection 6of the RTI Act can get any\n information which is already in existence and accessible to the public authority under\n law. Of course, under theRTI Actan applicant is entitled to get copy of the opinions,\n advices, circulars, orders, etc., but he cannot ask for any information as to why such\n opinions, advices, circulars, orders, etc. have been passed."7. "....the Public Information Officer is not supposed to have any material which is not\n before him; or any information he could have obtained under law. UnderSection 6of\n the RTI Act, an applicant is entitled to get only such information which can be accessed\n by the "public authority" under any other law for the time being in force. The answers\n sought by the petitioner in the application could not have been with the public authority\n nor could he have had access to this information and Respondent No. 4 was not obliged\n to give any reasons as to why he had taken such a decision in the matter which was\n before him."The Commission observed that the framework of theRTI Act, 2005restricts the jurisdiction of\nthe Commission to provide a ruling on the issues pertaining to access/ right to information and to\nventure into the merits of a case or redressal of grievance. The Commission in a plethora of\ndecisions including Shri Vikram Singh v. Delhi Police, North East District,\nCIC/SS/A/2011/001615 dated 17.02.2012Sh. Triveni Prasad Bahuguna vs. LIC of India,\nLucknow CIC/DS/A/2012/000906dated 06.09.2012, Mr. H. K. Bansal vs. CPIO & GM (OP),\nMTNL CIC/LS/A/2011/000982/BS/1786 dated 29.01.2013 had held thatRTI Actwas not the\nproper law for redressal of grievances/disputes.The Hon'ble Supreme Court of India in the matter ofUnion of India v. Namit Sharmain\nREVIEW PETITION [C] No.2309 OF 2012 IN Writ Petition [C] No.210 OF 2012 with State of\nRajasthan and Anr. vs. Namit Sharma Review Petition [C] No.2675 OF 2012 In Writ Petition [C]\nNo.210 OF 2012 had held as under:"While deciding whether a citizen should or should not get a particular information\n "which is held by or under the control of any public authority", the Information\n Commission does not decide a dispute between two or more parties concerning their\n legal rights other than their right to get information in possession of a public authority.\n This function obviously is not a judicial function, but an administrative function\n conferred by the Act on the Information Commissions."Page 3 of 6Furthermore, the High Court of Delhi in the matter ofHansi Rawat and Anr. vs. Punjab National\nBank and Ors. LPA No.785/2012dated 11.01.2013 held as under:"6. The proceedings under theRTI Actdo not entail detailed adjudication of the said\n aspects. The dispute relating to dismissal of the appellant No.2 LPA No.785/2012 from\n the employment of the respondent Bank is admittedly pending consideration before the\n appropriate forum. The purport of theRTI Actis to enable the appellants to effectively\n pursue the said dispute. The question, as to what inference if any is to be drawn from the\n response of the PIO of the respondent Bank to the RTI application of the appellants, is to\n be drawn in the said proceedings and as aforesaid the proceedings under theRTI Actcannot be converted into proceedings for adjudication of disputes as to the correctness\n of the information furnished."Moreover, in a recent decision in Govt. of NCT vs. Rajendra Prasad WP (C) 10676/2016 dated\n30.11.2017, the Hon'ble High Court of Delhi had held as under:6. The CIC has been constituted underSection 12of the Act and the powers of CIC are\n delineated under the Act. The CIC being a statutory body has to act strictly within the\n confines of the Act and is neither required to nor has the jurisdiction to examine any\n other controversy or disputes.7. In the present case, it is apparent that CIC had decided issues which were plainly\n outside the scope of the jurisdiction of CIC under the Act. The limited scope of\n examination by the CIC was: (i) whether the information sought for by the respondent\n was provided to him; (ii) if the same was denied, whether such denial was justified; (iii)\n whether any punitive action was required to be taken against the concerned PIO; and (iv)\n whether any directions underSection 19(8)were warranted. In addition, the CIC also\n exercises powers underSection 18of the Act and also performs certain other functions as\n expressly provided under various provisions of the Act includingSection 25of the Act. It\n is plainly not within the jurisdiction of the CIC to examine the dispute as to whether\n respondent no.2 was entitled to and was allotted a plot of land under the 20-Point\n Programme.A similar view delineating the scope of the Commission's jurisdiction was also taken by the\nHon'ble High Court of Delhi in Sher Singh Rawat vs. Chief Information Commissioner and Ors.,\nW.P. (C) 5220/2017 and CM No. 22184/2017 dated 29.08.2017 and in the matter ofShobha\nVijender vs. Chief Information Commissioner W.P. (C) No.8289/2016 and CM 34297/2016\ndated 29.11.2017.With regard to imposition of penalty on the CPIO/PIO underSection 20of the RTI Act, 2005,\nthe Commission took note of the ruling of Hon'ble Delhi High Court in W.P.(C) 11271/2009Registrar of Companies & Ors v. Dharmendra Kumar Garg & Anr.(delivered on: 01.06.2012)\nwherein it was held:" 61. Even if it were to be assumed for the sake of argument, that the view taken by the\n learned Central Information Commissioner in the impugned order was correct, and\n that the PIOs were obliged to provide the information, which was otherwise retrievable\n by the querist by resort toSection 610of the Companies Act, it could not be said that\n the information had been withheld malafide or deliberately without any reasonablePage 4 of 6cause. It can happen that the PIO may genuinely and bonafidely entertain the belief\n and hold the view that the information sought by the querist cannot be provided for one\n or the other reasons. Merely because the CIC eventually finds that the view taken by\n the PIO was not correct, it cannot automatically lead to issuance of a showcause notice\n underSection 20of the RTI Act and the imposition of penalty. The legislature has\n cautiously provided that only in cases of malafides or unreasonable conduct, i.e., where\n the PIO, without reasonable cause refuses to receive the application, or provide the\n information, or knowingly gives incorrect, incomplete or misleading information or\n destroys the information, that the personal penalty on the PIO can be imposed. This\n was certainly not one such case. If the CIC starts imposing penalty on the PIOs in every\n other case, without any justification, it would instill a sense of constant apprehension in\n those functioning as PIOs in the public authorities, and would put undue pressure on\n them. They would not be able to ful fill their statutory duties under theRTI Actwith an\n independent mind and with objectivity. Such consequences would not auger well for the\n future development and growth of the regime that theRTI Actseeks to bring in, and\n may lead to skewed and imbalanced decisions by the PIOs Appellate Authorities and\n the CIC. It may even lead to unreasonable and absurd orders and bring the institutions\n created by theRTI Actin disrepute."Similarly, the following observation of the Hon'ble Delhi High Court inBhagat Singh v. CIC &\nOrs. WP(C) 3114/2007 are pertinent in this matter:"17. This Court takes a serious note of the two year delay in releasing information, the\n lack of adequate reasoning in the orders of the Public Information Officer and the\n Appellate Authority and the lack of application of mind in relation to the nature of\n information sought. The materials on record clearly show the lackadaisical approach of\n the second and third respondent in releasing the information sought. However, the\n Petitioner has not been able to demonstrate that they malafidely denied the information\n sought. Therefore, a direction to the Central Information Commission to initiate action\n underSection 20of the Act, cannot be issued."Furthermore, the High Court of Delhi in the decision of Col.Rajendra Singh v. Central\nInformation Commission and Anr. WP (C) 5469 of 2008 dated 20.03.2009 had held as under:"Section 20, no doubt empowers the CIC to take penal action and direct\n payment of such compensation or penalty as is warranted. Yet the Commission has to be\n satisfied that the delay occurred was without reasonable cause or the request was denied\n malafidely.......The preceding discussion shows that at least in the opinion of this Court, there are\n no allegations to establish that the information was withheld malafide or unduly delayed\n so as to lead to an inference that petitioner was responsible for unreasonably\n withholding it."The Complainant could not substantiate his claims regarding malafide denial of information by\nthe Respondent or for withholding it without any reasonable cause.Page 5 of 6DECISION:Keeping in view the facts of the case and the submissions made by the Respondent, no further\nintervention of the Commission is required in the matter. For redressal of his grievance, the\nComplainant is advised to approach an appropriate forum.The Complaint stands disposed accordingly.(Bimal Julka) (िबमल जु का)\n (Information Commissioner) (सूचना आयु )\nAuthenticated true copy\n(अिभ मािणत स ािपत ित)\n\n\n\n\n(K.L. Das) (के .एल.दास)\n(Dy. Registrar) (उप-पंजीयक)\n011-26182598/[email protected]दनांक / Date: 19.02.2020Page 6 of 6 |
fb36c58f-dc13-5f6a-82e3-d696bb1e6064 | court_cases | Jammu & Kashmir High Court - Srinagar BenchHanan Moumin Feroz Khan vs Union Of India & Ors on 28 March, 2023Author:Sindhu SharmaBench:Sindhu SharmaSerial No. 34\n Regular Causelist\n\n HIGH COURT OF JAMMU & KASHMIR AND LADAKH\n AT SRINAGAR\n\n WP(C) 1658/2020\n CM(4678/2020)\nHanan Moumin Feroz Khan.\n ..... Petitioner s)\nThrough: Mr. Taha Khaleel, Advocate.\n\n V/s\nUnion of India & Ors.\n .....Respondent(s)\nThrough: Mr. T. M. Shamsi, DSGI.\n Mr. Faheem Nisar Shah, GA.\nCORAM:\n HON'BLE MS. JUSTICE SINDHU SHARMA, JUDGE.\n ORDER28.03.2023\n List this matter tomorrow viz. 29.03.2023.(Sindhu Sharma)\n Judge\nSRINAGAR:28.03.2023\n"Hamid" |
f7bb647d-0037-5074-89eb-a18b0d56aed9 | court_cases | Delhi High Court - OrdersLt. Col. Nitisha vs Union Of India & Ors on 5 July, 2022Author:Suresh Kumar KaitBench:Suresh Kumar Kait$~29\n* IN THE HIGH COURT OF DELHI AT NEW DELHI\n+ W.P.(C) 9827/2022\n LT. COL. NITISHA ..... Petitioner\n Through: Mr.Vibhav Mishra, Mr.Ekansh\n Bansal & Ms.Juhi Mishra, Advs.\n\n versus\n\n UNION OF INDIA & ORS. ..... Respondents\n Through: Mr.Harish Vaidyanathan Shankar,\n CGSC with Mr.Srish Kumar\n Mishra, Mr.Sagar Mehlawat,\n Mr.Alexander Mathai Paikaday,\n Advs.\n Major Partho Kayayan for UOI.\n\n CORAM:\n HON'BLE MR. JUSTICE SURESH KUMAR KAIT\n HON'BLE MR. JUSTICE SAURABH BANERJEE\n ORDER% 05.07.20221. By way of the present petition, petitioner seeks directions to stay\nthe operation of notice A/56301/AG/Ins/Mat/Obsn dated 29.03.2022 and\n26.05.2022.2. Notice issued.3. Learned counsel accepts notice on behalf of respondent nos.1 to 4\nand seeks time to file counter affidavit/short affidavit.4. Let needful be done within six weeks with an advance copy to the\nother side. Rejoinder thereto, if any, be filed within four weeks thereafter.W.P.(C) 9827/2022 Page 1 of 25. Learned counsel for respondent nos.1 to 4 submits that Army\nGroup Insurance Fund (AGIF) is a necessary party, however, the\npetitioner has not impleaded it in the array of parties.6. At this stage, learned counsel for the petitioner orally prays for\nimpleading AGIF as respondent no.5.7. On oral submission of counsel for the petitioner, AGIF is hereby\nimpleaded as respondent no.5 in this petition. Let amended memo of\nparties be filed within a week.8. On taking steps, let notice be issued to newly added respondent\nno.5. On receipt of the notice, the said respondent is directed to file\ncounter affidavit within six weeks with an advance copy to the other side.\nRejoinder thereto, if any, be filed within four weeks thereafter.9. Renotify on 12.12.2022.SURESH KUMAR KAIT, J\n\n\n\n\n SAURABH BANERJEE, J\nJULY 5, 2022/abW.P.(C) 9827/2022 Page 2 of 2 |
ca224688-47ec-5b06-b0c4-3391ca391a1c | court_cases | Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member services -- Free for one month.\n\nNational Company Law Appellate Tribunal\nM/S Devi Enterprises Ltd vs M/S Gurudev Infra Projects Ltd on 18 August, 2022\nAuthor: Ashok Bhushan\nBench: Ashok Bhushan\n NATIONAL COMPANY LAW APPELLATE TRIBUNAL\n PRINCIPAL BENCH, NEW DELHI\n Company Appeal (AT) (Insolvency) No. 895 of 2022\n\nIN THE MATTER OF:\n\nDevi Enterprises Ltd. ...Appellant\n\nVersus\n\nGurudev Infra Projects Ltd. ...Respondent\n\nPresent:\n For Appellant: Mr. Santosh Kumar, Mr. Rajiv R. Mishra, Mr.\n Saurabh, Advocates\n For Respondent: Appearance not marked\n\n\n ORDER\n\n18.08.2022: Heard Learned Counsel for the Appellant and Learned\n\nCounsel for the Respondent.\n\n\n2. This Appeal has been filed against the Order dated 23rd May, 2022 by\n\nwhich Order, the Adjudicating Authority has rejected the Section 7 Application\n\nfiled by the Appellant. The Adjudicating Authority while rejecting has also\n\nimposed a cost of Rs. 05 Lakhs on the appellant referring to Section 65 of the\n\nInsolvency and Bankruptcy Code, 2016. The Adjudicating Authority has\n\nreturned a finding that Section 7 Application have been filed for some ulterior\n\nmotive other than the resolution of the insolvency of a Corporate Debtor.\n\nConsequently, the Section 7 Application was rejected.\n\n\n3. Learned Counsel for the Appellant challenging the Order contends that\n\nthe mere fact that Appellant and Respondent Company, the Directors are\n\nfather and son, the Directors are not common in both the Companies and in\n\nthe financial document, the amount of loan is mentioned. He further submits\n\nthat the Adjudicating Authority, there being admission of debt, ought to have\n\nadmitted Section 7 Application.\n -2-\n4. Learned Counsel for the Respondent refuting the submissions of\n\nLearned Counsel for the Appellant submits that present is a case where to\n\nsettle some dispute between the parties, Section 7 Application was filed and\n\nthe Adjudicating Authority has rightly rejected the same. Learned Counsel for\n\nthe Respondent pointed out the address of registered office of both the\n\nCompanies is the same, as reflected in the memo of Appeal.\n\n\n5. We have considered the submissions of Learned Counsel for the parties\n\nand have perused the record.\n\n\n6. The Adjudicating Authority has after considering the submissions of\n\nLearned Counsel for the parties, made following observations in Paragraph 16\n\nand 17:\n\n\n "16. Further, if the claim of the financial creditor that\n when there is a debt which is due and payable both in\n law and fact and a default occurs, then the\n Adjudicating Authority must admit this application\n subject to other conditions i.e. the amount of default\n should be more than the threshold limit and not barred\n by limitation. In our view, if this plea is accepted then\n the provisions of Section 65 of IBC, 2016 would become\n redundant as an empty provision in the statute. We are\n of the view that this is certainly not the purpose of\n legislature. The provisions of Section 65 of IBC,2016\n have been brought on statute particularly to check and\n prevent misuse of the provisions of law, when\n application u/s 7 is found to have been filed for some\n ulterior motive other than the resolution of insolvency\n of a corporate debtor. The twin conditions for that is the\n Company Appeal (AT) (Insolvency) No. 895/2022\n -3-\n\n\n\n application u/s 7 of IBC, 2016 should have been filed\n with malicious intent and for nay purposes other than\n the resolution of insolvency.\n\n 17. In our view, this application has been filed for\n such extraneous considerations and to settle personal\n scores, which most unfortunately, is happening\n between a father and son."\n\n7. From the facts which has been brought on record it does appear that\n\nthere has been a contract with NHAI between the parties where dispute arose\n\nregarding their entitlement. When the Adjudicating Authority has come to the\n\nconclusion that Section 7 Application was filed for some ulterior motive other\n\nthan the resolution of insolvency of a Corporate Debtor, we do not find any\n\nerror in the Order rejecting Section 7 Application.\n\n\n8. Learned Counsel for the Appellant lastly contended that amount of cost\n\nimposed is too heavy and present was not a case for imposition of such heavy\n\ncost. Considering the above, we reduce the amount of cost to Rs. 2 Lakhs. Rest\n\nof the Order is affirmed. The Appeal is dismissed subject to above. Learned\n\nCounsel for the Appellant seeks and allowed four weeks' time to deposit the\n\nabove cost.\n\n\n [Justice Ashok Bhushan]\n Chairperson\n\n\n [Mr. Barun Mitra]\n Member (Technical)\n\nBasant/nn\n\n\n Company Appeal (AT) (Insolvency) No. 895/2022 |
b5fee867-db12-549a-8aaa-64c24c76867f | court_cases | Bangalore District CourtState Karnataka Represented By vs ) Dinesh A.M. S/O Late Mariyappa on 30 July, 20201\n\n\n IN THE COURT OF THE XXIII ADDITIONAL CITY CIVIL\n AND SESSIONS JUDGE AND SPECIAL JUDGE,\nBENGALURU URBAN DISTRICT, BENGALURU CITY (CCH-\n 24)\n Dated this the 30th day of JULY, 2020\n\n PRESENT\n SMT.MANJULA ITTY, B.A.L, LL.B.,\n XXIII ADDITIONAL CITY CIVIL\n AND SESSIONS JUDGE AND\n SPECIAL JUDGE, BENGALURU URBAN\n DISTRICT, BENGALURU\n\n Special C.C.No.41/2018\n\nComplainant: State Karnataka represented by\n Assistant Commissioner of Police,\n Electronic City Sub-Division,\n Bengaluru City\n\n (By Sri. D. Ramesh Babu, Public\n Prosecutor)\n V/s\n\nAccused : 1) Dinesh A.M. S/o Late Mariyappa,\n aged about 27 years, A.P.C.\n No.790, City Armed Reserve Police\n Squad, South Division, Adugodi,\n Bengaluru Permanent Resident of\n Arekadakalu village, Maralavadi\n Hobli, Kanakapura Taluk,\n Ramanagara District.\n (By Sri.P.N.Hegde, Advocate for\n accused )\n 2\n\n\n\n\n 11.10.2017\n Date of offence\n Date of report of\n 12.10.2017\n offence\n Date of arrest of\n 12.10.2017\n the accused\nDate of release on\n 20.01.2018\n bail\n Total period of\n 03 months and 18 days\n custody\n Sri.Somashekhar, Chief\n Name of the Superintendent, Central Prison,\n complainant Bengaluru\n\n Date of\ncommencement of 28.08.2018\nrecording evidence\n Date of closing of\n 16.09.2019\n evidence\n 13(1)(c) and 13 (1)(d) read withsection 13(2)of Prevention of\n Offences Corruption Act, 1988, Section 424\n complained of ofIPCandSection 42of Prisons\n Act, 1894\n\n Opinion of the\n Accused is found not guilty\n Judge\nState represented Sri.D.Ramesh Babu Public\n by Prosecutor\n\nAccused defended Sri.P.N.Hegde, Advocate for\n by accused\n 3\n\n\n JUDGMENTThe Assistant Commissioner of Police, Electronic\n\nCity Division, Bengaluru City has submitted the charge\n\nsheet against 2 accused persons for the offence\n\npunishable undersections 13(1)(c)and13(1)(d)read\n\nwithsection 13(2)of Prevention of Corruption Act,\n\n1988 ("thePC Act" in short),Section 424,120(B)of\n\nIndian Penal Code, 1860 ("IPC" in short) andSection 42of Prisons Act, 1894.2. The prosecution case in brief is that on\n\n11.10.2017 accused No.1 while reporting to Central\n\nPrison as part of escort to prisoners' duty, he had\n\nwarrants issued by several Sessions Courts dated\n\n10.10.2017 in his possession which he had obtained\n\nfrom his fellow policeman who was assigned with\n\nwarrant return duty. After depositing his mobile phone\n\nat the main gate of the Parapana Agrahara Central4Prison, Bengaluru, he reached the second gate where\n\nhe was searched by CW2 and he was found in\n\npossession of two Samsung J brand new mobile\n\nphones, which is a banned item inside the central\n\nprison, wrapped in the warrant papers. After\n\nverification, it was found that A1 was not assigned with\n\nany warrant return duty officially on that day and\n\nhence, suspecting that A1 being a public servant after\n\nreceiving illegal gratification from someone to help any\n\nof the inmates of the Central Prison tried to smuggle\n\nthe banned item, mobile phones into the Central Prison\n\nand thus, A1 was detained by CW1, the Chief\n\nSuperintendent of the prison and the mobile phones\n\nwere seized and CW1 forwarded A1 and the mobile\n\nphones along with a written complaint to the Parapana\n\nAgrahara Police Station and Crime No.474/2017 came\n\nto be registered for the offences mentioned above. A1\n\nwas produced before this Court and he was remanded5to police custody. While in custody his confession\n\nstatement was recorded by the Investigating Officer\n\nwherein he had stated that he purchased the mobile\n\nphones on instructions of one Nazeer who is a prisoner\n\nhoused in Parapana Agrahara Central Prison serving his\n\nlife imprisonment sentence, who had given him\n\nRs.15,000/- and promised that he would give him\n\nRs.20,000/- as bribe if A1 would buy two new mobile\n\nphones and handover the same to him and hence, A1\n\nbought the mobile phones from a mobile shop and A1\n\ninformed the Investigating Officer that he would show\n\nthe shop from where he purchased the said mobile\n\nphones. On the information so received from A1, the\n\nInvestigating Officer recovered the copies of purchase\n\nbills of the said mobile phones from a mobile shop at\n\nJigani. Thereafter, relying on the statement given by\n\nA1, the said Nazeer was arrayed as accused No.2 in\n\nthe case and he was also remanded to Judicial Custody6in this case. After investigation, charge sheet is laid\n\nbefore this Court. Later A1 was released on bail as per\n\nthe order of the Hon'ble High Court of Karnataka and\n\nA2 did not prefer any bail application.3. Presence of Accused No.1 was secured\n\nthrough summons before this court and is represented\n\nby his counsel Advocate Sri. P.N.Hedge and accused\n\nNo.2 is produced before this Court under production\n\nwarrant issued by this court. He did not have any legal\n\nassistance and he refused to avail the legal assistance\n\noffered by this court and he insisted that he would\n\ndefend his case by himself. Both the accused filed\n\nseparate applicationsu/s 239of the Code of Criminal\n\nProcedure (hereinafter referred as 'CrPC' for brevity) to\n\ndischarge them from the alleged offences and this\n\ncourt after hearing the 2nd accused and the learned\n\ncounsel for the first accused, vide order dated\n\n19.06.2018 discharged A2 from the offence punishable7undersection 120-Band424of IPC andSection 42of\n\nPrisoners Act and prayer of the accused No.1 for his\n\ndischarge was rejected and on 04.07.2018 charges\n\nwere framed against Accused No.1 alone for the\n\noffence punishable undersections 13(1)(e)and13 (1)(d) read withsection 13(2)of Prevention of Corruption\n\nAct andSection 42of Prisons Act 1894, read over and\n\nexplained to him to which he pleaded not guilty and\n\nclaimed to be tried.4. In order to prove the prosecution case, the\n\nprosecution has examined in all 19 witnesses cited by\n\nthe prosecution as PWs 1 to 19 and got marked\n\ndocuments at Ex.P1 to P18 and MOs 1 and 2 were\n\nidentified. After closure of the prosecution evidence,\n\nstatement of A1 undersection 313CrPC is recorded.\n\nThe accused denied all the incriminating circumstances\n\nappearing against him in the prosecution evidence and\n\nhe did not choose to adduce any defence evidence on8his behalf. I have heard the arguments addressed by\n\nthe learned Public Prosecutor and the learned counsel\n\nfor the accused. While the arguments were in progress\n\nthe learned Public Prosecutor filed applicationu/s 216of the CrPC to addsection 424of IPC to the charges\n\nalready framed against the accused and submitted\n\nthat the from the available prosecution evidence on\n\nrecord there are prima facie materials to show that the\n\naccused has committed offenceu/s 424of IPC also.\n\nAfter hearing learned Public Prosecutor and the learned\n\ncounsel for the accused on this point, this court\n\ninvoking powersu/s 216of the CrPC framed additional\n\ncharge against the accused for offenceu/s 424of the\n\nIPC read over and explained to him to which also he\n\npleaded not guilty and claimed trail. The prosecution\n\ndid not choose to adduce any further evidence with\n\nrespect to the added charges.95. Now the following points arise for my\n\nconsideration:1. Whether the prosecution proves beyond\n all reasonable doubt that the accused\n being a public servant working as Police\n Constable in Central Armed Reserve\n Police at Adugodi, Bengaluru South\n Division, on prisoners' escort duty from\n Parapana Agrahara Central Prison, on\n 11.10.2017 at 7.30 am smuggled 2\n mobiles phones into the Parapana\n Agrahara Central Prison wrapped in\n Warrant Return papers issued from\n Session Courts to the jail authorities thus,\n accused has committed an offence\n punishable undersection 42of the\n Prisons Act, 1894?2. Whether the prosecution proves beyond\n all reasonable doubt that the accused\n being a public servant dishonestly\n misappropriated the warrant papers\n issued from Session Courts to the jail\n authorities entrusted to him by CW5 to\n smuggle the mobile phones into the10prison and thereby accused has\n committed offence defined undersection\n 13(1)(c)and which is punishable undersection 13(2)of The Prevention of\n Corruption Act, 1988.3. Whether the prosecution proves beyond\n all reasonable doubt that the accused\n working as Police Constable in Central\n Armed Reserve Police in Adugodi,\n Bengaluru South Division, and was\n deputed on prisoners' escort duty from\n Parapana Agrahara Central Prison on\n 10.10.2017 abused his position as a\n public servant and while holding the office\n as such public servant, obtained 2 mobile\n phones to be supplied to an inmate\n housed in the Parapana Agrahara Central\n Prison after receiving pecuniary\n advantage without any public interest and\n thereby committed criminal misconduct\n and thus, accused have committed an\n offence within the ambit of section 13(d)(ii) & (iii) of the Prevention of Corruption11Act, 1988, punishable undersection 13(2)of the said Act ?4. Whether the prosecution proves beyond\n all reasonable doubt that the accused on\n 11.10.2017 at 7.30 am dishonestly\n concealed 2 mobiles phones wrapped in\n warrant return papers issued from Session\n Courts to the jail authorities to hand over\n the same to a prisoner and thus, accused\n has committed an offence punishable\n undersection 424of the Indian Penal\n Code?5. What order?6. Having heard the arguments on both\n\nsides and taking into consideration of evidence on\n\nrecord, my findings on the above points are as:Point No.1: In the Negative\n\n Point No.2: In the Negative\n\n Point No.3: In the Negative\n\n Point No.4: In the Negative12Point No.5: As per final order, for the following\n\n REASONS7. Before going to the merits of the case, it is\n\nnecessary to decide the validity of the sanction order\n\nmarked at Ex.P2. It is not in dispute that the accused is\n\na public servant holding the post of police constable,\n\nCity Armed Reserve Police Squad, South Division,\n\nAdugodi, Bengaluru and to prosecute accused\n\nprosecution sanction order from the competent\n\nauthority of the accused undersection 19of the PC Act\n\nis essential, since, grant of proper sanction by the\n\ncompetent authority is sine qua non for taking\n\ncognizance of the offence. Ex.P2 is the sanction order\n\nproduced by the prosecution issued by the Deputy\n\nCommissioner of Police, Central Armed Force (South),\n\nBengaluru. Two components have to be established by\n\nthe prosecution before this court for this court to\n\naccept a sanction order. First one is competency of13the sanctioning authority and the other one is the\n\napplication of mind by the sanctioning authority. Here\n\nin this case, PW15, Sri.S.Siddaraju, Deputy\n\nCommissioner of Police is examined to prove the\n\nprosecution sanction order issued by him to prosecute\n\naccused. PW15 in his testimony before this court says\n\nthat, on 25.12.2017 the Additional Director General of\n\nPolice, Karnataka Lokayuktha, Bengaluru had made a\n\nrequisition to his office to accord prosecution sanction\n\nto prosecute accused with copies of the complaint, FIR,\n\nmahazars, property list, seizure mahazar, spot\n\nmahazar, duty assignment register extract, statements\n\nof the witnesses and draft charge sheet. After perusal\n\nof the prosecution papers and all the documents, he\n\nfound that there is a prima facie case against the\n\naccused of his involvement in the aforesaid crime and\n\nhence, he issued the Ex.P2 prosecution sanction order\n\nfor prosecuting the accused. He further deposes that14he is the empowered officer to remove the police\n\nofficials of the cadre of constables from service and\n\nhence, he issued the Ex.P2 prosecution sanction order.8. Before going to the validity of the Ex. P2\n\nsanction order I am persuaded to look into some of the\n\ndecisions of the Hon'ble Supreme Court in this regard\n\nrelied by the learned Public Prosecutor. He drew my\n\nattention to the following case laws:i. Hon'ble Supreme Court inC S Krishnamurthy\n\nVs. State of Karnatakareported in (2005)4 SCC 81\n\nhas held that\n\n "the sanction order should speak for itself\n and in case the facts do not so appear, it\n should be proved by leading evidence that\n all the particulars were placed before the\n sanctioning authority for due application of\n mind. In case the sanction speaks for itself\n then the satisfaction of the sanctioning15authority is apparent by reading the\n order".ii. In State of Maharashtra throughC.B.I. Vs.\n\nMahesh G.Jainreported in (2013) 8 SCC 119, the\n\nHon'ble Supreme Court has held that "Grant of\n\nsanction is irrefragably a sacrosanct act and is entitled\n\nto provide safeguard to a public servant against\n\nfrivolous and vexatious litigations. Satisfaction of the\n\nsanctioning authority is essential to validate an order\n\ngranting sanction". The Hon'ble Court has culled out\n\ncertain principles with respect to the sanction order\n\nwhich are as under:a) It is incumbent on the prosecution to\n prove that the valid sanction has been\n granted by the sanctioning authority\n after being satisfied that a case for\n sanction has been made out.b) The sanction order may expressly show\n that the sanctioning authority has16perused the materials placed before it\n and, after consideration of the\n circumstances has granted sanction for\n prosecution;c) The prosecution may prove by\n adducing the evidence that the\n materials were placed before the\n sanctioning authority and its\n satisfaction was arrived at upon perusal\n of the materials placed before it.iii.InManzoor Ali Khan Vs. Union of India\n\nand othersreported in (2015)2 SCC 33, Hon'ble\n\nApex Court held that "a fine balance has to be\n\nmaintained between need to protect a public servant\n\nagainst mala fide prosecutions on the one hand and\n\nthe object of upholding the probity in public life in\n\nprosecuting the public servant against whom prima\n\nfacie material in support of allegation of corruption\n\nexists on the other hand."179. Here, in this case, the prosecution has\n\nproduced and marked the Ex. P2 sanction order which\n\nclearly shows that all the materials were placed before\n\nPW15 and after scrutiny of those materials the\n\nsanction order has been issued. The learned counsel\n\nfor accused has not raised any serious dispute about\n\nthe validity of the sanction order even at trial and in\n\nhis final arguments. All the relevant documents\n\npertaining to the allegation against the accused finds\n\nmention in the proceedings which clearly shows that\n\nthe prosecution sanction order is issued after thorough\n\napplication of mind by the sanctioning authority and\n\nthe same is signed by the Deputy Commissioner of\n\nPolice, who is the competent authority to remove\n\naccused from service. From the light of the above\n\ndiscussed decisions and the from the prosecution\n\nevidence adduced in this case, it can be safely\n\nconcluded that there was sufficient material before the18sanctioning authority and the Ex. P2 prosecution\n\nsanction order is issued by the Competent Authority of\n\nthe accused after applying his mind and hence, the\n\nEx.P2 sanction order is valid.10. Now, coming to the facts of the case, the\n\nspecific case of the prosecution is that accused being a\n\npublic servant deputed for escort duty misused his\n\nposition as such public servant in conspiration with\n\none T.Nazeer, who is a convict prisoner serving life\n\nimprisonment sentence in the Parapana Agrahara\n\nCentral Prison. The accused on instruction of the said\n\nNazeer, after receiving Rs.15,000/- from him,\n\npurchased two mobile phones and agreed to obtain\n\nillegal gratification of Rs.20,000/- from the said Nazeer\n\nwhen the two mobile phones are handed over to him.\n\nThe further prosecution case is that PW6 was officially\n\ndeputed with Warrant Return duty to the jail by the19Courts and the accused obtained warrant return\n\npapers from PW5, who had obtained those from PW6.\n\nAccused used those bunch of warrant return papers to\n\nconceal the two mobile phones to smuggle them into\n\nthe prison to hand over the same to Nazeer and was\n\ncaught red-handed by PW3 in front of A2 gate of the\n\nCentral Prison and the mobile phones were seized by\n\nthe Jail Authorities. It is the prosecution case that\n\nmobile phones are listed under prohibited articles\n\ninside the prison and hence accused committed\n\noffence undersection 42of Prisons Act. The Jail\n\nSuperintendent handed over the accused along with\n\ncomplaint and seized mobile before the Parapana\n\nAgrahara Police Station and on investigation by the\n\nParapana Agrahara Police it is revealed that accused\n\nhad purchased the mobile phones to hand over the\n\nsame to Nazeer after receiving bribe from Nazeer and\n\nused the Warrant Return Papers to conceal the mobile20phones and hence he committed offence of criminal\n\nmisconduct by misappropriation of property\n\npunishable undersection 13(1)(c)of the PC Act and\n\nabused his position as a public servant punishable\n\nundersection 13(d)of the PC Act. Since the accused\n\nentered the prison premises with the mobile phones in\n\nconcealed manner he is charged with the offence of\n\nconcealment of property punishable undersection 424of IPC.11. Point No. 1: To prove the charge for\n\noffence punishable undersection 42of Prison Act, the\n\nprosecution has to first prove that the mobile phones\n\nare prohibited items as per the Prisons Rules. The\n\nlearned counsel for the accused during his arguments\n\nbefore this Court pointed out the main issue that,\n\nnowhere inPrisons Act, 1894or Karnataka State\n\nPrisons Rules or Prison Manual, mobile phones are\n\nlisted under the prohibited articles and hence, no21offence can be attributed against the accused\n\npunishable undersection 42of Prisons Act.12.Section 42of Prisons Act prescribes for\n\npunishment of contravention ofsection 3(9)of the said\n\nAct andSection 3(9)of Prisons Act defines prohibited\n\narticles.Section 42of the Prisons Act, 1894 reads thus:"Penalty for introduction or removal of\n prohibited articles into or from prison and\n communication with prisoners: Whoever,\n contrary to any rule under section\n introduces or removed or attempts by any\n means whatever to introduce or remove,\n into or from any prison, or supplies or\n attempts to supply to any prisoner\n outside the limits of a prison, any\n prohibited article,\n and every officer of a prison who,\n contrary to any such rule, knowingly\n suffers any such article to be introduced\n into or removed from any prison, to be\n possessed by any prisoner, or to be22supplied to any prisoner outside the limits\n of a prison,\n and whoever, contrary to any such\n rule, communicates or attempts to\n communicate with any prisoner,\n and whoever abets any offence made\n punishable by this section\n shall, on conviction before a\n Magistrate, be liable to imprisonment for\n a term not exceeding six months, or to\n fine not exceeding two hundred rupees,\n or to both."Section 3(9)of Prisons Act, 1894 says\n\n "Prohibited article means an article the\n introduction or removal of which into or\n out of a prison is prohibited by any rule\n under this Act".13.Section 53of the Prisons Act empowers the\n\nState Government concerned to make Rules and as per\n\nthis the Karnataka State has notified the Karnataka\n\nPrison Rules, 1974 on 25.07.1974 which consists of 19423Rules and as rightly pointed out by the learned counsel\n\nfor the accused that none of the above Rules lists any\n\nprohibited articles as mentioned inSection 3(9)of the\n\nPrisons Act. The Jail Manual also does not contain any\n\nlist wherein mobile phones are listed as prohibited\n\narticle. The learned Public Prosecutor submits that the\n\nRules were notified in 1974 when mobile phones were\n\nnot in use and hence the 1974 Rules does not consists\n\nthe list including the mobile phones in prohibited\n\narticles.14. True, when the Karnataka State Prisons Rules,\n\n1974, was notified, during that period, mobile phone\n\nwas not in use and hence, the question of including the\n\nsame as pointed out by the learned Public Prosecutor\n\nunder prohibited item will not arise. But, thereafter,\n\nwhen mobile phones are extensively in use and has\n\nbecome part and parcel of every person's daily needs,24definitely the Rules should have been amended\n\nincluding the mobile phone which has not been done\n\nso for.15. The learned counsel for accused drew my\n\nattention to the Hon'ble Supreme Court decision in\n\nVarinder Singh V/s State of Punjab reported in\n\n(2014) 3 SCC 151, AIR 2014 SC 1817, wherein the\n\naccusedin that casewas charged for commission of\n\noffence undersection 42of Prison Act among other\n\noffences and while considering the question whether\n\nan offence undersection 42of Prisoners Act is made\n\nout, the Hon'ble Supreme Court answers in the\n\nnegative. The brief facts of that case are that a mobile\n\nphone and charger was recovered from the turban of\n\nthe accused by the jail authorities when the accused\n\nwas searched while he had been to Ferozepur Central\n\nPrison as a visitor and hence a case is registered25against the accused for offence undersection 42and45of Prisons Act. Para 606 of Punjab Jail Manual\n\nenumerates the prohibited articles but it does not list\n\nmobile phone. The Punjab Prison (Amendment) Bill,\n\n2011 provided for the addition of Section 52-A to the\n\nAct which makes the possession of mobile phone and\n\nsupplying phone by any person an offence and the\n\nnotification of the section came into force on 8.3.2011.\n\nAs per the prosecution the offence committed by the\n\naccusedin that casewas on 24.9.2009, the Hon'ble\n\nSupreme Court ruled that as on the date of offence\n\nmobile phone was not listed as one of the prohibited\n\narticles under section Punjab Prison Manual and hence\n\nno offence undersection 42is made out against the\n\naccused.16. PW17, the Investigating Officer who laid\n\nthe charge sheet before this court in his testimony26before this court has admitted that there are no rules\n\nor circulars or notifications issued by the Karnataka\n\nState Government specifying that mobile phones are\n\nlisted as prohibited items inside the prisons in\n\nKarnataka state. Therefore, the sum and substance of\n\nthe above referred case is similar to the facts of this\n\ncase and the lawlaid down bythe Hon'ble Apex Court\n\nin the aforementioned decision squarely applies to this\n\ncase as the prosecution has not produced any\n\ndocuments which shows that mobile phone has been\n\nlisted as prohibited article inside the prison within the\n\nState of Karnataka under Karnataka State Prisons Rules\n\n1974, to attract punishment for introducing the same\n\ninto the prison by the accused as alleged by the\n\nprosecution to hold him guilty for the same. Hence,\n\nPoint No. 1 taken for consideration is answered in the\n\nNegative.2717. Point No. 2: The next point to be\n\nconsidered is with respect to the prosecution allegation\n\nof commission of offences defined undersection 13(1)(c) of thePC Act. The prosecution alleges that the\n\naccused dishonestly misappropriated the Warrant\n\nReturn Papers issued by the Courts which were to be\n\nserved to the Jail Authorities and he used those papers\n\nto conceal two mobile phones which he had purchased\n\nto hand over to a prisoner housed in the Central Prison.\n\nThe Sessions Courts of Bengaluru City had entrusted\n\nWarrant Return Papers to PW6 who was officially\n\nassigned with Warrant Return duty. PW6 had handed\n\nover these bunches of papers in a plastic cover to PW5\n\nto deliver the same to jail authorities. Accused was\n\nassigned with escort duty of prisoners of Central Prison\n\nfrom Jail to the 48th Additional City Civil and Sessions\n\nJudge's Court, the City Civil Court Hall No. 49 and back\n\nfrom the Court to the jail on 11.10.2017 and while he28was en route towards Central Prison for his duty, he\n\nobtained Warrant Return Papers from PW5 in the\n\npretext that he will deliver the same to the Jail\n\nauthorities and he dishonestly used those bunch of\n\nWarrant Return papers to conceal the mobile phones\n\nfrom the jail wardens who were on duty at the gates of\n\nthe prison. Thus, accused committed offence defined\n\nundersection 13(1)(c)of PC Act.18.Section 13(1)(c)defines criminal misconduct\n\nand says\n\n\n\n "If a public servant dishonestly or\n fraudulently misappropriates or\n otherwise converts for his own use any\n property entrusted to him or under his\n control as a public servant or allows\n any other person to do so".2919. Criminal misappropriation and criminal breach\n\nof trust are defined insection 403and405of IPC.\n\nUndersection 403of IPC,\n\n "whoever, dishonestly misappropriates\n or converts to his own use any movable\n property shall be punished with\n imprisonment of either description for a\n term which may extend to 2 years, or\n with fine or with both".20. The dishonest misappropriation is with regard\n\nto movable property and there need not be any formal\n\nentrustment of that property to the accused. The\n\nessence of the offence undersection 403of IPC is that\n\nthe movable property of another person comes into the\n\npossession of the accused in some manner and he\n\nmisappropriates or converts the same to his own use.\n\nUndersection 405of IPC wherein criminal breach of\n\ntrust is defined section specifies that the accused\n\nshould have been entrusted with the property30(movable or immovable) or he should have dominion\n\nover the property and dishonestly misappropriates or\n\nconverts to his own use or dishonestly uses or disposes\n\nof that property in violation of any direction of law\n\nprescribing the mode in which such trust is to be\n\ndischarged. Undersection 13(1)(c)the property should\n\nhave been entrusted to accused, or as a public\n\nservant, he should have gained a control over the\n\nproperty and he dishonestly or fraudulently\n\nmisappropriates the same, or allows any other person\n\nto do so, then the conduct of the accused is termed as\n\ncriminal misconduct which attracts punishment undersection 13(2)of PC Act.21. Hence, as persection 13(1)(c)of the Act, the\n\nprosecution has to prove the following ingredients:a) accused is a public servant.31b) accused should have been entrusted with\nproperty or should have gained control over the\nproperty as a public servantc) dishonestly or fraudulently he\nmisappropriated or otherwise converts for his own\nuse of that property or allows any person to do\nso.22. In case on hand accused is a public servant is\n\nnot in dispute. The properties the prosecution refers\n\nherein are the Warrant Return Papers issued by\n\nSessions Courts. Whether accused as a public servant\n\nwas entrusted with those Warrant Return Papers or he\n\nsomehow had control over the Warrant Return Papers\n\nas a public servant is the question to be decided.\n\nVarious Sessions Courts functioning in Bengaluru City\n\nissued warrants against persons addressed to the Jail\n\nSuperintendent, Central Prison for production of those\n\npersons mentioned in the warrants who are housed in\n\nCentral Prison. PW6, Vasanth Kumar is the police32constable who was deputed to collect these warrants\n\nfrom all the Courts and handover the same to Jail\n\nAuthorities. As per the evidence of PW6 on\n\n10.10.2017, he was deputed to collect the warrants\n\nfrom the Sessions Courts and as he was unwell, he\n\nrequested PW5 Ganesh to collect the warrants to be\n\nhanded over to jail authorities and as such PW5\n\ncollected the same. Next day PW5 was deputed to\n\ncollect the Warrant Return Papers from jail authorities\n\nto hand over the same to respective courts and since\n\nhe (PW6) had duty to collect warrants from Magistrate\n\nCourts, he requested PW5 to hand over the warrants\n\ncollected on his behalf from the Sessions Court on the\n\nprevious day to the jail authorities and hence, PW5\n\nproceeded to Parappana Agrahara Central Prison with\n\nthe accused, who was deputed for escort duty of\n\nprisoners housed in central prison. The testimony of\n\nPW5 is that he was entrusted with warrants duty of33Magistrate Court and PW6 with duty of Sessions Court\n\nand since PW6 was unwell as per the request of PW6,\n\nhe collected warrants papers from Sessions Court on\n\n10.10.2017 and the next day he was assigned with\n\nwarrant return duty of Sessions Court and hence, as\n\nper the request of PW6 he agreed to return the warrant\n\npapers of Sessions court collected by him the previous\n\nday on behalf of PW6 to the jail authorities. His further\n\ntestimony is that due to want of Government vehicle,\n\nhe proceeded towards the Central Prison on a\n\nmotorbike belonging to the accused with the accused,\n\nwho was deputed with the escort duty of prisoners. On\n\nthe way, they stopped the motorbike at a hotel near\n\nParapana Agrahara Central Prison to have breakfast\n\nand since accused had already had his breakfast from\n\nhome, accused dropped PW5 near the hotel and\n\nobtained the warrant return papers from PW5 saying\n\nthat he would promptly deliver the same to jail34authorities. Later, after having breakfast PW5\n\nproceeded to Central Prison and obtained the warrant\n\npapers from jail authority which were to be produced\n\nbefore respective Sessions Courts. The learned\n\ncounsel for accused strenuously argued that there was\n\nno entrustment of property to the accused as specified\n\ninSection 13(1)(c)of the PC Act. The section requires\n\nthat accused should have been officially entrusted with\n\na property which he misappropriated to attract offence\n\nofSection 13(1)(c). Here, PW6 was entrusted with the\n\nwarrant papers to be returned to the jail authorities.\n\nPW6 handed over the same to PW5 who in turn handed\n\nover them to the accused. Hence, there is no\n\nentrustment of any property as contemplated inSection 13(1)(c)of the Act. The learned Public\n\nProsecutor opposed this and submits that the moment\n\naccused received the Warrant Papers from PW5, the\n\nentrustment as defined insection 13(1)(c)of the Act is35complete and accused is bound to deliver those papers\n\nto the jail authorities and instead he used those papers\n\nto conceal the mobile phones. He further submits thatsection 13(1)(c)also postulates situation wherein the\n\naccused misappropriated paper which was under his\n\ncontrol as a public servant, even though there is no\n\nofficial entrustment of the property. Hence, the\n\ningredients specified in the section are satisfied and\n\naccused is liable for that.23. Here, admittedly accused possessed the\n\nwarrant papers which the prosecution alleges that the\n\naccused used to conceal the mobile phones. His duty\n\nwas to go escort to the Prisoners housed in Central\n\nPrison to CCH 49 and back from the Court to Prison.\n\nThe warrant papers found in his possession did not\n\ncome to his possession as a police constable doing\n\nprisoners' escort duty. These were given to him by36PW5, who was officially assigned with the warrant duty\n\nto the prison by Sessions Courts along with PW6 and\n\nanother constable named Venkatesh. 13(1)(c)\n\nspecifically says that "under his control as a public\n\nservant". The legislature in its wisdom has suffixed the\n\nterm "as a public servant" with the words "under his\n\ncontrol" which do not find insection 406of the IPC.\n\nThis can be interpreted that the property should have\n\nbeen in the control of the accused under the colour of\n\nhis office. Here PW6 was deputed with the duty to\n\nreceive warrant papers by the Court which were\n\nreceived by PW5 for and on behalf of PW6. PW5\n\nreceived the warrant papers from Courts as a public\n\nservant entrusted with duty to receive warrant papers\n\nto be handed over to the Jail authorities. PW5 is also\n\nofficially deputed to receive warrant papers to hand\n\nover the same to jail authorities. Both PW6 and PW5\n\nhave deposed that PW5, PW6 and one Venkatesh were37deputed to receive warrant papers from various Courts\n\nacross Bengaluru City. Hence, there is valid\n\nentrustment of property with PW5 by the Courts. But\n\nas far as the receiving of papers by the accused from\n\nPW5 is concerned there is no entrustment nor the\n\naccused gained control over the same in the colour of\n\nthe duty he is performing. Here, the handing over of\n\nwarrant paper by PW5 to the accused is only a casual\n\none as the accused was proceeding towards the\n\nCentral Prison, PW5 gave those papers to accused to\n\nbe handed over to Jail Authority. Therefore, the\n\naccused was not entrusted with any property or gained\n\ncontrol over any property as a public servant to\n\nmisappropriate or use it for his own use. Hence,\n\noffence as definedu/s 13(1)(c)of the PC Act is not\n\nmade out against the accused.3824. The mobile phones were found in the\n\npossession of accused concealed in these warrant\n\npapers. Even if it is assumed that there is an\n\nentrustment of these warrants papers whether the\n\nprosecution has proved that the accused dishonestly or\n\nfraudulently used these papers to conceal the mobile\n\nphones is to be probed. Here, when accused reached\n\nGate No.A2 of the central prison, he was inspected by\n\nPW3 and when PW3 searched the plastic cover held by\n\nthe accused two mobile phones were found in between\n\nthe warrant papers and PW3 brought the same to the\n\nnotice of PW4, Jailor Smt.Hemavathi, who in turn\n\ninformed PW1, the Chief Superintendent of the Central\n\nPrison. PW1 seized the phones and lodged a complaint\n\nbefore the Parapana Agrahara Police Station. In his\n\ncross examination PW3 has testified that only warrant\n\npapers could be seen on the face of the plastic cover\n\nand mobiles phones were not visible. The accused was39caught at Gate A2 at 9.30 am. From the testimony of\n\nPW5 who had handed over the plastic cover containing\n\nwarrant papers to accused, the time was 9.20 am.\n\nTherefore, within 10 minutes after receiving the plastic\n\ncover from PW5, accused was caught with the phones\n\nconcealed within the papers in the plastic cover. The\n\ndefence of accused is that he had no knowledge of the\n\nmobile phones kept in the plastic bag. It is the\n\nprosecution case that accused had purchased mobile\n\nphones from a mobile shop situated at Jigani. From the\n\ninformation given by accused to the PW19, the\n\nInvestigating Officer during investigation while accused\n\nwas in police custody, PW19 had recovered a bill book\n\nwhich depicts the sale of the mobile phones from a\n\nmobile shop named Mobile Palace. PW19 in his\n\ntestimony has deposed that he had taken accused to\n\npolice custody for the purpose of investigation and\n\nduring interrogation the accused had given information40that he had purchased the phones from a mobile shop\n\nand if taken he would lead to the shop from where the\n\nphones were purchased and based on this information\n\nPW19 reached a mobile shop named Mobile Palace\n\nsituated at Jigani and Ex.P4 bill book was seized from\n\nthe shop. Ex.P4 shows the description of the mobile\n\nphones which were seized from accused on 11.10.2017\n\nand the IMEI number of the phones mentioned in the\n\nbills tallies with the description mentioned in Ex.P3 the\n\nseizure mahazar of the mobile phones, prepared by\n\nPW13 on 12.10.2017 at Parapana Agrahara Police\n\nStation. The mobile phones are marked as MO1 and\n\nMO2 before this court. The MO1 and MO2 mobile\n\nphones were sent to the police station by PW1 through\n\nhis staff along with Ex.P1 complaint and the accused,\n\nwho was detained by PW1. While receiving Ex.P1\n\ncomplaint PW13, the PSI attached to Parapana\n\nAgrahara Police Station has made an endorsement in41Ex.P1 stating that the said complaint is sent by Chief\n\nSuperintendent of Central Prison on 12.10.2017 at 7.00\n\nam through his staff along with the accused and the\n\nmobile phones, upon which Crime No.474/2017 undersection 13(1)(d)of PC Act andsection 424of IPC read\n\nwithsection 42of Prison Act is registered. The recovery\n\nof purchase bills of the mobile phones from the mobile\n\nshop at Jigani by PW19 on information provided by\n\naccused squarely comes under the sweep ofSection 27of Indian Evidence Act as the Investigating Officer got\n\nknowledge of the purchase of mobile phones from the\n\ninformation given to him by the accused while in\n\ncustody which information turned out to be true.\n\nHence, the MO1 and MO2 mobile phones were\n\npurchased from the said shop named Mobile Palace is\n\nproved. Name of accused is also found in Ex.P4 cash\n\nbill as the name of purchaser but the recovery\n\nmahazar witnesses of the bill book from the shop, the42salesman and the owner of the mobile shop did not\n\nidentify the accused as the purchaser of the mobile\n\nphones. The specific prosecution case is that accused\n\nwas caught by the PW3 on 11.10.2017 at 9.30 am at\n\nGate No.A2 of Central Prison with the mobile phones.\n\nPW3 informed the matter to PW4 jailor who in turn\n\nsubmitted the accused and the phones to PW1 the\n\nChief Superintendent of Central Prison immediately.\n\nBut Ex.P1 complaint is lodged on 12.10.2017 and the\n\naccused with mobile phones are produced after the\n\nlapse of nearly 24 hours before the police and the\n\nreason stated for the said delay in lodging a complaint\n\nbefore the jurisdictional police is that PW1 had to\n\ndiscuss the matter with his higher authorities before\n\nlodging the complaint. PW1 is not a layman. He is the\n\nChief Superintendent of Central Prison. No mahazar is\n\nprepared with respect to seizure of mobile phone from\n\nthe accused by the jail authorities, nor did they submit43the accused to the jurisdictional police immediately\n\nafter his detention, nor did they inform the police with\n\nrespect to seizure of phones on the same day. The\n\nentire prosecution records are silent with respect the\n\nfact that where the accused and the phones were from\n\n9.30 am of 11.10.2017 till 7.00 am of 12.10.2017. This\n\naspect is not explained by the prosecution even during\n\nthe trail of the case. No documents are produced\n\nbefore this court by the prosecution to show that MO1\n\nand MO2 were recovered from the possession of\n\naccused to connect the accused with the MO1 and\n\nMO2 mobile phones. Only inconsistent oral testimony\n\nof PW3 and PW4 are found in the records with respect\n\nto recovery of the MOs from the accused. PW 4 states\n\nthat when PW3 caught the accused with MO1 and MO2,\n\nshe questioned the accused and then the accused had\n\ninformed that he had brought the phones to hand over\n\nthe same to a convict prisoner T.Nazeer and while44accused gave the information to her, PW3 was also\n\npresent with her. But PW3 testifies that he had not\n\nreceived any information as to why accused had\n\nbrought the mobile phones, to whom accused had\n\nintended to give the phones, until he gave statement\n\nbefore the police. Since the seizure of mobile phone\n\nitself from the accused has not been proved by the\n\nprosecution by adducing cogent and convincing\n\nevidence before this Court, the subsequent recovery of\n\nthe cash bills from the mobile shops also does not\n\ninspire the confidence of this Court to hold accused\n\nanswerable for the same even though technically the\n\nrequirements ofSection 27of Indian Evidence Act are\n\nfulfilled to bring the seizure within the purview of the\n\nsaid section. From the very initiation of the case\n\nagainst the accused, one can see continuous chain of\n\nlapses. When accused was said to have been caught\n\nwith mobile phones and the mobile phones are45recovered from him, no mahazar is prepared with\n\nrespect to the seizure. At least the matter should have\n\nbeen informed at the Police Station which is just 30\n\nmeters away from the Central Prison. The accused and\n\nphones were kept in the custody of jail authorities for\n\nalmost a day and night and then the accused and\n\nphones are sent to Police Station through a staff\n\nattached to the Central Prison. Subsequently PW13,\n\nthe PSI attached to the Parapana Agrahara Police\n\nStation has prepared Ex.P3 seizure mahazar with\n\nrespect to the mobile phones as the same were\n\nproduced by one of the staff attached to the central\n\nprison sent by PW1. The name or designation or\n\nidentity of the said person is not revealed anywhere in\n\nthe Ex.P3 seizure mahazar of the phones. The only\n\nrecord with respect to the seizure of the MOs is\n\ndocumented in Ex.P3 mahazar prepared by PW13 at\n\nthe Parapana Agrahara police station while registering46the written complaint sent to him by PW1 through one\n\nof his staff members. PW 13 in his evidence has\n\ndeposed that he received the complaint along with the\n\naccused produced by the staff of the Central Jail and on\n\nthe basis of the said complaint he registered a case in\n\nCrime No.472/2017 and submitted FIR to the Court and\n\nhe seized two Samsung mobile phones in the presence\n\nof witnesses Ramu and Asif as per mahazar Ex.P3 at\n\nthe Police Station. Whereas, PW9 one of the mahazar\n\nwitnesses in his evidence before this court testifies\n\nthat PW13 seized the mobile phones from the\n\npossession of the accused and then PW13 sealed the\n\nphones in a cover. PW16, the other mahazar witness\n\nturned completely hostile to the prosecution.25. It is not forthcoming from the prosecution\n\nrecords that from whom the MO1 and MO2 phones are\n\nseized and produced before this court. The mahazar47simply says the phones are produced by a staff\n\nattached to the Central Prison before the Police Sub-\n\nInspector. When accused is questioned undersection\n\n313of Cr.P.C. by this Court, he states before the Court\n\nthat he has no knowledge of the facts and he has no\n\nconnection in whatsoever manner with the case, which\n\nhas to be considered in the light of the facts that he\n\nreceived the warrant papers from PW5, just 10 minutes\n\nbefore he was caught at Gate No.2 with allegation of\n\npossessing MO1 and MO2 mobile phones. One\n\nThammanna Gowda is examined as PW8 by the\n\nprosecution and he in his evidence before this court\n\nstates that PW1 had sent him to the Parapana\n\nAgrahara Police station to hand over the written\n\ncompliant before the police. His further testimony is\n\nthat accused who was detained by PW1 and a sealed\n\ncover containing 2 mobile phones seized from the\n\naccused were also given to him to hand over the same48to the police and hence, he produced the accused, the\n\nsealed cover and the written complaint to PW13. But\n\nname or identity of this Thammanna Gowda is nowhere\n\nmentioned in Ex.P3 mahazar. This name is not\n\nmentioned even by PW13 or PW1 in their substantive\n\nevidence before this court as the person entrusted to\n\nhand over the phones and the accused to PW13 on\n\nbehalf of PW1. Ex.P8 is the FIR registered by PW13 on\n\nthe basis of Ex.P1 complaint and column No.12 of the\n\nFIR wherein signature or thumb impression of the\n\ninformant is to be recorded is left blank which reveals\n\nthat the copy of the FIR is not supplied to the\n\ninformant. The name of PW8 comes into the witness\n\nlist of the charge sheet from nowhere. At this juncture,\n\nthe evidence of mahazar witnesses PW9 and PW16\n\nbecomes more relevant which throws doubt on the\n\nprosecution story of seizure of MOs which is said to be\n\nkept by the accused in a concealed manner from the49possession of the accused. Hence, from the above\n\ndiscussed reasons I am of the opinion that the\n\nprosecution failed to prove that the accused was\n\nentrusted or had gained control over the Warrant\n\nPapers as a public servant and he used the same to\n\nconceal the MOs to smuggle the same into the prison.\n\nProsecution also failed to prove beyond reasonable\n\ndoubt that the MO1 and 2 mobile phones were seized\n\nfrom the possession of the accused by adducing\n\ncogent and convincing evidence before this court\n\nhence, offence definedu/s 13(1)(c)of the PC Act\n\nstands not proved and the Point No. 2 is answered in\n\nthe Negative.26. Point No. 3:Section 13(1)(d)(ii)is charged\n\nagainst the accused alleging that he had received\n\nRs.15,000/- from T.Nazeer to purchase the MO1 and 2\n\nmobile phones and the accused had agreed to receive50Rs.20,000/- from the said Nazeer when the phones are\n\ngiven to him. Prosecution has miserably failed to\n\nprove the receipt of Rs. 15,000/- from anybody by the\n\naccused much less from the said T. Nazeer, who is a\n\nconvict prisoner housed in the central prison. The\n\nInvestigating Officer has submitted the charge sheet\n\non the basis of the confession statement of accused\n\nthat he had received bribe from T.Nazeer which is hit\n\nbysection 25of the Indian Evidence Act. Investigating\n\nOfficer of this case PW13, H.M.Anand, PSI attached to\n\nthe Parapana Agrahara Police Station, PW17,\n\nK.N.Ramesh, ACP, Electronic City Sub Division, PW19\n\nT.D.Jayaramu, ACP, Electronic City Sub Division have\n\ninvestigated this case and none of them have made\n\nany effort to investigate with respect to the allegation\n\nof receiving bribe by the accused from T.Nazeer for\n\nproviding mobiles phones to him. PW19 in his evidence\n\nbefore this court has testified that he arrested the51accused on 12-10-2017 and the accused was\n\nremanded to judicial custody the same day. It is his\n\nevidence that he interrogated the accused and\n\nrecorded his confession statement before producing\n\nhim before this court. Later, after 7 days i.e., on 19-10-\n\n2017 the accused was taken to police custody and\n\nagain on interrogation he confessed with respect to the\n\nreceipt of bribe amount from T.Nazeer in lieu of\n\nproviding MO1 and 2 mobile phones to him. It is his\n\nfurther testimony that, based on this confession he did\n\nnot conduct any investigation with respect to the\n\ninvolvement of T.Nazeer in this case. PW19 is\n\nextensively cross examined by the learned counsel for\n\naccused and it is brought out in cross examination that\n\nPW19 did not conduct any investigation of this case\n\nduring the period from 12-10-2017 to 19-10-2017 as he\n\nwas held up in investigation of some other cases.5227. The confession statement of the accused is\n\nrecorded by PW19 on 12-10-2017 and later on 19-10-\n\n2017. Based on the 2nd confession statement of the\n\naccused, a prisoner who is sentenced to life\n\nimprisonment in the notorious Bangalore bomb blast\n\ncase and serving his sentence at the Parapana\n\nAgrahara central prison by name T. Nazeer was\n\narrayed as A2 in this case. No investigation with\n\nrespect involvement of this Nazeer is conducted by\n\neither PW19 or his successor Investigating Officers who\n\ntook over investigation of this case. This court vide\n\norder dated 19.6.2018 had discharged the said\n\nT.Nazeer who was arrayed as A2 in this case for want\n\nof sufficient prima facie materials to proceed against\n\nhim to face the trail of this case. Not a single piece of\n\nlegally admissible either documentary or oral evidence\n\nhas been placed before this Court by the prosecution\n\nto prove the charge of commission of the offence of53criminal misconduct by the accused by abusing his\n\nposition as a public servant by obtaining pecuniary\n\nadvantage from T.Nazeer or from any other person.\n\nRight from the registration of this case by the police till\n\nthe filing of charge sheet, lack of disciplined\n\ninvestigation can be seen protruded throughout each\n\nand every stage of investigation by all the\n\ninvestigating officers. PW1, the Chief Superintendent\n\nof the Central Prison also has dealt with this case in a\n\nvery casual manner even though grave allegation is\n\nmade against the accused and the said T.Nazeer. Had\n\nthe accused and the said Nazeer were successful in\n\ncommitting the offence as alleged by the prosecution,\n\nthe security of the nation would have been at stake.\n\nProviding mobile phones to a prisoner who is accused\n\nof series of terrorist activities across the country, by a\n\npolice man who is on escort duty to the said prisoner\n\nto court has to be viewed very seriously. But PW1, the54Chief Superintendent of the Prison, the Police Sub-\n\nInspector who registered the case, the Investigating\n\nOfficers who investigated the case, all have dealt with\n\nthis case in a very casual manner which shows serious\n\nlapses on their part. Settled position of law is that\n\nCourts cannot give benefit of doubt to the accused for\n\nerrors committed during investigation by the\n\nInvestigating Officers, but however, Courts cannot turn\n\nblind eye towards the investigation deficiencies which\n\ngoes to the root of the prosecution case.28. The only circumstance the prosecution has\n\nproved in the case is that the MO1 and MO2 phones\n\nproduced before the Court bears the same IMIE\n\nnumbers mentioned in Ex.P4 cash bill and the bill bears\n\nthe name of one Dinesh. The mahazar witness of the\n\ncash bill did not identify the accused. This non-\n\nidentification of accused by the mahazar witness would55not have attained much relevance had the prosecution\n\nproved that the mobile phones were kept by the\n\naccused himself inside the warrant papers and the\n\nphones were seized and produced before the Court in\n\naccordance with law under proper seizure mahazar.\n\nSince, the allegation of seizure of phones from the\n\naccused itself is to be appreciated with the pinch of\n\nshadow of doubt, then the testimony of PW10 and\n\nPW18, the cash bill seizure mahazar witnesses that\n\nthey do not know whether it was accused who had\n\npurchased the mobile phones cannot be brushed aside\n\nas such. PW11, owner of the mobile shop testifies that\n\nthe police had come to his shop with the purchaser of\n\nthe phones, but he did not identify the accused who\n\nwas in dock on the day of his examination. In this\n\ncircumstance their testimony of has to be believed.\n\nTherefore, for the reasons discussed above I hold that\n\nthe prosecution has not proved beyond doubt that the56accused has committed the offence of criminal\n\nmisconduct defined u/s 13(1)(d) of thePC Acttherefore, I answer the point taken for consideration in\n\nthe Negative.29. Point No. 4: The offence charged against the\n\naccused isu/s 424of IPC for commission of offence of\n\ndishonest concealment of property.Section 424of IPC\n\nis extracted below for clear understanding of the\n\ningredients to attract the offence."Whoever dishonestly or fraudulently\n conceals or removes any property of\n himself or any other person, or\n dishonestly or fraudulently assists in\n the concealment of removal thereof, or\n dishonestly releases any demand or\n claim to which he is entitled, shall be\n punished with imprisonment of either\n description for a term which may\n extend to 2 years, or with fine, or with\n both."5730. From the facts of the prosecution case the\n\naccused concealed MO1 and 2 mobile phones when he\n\nentered the prison premises is the allegation against\n\nthe accused to include this section in the charge sheet\n\nand to prove this fact the prosecution examined PW1,\n\nPW3 and PW4 and Ex.P3 seizure mahazar is marked\n\nalong with the MO1 and MO2 mobile phones said to be\n\nseized from the accused. As discussed in the earlier\n\npart of this judgment, the testimony of PW3 and PW4\n\ndoes not inspire the confidence of this court to hold\n\nthat accused had kept the MOs in the plastic bag\n\ncontaining Warrant Return Papers in a concealed\n\nmanner. Even though no motive could be attributed to\n\nany of these witnesses for bringing a false allegation\n\nagainst the accused, the manner in which PW1 had\n\nhandled the situation persuades this court to believe\n\nthat the these witnesses failed to convincingly lay\n\ncredence to the prosecution case corroborating their58versions. The plastic bag said to be used to carry the\n\nMOs is not seized along with the phones. The MOs\n\nwere not produced before the court from proper\n\ncustody after the alleged seizure of the same from the\n\naccused. The prosecution has not convincingly\n\nexplained the delay in registering the case and\n\ndrawing Ex.P3 seizure mahazar with respect seizure of\n\nthe MOs. These aspects along with the reasons\n\ndiscussed in the previous part of this judgment holds\n\nback this court from considering that the prosecution\n\nhas proved beyond doubt the concealment of the\n\nproperty as enumeratedu/s 424of IPC. Our criminal\n\njurisprudence does not permit the court to condemn a\n\nperson on mere assumptions and as the Hon'ble\n\nSupreme Court and the various High Courts of this\n\ncountry have time and again cautioned that the justice\n\naccording to law does not merely mean technical\n\njustice, but the law is to be administered to advance59justice. Keeping in view this proposition of law, the\n\nPoint No. 4 taken for consideration is also answered in\n\nthe Negative.31.Point No. 5: Thus, upon appreciation of the\n\nentire oral and documentary evidence on record, I hold\n\nthat the prosecution has failed to bring home the guilt\n\nof the accused beyond reasonable doubt for the\n\noffences with which he is charged. In the result, I\n\nproceed to pass the following:ORDER\n Undersection 248(1)Cr.P.C. the\n accused A.M.Dinesh is acquitted of the\n offence punishable undersection 42of the\n Prisons Act, 1894. The accused is also\n acquitted of the offence defined undersection 13(1)(c)and13(1)(d)which are\n punishable undersection 13(2)of The\n Prevention of Corruption Act, 1988. He is\n also acquitted of the offence punishableu/s\n 424of the IPC.60The bail bonds and surety bonds of\n the accused other than the bonds executed\n undersection 437Aof Cr.P.C. stands\n cancelled.MOs 1 and 2 mobile phones are\n ordered to be confiscated to the State. MOs\n 1(a) and 2(a) being worthless are ordered\n to be destroyed. Ex P4 Invoice receipt book\n is ordered to be returned to PW 11 after\n obtaining the certified copy of the same.\n Order regarding the disposal of MOs and Ex\n P4 shall be given into effect after the\n appeal period is over.(Typed on my dictation by the Judgment Writer\ndirectly on computer, print out signed and then\npronounced by me in open Court on this the 30 th day\nof July, 2020)\n\n\n\n\n Sd/-30.07.2020\n [MANJULA ITTY]\n XXIII ADDITIONAL CITY CIVIL AND SESSIONS\n JUDGE SPECIAL JUDGE, BENGALURU URBAN\n DISTRICT, BENGALURU61ANNEXURE\n\nList of witnesses examined on behalf of the\nprosecution:PW 1 : M.Somashekar\nPW.2 : D.V.Ramesh\nPW.3 : Basavaraj Mattur\nPW.4 : G.Hemavathi\nPW.5: N.Ganesh\nPW 6 : M.V.Vasanth Kumar\nPW 7 : T.Venkatesh\nPW 8 : Thammanna Gowda\nPW 9 : Ramu\nPW 10: K.M.Sameer\nPW 11 : Rasheed V.E\nPW 12: Sunil Kumar\nPW 13: H.M.Anand\nPW 14: Ajith\nPW 15: S.Siddaraju\nPW 16: Asif\nPW 17: K.N.Ramesh\nPW 18: Rizwan\nPW 19: T.D.Jayaramu62List of documents marked on behalf of prosecution:Ex P 1 : Complaint\n\nEx P1(a) : Signature of PW 1\n\nEx P 2 : Sanction Order\n\nEx P2(a) : Signature of PW 15\n\nEx P3 : Seizure mahazar dtd 12.10.17\n\nEx P3(a) : Signature of PW 9\n\nEx P3(b) : Signature of PW 13\n\nEx P3(c) : Signature of PW 16\n\nEx P4 : One Invoice book\n\nEx P4(a) : Cloth Cover\n\nEx P4(b) : Signature of PW 10\n\nEx P4(c) : Signature of PW 10\n\nEx P4(d)&(e) : Signature of PW 19\n\nEx P5 : Relevant portion of the statement of PW 10\n\nEx P6 : Seizure mahazar\n\nEx P6(a) : Signature of PW 11\n\nEx P6(b) : Signature of PW 1863Ex P4(c) : Signature of PW 19\n\nEx P7 : Spot mahazar\n\nEx P7(a) : Signature of PW 12\n\nEx P7(b) : Signature of PW 14\n\nEx P7(c) : Signature of PW 19\n\nEx P8 : FIR in Cr.No.474/2017\n\nEx P8(a) : Signature of PW 13\n\nEx P9: PF No.180/2017\n\nExP10 : Relevant portion of PW 16\n\nEx P11: Duty Register extract Gate-2\n\nEx P11(a) : Signature of PW 17\n\nEx P12: Nominal Roll of Prisoners (A2) details\n\nEx P13: D.V.Ramesh Head Warden duty report details\n\nEx P14 : Statement ofPW 18 undersection 161Cr.PC\n\nEx P 15 : Relevant portion of the voluntary statement\n of accused No.1\n\nEx P16: Letter addressed to the Assistant\n Commissioner of police CAR (South), Bengaluru\n\nEx P17 : Letter addressed to the Chief Superintendent\n Central Prison, Parapana Agrahara, Bengaluru64Ex P18 : Duty Register, Bank details and Escort duty\n documents with letter of D.C.P, CAR (South),\n dated 22.11.2017.List of material objects marked on behalf of the\nprosecution:MO 1 : One Black colour Samsung J2 Mobile item\n No.1\nMO 1(a) : Cover\n\n\nMO 2 : One Black colour Samsung J2 Mobile item\n No.2\nMO 2(a): Cover\n\n\nList of witnesses examined on behalf of accused:\nNIL\nList of documents marked on behalf of accused:NIL\n Sd/-30/07/2020\n [MANJULA ITTY]\n XXIII ADDITIONAL CITY CIVIL AND SESSIONS\n JUDGE SPECIAL JUDGE, BENGALURU URBAN\n DISTRICT, BENGALURU\n 65 |
cf2c94c3-f532-5cc2-a965-b4318e69cdae | court_cases | State Consumer Disputes Redressal CommissionBank Of India vs Shailesh T Kansara on 30 July, 2021Details DD MM YY\n Date of Judgment 30 07 2021\n Date of filling 25 03 2013\n Duration 05 04 08\n\n\n BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,\n GUJARAT STATE AT AHMEDABAD.\n Court-3\n APPEAL NO. 1126 of 2013 Dt: 30.07.2021\n\n\n Manager Shri,\n Bank of India,\n Tower, Tal-Dist: Navsari ...Appellant\n\n Vs.\n\n Shailesh Thakorlal Kansara\n 4/1089, Potaliyavad,\n Dandagvad Tekro,\n Tal- Dist: Navsari ...Respondent\n\n Appearance: Mr. K. M. Parikh, Ld. Advocate for the Appellant\n Mr. M. K. Dudhiya, Ld. Advocate for the respondent\n\n Coram: (Shri S. N. Vakil, Member)\n (Smt. J. Y. Shukla, Member)\n\n Order by Shri S. N. Vakil, Member1. This Appeal is by the Opponent Bank.2. The Complainant - Shailesh Thakorlal Kansara, filed consumer\n\n Complaint No. 103 of 2012 with CDRF, Navsari, that he is having\n\n Savings Accounts No. 17351 with the opponent bank of India, was issued\n\n cheque-book and issued cheque No. 0567639 for Rs. 5,462/- to pay for\n\n renewal of his insurance policy with the Oriental Insurance Policy\n\n Limited on 20.10.2011, it returned for the signature defer for and the\n\n insurance company cancelled the policy. As he had cardiac trouble, took\n\n treatment with the Orange Hospital at Navsari and care Hospital atK.S.P A-13-1126 Page 1 of 7Surat, was operated on 31.12.2011 and discharged on 07.01.2012. The\n\n expenses were Rs. 1,72,100/-. He could not get expenses of Rs.\n\n 1,72,100/- from the insurance company, it having cancelled the policy\n\n for return of cheque as aforesaid. The complainant came to know of the\n\n cancellation of the policy only when he lodged the claim and was refused\n\n by the insurance company. The insurance company never corresponded\n\n by letter for cancellation of the policy, and the bank also passed other\n\n cheques without any objection. The bank, having returned the cheque as\n\n aforesaid his policy was cancelled. For this deficiency he claims Rs. 3\n\n lakhs from the bank with 18% interest from the date of complaint, Rs.\n\n 10,000/- towards mental pain and Rs. 10,000/- towards costs.3. The defence vide written version, is of denial. The bank renders services\n\n for charge. In fact the bank is paying interest on the balance in the\n\n savings account and no charge was received the complainant is not a\n\n consumer. The complainant issued the cheque for payment of premium\n\n is denied. It is not proved from the documents produced by the\n\n complainant that the cheque returned for the endorsement of the\n\n signature defers. In the Memo of the cheque returned produced by the\n\n complainant, there is no date mentioned nor does it bear any signature of\n\n the bank manager nor any stamp. Therefore, it cannot be said by which\n\n branch the cheque was returned and on which date. There is no\n\n endorsement of return of cheque or stamp of the bank or signature of\n\n bank officer on the cheque No. 567639. The Oriented Insurance\n\n Company informed return of the chque to the complainant and\n\n cancellation of the policy on 31.01.2011. The insurance company has\n\n cancelled the policy on 31.01.2011 for the reason of dishonor of cheque.K.S.P A-13-1126 Page 2 of 7Thus, the complainant had knowledge on 31.01.2011 that the cheque he\n\n issued has been retuned and the policy cancelled. He was admitted in the\n\n hospital on 31.12.2011. Under these facts the complainant did not take\n\n care to reissue the cheque or renew his policy by payment of cash or by\n\n the new cheque nor given any information or notice to the insurance\n\n company or the bank and remained indolent for 11 months. The law does\n\n not help of indolent. The original specimen signature card of 14.07.1980\n\n and the last of 10.09.2003 after his wife name was entered, have been\n\n produced on records. Signatures on the cheque No. 567639 absolutely\n\n defers from the signatures on the said cards, and there is a big difference\n\n in signatures. Under this circumstances, the cheque could not be passed.\n\n The complainant has not produced statement or pass book of his bank\n\n account. Therefore, it cannot be said which cheque was passed and\n\n which did not. Comparing the signature with the specimen signature\n\n card it has to be decided by the bank officer whether to pass cheque or\n\n return it, wherein there cannot be any interference. The complainant has\n\n not joined the oriental insurance company, for which the complainant\n\n suffers from non-joiner of party. The complaint is false and with a motive\n\n to obtain illegally money from the bank. There is no deficiency in service.4. The CDRF, Navsari by its judgment dated 25.02.2013 partly allowed the\n\n complaint, ordered the bank to pay the complainant Rs. 1,72,100/- with\n\n 9% interest from the date of complaint, Rs. 2,000/- towards mental pain\n\n and Rs. 1,000/- towards costs. It is on the ground that it is not in\n\n dispute that the disputed cheque was returned for signature differ. It\n\n cannot be said that the cheque did not return simply by the reason that\n\n return memo did not contain signature of the officer and stamp of theK.S.P A-13-1126 Page 3 of 7bank. Therefore, the bank returned the cheque for signature differs. The\n\n first card produced is dated 14.07.1980 and thereafter of 2003, therefore,\n\n the complainant has changed the signature afterwards. The cheques\n\n dated 16.01.2012, 06.07.2009, 03.08.2009 bears same signature as that\n\n of 20.01.2011. All these cheques bear same signatures, therefore, while\n\n passing the cheque the bank should have undoubtedly believed the\n\n signature as per the specimen signature. Therefore, the bank showed\n\n deficiency in service by returning the cheque.The endorsement of the\n\n policy reads that it has become void ab-initio for want of consideration on\n\n account of dishonor of cheque. Therefore, there is no bar of non-joinder\n\n of the insurance company. It is a lame excuse that the complainant\n\n remained idle for 11 months.Bihar State Sugar Corporation Ltd. Vs.\n\n State Bank of India, 2007 (1) CPR (NC) 27 and Laknaw Development\n\n Authority Vs. N. K. Gupta, 1994 (1) SCC 273, applies to the case of hand.The complainant account with the bank is a consumer vide Standard\n\n Chartered Bank Ltd. Vs. Dr. D. M. Ramma, 2007 (1) CPR 59 (SC).5. Being aggrieved by the same, the opponent bank has preferred this\n\n appeal on the ground that the forum committed error in appreciating the\n\n facts. The complaints suffer from non-joinder of parties. The bank having\n\n not taken any charge, the complainant is not a consumer. The cheque\n\n was returned with the endorsement of signature differ on 20.01.2011, the\n\n insurance company also informed the complainant by its letter dated\n\n 31.01.2011 yet he remained ideal for 11 months. The forum did not\n\n appreciate this. The specimen signature cards where on record with\n\n which the signature did not match and the forum committed error in\n\n holding the bank liable on the ground that the other cheques wereK.S.P A-13-1126 Page 4 of 7passed. It is within the discretionary power of the bank when there is any\n\n mistake or anything wrong, to return the cheque. The cheque was\n\n returned for signature differs. The court committed error in holding that\n\n the bank officer should have undoubtedly believed the signature as per\n\n the specimen signature when the other cheques were passed from the\n\n same account.6. Heard Learned Advocate Shri K. M. Parikh, for the appellant and Shri M.\n\n K. Dudhiya, for the respondent.7. The Hon'ble Forum has not held that the signature upon the cheque\n\n dated 20.01.2011 matched with the specimen signature cards so also is\n\n not complainant's say. Certainly, the specimen signature on the cheque\n\n dated 20.01.2011 bearing No. 0567639 (marked 3/1) did not match with\n\n the specimen signature with the cards dated 14.07.1980, and\n\n 10.09.2003 (marked: 12/1 and 12/2) and the cheque bears endorsement\n\n signs differ. Therefore, it is obvious that the bank officer could not have\n\n pass the cheque at all. The return memo marked 3/2 gives reason of\n\n return at 4(a) drawer's signature differs. The letter of insurance company\n\n dated 31.01.2011 (marked 3/8) reads that the cheque No. 0567639 dated\n\n 20.01.2011 for Rs. 5,462/- towards premium against the policy No.\n\n 172/199/48/0211/10893 has been dishonored with the remarks\n\n signature does not match and therefore, the policy stands cancelled ab-\n\n initio due to non-receipt of consideration and the company is not on risk\n\n nor any claim will be entertained. Cheques dated 06.07.2009 (No.\n\n 0567634 and 03.08.2009 (No. 0567635) do bear the same signatures as\n\n appearing on the cheque dated 20.01.2011 or even of the cheque dated\n\n 16.01.2012 (marked 3/4, 5 and 3) but that does not mean that the bankK.S.P A-13-1126 Page 5 of 7was obliged to pass cheque even when the signature on the disputed\n\n cheque did not match with the specimen signature cards. The\n\n complainant has not shown any rule to the effect that the bank was\n\n obliged to pass cheques even when the signature differs from the\n\n specimen signature in the card with the bank nor to the effect that when\n\n the bank has passed cheques the signature whereof did not even match\n\n with the specimen signature. The bank was therefore obliged not to pass\n\n cheque whose signature do not match with the specimen signature. The\n\n dates 06.07.2009, 03.08.2009 and 16.01.2012 were definitely not with\n\n the bank officer while endorsing on the disputed cheque dated\n\n 20.01.2011 "sign differs", by the specimen signature card. The bank\n\n officer did as per the banking practice and procedure only and rightly so,\n\n therefore, the findings of the learned forum cannot be upheld.8. Now, when the complainant was in knowledge of cancellation of policy for\n\n dishonor of cheque as above by letter of insurance company dated\n\n 31.01.2011, it cannot to believed that he came to know of this fact only\n\n when he preferred claim with the insurance company after 31.12.2011.\n\n Therefore, it is clear that he cannot blame the bank for the fault with\n\n himself.9. For aforesaid reasons the judgment of the Hon'ble Forum cannot be\n\n sustained, and the appeal deserves to be allowed with dismissal of the\n\n complaint, for which following final order is passed.FINAL ORDERi) Appeal No. 1126 of 2013 is allowed.K.S.P A-13-1126 Page 6 of 7ii) The judgment and order passed by the CDRF, Navsari on 25.02.2013 in\n CC No. 103 of 2012 is reversed, with dismissal of the complaint.iii) No order as to costs.iv) Registry is directed to pay the deposited amount, with accrued interest,\n if any, on proper verification to the appellant by account payee cheque\n and the cheque be handed over to the advocate for the appellant after\n obtaining receipt.v) Registry is directed to send a copy this order to the District Commission\n Navsari, through E-mail in PDF format for taking necessary action.vi) Copy of the judgment be provided to the parties free of charge.Pronounced in the open Court today on 30th day of July, 2021.(J.Y.Shukla) (S.N.Vakil)\n Member Judicial MemberK.S.P A-13-1126 Page 7 of 7 |
19ef1c8c-907e-5feb-860c-8328ea22764d | court_cases | Himachal Pradesh High CourtUnknown vs State Of H.P. & Others on 30 November, 2023Author:Satyen VaidyaBench:Satyen VaidyaIN THE HIGH COURT OF HIMACHAL PRADESH,\n SHIMLA\n\n CWP No. 7163 of 2022 a/w CWP Nos.\n\n\n\n\n .\n 3311, 3312, 3313, 3417, 5703, 5704,\n\n\n\n\n\n 5705, 8006 and 8031 of 2022.\n\n Reserved on: 16.10.2023\n\n\n\n\n\n Date of decision : 30.11.2023.\n 1. CWP No. 7163 of 2022\n\n\n\n\n of\n M/s Ultratech Cement Ltd. ...Petitioner.\n Versus\n State of H.P. & others\n rt ...Respondents.\n 2. CWP No. 3311 of 2022\n Inder Singh ...Petitioner\n\n Versus\n State of H.P. & others ...Respondents\n\n\n 3. CWP No. 3312 of 2022\n Kuldeep Singh ...Petitioner\n Versus\n\n\n\n\n State of H.P. & others ...Respondents.\n\n\n\n\n\n 4. CWP No. 3313 of 2022\n Manjeet Singh ...Petitioner\n\n\n\n\n\n Versus\n State of H.P & others ...Respondents\n 5. CWP No. 3417 of 2022\n Swaran Singh ...Petitioner\n Versus\n State of H.P. & others ...Respondents\n 6. CWP No. 5703 of 2022\n Om Prakash ...Petitioner\n Versus\n\n\n\n\n ::: Downloaded on - 01/12/2023 20:35:24 :::CIS\n -2-\n\n\n\n State of H.P. & others ...Respondents\n 7. CWP No. 5704 of 2022\n Mast Ram ...Petitioner\n\n\n\n\n .\n Versus\n\n\n\n\n\n State of H.P. & others ...Respondents\n 8. CWP No. 5705 of 2022\n\n\n\n\n\n Munshi Ram ...Petitioner\n Versus\n\n\n\n\n of\n State of H.P. & others ...Respondents\n 9. CWP No. 8006 of 2022\n Ajeet Singh\n rt ...Petitioner\n Versus\n State of H.P. & others ...Respondents\n\n 10. CWP No. 8031 of 2022\n Harbans Singh ...Petitioner\n\n\n Versus\n State of H.P. & others ....Respondents.\n\n\n\n\n Coram:\n\n\n\n\n\n The Hon'ble Mr. Justice Satyen Vaidya, Judge.\n\n Whether approved for reporting?1 Yes.\n\n\n\n\n\n For the petitioner : Mr. Sunil Mohan Goel, Advocate, for the\n petitioner in CWP No. 7163 of 2022 and\n for respective respondents in CWP No.\n 3311-3313, 3417, 5703, 5704 and 5705\n of 2022.\n\n Mr. Virender Thakur, Advocate, for the\n petitioner(s) in CWPs Nos. 3311,\n 3313, 3417, 5703, 5704, 5705, 8006,\n and 8031 of 2022 and for respondents\n No. 4, 13, 14 and 19 to 23 in CWP No.\n 7163 of 2022.\n 1\n Whether reporters of Local Papers may be allowed to see the judgment?\n\n\n\n\n ::: Downloaded on - 01/12/2023 20:35:24 :::CIS\n -3-\n\n\n\n\n For the respondents: Mr. Y.P.S. Dhaulta and Mr. Pratush\n Sharma, Additional Advocate Generals\n with Ms. Priyanka Chauhan and Mr.\n\n\n\n\n .\n Rahul Thakur, Deputy Advocate\n\n\n\n\n\n Generals, for the respondent-State, in all\n the petitions.\n\n\n\n\n\n Mr. Nand Lal Chauhan, Advocate, for\n respondents No. 5 to 11, 12(i) (iv) (vi) and\n 15 to 17 in CWP No. 7163 of 2022.\n\n\n\n\n of\n Mr. G.D. Verma, Sr. Advocate, with Mr.\n Sumit Sharma, Advocate, for respondent\n No. 24 in CWP No. 7163 of 2022.\n rt\n Satyen Vaidya, Judge:Since common questions of law and facts are\n\n involved in these petitions, therefore, the same have been\n\n\n heard together and are being decided by a common\n\n judgment.2. M/S Ultratech Cement ltd. (hereinafter referred\n\n\n\n\n\n to as 'the Company') is petitioner in CWP No. 7163 of 2022.The Company is involved in manufacturing of cement and\n\n grinding of the clinker in villages Baga and Bageri in\n\n District Solan, H.P.3. CWP Nos. 3311, 3312, 3313, 3417, 5703, 5704,\n\n 5705, 8006 and 8031 of 2022 have been filed by persons\n\n (hereinafter referred to as 'Oustees') whose land has been\n\n acquired by State of H.P. for establishment of::: Downloaded on - 01/12/2023 20:35:24 :::CIS-4-manufacturing unit and provisioning of mining area of the\n\n Company. The Company has been impleaded as one of the\n\n\n\n\n .respondents in the set of petitions filed by the 'Oustees'.State of H.P. and its authorities including the Land\n\n\n\n\n\n Acquisition Collector (hereinafter referred to as 'the State')\n\n have been impleaded as respondents by either side.of4. The case as projected by the Company is that a\n\n detailed survey was conducted by the Government of\n rt\n Himachal Pradesh in Mangal area of District Solan in the\n\n year 1999-2000 to explore the presence of lime stone. A\n\n report was prepared and on its basis, bids were invited for\n\n\n\n establishment of cement manufacturing plant in the area.M/s Jai Prakash Associates Limited being the successful\n\n\n\n\n bidder was given consent by the Government of Himachal\n\n\n\n\n\n Pradesh to establish the cement plant in the year 2004.Since the Government and private lands were required for\n\n establishment of the manufacturing unit and mining area,\n\n the private lands were acquired for M/s Jai Prakash\n\n Associate Limited under the provision ofLand Acquisition\n\n Act, 1894(for short the 'Act'). A Rehabilitation and Re-settlement Scheme (for short 'R & R Scheme) was prepared::: Downloaded on - 01/12/2023 20:35:24 :::CIS-5-in the year 2005 for the benefit of the 'Oustees' from\n\n private lands..5. The Land Acquisition Collector passed the award\n\n\n\n\n\n underSection 11of the Act on 10.1.2008, whereby 1330-\n\n\n\n\n\n 16 bighas of land was acquired and compensation was\n\n offered. The Collector issued possession certificate on\n\n\n\n\n of\n 4.4.2008 in terms ofsection 16of the Act. The possession\n\n of the acquired land was handed over to M/s Jai Prakash\n rt\n Associate Limited.6. The Company has acquired all rights and\n\n liabilities of the aforesaid manufacturing units in June,\n\n\n\n 2017 from its predecessor M/s Jai Prakash Associates\n\n Limited.7. Notwithstanding the aforesaid proceedings\n\n\n\n\n\n undertaken in terms of the Act, certain houses, structures\n\n\n\n\n\n and trees belonging to private persons in village Bhalag\n\n and village Samtyari remained without assessment as to its\n\n value. It was alleged that the respective owners of the\n\n houses, structures and trees were not allowing the\n\n evaluation by use of force. In order to conclude the\n\n acquisition proceedings within the statutory period of two::: Downloaded on - 01/12/2023 20:35:24 :::CIS-6-years, the Collector had announced the award on\n\n 10.1.2008. The factum of absence of evaluation of certain\n\n\n\n\n .houses, structures and trees was mentioned in the award\n\n\n\n\n\n with the reasons that had been instrumental in the\n\n\n\n\n\n inability of the authorities to complete the evaluation\n\n process. It is specifically pleaded by the Company that\n\n\n\n\n of\n respondents No. 4 to 18 (in CWP 7163 of 2022) were\n\n persons who had not allowed their houses and structures\n rt\n to be evaluated despite the fact that the company had\n\n deposited the entire compensation amount as per award\n\n and even some of the private respondents had received the\n\n\n\n compensation.8. The Company filed CWP No. 3073 of 2021 before\n\n\n\n\n this Court, seeking directions against the State to take all\n\n\n\n\n\n effective steps to get the houses, structures and trees\n\n\n\n\n\n evaluated, which were subject matter of acquisition in\n\n terms of award dated 10.1.2008. On 15.9.2021, a Division\n\n Bench of this Court had passed the following order:-"List on 27.10.2021. In the meanwhile State\n Government shall evaluate the houses and structures\n etc. of the respondents for which no obstruction or\n hindrance whatsoever shall be caused by the::: Downloaded on - 01/12/2023 20:35:24 :::CIS-7-respondents as per the assurance given in the open\n Court today.".9. The Collector, taking into account the evaluation\n\n\n\n\n\n of the left-over houses, structures and trees passed a\n\n\n\n\n\n supplementary award on 2.5.2022. As per the Company, it\n\n has deposited the entire amount as per supplementary\n\n\n\n\n of\n award dated 2.5.2022.10. The Company has now approached this Court\n rt\n with the grievance that despite the passing of\n\n supplementary award and deposit of entire compensation\n\n amount, the 'oustees' were not handing over the\n\n\n\n possession of acquired houses, structures and trees. The\n\n Collector had issued notices underSection 12 (2)of the Act\n\n\n\n\n to the 'oustees' on 30.5.2022 and 20.6.2022 but without\n\n\n\n\n\n any result. The private respondents (in CWP 7163 of 2022)\n\n\n\n\n\n are still holding the possession of such acquired properties\n\n against the mandate of law and the State being under legal\n\n mandate to enforce the surrender has failed to fulfill its\n\n legal obligations.11. Respondents No. 4, 13, 14, 19 to 23 (in CWP\n\n 7163 of 2022) have objected to the prayer of the Company::: Downloaded on - 01/12/2023 20:35:24 :::CIS-8-on the grounds that the petitioner has not fulfilled its\n\n commitment(s) under the R & R Scheme. It has been\n\n\n\n\n .submitted that the R & R Scheme was an outcome of a\n\n\n\n\n\n MOU Executed between Jai Prakash Associates Limited\n\n\n\n\n\n and the State of Himachal Pradesh. The factum of\n\n retaining the possession of acquired properties has not\n\n\n\n\n of\n been denied by the aforesaid respondents. However, they\n\n have sought to justify their action on the allegations of\n rt\n non-implementation of R & R Scheme by the petitioner. It\n\n is alleged that the petitioner has not even paid the amount\n\n of compensation enhanced by the reference Court underSection 18of the Act. It is further submitted that the\n\n aforesaid respondents have also filed writ petitions for the\n\n\n\n\n implementation of R & R Scheme against the State as also\n\n\n\n\n\n the petitioner, which were pending before this Court.12. Respondents 5 to 11 and 15 to 17 (in CWP 7163\n\n of 2022) have also raised separate objections to the claim\n\n of the Company. The acquisition proceedings have been\n\n alleged to be defective for not following the procedure\n\n underPart-VII of the Act. Violation of Rule 4 of the Land\n\n Acquisition Company Rules, 1963 has also been alleged.::: Downloaded on - 01/12/2023 20:35:24 :::CIS-9-The right of the State and the Company to take possession\n\n of the acquired properties from the aforesaid 'oustees' has\n\n\n\n\n .also been challenged on the ground that R & R Scheme\n\n\n\n\n\n had not been implemented and the Company had\n\n\n\n\n\n alternative remedy of filing suit for possession. It has\n\n further been submitted that due to the acts of omission\n\n\n\n\n of\n and commission on part of the Company, large scale\n\n damage was caused to the properties of the 'oustees'\n rt\n between the year 2006-2015, for which, no steps were\n\n taken for rehabilitation and re-settlement of affected\n\n persons. As per the aforesaid 'oustees', neither plots were\n\n\n\n allotted to them nor direct employment was provided as per\n\n the R & R Scheme and for such reason they were not liable\n\n\n\n\n to hand over the possession to the Company till the R & R\n\n\n\n\n\n Scheme was fully implemented.13. The State in its reply has taken a stand that the\n\n Collector has already taken all the actions as permitted\n\n under law. In case the Company is not able to get the\n\n possession of acquired properties, it was open to the\n\n Company to take recourse to appropriate remedies under\n\n law and the State authorities cannot be made an::: Downloaded on - 01/12/2023 20:35:24 :::CIS-10-instrument to forcibly dispossess the 'oustees'. Precisely,\n\n the state has made averments to the following effects:-."It is further pertinent to submit here that the\n\n\n\n\n\n possession undersection 16of the act qua the\n acquired land related to the present acquisition has\n\n\n\n\n\n already been delivered to the petitioner due to which\n mutation stood attested in their favour. The replying\n\n\n\n\n of\n respondents have no authority under any law to run\n over the local residents/private respondent to vacate\n their acquired land being a welfare state as the\n rt\n petitioner desired. The petitioner has full liberty to\n take appropriate action as per law against the private\n\n respondents in case the acquired land is illegally\n occupied by the private respondents despite the\n lawful acquisition. The Authorities below, after\n\n\n\n taking into consideration the law and order situation\n of the area and during the pendency of different writ\n\n\n\n\n petitions as filed against the present supplementary\n\n\n\n\n\n award, cannot act illegally on the pretext of petitioner\n company to use any forceful measures against the\n\n\n\n\n\n local residents to vacate their acquired land for which\n they have never even received the compensation\n amount."14. The Company has filed rejoinder to the reply of\n\n the state. It has been pointed out that under a negotiated\n\n settlement, the provisions of R & R Scheme were modified\n\n to the extent that the company had agreed to pay Rs.::: Downloaded on - 01/12/2023 20:35:24 :::CIS-11-Eleven Lakhs to each affected family. The Company had\n\n deposited the entire amount in terms of negotiated\n\n\n\n\n .settlement, but it was not being delivered the possession of\n\n\n\n\n\n the acquired properties, which adversely affected its mining\n\n\n\n\n\n operations and consequential causing huge losses.15. In the other set of petitions (CWP Nos. 3311,\n\n\n\n\n of\n 3312, 3313, 3417, 5703, 5704, 5705, 8006 and 8031 of\n\n 2022), the 'Oustees' are seeking directions against the\n rt\n Company and the State to implement the R&R Scheme.The 'Oustees' have claimed parity with the case of one Shri\n\n Brij Lal.It has been submitted by the 'Oustees' that Shri\n\n\n\n Brij Lal had filed CWP 4247 of 2012 before this Court,\n\n which was disposed of vide order dated 17.9.2019 and\n\n\n\n\n directions were issued to the Deputy Commissioner Solan\n\n\n\n\n\n to decide the representation of Shri Brij Lal. In result Shri\n\n\n\n\n\n Brij Lal has been paid a sum of Rs. 34 lakhs by the\n\n Company in lieu of implementation of R&R Scheme. The\n\n 'Oustees' have also sought to protect their possession over\n\n the acquired land till the R&R Scheme was similarly\n\n implemented in their cases also.::: Downloaded on - 01/12/2023 20:35:24 :::CIS-12-16. I have heard the learned counsel for the parties\n\n and have also gone through the record carefully..17. It is not in dispute that the acquisition of private\n\n\n\n\n\n lands for the company to establish a cement plant in\n\n\n\n\n\n Mangal area of Solan District was undertaken by the State\n\n of Himachal Pradesh under the provisions of the Act. The\n\n\n\n\n of\n Collector had passed the award on 10.1.2008, which was\n\n followed by another award dated 2.5.2022.rt The dispute,\n\n however, as emerges from the rival stands of the parties\n\n firstly is as regards the implementation of R & R Scheme,\n\n secondly the legality of the stand adopted by the private\n\n\n\n respondents and lastly the role of the State Government in\n\n the situation that has arisen.18. The 'oustees' have not denied the acquisition of\n\n\n\n\n\n those properties qua which they are objecting to deliver the\n\n\n\n\n\n possession. Though, the 'oustees' have agitated the issue\n\n of non-implementation of R & R Scheme by the Company,\n\n but they appear to maintain different and divergent views\n\n with regard to the extent of its non-implementation.Respondents No. 5 to 11 and 15 to 17(in CWP Nos. 3311,\n\n 3312, 3313, 3417, 5703, 5704, 5705, 8006 and 8031 of::: Downloaded on - 01/12/2023 20:35:24 :::CIS-13-2022)have made a reference to the fact that they have not\n\n been provided the plots and direct employment, which has\n\n\n\n\n .adversely affected the prospects of their future generations.As per the stand of the Company after a negotiated\n\n\n\n\n\n settlement a decision had been taken to pay a sum of Rs.Eleven Lakhs to each of the affected families against all the\n\n\n\n\n of\n aspects of the R & R Scheme. As noticed above, the\n\n 'Oustees' which includes some of the private respondents\n rt\n in CWP 7163 of 2022 have filed the other set of writ\n\n petitions being CWP Nos. 3311, 3312, 3313, 3417, 5703,\n\n 5704, 5705, 8006 and 8031 of 2022, seeking directions\n\n\n\n against the State and the Company to implement the R & R\n\n Scheme in its entirety. Though the 'Oustees' have\n\n\n\n\n specifically admitted the fact that as a result of a\n\n\n\n\n\n negotiated settlement between the parties, the Collector\n\n\n\n\n\n had declared the payment of Rs. Eleven Lakhs per affected\n\n family as a substitute for all the measures required to be\n\n undertaken by the company under R & R Scheme,\n\n however, they have now raised their claims to be treated in\n\n parity with Shri Brij Lal, who according to the 'oustees' has::: Downloaded on - 01/12/2023 20:35:24 :::CIS-14-been paid a sum of Rs. 34 lakhs by the Company in lieu of\n\n all his claims of resettlement and rehabilitation..19. As regards the right of the 'Oustees' to get the\n\n\n\n\n\n benefit under R & R Scheme, undeniably, their\n\n\n\n\n\n entitlements will be subject to proof of certain prerequisites\n\n as contemplated under the scheme. Under Clause 2.2.2 of\n\n\n\n\n of\n the R & R Scheme, the jurisdiction and authority has been\n\n vested with the Deputy Commissioner of the district to\n rt\n decide any issue relating to implementation of R & R\n\n Scheme. In such view of the matter, the 'Oustees' shall\n\n have every right to take recourse to appropriate remedy in\n\n\n\n accordance with law for claiming benefits under the R & R\n\n Scheme. Moreover, this Court in exercise of jurisdiction\n\n\n\n\n underArticle 226of the Constitution will not delve upon\n\n\n\n\n\n and decide the intricate and disputed questions of facts.20. The next question arises as to legality of the\n\n disruption caused by oustees in taking over of possession\n\n of acquired properties and the role of the State in such fact\n\n situation.21. It is clear from the stand of the Company as also\n\n the State that the possession of acquired properties was::: Downloaded on - 01/12/2023 20:35:24 :::CIS-15-taken over by the Collector and a possession certificate was\n\n also issued. It is also the fact that the award dated\n\n\n\n\n .10.1.2008 did not include the payment of compensation to\n\n\n\n\n\n all the acquired properties, viz. certain houses, structures\n\n\n\n\n\n and trees which had remained to be evaluated. The import\n\n of the stand taken by the State is that the Collector was\n\n\n\n\n of\n supposed to take the possession on papers and it is for the\n\n Company to take actual possession. The stand so taken by\n rt\n the State cannot be countenanced. The possession underSection 16of the Act means the actual possession and not\n\n a mere paper formality. Reference in this behalf can be\n\n\n\n made to the following extract from the judgment passed by\n\n the Hon'ble Supreme Court inBalwant Narayan Bhagde\n\n\n\n\n vs. M.D. Bhagwat & others, 1976 (1) SCC 700:-"When a public notice is published at a convenient\n\n\n\n\n\n place or near the land to be taken stating that the\n Government intends to take possession of the land,\n then ordinarily and generally there would be no\n question of resisting or impeding the taking of\n possession. Delivery or giving of possession by the\n owner or the occupant of the land is not required. The\n Collector can enforce the surrender of the land to\n himself undersection 47of the Act if impeded in.\n taking possession. On publication of the notice under::: Downloaded on - 01/12/2023 20:35:24 :::CIS-16-section (1) claims to compensation for all interests in\n the land has to be made; be it the interest of the\n owner or of a person entitled to the occupation of the\n\n\n\n\n .land. On the taking of possession of the land\n\n\n\n\n\n undersection 16or 17 (1) it vests absolutely in the\n Government free from all encumbrances. It is,\n\n\n\n\n\n therefore, clear that taking of possession within the\n meaning ofsection 16or 17(1) means taking of\n\n\n\n\n of\n possession on the spot. It is neither a possession on\n paper nor a "symbolical" possession as generally\n understood in Civil Law. But the question is what is\n rt\n the mode of taking possession?The Actis silent on\n the point. Unless possession is taken by the written\n\n agreement of the party concerned the mode of taking\n possession obviously would be for the authority to go\n\n\n upon the land and to do some act which would\n indicate that the authority has taken possession of\n the land. It may be in the form of a declaration by\n\n\n\n\n beat of drum or otherwise or by hanging a written\n\n\n\n\n\n declaration on the spot that the authority has taken\n possession of the land. The presence of the owner or\n\n\n\n\n\n the occupant of the land to effectuate the taking, of\n possession is not necessary. No further notice beyond\n that undersection 9(1)of the act: is required. When\n possession has been taken, the owner or the\n occupant of the land is dispossessed. Once\n possession has been taken the land vests in the\n Government."::: Downloaded on - 01/12/2023 20:35:24 :::CIS-17-22. The possession under the Act has far reaching\n\n consequences. It is from the date of taking possession that\n\n\n\n\n .many of the implications involving payment of interest\n\n\n\n\n\n arise underSections 23,28and34of the Act. Viewed\n\n\n\n\n\n from another angle, the acquisition under the Act is done\n\n for a specific purpose and such purpose can be achieved\n\n\n\n\n of\n on acquiring the actual possession of the land. The very\n\n purpose of acquisition is rendered otiose in case the actual\n rt\n possession is not delivered to the beneficiary.23. The avoidance on part of the State to fulfill its\n\n legal obligation of taking over the possession of acquired\n\n\n\n properties under the Act appears either to be in ignorance\n\n of the express provisions of law or a mere pretence for\n\n\n\n\n some other purpose best known to it.24.Section 47of the Act reads as under:-"47 Magistrate to enforce surrender. If the\n Collector is opposed or impeded in taking possession\n under this Act of any land, he shall, if a Magistrate,\n enforce the surrender of the land to himself, and, if\n not a Magistrate, he shall apply to a Magistrate or\n (within the towns of Calcutta, Madras and Bombay)\n to the Commissioner of Police and such Magistrate or\n the Commissioner (as the case may be) shall enforce\n the surrender of the land to the Collector."::: Downloaded on - 01/12/2023 20:35:24 :::CIS-18-25. In the case in hand, the Collector is none else\n\n than the Sub Divisional Magistrate of the area and thus he\n\n\n\n\n .is fully competent to get the surrender of possession of\n\n acquired land. There is nothing in the provisions of the Act\n\n\n\n\n\n which may empower or vest the 'Oustees' with a right to\n\n\n\n\n of\n obstruct the taking of possession of the acquired\n\n properties. Their action in doing so is completely illegal.rt\n The Collector is under legal obligation to get the surrender\n\n of possession of acquired properties by exercising the\n\n power underSection 47of the Act.26. The objection of some of the oustees as to\n\n legality of entire acquisition proceedings undertaken by the\n\n\n\n\n State, the same need not detain this Court any longer for\n\n\n\n\n\n the simple reason that the issue stands already decided by\n\n\n\n\n\n this Court vide judgment dated 23.6.2016 passed in CWP\n\n No. 912 of 2007 titledMunshi Ram & others vs. State of\n\n H.P. & othersalong with connected matters.27.In light of above discussion, the petition (CWP\n\n 7163 of 2022 tiltedM/S Ultratech Cement Ltd. Vs State of\n\n H.P. and othersis allowed. The respondent No.3 is\n\n directed to get surrender of possession of those of acquired::: Downloaded on - 01/12/2023 20:35:24 :::CIS-19-properties which still are occupied by the 'Oustees' by\n\n taking recourse toSection 47of the Act. The entire\n\n\n\n\n .proceedings in terms of this judgment be completed by the\n\n\n\n\n\n Collector concerned within three months from today and\n\n\n\n\n\n report compliance to this Court.28. CWP Nos. 3311, 3312, 3313, 3417, 5703, 5704,\n\n\n\n\n of\n 5705, 8006 and 8031 of 2022 are disposed of with the\n\n liberty reserved to the 'Oustees' (petitioners in said\n rt\n petitions) to approach Deputy Commissioner, Solan with\n\n respect to their alleged claims under R&R Scheme and on\n\n being approached by the 'Oustees' the Deputy\n\n\n\n Commissioner, Solan will decide their respective claims\n\n within six months from the date of receipt of claim(s).29. All the petitions are accordingly disposed of so\n\n\n\n\n\n also the pending miscellaneous applications, if any.List for compliance on 15.3.2024.(Satyen Vaidya)\n 30th November, 2023 Judge\n (kck)::: Downloaded on - 01/12/2023 20:35:24 :::CIS |
906024a4-a8fc-537a-b0d0-9dbab96c7509 | court_cases | Gauhati High CourtSanjeev Singh @ Sanjiv Singh vs The State Of Assam on 21 July, 2020Author:Manish ChoudhuryBench:Manish ChoudhuryPage No.# 1/6\n\nGAHC010059472020\n\n\n\n\n THE GAUHATI HIGH COURT\n (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)\n\n Case No. : AB 1334/2020\n\n 1:SANJEEV SINGH @ SANJIV SINGH\n S/O- SRI AZAD SINGH, PERMANENT R/O- H.NO. 27, WARD NO. 34,\n UZANBAZAR, P.S. LATASIL, GHY-01, DIST.- KAMRUP (M), ASSAM AND\n PRESENTLY RESIDING AT SUBHAM ELITE, BLOCK-E, 7TH FLOOR,\n GANDHIBASTI, P.S. CHANDMARI, DIST.- KAMRUP (M), ASSAM\n\n VERSUS\n\n 1:THE STATE OF ASSAM\n REP. BY P.P., ASSAM\n\nAdvocate for the Petitioner : MR H MEDHI\n\nAdvocate for the Respondent : PP, ASSAM\n\n\n\n\n Linked Case : AB 1362/2020\n\n 1:SANJEEV SINGH @ SANJIV SINGH\n S/O- SRI AZAD SINGH\n PERMANENT R/O- H.NO. 27\n WARD NO. 34\n UZANBAZAR\n P.S. LATASIL\n GHY-01\n DIST.- KAMRUP (M)\n ASSAM AND PRESENTLY RESIDING AT SUBHAM ELITE\n BLOCK-E\n 7TH FLOOR\n GANDHIBASTI\n P.S. CHANDMARI\n Page No.# 2/6\n\nDIST.- KAMRUP (M)\nASSAM\n\n\nVERSUS\n\n1:THE STATE OF ASSAM\nREP. BY P.P.\nASSAM\n\n\n\nAdvocate for the Petitioner : MR H MEDHI\nAdvocate for the Respondent : PP\nASSAM\n\n\n\nLinked Case : AB 1359/2020\n\n1:SANJEEV SINGH @ SANJIV SINGH\n S/O- SRI AZAD SINGH\n PERMANENT R/O- H.NO. 27\nWARD NO. 34\n UZANBAZAR\n P.S. LATASIL\n GHY-01\n DIST.- KAMRUP (M)\nASSAM AND PRESENTLY RESIDING AT SUBHAM ELITE\n BLOCK-E\n 7TH FLOOR\n GANDHIBASTI\n P.S. CHANDMARI\n DIST.- KAMRUP (M)\nASSAM\n\n\nVERSUS\n\n1:THE STATE OF ASSAM\nREP. BY P.P.\nASSAM\n\n\n\nAdvocate for the Petitioner : MR H MEDHI\nAdvocate for the Respondent : PP\nASSAM\n Page No.# 3/6\n\n\n\n\nLinked Case : AB 1335/2020\n\n1:SANJEEV SINGH @ SANJIV SINGH\n S/O- SRI AZAD SINGH\n PERMANENT R/O- H.NO. 27\nWARD NO. 34\n UZANBAZAR\n P.S. LATASIL\n GHY-01\n DIST.- KAMRUP (M)\nASSAM AND PRESENTLY RESIDING AT SUBHAM ELITE\n BLOCK-E\n 7TH FLOOR\n GANDHIBASTI\n P.S. CHANDMARI\n DIST.- KAMRUP (M)\nASSAM\n\n\nVERSUS\n\n1:THE STATE OF ASSAM\nREP. BY P.P.\nASSAM\n\n\n\nAdvocate for the Petitioner : MR H MEDHI\nAdvocate for the Respondent : PP\nASSAM\n\n\n\nLinked Case : AB 1286/2020\n\n1:SANJEEV SINGH @ SANJIV SINGH\n S/O SRI AZAD SINGH\n PERMANENT R/O HOUSE NO 27\nWARD NO. 34\n UZANBAZAR\n P.S. LATASIL\n GUWAHATI-781001\n DIST. KAMRUP (M)\nASSAM\n PRESENTLY RESIDING AT SUBHAM ELITE\n Page No.# 4/6\n\nBOLCK-E\n7TH FLOOR\nGANDHIBASTI\nP.S CHANDMARI\nDIST. KAMRUP (M)\nASSAM\n\n\nVERSUS\n\n1:THE STATE OF ASSAM\nREP BY THE PP\nASSAM\n\n\n\nAdvocate for the Petitioner : MR H MEDHI\nAdvocate for the Respondent : PP\nASSAM\n\n\n\nLinked Case : AB 1364/2020\n\n1:SANJEEV SINGH @ SANJIV SINGH\n S/O- SRI AZAD SINGH\n PERMANENT R/O- H.NO. 27\nWARD NO. 34\n UZANBAZAR\n P.S. LATASIL\n GHY-01\n DIST.- KAMRUP (M)\nASSAM AND PRESENTLY RESIDING AT SUBHAM ELITE\n BLOCK-E\n 7TH FLOOR\n GANDHIBASTI\n P.S. CHANDMARI\n DIST.- KAMRUP (M)\nASSAM\n\n\nVERSUS\n\n1:THE STATE OF ASSAM\nREP. BY P.P.\nASSAM\n Page No.# 5/6\n\n\nAdvocate for the Petitioner : MR H MEDHI\nAdvocate for the Respondent : PP\nASSAM\n\n\n\nLinked Case : AB 1358/2020\n\n1:SANJEEV SINGH @ SANJIV SINGH\n S/O- SRI AZAD SINGH\n PERMANENT R/O- H.NO. 27\nWARD NO. 34\n UZANBAZAR\n P.S. LATASIL\n GHY-01\n DIST.- KAMRUP (M)\nASSAM AND PRESENTLY RESIDING AT SUBHAM ELITE\n BLOCK-E\n 7TH FLOOR\n GANDHIBASTI\n P.S. CHANDMARI\n DIST.- KAMRUP (M)\nASSAM\n\n\nVERSUS\n\n1:THE STATE OF ASSAM\nREP. BY P.P.\nASSAM\n\n\n\nAdvocate for the Petitioner : MR H MEDHI\nAdvocate for the Respondent : PP\nASSAM\n\n\n\nLinked Case : AB 1285/2020\n\n1:SANJEEV SINGH @ SANJIV SINGH\n S/O SRI AZAD SINGH\n PERMANENT R/O HOUSE NO 27\nWARD NO. 34\n UZANBAZAR\n P.S. LATASIL\n Page No.# 6/6\n\n GUWAHATI-781001\n DIST. KAMRUP (M)\n ASSAM\n PRESENTLY RESIDING AT SUBHAM ELITE\n BOLCK-E\n 7TH FLOOR\n GANDHIBASTI\n P.S CHANDMARI\n DIST. KAMRUP (M)\n ASSAM\n\n\n VERSUS\n\n 1:THE STATE OF ASSAM\n REP. BY THE PP\n ASSAM\n\n\n\n Advocate for the Petitioner : MR H MEDHI\n Advocate for the Respondent : PP\n ASSAM\n\n\n BEFORE\n HONOURABLE MR. JUSTICE MANISH CHOUDHURY\n ORDERDate : 21-07-2020\n\n\n\nMr. P.K. Das, learned counsel on behalf of Mr. H. Medhi, learned counsel for the petitioners in\nthe above mentioned cases, has submitted that these bail applications be listed on another\ndate along with AB 1374/2020, AB 1375/2020 and AB 1378/2020 as in all these bail\napplications, Sri. Sanjeev Singh @ Sanjiv Singh is the petitioner and the FIRs have been filed\nby different informants before the Officer In-Charge, Bhangagarh Police Station.\nList the matters after 2 (two) weeks.Interim order passed in AB 1285/2020, AB 1286/2020, AB 1358/2020, AB 1359/2020, AB\n1362/2020 and AB 1364/2020 shall continue till the next date of listing.JUDGE\n\n\n\nComparing Assistant |
a61b3502-b5a1-5dee-b21d-f1d0c8ae171c | court_cases | Jammu & Kashmir High Court - Srinagar BenchMohammad Shafi Magray vs State Of J&K And Ors on 13 March, 2020Author:Ali Mohammad MagreyBench:Ali Mohammad Magrey1\n\n\n\n\nHIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR\n\n\n {WP (Crl) No. 134/2019}\n\n Reserved on March 5th .2020\n Pronounced on 13.03. 2020\nMohammad Shafi Magray\n ...Petitioner/detenu\n Through: Mr. G.N Shaheen, adv.\n vs.\nState of J&K and ors.\n ...RespondentsThrough : Mr. Sajad Ashraf Mir, GA\nCoram:Hon'ble Mr. Justice Ali Mohammad Magrey.\nWhether approved for reporting: YES/No\n\n Judgment\n Through the instant petition, petitioner wife of detenu seeks\n\n quashment of detention order bearing no. 09-DMK/PSA of 2019 dated\n\n 01.03.2019, whereby the detenu namely Muhammad Shafi Magray S/o\n\n Abdul Gaffar Magray R/o Kandi Khass District Kupwara, is under\n\n detention.2. In the dossier it is alleged that the detenu came into contact with\n\n the militants operating in the Kupwara area namely Mudasir Ahamd of\n\n HM outfit in the year 2006. It is alleged that the detenu became\n\n sympathizer of the said outfit organization whose aim and object is to\n\n accede the State of J&K from the Union of India. It is submitted that the\n\n detenu is a constant threat to the security of the State. It is submitted that\n\n the detenu was arrested in case FIR no. 306/2018 U/Sec. 13 ULAP Act,\n\n 7/25A Actregistered at Police Station Kupwara. Therefore, on these\n\n allegations he was slapped underPublic Safety Act, 1978.1|Page23. The learned counsel for the petitioner-detenu has raised primarily\n\nthree issues before the court questioning the validity of the detention. The\n\nfirst point taken by the learned counsel for the petitioner is that the\n\ndetention order was passed while the detenu was already in custody in\n\nrespect of the FIR No. 306/2018. In these circumstances, it was submitted\n\nby the learned counsel for the petitioner, the detaining authority ought to\n\nhave satisfied himself with the fact that there was imminent likelihood of\n\nrelease of the detenu in that case and that it was necessary to detain the\n\ndetenu in order to prevent him from indulging in prejudicial activities.\n\nAccording to the learned counsel for the petitioner, there is no such\n\nsatisfaction recorded in the grounds of detention.He placed reliance on the\n\ndecision of the Supreme Court in the case ofSurya Prakash Sharma v.\n\nState of U.P. and others: 1994 SCC (Cri) 1691 to submit that since the\n\nsaid satisfaction was not recorded, the detention order was vitiated.4. The second point taken by the learned counsel for the petitioner\n\nwas that non-supply of relevant material/ documents also vitiated the\n\ndetention order. In this context, it was the case of the petitioner that no\n\ndocuments at all were supplied to the petitioner/detenu. The non-supply of\n\nrelevant documents seriously undermines the capacity of a detenu to make\n\nan effective representation against the detention and that in itself would be\n\na ground to declare the detention order void. This right flows from the\n\nConstitution of India.In support, he referred to the decision of the Supreme\n\nCourt in the case ofSophia Gulam Mohd. Bham v. State of Maharashtra:AIR 1999 SC 3051.5. The third point raised by the learned counsel for the petitioner\n\nwas based on the provisions ofSection 13of the J&K Public Safety Act,\n\n1978, which require that the grounds of detention should have been2|Page3communicated to the detenu in the language which was understandable to\n\nhim and that he should be afforded the earliest opportunity of making a\n\nrepresentation against the order to the Government. According to him, the\n\ndetenu only understood Kashmiri language and the grounds of detention\n\nwere in English language and no translated copies of the grounds of\n\ndetention in Kashmiri were provided to him. This seriously prejudiced his\n\nright to make an effective representation and on this ground also the\n\ndetention order would be vitiated.6. On the other hand, Mr. Sajjad Ashraf Mir, GA, defended the\n\nimpugned detention and he responded to each of the points. With regard to\n\nthe first point he submitted that there is a mention in the grounds of\n\ndetention about the arrest of the detenu with reference to the FIR No.\n\n306/2018. Therefore, according to him, the detaining authority was aware\n\nof the fact that the detenu was already in custody when the detention order\n\nwas passed. He, therefore, submitted that the point raised by the learned\n\ncounsel for the petitioner on this score was untenable.7. With regard to the plea of non-supply of material/ documents,\n\nMr. Mir, placed before me the record pertaining to the detention. On going\n\nthrough the same, I find that there is a signed document said to have been\n\nsigned by the detenu, Muhammad Shafi Magray, in English. The said\n\ndocument is titled "Receipt of Grounds of Detention".8. Based upon the said receipt, Mr. Mir, submitted that the grounds\n\nof detention had been supplied along with other relevant documents,\n\ntherefore, the petitioner cannot make any grievance on this ground.9. In so far as the point of supply of translated copies of grounds of\n\ndetention in Kashmiri language is concerned, the learned GA, submitted3|Page4that there was no need to supply translated copies of grounds of detention\n\nin Kashmiri language as grounds of detention had been communicated in\n\nthe language understandable to the detenu. He submitted that it was clearly\n\nindicated in the receipt given that the grounds of detention were read over\n\nand explained to him in Kashmiri language. Therefore, the requirement of\n\nthe constitutional and statutory provisions was entirely met.10.` Heard learned counsel for the parties, perused the record and\n\nconsidered the matter.11. I shall take up the first point with regard to the ground of\n\nsatisfaction that has to be recorded by the detaining authority in case the\n\ndetenu is already in custody in connection with some other case.In this\n\ncontext we need to refer to the decision of the Supreme Court inSurya\n\nPrakash Sharma(supra). The relevant paras are extracted herein below:". The question as to whether and in what\n circumstances an order for preventive detention can be\n passed against a person who is already in custody has\n had been engaging the attention of this Court since it\n first came up for consideration before a Constitution\n Bench inRameshwar Shaw v. District Magistrate,\n Burdwan.To eschew prolixity we refrain from\n detailing all those cases except that ofDharmendra\n Suganchand Chelawat v. Union of India, wherein a\n three Judge Bench, after considering all the earlier\n relevant decisions including Rameshwar Shaw\n answered the question in the following words:"The decisionsreferred to abovelead\n to the conclusion that an order for detention\n can be validly passed against a person in\n custody and for that purpose it is necessary\n that the grounds of detention must show that(i) the detaining authority was aware of the\n fact that the detenu is already in detention:and (ii) there were compelling reasons\n justifying such detention despite the fact that\n the detenu is already in detention. The\n expression "compelling reasons" in the\n context of making an order for detention of a\n person already in custody implies that there\n must be cogent material before the detaining\n authority on the basis of which it may be4|Page5satisfied that (a) the detenu is likely to be\n released from custody in the near future, and(b) taking into account the nature of the\n antecedent activities of the detenu, it is likely\n that after his release from custody he would\n indulge in prejudicial activities and it is\n necessary to detain him in order to prevent\n him from engaging in such activities.When the above principles are applied to\n the facts of the instant case, there is no\n escape from the conclusion that the\n impugned order cannot be sustained.Though the grounds of detention indicate the\n detaining authority's awareness of the fact\n that the detenu was in custody at the time of\n making the order of detention, the detaining\n authority has not brought on record any\n cogent material nor furnished any cogent\n ground in support of the averment made in\n grounds of detention that if the aforesaid\n Surya Prakash Sharma is released on bail "he\n may again indulge in serious offences\n causing threat to public order". (emphasis\n supplied) To put it differently, the\n satisfaction of the detaining authority that\n the detenu might indulge in serious offences\n causing threat to public order, solely on the\n basis of a solitary murder, cannot be said to\n be proper and justified.On the conclusions as above we quash the\n order of detention."12. Fromthe above decision, it is evident that for an order of\n\ndetention to be valid in respect of a person in custody, it is necessary\n\nthat the grounds of detention must show that; (i) the detaining authority\n\nwas aware of the fact that the detenu is already in custody; and (ii) there\n\nwere compelling reasons justifying such detention despite the fact that\n\nthe detenu is already in detention. The expression 'compelling reasons'\n\nhas also been explained by the Supreme Court as signifying that there\n\nmust be cogent material before the detaining authority on the basis of\n\nwhich it may be satisfied that (a) the detenu is likely to be released from\n\ncustody in the near future, and (b) taking into account the nature of the\n\nantecedent activities of the detenu, it is likely that after his release from5|Page6custody he would indulge in prejudicial activities and that it was\n\nnecessary to detain him in order to prevent him from engaging in such\n\nactivities.13. In the present case I find that although there is mention of the\n\nfact that the detenu had been arrested in connection with FIR No.\n\n306/2018 but, it is not clear as to whether the detaining authority was\n\naware of the fact that the detenu continued to be in custody.\n\nFurthermore, assume that the detaining authority was aware that the\n\ndetenu was in custody in respect of FIR No. 306/2018, the compelling\n\nreasons,referred to above, have not been indicated in the grounds of\n\ndetention. In other words, the grounds of detention nowhere make a\n\nmention or indicate satisfaction that the detenu was being likely to be\n\nreleased from custody in near future. Therefore, in view of the decision\n\nof the Supreme Court in Surya Prakash Sharma, this alone would\n\nvitiate the detention order.14. Now move to the second point which pertains to the non-supply\n\nof relevant material in order that the detenu could make an effective\n\nrepresentation against his detention. According to the learned GA, 22\n\nleaves along with dossier have been provided to the detenu. On\n\nexamination of the record there are only ten leaves which been\n\nprovided to the detenu.15. The grounds of detention supplied to the detenu were incomplete.\n\nThis in itself would vitiate the detention order as the detenu would have\n\nbeen incapacitated from making an effective representation.16. The third point which was urged by the learned counsel for the\n\npetitioner was that translated copies of the detention order/ grounds of6|Page7detention were not supplied and this can itself invalidate the detention\n\n of the detenu. Reliance was placed on the decision of the Supreme\n\n Court in the case ofRazia Umar Bakshi v. Union of India and others:AIR 1980 SC 1751. In that decision, the Supreme Court had observed\n\n that where the detaining authority is satisfied that the grounds are\n\n couched in a language which is not known to the detenu, it must see to\n\n it that the grounds are explained to the detenu, a translated script is\n\n given to him and the grounds bear some sort of a certificate to show\n\n that the grounds have been explained to the detenu in the language\n\n which he understands. In the present case, it is an admitted fact that the\n\n grounds of detention in Kashmiri language which is the language which\n\n the petitioner understood was not furnished to him. That being the case,\n\n this is yet another ground for invalidating the detention order.17. Viewed thus, the Petition is allowed and the impugned detention\n\n order No. 09/DMK/PSA of 2019 dated 01.03.2019, whereunder the\n\n detenu namely Muhammad Shafi Magray S/o Abdul Gaffar Magray\n\n R/O Kandi Khass, District Kupwara, is quashed. The detenu is directed\n\n to be released forthwith. Records be returned to the Government\n\n Advocate. No order as to costs.(Ali Mohammad Magrey )\n Judge\n Srinagar\n 13.03.2020\n S.A Hussain,\n Secretaryi) Whether the order is speaking: Yes/No.ii) Whether the order is reportable : Yes/NoSYED AYAZ HUSSAIN2020.03.13 11:46I attest to the accuracy andintegrity of this document7|Page |
769b73ed-b38b-5f92-82d9-d61236bdd04b | court_cases | Calcutta High Court (Appellete Side)Golam Murtuja Sk. @ Golam Mortaza vs State Of West Bengal And Another on 27 May, 2021Author:Rajasekhar ManthaBench:Rajasekhar Mantha27.05.2021\n SL No.20\n Akd/pk\n CRR 1319 of 2021\n (Through Video Conference)\n\n\n Golam Murtuja Sk. @ Golam Mortaza\n Versus\n State of West Bengal and another\n\n\n Mr. Prosenjit Mukherjee\n ... for the petitioner.\n\n\n Despite service of notice, none appears on behalf of the State-\n\n respondents.Mr. Swapan Banerjee, learned advocate along with Mr. Suman\n\n De, learned advocate, who normally appear for the State, are\n\n requested to represent the State in this matter.The Office of the learned Public Prosecutor is directed to\n\n regularise their appointment.The petitioner shall serve copy of this application on Mr.\n\n Banerjee by tomorrow.The revision petitioner is aggrieved by order dated 31.03.2021\n\n passed by the learned Judicial Magistrate, 1st Court, Rampurhat,\n\n Birbhum. By the impugned order, the application of a complainant in\n\n Murarai Police Station Case No. 168 of 2018 dated 05.05.2018 has\n\n been allowed granting him possession of a Tractor seized by the\n\n Murarai Police Station in aid of the subject complaint.The Magistrate appears to have prima facie decided title of the\n\n said vehicle on the basis of an alleged agreement between the\n\n complainant and the revision petitioner.Ex-facie, it appears that the Magistrate may have committed\n\n error in handing over the possession of a seized vehicle to the opposite2party no. 2 from the custody of the revision petitioner and the\n\nMurarai Police Station pending trial. In any event, the title of the\n\nvehicle-in-question cannot be decided in a criminal proceeding.In those circumstances, the petitioner having made out a strong\n\nand prima facie case for interference, the impugned order dated 31st\n\nMarch, 2021 passed by the learned Judicial Magistrate, 1st Court,\n\nRampurhat, Birbhum in reference G. R. Case No. 628 of 2018 shall\n\nremain stayed for a period of four weeks from date or until further\n\norders, whichever is earlier. The Tractor shall remain in possession of\n\nthe Murarai Police Station.The petitioner shall serve a copy of this order and the pleadings\n\nafresh on the opposite party no. 2 and file affidavit of service on the\n\nadjourned day.Liberty is, however, reserved to the opposite party no. 2 to seek\n\nvariation and/or modification of the aforesaid order.Let this matter stand adjourned and be listed as "Contested\n\nApplication" three weeks hence before the appropriate Bench.All parties are directed to act on a server copy of this order on\n\nusual undertaking.(Rajasekhar Mantha, J.) |
e0f8ed7d-36b4-5031-a0d3-7ebfe2346b43 | court_cases | Gauhati High CourtManoranjan Roy vs The State Of Assam And 6 Ors on 7 April, 2021Author:Manish ChoudhuryBench:Manish ChoudhuryPage No.# 1/4\n\nGAHC010065792020\n\n\n\n\n THE GAUHATI HIGH COURT\n (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)\n\n Case No. : WP(C)/2119/2020\n\n MANORANJAN ROY\n S/O- LT. MUKUNDA ROY, R/O- GAURIPUR TOWN, WARD NO. 1, P.O. AND\n P.S. GAURIPUR, DIST.- DHUBRI, ASSAM, PIN- 787331\n\n\n\n VERSUS\n\n THE STATE OF ASSAM AND 6 ORS.\n REP. BY THE CHIEF SECY. TO THE GOVT. OF ASSAM, DISPUR, GHY-6\n\n 2:THE SECRETARY TO THE GOVT. OF ASSAM\n INFORMATION AND TECHNOLOGY DEPTT.\n DISPUR\n GHY-6\n\n 3:THE DY. COMMISSIONER\n DHUBRI\n DIST.- DHUBRI\n ASSAM\n PIN- 783301\n\n 4:THE DISTRICT LEVEL TELECOM COMMITTEE\n DHUBRI\n REP BY THE CHAIRMAN\n DISTRICT LEVEL TELECOM COMMITTEE\n DHUBRI\n ASSAM\n PIN- 783301\n\n 5:RELIANCE JIO INFOCOM LTD.\n REP. BY THE STATE H.R. FOR ASSAM\n RELIANCE JIO INFOCOM LTD.\n BIJAY CRESENT BUILDING\n Page No.# 2/4\n\n RUKMINIGAON\n GHY\n ASSAM\n PIN- 781022\n\n 6:GAURIPUR MUNICIPAL BOARD\n REP. BY THE CHAIRMAN\n GAURIPUR MUNICIPAL BOARD\n GAURIPUR\n DIST.- DHUBRI\n ASSAM\n PIN- 783331\n\n 7:MANORANJAN ROY @ ROBIN\n S/O- LT. MANMOHAN ROY\n R/O- GAURIPUR\n WARD NO 1\n P.O. AND P.S.- GAURIPUR\n DIST.- DHUBRI\n ASSAM\n PIN- 78333\n\nAdvocate for the Petitioner : MR. U DUTTA\n\nAdvocate for the Respondent : GA, ASSAM\n\n\n\n\n BEFORE\n HONOURABLE MR. JUSTICE MANISH CHOUDHURY\n\n ORDERDate : 07-04-2021\n\n Heard Mr. U. Dutta, learned counsel for the petitioner; Ms. K. Phukan, learned Junior\nGovernment Advocate for respondent nos. 1, 2, 3 and 4; and Mr. J. Roy, learned counsel for\nthe respondent no. 5. Though notices have been served on respondent nos. 6 and 7, as per\nthe office note dated 08.02.2021, none has appeared for the said respondents.2. The petitioner is a resident of Ward No. 1, Gauripur Town, District - Dhubri. It is\nprojected by the petitioner that at the time of filing the writ petition, a ground based mobile\ntower ('the mobile tower', for short) was being constructed by the respondent no. 5 in a plot\nof land owned by the respondent no. 7. The said mobile tower is in the immediate vicinity of\n Page No.# 3/4\n\nthe plot of land belonging to the petitioner where he is residing since long. It is submitted by\nthe learned counsel for the petitioner that during the pendency of the writ petition, the\nconstruction of the said mobile tower has been completed. According to the petitioner, the\nmobile tower emits electro-magnetic field radiation which is harmful to human, more\nparticularly, for the people residing in the vicinity of the mobile tower. Aggrieved by such\ninstallation of mobile tower in the vicinity of the area where the petitioner is residing, the\npetitioner had submitted a representation on 04.03.2020 before the respondent no. 3 as the\nrespondent no. 3 is also the Chairman of District Telecom Committee (DTC), Dhubri i.e. the\nrespondent no. 4 in terms of the Guidelines framed by the Information Technology\nDepartment, Government of Assam (i.e. the respondent no. 2) for hearing public grievance\nregarding installation, etc. of mobile towers. When the said representation remained\nunattended by the respondent no. 4 for a sufficient period of time, the petitioner has\napproached by this writ petition seeking, inter-alia, a direction to the respondent no. 4 to\ndispose of the representation dated 04.03.2020 in accordance with the guidelines framed for\nissue of clearance and permit for installation of mobile towers in Assam.3. The learned counsel for respondent no. 5 has submitted that the procedure has been\nprescribed under Clause 17 in the said guidelines for disposal of such a representation.4. The Information Technology Department, Government of Assam by an order dated\n11.08.2015 has formulated "the Guidelines for Issue of Clearance and Permit for Installation\nof Mobile Towers and Disposal of Public Grievance in this regard" ["the Guidelines", for short].\nThe object of the Guidelines is to provide for framework for installation and operation of\nmobile towers on roof top, ground level or various premises.5. Clause 17 of the said Guidelines has provided for the procedure of disposal of public\ngrievances and it has been mentioned that if there is any individual or public grievance\nrelating to establishment or operation of a Mobile Tower or if the Telecom Service Provider\n(TSP)/Infrastructure Provider (IP) has some grievance the same shall be placed before the\nDistrict Telecom Committee (DTC) for disposal as per Guidelines laid down, provided that the\naggrieved party may prefer an appeal to the State Telecom Committee (STC) within 45 days\nof disposal by the DTC if it is not satisfied with the decision of the DTC. Clause 2 of the said\n Page No.# 4/4\n\nGuidelines has provided for the composition of the District Telecom Committee (DTC). The\nDTC is headed by the Deputy Commissioner of the concerned District as its Chairman. The\nDTC deals with the matters related to public grievance for installation of mobile towers and\nother issues related to telecom infrastructure in the concerned district.6. It has been submitted by the learned counsel for the parties that since the petitioner\nhas already preferred a representation on 04.03.2020 ventilating his grievance about the\ninstallation of the ground based mobile tower in the vicinity of his area of residence before\nthe respondent no. 3, the respondent no. 3 can place the same before the DTC and\nthereafter, the DTC can consider the said representation on its own merits.7. Taking note of the provisions contained in the aforesaid Guidelines, this Court is of the\nconsidered view that the writ petition can be disposed of at this stage with a direction to the\nrespondent no. 3 to place the representation dated 04.03.2020 filed by the petitioner before\nthe DTC and the DTC shall, in turn, take the same on board for consideration. After due\nconsideration, the DTC can dispose of the same by passing a speaking order. It is accordingly\ndirected. It is necessary to mention that at the time of consideration of the said\nrepresentation, all the stakeholder(s) shall be put on notice and an opportunity of personal\nhearing be accorded to such interested stakeholder(s), if any such request is made. The\nentire exercise shall be completed as expeditiously as possible, preferably within a period of 6\n(six) weeks from the date of receipt of a certified copy of this order by the respondent no. 3\nfrom the petitioner.8. The writ petition stands disposed of in the aforesaid terms. No cost.JUDGE\n\n\n\nComparing Assistant |
a451d7de-ff97-5403-b018-56beb9dc6873 | court_cases | Karnataka High CourtAadyaarush Power Projects Pvt . Ltd., vs State Of Karnataka on 20 September, 2021Author:M.NagaprasannaBench:M. Nagaprasanna1\n\n\n\n IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\n DATED THIS THE 20TH DAY OF SEPTEMBER, 2021 R\n BEFORE\n\n THE HON'BLE MR. JUSTICE M. NAGAPRASANNA\n\n WRIT PETITION No.52028/2018 (GM-KEB)\n C/W\n WRIT PETITION No.57898/2017 (GM-KEB)\n WRIT PETITION No.30716/2018 (GM-KEB)\n WRIT PETITION No.7358/2020 (GM-KEB)\n WRIT PETITION No.7675/2020 (GM-KEB)\n WRIT PETITION No.7698/2020 (GM-KEB)\n WRIT PETITION No.7724/2020 (GM-KEB)\n WRIT PETITION No.7782/2020 (GM-KEB)\n WRIT PETITION No.7930/2020 (GM-KEB)\n WRIT PETITION No.12611/2020 (GM-KEB)\n WRIT PETITION No.12637/2020 (GM-KEB)\n WRIT PETITION No.12644/2020 (GM-KEB)\n\nIN WRIT PETITION No.52028/2018\n\nBETWEEN:\n\nAADYAARUSH POWER PROJECTS PVT. LTD.,\nA COMPANY REGISTERED UNDER COMPANIES ACT,2013,\nHAVING ITS REGISTERED OFFICE AT 139/12,\n5TH MAIN ROAD, CHAMRAJPET,\nBENGALURU - 560 018\nREPRESENTED BY ITS DIRECTOR,\nMR. AMARTHYA RAJASHEKARAPPA.\n ... PETITIONER\n(BY SRI MANMOHAN P.N., ADVOCATE )\n\nAND:\n\n1. STATE OF KARNATAKA\n DEPARTMENT OF ENERGY,\n 2\n\n\n\n VIKASA SOUDHA,\n DR.B.R.AMBEDKAR STREET,\n BENGALURU - 560 001\n REPRESENTED BY ITS\n CHIEF SECRETARY.\n\n2. BANGALORE ELECTRICITY SUPPLY\n COMPANY LTD.,\n A COMPANY REGISTERED UNDER\n COMPANIES ACT, 1956,\n HAVING ITS REGISTERED OFFICE AT\n K.R.ROAD, BENGALURU - 560 001\n REPRESENTED BY ITS\n MANAGING DIRECTOR.\n\n3. KARNATAKA RENEWABLE ENERGY\n DEVELOPMENT LTD.,\n A COMPANY REGISTERED UNDER\n COMPANIES ACT, 1956,\n HAVING ITS REGISTERED OFFICE\n AT NO.39, SHANTHIGRUHA,\n BHARATH SCOUTS & GUIDES BUILDING,\n PALACE ROAD, GANDHI NAGAR,\n BENGALURU - 560 001\n REPRESENTED BY ITS\n MANAGING DIRECTOR.\n\n4. KARNATAKA POWER\n TRANSMISSION CORPORATION LTD.,\n A COMPANY REGISTERED UNDER\n COMPANIES ACT, 1956,\n HAVING ITS REGISTERED OFFICE\n AT KAVERI BHAVAN, K.G.ROAD,\n BENGALURU - 560 009\n REPRESENTED BY ITS\n MANAGING DIRECTOR.\n\n5. KARNATAKA ELECTRICITY\n REGULATORY COMMISSION\n NO.16, C-1, MILLERS TANK BED AREA,\n 3\n\n\n\n VASANTH NAGAR,\n BENGALURU - 560 052\n REPRESENTED BY ITS SECRETARY.\n ... RESPONDENTS\n\n(BY SMT.M.C.NAGASHREE, AGA FOR R1;\n SRI S.SRIRANGA, ADVOCATE FOR R2;\n SRI B.N.PRAKASH, ADVOCATE FOR R5;\n NOTICE TO R3 & 4 DISPENSED WITH VIDE ORDER\n DATED 06/12/2018)\n\n THIS WRIT PETITION IS FILED UNDERARTICLES 226AND227OF THE CONSTITUTION OF INDIA PRAYING TO\nISSUE A WRIT OF CERTIORARY AND QUASH THE\nCOMMUNICATION DATED 16.3.2017 ISSUED BY R-5 AT\nANNEX-S; ISSUE A WRIT OF CERTIORARY AND QUASH\nTHE COMMUNICATION DATED 05.04.2017 ISSUED BY R-5\nAT ANNEX-T;\n\nIN WRIT PETITION No.57898/2017\n\nBETWEEN:\n\n1. SRI H.V.THIMMAIAH\n S/O LATE VEERAPPA\n AGED ABOUT 72 YEARS\n NO.76, HARIABBE, HIRIYUR TALUK,\n CHITRADURGA DISTRICT - 577 598.\n\n2. M/S B.G.SUN SOLAR HIRIYUR PRIVATE LIMITED\n HAVING ITS REGISTERED OFFICE AT\n NO.368, 2ND MAIN, BEML LAYOUT\n 1ST STAGE, BASAVESHWARANAGAR\n BENGALURU - 560 079\n REPRESENTED BY ITS DIRECTOR\n MR.V.G.ANGADI.\n ... PETITIONERS\n\n(BY SRI SUNIL P.P., ADVOCATE)\n 4\n\n\n\nAND:\n\n1. THE STATE OF KARNATAKA,\n REPRESENTED BY\n THE ADDITIONAL CHIEF SECRETARY\n ENERGY DEPARTMENT\n VIKASASOUDHA,\n BENGALURU - 560 001.\n\n2. KARNATAKA ELECTRICITY REGULATORY\n COMMISSION\n 6TH & 7TH FLOOR, MAHALAKSHMI CHAMBERS\n NO.9/2. M.G.ROAD\n BENGALURU - 560 001\n REPRESENTED BY ITS SECRETARY.\n\n3. THE KARNATAKA RENEWABLE ENERGY\n DEPARTMENT LTD.,\n NO.39, "SHANTHIGRUHA"\n BHARATH SCOUTS &\n GUIDES BUILDING\n OPP.: THE CHIEF\n POST MASTER GENERAL OFFICE\n PALACE ROAD,\n BENGALURU - 560 001\n REPRESENTED BY THIS\n MANAGING DIRECTOR.\n\n4. BENGALURU ELECTRICITY SUPPLY\n COMPANY LIMITED,\n A COMPANY REGISTERED\n UNDER THE PROVISIONS OF\n COMPANIES ACT, 1956 HAVING ITS\n REGISTERED OFFICE AT K.R.CIRCLE ,\n BENGALURU - 560 001\n REPRESENTED BY ITS MANAGING DIRECTOR.\n\n5. THE GENERAL MANAGER (ELE)\n POWER PURCHASE, BESCOM\n 5\n\n\n\n K.R.CIRCLE\n BENGALURU - 560 001.\n\n6. THE CHIEF ENGINEER ELECTY.\n TRANSMISSION ZONE, KPTCL\n SIDDAGANGA COMPLEX , BH ROAD\n TUMAKURU - 527 107.\n\n7. THE EXECUTIVE ENGINEER\n 220 KV SRS, KPTCL,\n HIRIYUR - 577 598.\n ... RESPONDENTS\n\n(BY SMT.M.C.NAGASHREE, AGA FOR R1;\n SRI B.N.PRAKASH, ADVOCATE FOR R2;\n SRI MURUGESH V.CHARATI, ADVOCATE FOR R3;\n SRI SHAHBAAZ HUSAIN, ADVOCATE FOR R4, R6 & 7;\n R-5 SERVED)\n\n THIS WRIT PETITION IS FILED UNDERARTICLES 226AND227OF THE CONSTITUTION OF INDIA PRAYING TO\nQUASH THE COMMUNICATION/LETTER DTD 07.07.2017\nAT ANNX-Z, ISSUED BY THE R-2; QUASH THE\nCOMMUNICATION/LETTER DTD 01.08.2017, ISSUED BY\nTHE R-1 VIDE ANNEXURE-Z1.\n\nIN WRIT PETITION No.30716/2018\n\nBETWEEN:\n\nM/S S.G.ARAKERI SOLAR POWER\nPRIVATE LIMITED\nHAVING ITS REGISTERED\nOFFICE AT:NO.658/8, 2ND FLOOR,\n1ST "C" MAIN ROAD,\n40TH CROSS, 8TH BLOCK,\nJAYANAGARA, BENGALURU - 560 082\nREPRESENTED BY ITS DIRECTOR\nSRI ISHWAR HEGDE.\n ... PETITIONER\n 6\n\n\n\n(BY SRI GANAPATI BHAT VAJRALLI, ADVOCATE)\n\nAND:\n\n1. THE STATE OF KARNATAKA\n REPRESENTED BY ITS CHIEF SECRETARY,\n ROOM NO.320,3RD FLOOR,\n VIDHANA SOUDHA,\n DR AMBEDKAR VEEDI,\n BENGALURU-560 001\n\n2. THE ADDITIONAL CHIEF SECRETARY\n GOVERNMENT OF KARNATAKA,\n ENERGY DEPARTMENT,\n ROOM NO.236, 2ND FLOOR,\n VIKASA SOUDHA,\n DR AMBEDKAR VEEDI\n BENGALURU - 560 001.\n\n3. KARNATAKA ELECTRICITY\n REGULATORY COMMISSION\n NO.16, C-1, MILLERS BED AREA,\n VASANTHNAGAR,\n BENGALURU - 560 052\n REPRESENTED BY ITS CHAIRMAN.\n\n4. M/S HUBLI ELECTRICITY SUPPLY\n COMPANY LIMITED (HESCOM)\n OFFICE AT:NAVANAGAR, P.B.ROAD,\n HUBBALLI - 580 025\n REPRESENTED BY ITS\n MANAGING DIRECTOR.\n\n5. M/S KARNATAKA RENEWABLE ENERGY\n DEVELOPMENT LIMITED,\n NO.39,"SHANTHIGRUHA"\n BHARATH SCOUTS AND GUIDES\n BUILDING, PALACE ROAD,\n BENGALURU - 560 003.\n ... RESPONDENTS\n 7\n\n\n\n(BY SMT.M.C.NAGASHREE, AGA FOR R1 AND R2;\n SRI B.N.PRAKASH, ADVOCATE FOR R3;\n SRI SHAHBAAZ HUSAIN, ADVOCATE FOR R4;\n SRI MURUGESH V.CHARATI, ADVOCATE FOR R5)\n\n THIS WRIT PETITION IS FILED UNDERARTICLES 226AND227OF THE CONSTITUTION OF INDIA PRAYING TO\nQUASH THE IMPUGNED DIRECTION DATED 05.04.2017,\nISSUED BY THE 3RD RESPONDENT, AS PER ANNEXURE-Q\nAND LETTER DATED 07.07.2017, ISSUED BY THE 3RD\nRESPONDENT AS PER ANNEXURE-T AND ETC.,\n\nIN WRIT PETITION No.7358/2020\n\nBETWEEN:\n\nM/S SAAKESHA SOLAR ENERGY PRIVATE LIMITED\nHAVING ITS REGISTERED OFFICE AT\nNO.658/8, 2ND FLOOR, F, 1ST 'C' MAIN ROAD,\n40TH CROSS, 8TH BLOCK, JAYANAGAR,\nBENGALURU - 560 082,\nREPRESENTED BY ITS DIRECTOR,\nSRI ISHWAR HEGDE.\n ... PETITIONER\n\n(BY SRI GANAPATI BHAT VAJRALLI, ADVOCATE)\n\nAND:\n\n1. M/S BANGALORE ELECTRICITY SUPPLY\n COMPANY LIMITED (BESCOM)\n OFFICE AT K.R.CIRCLE,\n BENGALURU - 560 001,\n REPRESENTED BY ITS\n MANAGING DIRECTOR.\n\n2. KARNATAKA POWER TRANSMISSION\n CORPORATION LIMITED\n CAVERI BHAVAN,\n BENGALURU - 560 001,\n 8\n\n\n\n REPRESENTED BY ITS\n MANAGING DIRECTOR.\n\n3. THE KREDL\n SHANTHI GRUHA, NO.39,\n BHARATH SCOUTS AND\n GUIDES BUILDING,\n OPPOSITE THE CHIEF\n POST MASTER GENERAL OFFICE,\n PALACE ROAD, BENGALURU - 560 001.\n\n4. THE DEPUTY COMMISSIONER\n DISTRICT ADMINISTRATIVE BHAVAN,\n SHIDLAGATTA ROAD,\n CHIKKABALLAPUR - 562 101.\n\n5. KARNATAKA ELECTRICITY\n REGULATORY COMMISSION\n NO.16, C-1, MILLARS BED AREA,\n VASANTHNAGAR,\n BENGALURU - 560 052,\n REPRESENTED BY ITS CHAIRMAN.\n\n ... RESPONDENTS\n\n(BY SRI S.SRIRANGA, ADVOCATE FOR R1 AND R2;\n SRI MURUGESH V.CHARATI, ADVOCATE FOR R3;\n SMT.M.C.NAGASHREE, AGA FOR R4;\n SRI B.N.PRAKASH, ADVOCATE FOR R5)\n\n THIS WRIT PETITION IS FILED UNDERARTICLES 226AND227OF THE CONSTITUTION OF INDIA PRAYING TO\nQUASH THE IMPUGNED ORDER DATED 30.08.2018 IN\nO.P.NO.161/2017 PASSED BY THE R-5 AS PER\nANNEXURE-H AND ALLOW THE O.P.NO.161/2017 BY\nGRANTING AN AMOUNT OF RS.8.40/- PER UNIT AS PER\nTHE PPA AND ETC.,\n 9\n\n\n\nIN WRIT PETITION No.7675/2020\n\nBETWEEN:\n\nM/S GAVI RANGA SOLARS PRIVATE LIMITED\nHAVING ITS REGISTERED\nOFFICE AT NO.658/8,\n2ND FLOOR, F, 2ND 'C' MAIN ROAD,\n40TH CROSS, 8TH BLOCK,\nJAYANAGAR,\nBENGALURU - 560 082,\nREPRESENTED BY ITS DIRECTOR,\nSRI ISHWAR HEGDE.\n ... PETITIONER\n(BY SRI GANAPATHY BHAT VAJRALLI, ADVOCATE\n (PHYSICAL HEARING))\n\nAND:\n\n1. M/S CHAMUNDESHWARI ELECTRICITY SUPPLY\n CORPORATION LIMITED (CESC, MYSORE),\n NO.29, VIJAYANAGAR 2ND STAGE,\n HINKAL, MYSURU - 570 017\n REPRESENTED BY ITS\n GENERAL MANAGER (COMMERCIAL)\n\n2. M/S BANGALORE ELECTRICITY SUPPLY\n COMPANY LIMITED (BESCOM),\n OFFICE AT: K.R.CIRCLE,\n BENGALURU - 560 001,\n REPRESENTED BY ITS\n MANAGING DIRECTOR.\n\n3. KARNATAKA POWER TRANSMISSION\n CORPORATION LIMITED\n CAVERI BHAVAN,\n BENGALURU - 560 001,\n REPRESENTED BY ITS\n MANAGING DIRECTOR.\n 10\n\n\n\n4. THE KREDL\n SHANTHI GRUHA, NO.39,\n BHARATH SCOUTS AND\n GUIDES BUILDING,\n OPPOSITE THE CHIEF\n POST MASTER GENERAL OFFICE,\n PALACE ROAD, BENGALURU - 560 001\n REPRESENTED BY\n ITS MANAGING DIRECTOR.\n\n5. KARNATAKA ELECTRICITY REGULATORY\n COMMISSION\n NO.16, C-1, MILLERS BED\n AREA, VASANTHNAGAR,\n BENGALURU-560 052,\n REPRESENTED BY ITS CHAIRMAN.\n\n6. THE DEPUTY COMMISSIONER\n DISTRICT ADMINISTRATIVE BHAVAN,\n SHIDLAGATTA ROAD,\n CHIKKABALLAPUR-562101.\n ... RESPONDENTS\n\n(BY SRI S.SRIRANGA, ADVOCATE FOR R1.\n R2 & R3 ARE SERVED\n SRI.MURUGESH V.CHARATI, ADVOCATE FOR R4;\n SRI B.N.PRAKASH, ADVOCATE FOR R5;\n SMT.M.C.NAGASHREE, AGA FOR R6 (PHYSICAL\n HEARING))\n\n THIS WRIT PETITION IS FILED UNDERARTICLES 226AND227OF THE CONSTITUTION OF INDIA PRAYING TO\nQUASH THE IMPUGNED ORDER DTD.28.8.2018 IN\nO.P.NO.163/2017 PASSED BY THE R-5 AS PER\nANENXURE-H AND ALLOW THE O.P.NO.163/2017 BY\nGRANTING AN AMOUNT OF RS.8.40/- PER UNIT AS PER\nTHE PPA AND ETC.,\n 11\n\n\n\nIN WRIT PETITION No.7698/2020\n\nBETWEEN:\n\nM/S LRK SOLAR POWER PRIVATE LIMITED\nHAVING ITS REGISTERED OFFICE AT\nNO.658/8, 2ND FLOOR, F, 1ST 'C' MAIN ROAD,\n40TH CROSS, 8TH BLOCK, JAYANAGAR,\nBENGALURU - 560 082\nREPRESENTED BY ITS DIRECTOR\nSRI ISHWAR HEGDE.\n ... PETITIONER\n(BY SRI GANAPATHI BHAT VAJRALLI, ADVOCATE)\n\nAND:\n\n1. M/S. BANGALORE ELECTRICITY SUPPLY\n COMPANY LIMITED (BESCOM)\n OFFICE AT K.R.CIRCLE,\n BENGALURU - 560 001.\n REPRESENTED BY ITS MANAGIR DIRECTOR\n\n2. KARNATAKA POWER TRANSMISSION\n CORPORATION LIMITED\n CAVERI BHAVAN, BENGALURU - 560 001\n REPRESENTED BY ITS MANAGING DIRECTOR.\n\n3. THE KREDL\n SHANTHI GRUHA, NO.39,\n BHARATH SCOUTS AND GUIDES BUILDING,\n OPPOSITE THE CHIEF POST MASTER\n GENERAL OFFICE,\n PALACE ROAD, BENGALURU - 560 001.\n\n4. THE DEPUTY COMMISSIONER\n DISTRICT ADMINISTRATIVE BHAVAN,\n SHIDLAGATTA ROAD,\n CHIKKABALLAPUR - 562 101.\n 12\n\n\n\n5. KARNATAKA ELECTRICITY REGULATORY\n COMMISSION\n NO.16, C-1, MILLERS BED AREA,\n VASANTHNAGAR,\n BENGALURU - 560 052\n REPRESENTED BY ITS CHAIRMAN.\n ... RESPONDENTS\n\n(BY SRI SHAHBAAZ HUSAIN, ADVOCATE FOR R1 & R2;\n SRI MURUGESH V.CHARATI, ADVOCATE FOR R3;\n SMT.M.C.NAGASHREE, AGA FOR R4;\n SRI B.N.PRAKSH, ADVOCATE FOR R5)\n\n THIS WRIT PETITION IS FILED UNDERARTICLES 226AND227OF THE CONSTITUTION OF INDIA PRAYING TO\nQUASH THE IMPUGNED ORDER DATED 27.09.2018 IN\nO.P.NO.165/2017 PASSED BY THE R-5 AS PER\nANNEXURE-H AND ALLOW THE O.P.NO.165/2017 BY\nGRANTING AN AMOUNT OF RS.8.40/- PER UNIT AS PER\nTHE PPA AND ETC.,\n\nIN WRIT PETITION No.7724/2020\n\nBETWEEN:\n\nM/S MNR SOLAR ENERGY PRIVATE LIMITED\nHAVING ITS REGISTERED OFFICE AT\nNO.658/8, 2ND FLOOR, F, 1ST 'C' MAIN ROAD,\n40TH CROSS, 8TH BLOCK, JAYANAGAR,\nBENGALURU - 560 082,\nREPRESENTED BY ITS DIRECTOR,\nSRI.ISHWAR HEGDE.\n ... PETITIONER\n\n(BY SRI GANAPATI BHAT VAJRALLI, ADVOCATE)\n\nAND:\n\n1. M/S BANGALORE ELECTRICITY SUPPLY\n COMPANY LIMITED (BESCOM)\n 13\n\n\n\n OFFICE AT: K.R.CIRCLE,\n BENGALURU - 560 001,\n REPRESENTED BY ITS\n MANAGING DIRECTOR.\n\n2. KARNATAKA POWER\n TRANSMISSION CORPORATION LIMITED\n CAVERI BHAVAN,\n BENGALURU - 560 001,\n REPRESENTED BY ITS\n MANAGING DIRECTOR.\n\n3. THE KREDL\n SHANTHI GRUHA, NO.39,\n BHARATH SCOUTS AND\n GUIDES BUILDING,\n OPPOSITE THE CHIEF POST\n MASTER GENERAL OFFICE,\n PALACE ROAD, BENGALURU - 560 001.\n\n4. THE DEPUTY COMMISSIONER\n DISTRICT ADMINISTRATIVE BHAVAN,\n SHIDLAGATTA ROAD,\n CHIKKABALLAPUR - 562 101.\n\n5. KARNATAKA ELECTRICITY\n REGULATORY COMMISSION\n NO.16, C-1, MILLERS BED AREA,\n VASANTHNAGAR,\n BENGALURU-560 052,\n REPRESENTED BY ITS CHAIRMAN.\n\n ... RESPONDENTS\n\n(BY SRI SHAHBAAZ HUSAIN, ADVOCATE FOR R1 AND R2;\n SRI MURUGESH V.CHARATI, ADVOCATE FOR R3\n SMT.M.C.NAGASHREE, AGA FOR R4;\n SRI B.N.PRAKASH, ADVOCATE FOR R5)\n 14\n\n\n\n THIS WRIT PETITION IS FILED UNDERARTICLES 226AND227OF THE CONSTITUTION OF INDIA PRAYING TO\nQUASH THE IMPUGNED ORDER DATED 21.08.2018 IN\nO.P.NO.158/2017 PASSED BY THE R-5 AS PER\nANNEXURE-H AND ALLOW THE OP NO.158/2017 BY\nGRANTING AN AMOUNT OF RS.8.40/- PER UNIT AS PER\nTHE PPA AND ETC.,\n\nIN WRIT PETITION No.7782/2020\n\nBETWEEN:\n\nM/S NADAGOUDA ENERGIES PRIVATE LIMITED\nHAVING ITS REGISTERED OFFICE AT\nNO.658/8, 2ND FLOOR, F, 1ST 'C' MAIN ROAD,\n40TH CROSS, 8TH BLOCK, JAYANAGAR,\nBENGALURU - 560 082\nREPRESENTED BY DIRECTOR\nSRI ISHWAR HEGDE.\n ... PETITIONER\n(BY SRI GANAPATI BHAT VAJRALLI, ADVOCATE)\n\nAND:\n\n1. M/S. HUBLI ELECTRICITY SUPPLY COMPANY\n LIMITED (HESCOM)\n OFFICE AT NAVANAGAR, HUBLI - 580 025\n REPRESENTED BY ITS\n MANAGING DIRECTOR.\n\n2. KARNATAKA POWER TRANSMISSION CORPORATION\n LIMITED\n CAVERI BHAVAN, BENGALURU - 560 001\n REP BY ITS MANAGING DIRECTOR\n\n3. THE KREDL\n SHANTHI GRUHA NO.39,\n BHARATH SCOUTS AND GUIDES BUILDING,\n OPPOSITE THE CHIEF POST MASTER GENERAL\n OFFICE,\n 15\n\n\n\n PALACE ROAD, BENGALURU - 560 001.\n\n4. THE DEPUTY COMMISSIONER\n DISTRICT ADMINISTRATIVE BHAVAN,\n SHIDLAGATTA ROAD,\n CHIKABALLAPUR-562 101\n\n5. KARNATAKA ELECTRICITY REGULATORY\n COMMISSION\n NO.16, C-1, MILLERS BED AREA,\n VASANTHNAGAR,\n BENGALURU-560 052\n REPRESENTED BY ITS\n CHAIRMAN.\n\n ... RESPONDENTS\n\n(BY SRI HOMESH KIRAN N., ADVOCATE FOR R1 AND R2;\n SRI MURUGESH V.CHARATI, ADVOCATE FOR R3;\n SMT.M.C.NAGASHREE, AGA FOR R4;\n R5 SERVED))\n\n THIS WRIT PETITION IS FILED UNDERARTICLES 226AND227OF THE CONSTITUTION OF INDIA PRAYING TO\nQUASH THE IMPUGNED ORDER DTD.25.9.2018 IN\nO.P.NO.155/2017 PASSED BY THE R-5 AS PER\nANNEXURE-H AND ALLOW THE O.P.NO.155/2017 BY\nGRANTING AN AMOUNT OF RS.8.40/- PER UNIT AS PER\nTHE PPA AND ETC.,\n\nIN WRIT PETITION No.7930/2020\n\nBETWEEN:\n\nM/S CHOWDESHWARI SOLAR ENERGY\nPRIVATE LIMITED\nHAVING ITS REGISTERED OFFICE AT\nNO.658/8, 2ND FLOOR, F, 1ST 'C' MAIN ROAD,\n40TH CROSS, 8TH BLOCK, JAYANAGAR,\nBENGALURU - 560 082,\n 16\n\n\n\nREPRESENTED BY ITS DIRECTOR,\nSRI.ISHWAR HEGDE.\n ... PETITIONER\n(BY SRI GANAPATHI BHAT VAJRALLI, ADVOCATE)\nAND:\n\n1. M/S BANGALORE ELECTRICITY SUPPLY\n COMPANY LIMITED (BESCOM)\n OFFICE AT: K.R.CIRCLE,\n BENGALURU - 560 001,\n REPRESENTED BY ITS\n MANAGING DIRECTOR.\n\n2. KARNATAKA POWER TRANSMISSION\n CORPORATION LIMITED\n CAVERI BHAVAN, BENGALURU - 560 001,\n REPRESENTED BY ITS\n MANAGING DIRECTOR.\n\n3. THE KREDL\n SHANTHI GRUHA, NO.39,\n BHARATH SCOUTS AND GUIDES BUILDING,\n OPPOSITE THE CHIEF POST MASTER GENERAL\n OFFICE, PALACE ROAD,\n BENGALURU - 560 001.\n REPRESENTED BY ITS MANAGING DIRECTOR.\n\n4. THE DEPUTY COMMISSIONER\n DISTRICT ADMINISTRATIVE BHAVAN,\n SHIDLAGATTA ROAD,\n CHIKKABALLAPUR - 562 101\n\n5. KARNATAKA ELECTRICITY\n REGULATORY COMMISSION\n NO.16, C-1, MILLAES BED AREA,\n VASANTHNAGAR,\n BENGALURU-560 052,\n REPRESENTED BY ITS CHAIRMAN\n ... RESPONDENTS\n 17\n\n\n\n(BY SRI SHAHBAAZ HUSAIN, ADVOCATE FOR R1 AND R2;\n SRI MURUGESH V.CHARATI, ADVOCATE FOR R3;\n SMT.M.C.NAGASHREE, AGA FOR R4;\n SRI B.N.PRAKASH, ADVOCATE FOR R5)\n\n THIS WRIT PETITION IS FILED UNDERARTICLES 226AND227OF THE CONSTITUTION OF INDIA PRAYING TO\nQUASH THE IMPUGNED ORDER DATED 28.08.2018 IN\nO.P.NO.164/2017 PASSED BY THE R-5 AS PER\nANNEXURE-H AND ALLOW THE OP.NO.164/2017 BY\nGRANTING AN AMOUNT OF RS.8.40/- PER UNIT AS PER\nTHE PPA AND ETC.,\n\nIN WRIT PETITION No.12611/2020\n\nBETWEEN:\n\nM/S. LPD SOLAR POWER PRIVATE LIMITED\nHAVING ITS REGISTERED OFFICE AT\nNO.658/8, 2ND FLOOR, F, 1ST 'C' MAIN ROAD,\n40TH CROSS, 8TH BLOCK, JAYANAGAR,\nBENGALURU - 560 082\nREPRESENTED BY ITS DIRECTOR\nSRI.ISHWAR HEGDE.\n ... PETITIONER\n\n(BY SRI GANAPATHI BHAT VAJRALLI, ADVOCATE)\n\nAND:\n\n1. M/S BANGALORE ELECTRICITY SUPPLY COMPANY\n LIMITED (BESCOM)\n OFFICE AT K.R.CIRCLE,\n BENGALURU - 560 001\n REPRESENTED BY ITS\n MANAGIANG DIRECTOR.\n\n2. KARNATAKA POWER TRANSMISSION\n CORPORATION LTD.,\n CAVERI BHAVAN, BENGALURU - 560 001\n 18\n\n\n\n REPRESENTED BY\n ITS MANAGING DIRECTOR.\n\n3. THE KREDL\n SHANTHI GRUHA, NO.39,\n BHARATH SCOUTS AND GUIDES BUILDING,\n OPPOSITE THE CHIEF POST MASTER\n GENERAL OFFICE,\n PALACE ROAD, BENGALURU - 560 001.\n\n4. THE DEPUTY COMMISSIONER\n DISTRICT ADMINISTRATIVE BHAVAN,\n SHIDLAGATTA ROAD,\n CHIKKABALLAPUR - 562 101.\n\n5. KARNATAKA ELECTRICITY\n REGULATORY COMMISSION\n NO.16, C-1, MILLERS BED AREA,\n VASANTHNAGAR,\n BENGALURU - 560 052\n REPRESENTED BY ITS CHAIRMAN.\n ... RESPONDENTS\n\n(BY SRI SHAHBAAZ HUSAIN, ADVOCATE FOR R1 AND R2;\n SRI MURUGESH V.CHARATI, ADVOCATE FOR R3;\n SMT.M.C.NAGASHREE, AGA FOR R4;\n SRI B.N.PRAKASH, ADVOCATE FOR R5)\n\n THIS WRIT PETITION IS FILED UNDERARTICLES 226AND227OF THE CONSTITUTION OF INDIA PRAYING TO\nQUASH THE IMPUGNED ORDER DATED 27.09.2018 IN\nO.P.NO.166/2017 PASSED BY THE R-5 AS PER\nANNEXURE-H AND ALLOW THE O.P.NO.166/2017 BY\nGRANTING AN AMOUNT OF RS.8.40/- PER UNIT AS PER\nTHE PPA AND ETC.,\n 19\n\n\n\nIN WRIT PETITION No.12637/2020\n\nBETWEEN:\n\nM/S SRI UGRAPPA SOLAR PRIVATE LIMITED\nHAVING ITS REGISTERED OFFICE AT\nNO.658/8, 2ND FLOOR, F, 1ST 'C' MAIN ROAD,\n40TH CROSS, 8TH BLOCK, JAYANAGAR,\nBENGALURU - 560 082,\nREPRESENTED BY ITS DIRECTOR,\nSRI ISHWAR HEGDE.\n ... PETITIONER\n(BY SRI GANAPATHI BHAT VAJRALLI, ADVOCATE)\n\nAND:\n\n1. M/S BANGALORE ELECTRICITY SUPPLY\n COMPANY LIMITED (BESCOM)\n OFFICE AT: K.R.CIRCLE,\n BENGALURU - 560 001,\n REPRESENTED BY ITS\n MANAGING DIRECTOR.\n\n2. KARNATAKA POWER TRANSMISSION\n CORPORATION LIMITED\n CAVERI BHAVAN,\n BENGALURU - 560 009,\n REPRESENTED BY ITS\n MANAGING DIRECTOR.\n\n3. THE KREDL\n SHANTHI GRUHA, NO.39,\n BHARATH SCOUTS AND\n GUIDES BUILDING,\n OPPOSITE THE CHIEF\n POST MASTER GENERAL OFFICE,\n PALACE ROAD,\n BENGALURU - 560 001.\n 20\n\n\n\n4. DEPUTY COMMISSIONER\n DISTRICT ADMINISTRATIVE BHAVAN,\n SHIDLAGATTA ROAD,\n CHIKKABALLAPUR - 562 101.\n\n5. KARNATAKA ELECTRICITY\n REGULATORY COMMISSION\n NO.16, C-1, MILLERS BED AREA,\n VASANTHNAGAR,\n BENGALURU - 560 052,\n REPRESENTED BY ITS CHAIRMAN.\n ... RESPONDENTS\n\n(BY SRI SHAHBAAZ HUSAIN, ADVOCATE FOR R1 & R2;\n SRIMURUGESH V.CHARATI, ADVOCATE FOR R3;\n SMT.M.C.NAGASHREE, AGA FOR R4\n SRI B.N.PRAKASH, ADVOCATE FOR R5)\n\n THIS WRIT PETITION IS FILED UNDERARTICLES 226AND227OF THE CONSTITUTION OF INDIA PRAYING TO\nQUASH THE IMPUGNED ORDER DATED 29.05.2018 IN\nO.P.NO.148/2017 PASSED BY THE R-5, AS PER\nANNEXURE-H AND ALLOW THE O.P. NO. 148/2017 BY\nGRANTING AN AMOUNT OF RS 8.40/- PER UNIT AS PER\nTHE PPA AND ETC.,\n\nIN WRIT PETITION No.12644/2020\n\nBETWEEN:\n\nM/S POORVAJ SOLAR ENERGY PRIVATE LIMITED\nHAVING ITS REGISTERED OFFICE AT:\nNO.658/8, 2ND FLOOR, F, 1ST 'C' MAIN ROAD,\n40TH CROSS, 8TH BLOCK, JAYANAGAR,\nBENGALURU - 560 082\nREPRESENTED BY ITS DIRECTOR\nSRI ISHWAR HEGDE.\n ... PETITIONER\n(BY SRI GANAPATHY BHAT VAJRALLI, ADVOCATE)\n 21\n\n\n\nAND:\n\n1. M/S. BANGALORE ELECTRICITY\n SUPPLY COMPANY LIMITED (BESCOM)\n OFFICE AT: K.R.CIRCLE,\n BENGALURU - 560 001\n REPRESENTED BY\n MANAGING DIRECTOR.\n\n2. KARNATAKA POWER TRANSMISSION\n CORPORATION LIMITED\n CAVERI BHAVAN,\n BENGALURU - 560 009\n REPRESENTED BY\n MANAGING DIRECTOR.\n\n\n3. THE KREDL\n SHANTHI GRUHA, NO.39,\n BHARATH SCOUTS AND GUIDES BUILDING,\n OPPOSITE THE CHIEF POST MASTER\n GENERAL OFFICE,\n PALACE ROAD, BENGALURU - 560 001\n REPRESENTED BY ITS MANAGING DIRECTOR.\n\n4. THE DEPUTY COMMISSIONER\n DISTRICT ADMINISTRATIVE BHAVAN,\n SHIDLAGATTA ROAD,\n CHIKKABALLAPUR - 562 101.\n\n5. KARNATAKA ELECTRICITY\n REGULATORY COMMISSION\n NO.16, C-1, MILLERS BED AREA,\n VASANTHNAGAR,\n BENGALURU - 560 052\n REPRESENTED BY CHAIRMAN.\n ... RESPONDENTS\n\n(BY SRI SHAHBAAZ HUSAIN, ADVOCATE R1 AND R2\n SRI MURUGESH V.CHARATI, ADVOCATE FOR R3;\n 22\n\n\n\n SMT.M.C.NAGASHREE, AGA FOR R4;\n SRI B.N.PRAKASH, ADVOCATE FOR R5)\n\n THIS WRIT PETITION IS FILED UNDERARTICLES 226AND227OF THE CONSTITUTION OF INDIA PRAYING TO\nQUASH THE IMPUGNED ORDER DATED 28.08.2018 IN\nO.P.NO.167/2017 PASSED BY THE R-5, AS PER\nANNEXURE-H AND ALLOW THE O.P. NP. 167/2017 BY\nGRANTING AN AMOUNT OF RS 8.40/- PER UNIT AS PER\nTHE PPA AND ETC.,\n\n\n THESE WRIT PETITIONS HAVING BEEN HEARD AND\nRESERVED FOR ORDERS ON 24.06.2021, COMING ON\nFOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE\nFOLLOWING :-\n ORDERAssemblage of these petitions raise a challenge to\n\nthe order passed by the Karnataka Electricity\n\nRegulatory Commission1 in rejecting Original Petition\n\nNo.214 of 2017 filed before it by the petitioners and\n\ndirecting that the petitioners shall be entitled to a\n\nparticular tariff. Since facts are common in all these\n\npetitions, facts obtaining in Writ Petition No.52028 of\n\n2018 are referred to in this order for the sake of\n\nconvenience.1 'Commission' for short232. Succinctly stated, the facts germane for\n\nconsideration of the lis are as follows:-Government of Karnataka on 22-05-2014\n\nintroduced a solar policy to be availed between 2014\n\nand 2021 with the object of harnessing the potential of\n\nsolar resources in the State. In furtherance of the policy\n\nof the State, Karnataka Renewable Energy Development\n\nLimited2 issued a notification inviting online\n\napplications for facilitating development of renewable\n\nenergy on 09.10.2014. The petitioners, in all these\n\ncases, applied pursuant to the notification issued by\n\nKREDL. In Writ Petition No.52028 of 2018, a letter of\n\naward was issued in favour of one Sri Bommappa\n\nKenchikoppa for development of two megawatts (mw)\n\nsolar power plant by a letter of award dated 16.03.2015.Before the plant could be commissioned and even the\n\nprocess of harnessing solar resources to begin, the2'KREDL' for short24holder of award died bequeathing his entire property in\n\nfavour of his grandson, the petitioner herein.3. On 26.08.2015, a power purchase agreement\n\nwas entered into between the petitioner and the\n\nBangalore Electric Supply Company Limited3 ('BESCOM'\n\nfor short). The power purchase agreement so entered\n\ninto between the petitioner and BESCOM was approved\n\nby the Commission on 01.09.2015 pursuant to which,\n\nthe petitioner applied to KPTCL for evacuation approval\n\non 05.08.2016. Pending such approval, the petitioner\n\nalso applied before the Deputy Commissioner,\n\nDavangere for conversion of land in Sy.No.67 measuring\n\n10 acres for the purpose. After submission of such\n\napplication for conversion KPTCL issued an order of\n\napproval of temporary evacuation on payment of\n\nprocess fee and payment for evacuation on 19.09.2016.\n\nThis resulted in supplemental power purchase\n\nagreement between the petitioner and the 2nd\n3 'BESCOM' for short25respondent on 28.09.2016. After the supplemental\n\npower purchase agreement, the petitioner applied for a\n\nno objection from Soratur Grama Panchayat, Honnali\n\nTaluk, Davengere.4. On 19.10.2016 the Deputy Commissioner\n\nbefore whom the conversion application was pending\n\naccorded conversion after obtaining NOC from Soratur\n\nGrama Panchayat. Thereafter the 1st respondent/\n\nGovernment directed all ESCOMS to form a three\n\nmember committee to consider extension requests of\n\nfarmers holding lands for a period of 3 months. The\n\ncommunication was sent to all ESCOMS on 24.11.2016.\n\nOn 06.01.2017 the petitioner requested BESCOM to\n\ngrant extension of scheduled date of commissioning of\n\nthe project by 6 months on account of force majeure.\n\nThe BESCOM on receipt of such request from the\n\npetitioner and the like, directed the petitioner to submit26documents in support of the claim for extension of the\n\nproject.5. On 27.02.2017 the petitioner again requested\n\nalong with all the documents extension of scheduled\n\ndate of commissioning of the project by six months.\n\nPending all such applications for extension - one from\n\nthe farmers and the other from the petitioner and the\n\nlike, KREDL informed all ESCOMS by its\n\ncommunication dated 16.03.2017 that requests for\n\nextension of time should not be considered as a routine\n\nexercise except under extraordinary conditions to be\n\nproved by the project developer within the scope of the\n\npower purchase agreement. The Commission issued\n\nanother letter/direction directing BESCOMs to advice\n\nthe petitioner and all those who were in possession of\n\nsuch power purchase agreements to file a petition before\n\nit with all necessary documents seeking approval for27extension of time. This direction of the Commission was\n\nissued on 05.04.2017.6. On 16.06.2017 BESCOM approved the request\n\nof the petitioner for scheduled date of commissioning of\n\nthe solar power project by 6 months on account of force\n\nmajeure reasons subject to any damages to be payable\n\nand the tariff to be approved by the Commission. The\n\nGovernment on 23.06.2017 addressed a communication\n\nto KREDL observing that Government has accepted the\n\nplea of ESCOMs in the matter of extension of time to\n\nachieve commissioning of solar project under farmers'\n\nscheme invoking force majeure conditions of the power\n\npurchase agreement and also requested the\n\nCommission to approve such extension of time.7. On 07.07.2017 the Commission again issued\n\ndirectives to ESCOMS directing them not to grant\n\nextension of time without the prior approval of the\n\nCommission. On 09.08.2017 BESCOM in terms of the28direction issued by the Commission directed the\n\npetitioner and the like to seek approval from the\n\nCommission for extension of scheduled date of\n\ncommissioning. Pending such approval, a provisional\n\ninterconnection approval was accorded by BESCOM and\n\ncommissioning certificate was also issued confirming\n\nthat solar power plant of the petitioner was\n\ncommissioned. After all the aforesaid proceedings, the\n\npetitioner filed original petition as was directed by\n\nBESCOM before the Commission in O.P.No.214 of 2017\n\nseeking approval of scheduled date of commissioning.\n\nThe Commission by its order dated 09.10.2018\n\ndismissed original petition and directed to pay damages\n\nand liquidated damages as per clauses of the power\n\npurchase agreement and also directed that the tariff\n\napplicable to the petitioner would be Rs.4.36 per unit as\n\nopposed to Rs.8.40 per unit and agreed to by the parties\n\nunder the power purchase agreement. It is this order\n\ndated 09.10.2018 and the like, even or odd, that is29called in question by all the petitioners in these\n\npetitions.8. Heard Sri Manmohan P.N. learned counsel\n\nappearing for the petitioners in most of the petitions,\n\nSri Ganapathi Bhat Vajralli, learned counsel appearing\n\nfor few of the petitioners, Sri S.Sriranga, learned\n\ncounsel appearing for KPTCL, Sri Shahbaaz Husain,\n\nlearned counsel appearing for BESCOM and KPTCL,\n\nSmt. M.C. Nagashree, learned High Court Government\n\nPleader for the State, Sri B.N.Prakash, learned counsel\n\nfor the Commission and Sri Murugesh.V.Charati,\n\nlearned counsel for KREDL.9. The learned counsel Sri Manmohan P.N who\n\nhas led the arguments in the case would urge the\n\nfollowing contentions, that the Commission had no\n\njurisdiction to intervene in the matter in exercise its\n\ninherent power under Regulations 11 and 14 of the\n\nKarnataka Electricity Regulatory Commission (General30and Conduct of Proceedings) Regulations, 2000; that\n\ninherent powers of the Commission would not enable it\n\nto determine the tariff once an agreement has been\n\nsigned between the petitioners and BESCOM; that\n\npower of the Commission is restricted to the period prior\n\nto execution of the power purchase agreement and not\n\nafter that; that the Commission had no jurisdiction to\n\nalter or modify terms of the agreement; that letters\n\nissued by the Commission directing cases to be filed\n\nbefore it for extension would amount to being a Judge in\n\nits own cause; that the parties having appeared before\n\nthe Commission cannot confer jurisdiction upon the\n\nCommission to decide the issue after it had no\n\njurisdiction under the Act; that the Commission has not\n\nproceeded with an open mind as the Commission had\n\npre-judged the issue by directing ESCOMS not to grant\n\nextension of scheduled date of commissioning the\n\nproject.319.1. The learned counsel would place reliance\n\nupon the following judgments:(i) GUJARAT URJA VIKAS NIGAM LIMITED v.SOLAR SEMICONDUCTOR POWER COMPANY\n\n (INDIA) PRIVATE LIMITED AND ANOTHER -\n\n (2017) 16 SCC 498;(ii) BESCOM v. KONARK POWER PROJECTS\n\n LIMITED AND ANOTHER - (2016) 13 SCC 515;(iii) RAGHU INFRA PRIVATE LIMITED AND\n\n ANOTHER v. C.E.S.C. AND ANOTHER\n\n (W.P.No.51518-51519/2016 decided on\n\n 27-08-2019 by this Court);\n\n(iv) ASIAN FAB TECH LIMITED v. CESC AND\n\n ANOTHER(W.P.No.51365 of 2016 decided on 27-08-2019 by\n\n this Court);(v) CHENNAMANGATHIHALLI SOLAR POWER\n\n PROJECT LLP AND ANOTEHR v. BESCOM AND\n\n ANOTHER32(Appeal No.351 of 2018 decided on 14-09-2020 by\n\n the APTEL);(vi) A.U.KURESHI v. HIGHCOURT OF GUJARAT\n\n AND ANOTHER - (2009) 11 SCC 84;(vii) MOHD. YUNUS KHAN v. STATE OF UTTAR\n\n PRADESH AND OTHERS - (2010) 10 SCC 539;(viii) SIEMENS LIMITED v. STATE OF\n\n MAHARASHTRA AND OTHERS - (2006) 12 SCC\n\n 33 and(ix) COMMITTEE OF MANAGEMENT AND ANOTHER\n\n v. VICE CHANCELLOR AND OTEHRS- (2009) 2 SCC 630.10. The other learned counsel has toed the lines of\n\nargument of Sri Manmohan P.N., learned counsel.11. On the other hand, learned counsel Sri\n\nS.Sriranga, appearing for the respondent KPTCL and\n\nBESCOM would at the outset submit that petitioners\n\nhave an alternative and efficacious remedy of filing an33appeal before the Appellate Tribunal for Electricity\n\nconstituted underSection 111of the Electricity Act,\n\n2003 and the impugned order passed by the\n\nCommission cannot be questioned before this Court.\n\nWithout prejudice to the issue of maintainability, the\n\nlearned counsel would also submit that the Commission\n\nhad jurisdiction to direct what it has done and the order\n\npassed by the Commission is unassailable and would\n\nplace reliance upon judgments in cases of:(i) ALL INDIA POWER ENGINEERS FEDERATION\n\n LIMITED v. SASAN POWER LIMITED- (2017) 1 SCC 487;(ii) TATA POWER COMPANY LIMITED v. RELIANCE\n\n ENERGY LIMITED- (2009) 16 SCC 659;(iii) GUJARAT URJA VIKAS NIGAM LIMITED v.TARINI INFRASTRUCTURE AND OTHERS -\n\n (2016) 8 SCC 743;(iv) P.SINGARAVLEAN AND OTHERS v. DISTRICT\n\n COLLECTOR, TIRUPUR AND OTHERS-34(2020) 3 SCC 133;(v) GUJARAT URJA VIKAS NIGAM LIMITED v.EMCO LIMITED AND ANOTHER -(2016) 11 SCC 182;(vi) EARTH SOLAR PRIVATE LIMIED v. PUNJAB\n\n STATE ELECTRICITY REGULARTORY\n\n COMMISSION AND ANOTEHR- (Appeal No.169 of 2015 decided on 11-01-2019);(vii) RELIANCE INFRASTRUCTURE LIMITED v.STATE OF MAHARASHTRA - (Civil Appeal\n\n No.879 of 2019 decided on 21-01-2019);(viii) A.P. TRANSCO v. SAI RENEWABLE POWER (P)\n\n LIMITED - (2011) 11 SCC 34;(ix) VATSALA BELLARY v. KREC AND OTHERS -(W.P.No.35569 of 2018); and(x) GRAPHITE INDIA v. KERC AND OTHERS\n\n (W.P.No.12576 of 2018 decided on 21-06-2018).3512. I have given my anxious consideration to the\n\nrival submissions made across the bar and have\n\nperused the material on record.13. The facts narrated hereinabove would not need\n\nreiteration as they are not in dispute. To consider the\n\ncontentions advanced by respective parties as aforesaid,\n\nthe prayers in the writ petition that is taken for\n\nreference are to be noticed. The prayers that are sought\n\nin Writ Petition No.52028 of 2018 read as follows:(i) Issue a writ of certiorari and quash the\n communication dated 16-03-2017\n bearing No.KERC/ S/F-31/VOL-ALL/16-17/2763 issued by the 5th\n respondent (Produced as Annexure-S);and\n\n (ii) Issue a writ of certiorari and quash the\n communication dated 5-04-2017\n bearing No.KERC/ S/F-31/VOL-\n ALL/16-17/55 issued by the 5threspondent (Produced as Annexure-T);\n and(iii) Issue a writ of certiorari and quash the\n communication dated 07-07-2017\n bearing No.KERC/ S/F-31/VOL-ALL/17-18/541 issued by the 5th36respondent (Produced as Annexure-V);\n and(iv) Issue a writ of certiorari and quash the\n communication dated 16-06-2017\n bearing No.CM(Ele.)/PP/BESCOM\n /DGM-1/AGM-1/BC-39/F-/17-18/3627-33 issued by the 2nd respondent insofar\n as subjects the extension of SCOD to the\n condition that the tariff applicable and\n the liquidated damages to be paid if\n any is subject to Hon'ble KERC/GOK\n approval (Produced as Annexure-F); and(v) Issue a writ of certiorari and quash the\n communication dated 09-08-2017\n bearing NO. GM (Ele)/PP/BESCOM/\n DGM-1/AGM-1/BC-39/F-17-18/ 6810\n issued by the 2nd respondent (Produced\n as Annexure-X); and(vi) Issue a writ of certiorari and quash the\n order dated 9-10-2018 passed in\n O.P.No.214 of 2017 passed by the 5th\n respondent (Produced as Annexure-AB);\n and(vii) Issue a writ of mandamus directing the\n 2nd respondent to pay the tariff of\n Rs.8.40 kwh to the petitioner as per the\n Power Purchase Agreement dated 26-\n 08-2015 (Produced as Annexure-C; and(viii) Pass such other orders as deemed fit in\n the facts and circumstances of the case,\n in the interest of justice and equity."37In furtherance of the solar policy of the State\n\nnotification was issued by KREDL and the petitioner\n\nwas issued a letter of award for development of MW\n\nsolar power plant. Certain clauses of the power\n\npurchase agreement dated 26-08-2015 entered into\n\nbetween the petitioner and BESCOM are germane to be\n\nnoticed and are accordingly extracted herein for the\n\npurpose of ready reference:"Article-I: Definitions\n\n 1.1 For all purposes of this Agreement, unless the\n context otherwise requires the following\n words and expressions shall have the\n respective meanings set forth below:... ... ... ...(xii) "Effective Date" shall mean date of\n signing of this Agreement by the parties:... ... ... ...(xxviii)"Scheduled Commissioning Date"shall mean 18 (eighteen) months from\n the Effective Date.(xxix) "State loan dispatch Centre" means\n the State Load Despatch Centre\n established as per the Act;(xxx) "State transmission Utility" or\n "STU" shall mean Karnataka Power38Transmission Corporation Limited or\n KPTCL.(xxxi) "Tariff Payment" shall mean the\n payments to be made under Monthly\n Bills as referred to in Clause 6.3 and\n the relevant Supplementary Bills.\n\n5.1 Tariff payable:The SPD shall be entitled to receive the Tariff\n of Rs.8.40 per KWH based on the KERC tariff\n order S/03/1 dated 10-10-2013 in respect of\n SPD's Solar PV projects in terms of his\n agreement for the period between COD and\n the Expiry Date. However, subject to Clause\n 2.5, if there is a delay in commissioning of the\n Project beyond the Scheduled Commissioning\n Date and during such period there is a\n variation in the KERC Tariff, then the\n applicable Tariff for the projects shall be the\n lower of the following:(i) Rs.8.40 per kwh.(ii) Varied tariff applicable as on the\n date of Commercial Operation.Article-8 FORCE MAJEURE\n\n8.1 Definitions:In this Article, the following terms shall have\n the following meanings:8.2 Affected Party:39An affected party means BESCOM or the SPD\n whose performance has been affected by an\n event of Force Majeure.8.3 Force Majeure Events:a) Neither Party shall be responsible or\n liable for or deemed in breach hereof\n because of any delay or failure in the\n performance of its obligations\n hereunder (except for obligations to\n pay money due prior to occurrence of\n Force Majeure events under this\n Agreement) or failure to meet\n milestone dates due to any event or\n circumstance (a "Force Majeure Event")\n beyond the reasonable control of the\n Party affected by such delay or\n failure, including the occurrence of\n any of the following:i. Acts of God;ii. Typhoons, floods, lightning,\n cyclone, hurricane, drought,famine, epidemic, plague or other\n natural calamities;iii. Strikes, work stoppages, work\n slowdowns or other labour\n dispute which affects a Party's\n ability to perform under this\n Agreement;iv. Acts of war (whether declared or\n undeclared), invasion or civil\n unrest;40v. Any requirement, action or\n omission to act pursuant to any\n judgment or order of any court or\n judicial authority in India\n (provided such requirement,\n action or omission to act is not\n due to the breach by the SPD or\n BESCOM, of any law or any of\n their respective obligations under\n this Agreement);vi. Inability despite complying with\n all legal requirements to obtain,\n renew or maintain required\n licenses or Legal Approvals;vii. Fire, Earthquakes, explosions,\n accidents, landslides;viii. Expropriation and/or compulsory\n acquisition of the Project in\n whole or in part;ix. Chemical or radioactive\n contamination or lionizing\n radiation; or\n\n x. Damage to or breakdown oftransmission facilities of either\n Party;b) The availability of the above item (a) to\n excuse a Party's obligations under this\n Agreement due to a Force Majeure Event\n shall be subject to the following limitations\n and restrictions:41i. The non-performing Party gives the\n other Party written notice describing\n the particulars of the Force Majeure\n Event as son as practicable after its\n occurrence;ii. The suspension of performance is of\n no greater scope and of no longer\n duration than is required by the\n Force Majeure Event.iii. The non-performing Party is able to\n resume performance of its obligations\n under this Agreement, it shall give\n the other Party written notice to that\n effect;iv. The Force Majeure Event was not\n caused by the non-performing Party's\n negligent or intentional acts, errors or\n omissions, or by its\n negligence/failure to comply with\n any material law, or by any material\n breach or default under this\n Agreement;v. In no event shall a Force Majeure\n Event excuse the obligations of a\n Party that are required to be\n completely performed prior to the\n occurrence of a Force Majeure Event.... ... ... ...\n\n12.10 Amendments:42This Agreement shall not be amended,\n changed, altered or modified except by a\n written instrument duly executed by an\n authorized representative of both\n Parties. However, BESCOM may consider\n any amendment or change that the\n Lenders may require to be made to this\n Agreement subject to the approval of the\n Commission.(Emphasis added)\n\nClause (xxviii) of the definitions would define 'Scheduled\n\nCommissioning Date' to be 18 months from the effective\n\ndate. Clause (xii) thereof defines 'Effective Date" would\n\nmean the date of signing of the agreement between the\n\nparties. The 'Conditions Precedent' are dealt with under\n\nArticle-2. Damages for delay to be paid by the Developer\n\nare dealt with under Clause 2.2. Extensions of time are\n\ndepicted in Clause 2.5. In terms of Clause 2.5.6 the\n\nresult of extensions would be the scheduled\n\ncommissioning date and expiry date would be\n\ndetermined afresh which shall be the scheduled\n\ncommissioning date and the expiry date for the\n\npurposes of the agreement. Tariff payable in terms of43the agreement is dealt with under Clause 5.1 which\n\ndetermines agreed tariff to be Rs.8.40 per kWh. Force\n\nMajeure is dealt with underArticle 8.One such clause\n\ndepicts inability despite complying with all legal\n\nrequirements to obtain, renew or maintain required\n\nlicenses. It is in terms of the aforesaid agreement that\n\nthe entire issue now springs and is to be considered.14. In terms of the agreement, the petitioner\n\napplied for evacuation approval from the hands of\n\nKPTCL and conversion from the hands of Deputy\n\nCommissioner and no objection from the hands of\n\nSoratur Gram Panchayat. The approval was granted on\n\ndifferent dates and a supplemental power purchase\n\nagreement was also entered into between the parties.Since the issue now is with regard to delay in scheduled\n\ndate of commissioning, the reasons behind the delay is\n\nrequired to be noticed.4415. The petitioners in all these cases requested\n\nBESCOM for extension of scheduled commissioning\n\ndate enclosing the dates on which steps have been\n\ntaken by the petitioners seeking several statutory\n\napprovals which were held at the hands of Government.\n\nFirst representation of the kind was given on 1st\n\nFebruary 2017 and the second representation of the\n\nkind was given on 27th February 2017. In reply, what\n\nthe 1st petitioner got was a communication dated\n\n15-04-2017 from BESCOM which reads as follows:-"Sir,\n\n Sub: Power Purchase Agreement of 2 MW\n Tuggalahalli village, Honnali Taluk,\n Davangere District, Karnataka State of\n Sri AmarthyaRajashekarappa - reg\n Extension of Scheduled Commissioning\n date.Ref: 1. PPA executed with BESCOM on\n 26.08.2015.2. Your letter dated 06-01-2017,\n 1.2.2017 & 27.2.20173. KERC letter No.KERC/S/F-31/Vol-1ll/16-17/55 dated 05-04-\n 2017.--45Hon'ble KERC vide letter cited under\nref.(3), have informed that , the\nCommission has the jurisdiction of legal\nscrutiny of validity of the extension of\ntime granted in any case by an ESCOM.\nSuch proceedings being a part of judicial\nfunctions of the Commission require\nreasonable opportunity to be given to\nboth parties of the PPA to present their\ncase.In this regard, Hon'ble Commission directs all\nthe ESCOMs to advice the concerned\nSPD/SPVs under Land Owners/ Farmers\nScheme to file a petition before the\nCommission with all relevant\ngrounds/documents for seeking approval for\nany extension of the Commissioning date.\n(copy of the letter is enclosed).I am directed to request you, to file a\npetition before the Hon'ble Commission\nforth, with all relevant grounds/\ndocuments for seeking approval for any\nextension of the Commissioning date."(Emphasis added)46The communication furnished by BESCOM was based\n\nupon the letter issued by the Commission on\n\n16-03-2017 which reads as follows:"No.KERC/S/F-31/Vol-All/16-17/ Dated:16-\n 03-2017\n\n The Managing Director,\n BESCOM/MESCOM/ESCOM/HESCOM/\n GESCOM.Sir,\n Sub: Extension of time to achieve COD of the\n Solar Projects - reg.Ref. 1.BESCOM letter NO.GM(Ele)/PP/\n BESCOM/DGM-1/AGM-1/BC-39/F..\n dated 9thJanuary, 2007.2.KERC letter No.KERC/S/F-31/Vol-\n 41/15-16/148 dated 04-05-2015.--It has come to the notice of the\n Commission that the BESCOM in its letter\n cited under reference, has granted\n extension of time of six months to\n achieve COD for the 10 MW Solar Project,\n beyond the time allowed in the PPA\n without altering the terms of the original\n PPA. The PPA was approved by the\n Commission vide its letter cited under47Ref.2 above. The Commission has noted\nthat BESCOM has not obtained prior\napproval of the Commission regarding\nthe extension of time. The reasons and\njustification for the extension of time are\nnot forthcoming from the letter of\nBESCOM.The Commission has also observed that in\ncertain instances, ESCOMs have granted\nextension of time to achieve commercial\noperation of the solar projects from the\noriginally agreed scheduled commissioning\ndate, without altering the terms and\nconditions of the PPA.Since the extension of time by ESCOMs\nwithout altering the terms of the original PPA\nwill have impact on the Tariff payable by the\nESCOMs, the Commission has the jurisdiction\nof legal scrutiny of validity of the extension of\ntime granted.The Solar Projects are expected to be\ncompleted in the time bound manner in order\nto ensure that not only the anticipated solar48power generation accrues to the grid to meet\n the planned demand but also to ensure that\n the capital cost of the developer is as per\n assumption mode for calculating the Tariff\n offer and any extension of time will have for\n reaching tariff implications affecting the end\n consumers. In view of rapid changes in\n the market conditions of photovoltaic\n plants, resulting in sustained reduction\n in their cost. Extension of time should\n not be considered as a routine exercise\n except under extra-ordinary conditions to\n be proved by the project developer, within\n the scope of the original PPA.I am directed to inform all ESCOMs to\n not to allow any extension of time beyond\n the Scheduled Commissioning date (COD)\n if any, as per the original PPA without\n obtaining prior opinion of this\n Commission."(Emphasis added)\nThe Commission clearly directed ESCOMs not to allow\n\nany extension of time beyond the scheduled\n\ncommissioning date without obtaining prior approval of49the Commission. The Commission again communicates\n\non 05.04.2017 with regard to extension of time for\n\nscheduled commissioning of the project. The letter dated\n\n05.04.2017 reads as follows:"No.KERC/S/F-31/Vol-All/16-17/55\n Date:5-04-2017\n\n The Managing Director,\n BESCOM/MESCOM/CESC/HESCOM/GESCOM\n Sir,\n\n Sub: Request for Commission's approval for\n Supplementary PPAs executed to\n incorporate extension of time to achieve\n COD at the Solar Projects under\n landowners/farmers scheme - Reg.\n Ref: KERC letter No.KERC/S/F-31/Vol-All/16-17/2763 dated 17-03-2017.--The Commission is receiving for approval\n several Supplementary PPAs executed in\n respect of Solar Projects under Land\n Owners/Farmers' Scheme. Such\n supplemental PPAs mainly seek to extend\n time to the developers to achieve CoD beyond50the date specified in the original PPAs. The\nESCOM concerned has stated that a\nCommittee formed with its Director Technical\nas Chairman, as directed by the Government\nin Energy Department to resolve the issue of\ngranting extension of CoD by consideringArticle 2.5and8of the PPA, has decided to\ngrant extension of time for achieving\nscheduled commissioning of the project as\nrequested by the developer.2. The Commission has noted that, the\ngrounds cited to grant extension of time and\nthe duration of such extension vary from case\nto case. However, the proceedings of the said\nCommittee and the proposal of the ESCOMs\nwhich are not supported by any documents\nand independent findings, are inadequate to\nenable the Commission to take a decision in\nthe matter.3. As already clarified in the Commission's\nletter dated 17-03-2017 cited under reference\nthe Commission has the jurisdiction of legal\nscrutiny of the extension of time granted in\nany case by an ESCOM. Such proceedings51being a part of judicial functions of the\n Commission require reasonable opportunity to\n be given to both parties of the PPA to present\n their case.4. Hence, I am desired by the\n Commission to inform that the\n Commission directs all the ESCOMs to\n advice the concerned SPD/SPVs under\n Land Owners/Farmers Scheme to file a\n petition before the Commission with all\n relevant grounds/documents for seeking\n approval for any extension of the\n commissioning date. It may also be\n noted, this direction of the Commission\n applies to even such cases where the\n ESCOMs have not entered into\n Supplementary PPAs following the\n decision of the Committee to grant\n extension of commissioning date."(Emphasis added)\n\nIt is here that the marrow of the lis lies. In paragraph 4\n\nof the communication the Commission directs all\n\nESCOMs to advice the petitioner and the like to file a52petition before it with all relevant grounds and\n\ndocuments seeking approval of any extension of\n\ncommissioning date. It further directs that this direction\n\nof the Commission would apply even to such cases\n\nwhere ESCOMs have not entered into supplementary\n\npower purchase agreement. The Commission again on\n\n07.07.2017 directed all ESCOMs not to send any\n\nproposal for approval of the Commission till petitions\n\nare filed by the petitioners and like before the\n\nCommission. The said communication dated\n\n07.07.2017 reads as follows:"No.KERC/S/F-31/Vol-All/17-187/541\n Date:07.07.2017\n The Managing Director,\n BESCOM/MESCOM/CESC/HESCOM/GESCOM\n Sir,\n Sub: Extension of time for SCOD in respect of 1 to 3\n MWs Solar Power Plants in Karnataka, under\n Farmers category. - Reg.Ref: i) Govt.letter No.EN 67 VSC 2017 dated\n 23.06.201753ii) KERC letter No.KERC/S/F-31/Vol.All/17-18/212 dated 09-05-\n 2017.iii) Govt. letter No: EN 67 VSC 2017 dated\n 25.04.2017.(iv) KERC letter No.KERC/S/F-31/Vo-All/16-17/65 dated 05-04-2017.(v) KERC letter No.KERC/S/F-31/Vol-All/16-17/2763 dated 17-03-2017.(vi) Govt.letter No.EN 75 VSC 2016 date\n 24.11.2016--Please refer to the letter dated 23-06-2017\ncited under reference (1) RECEIVED FROM THE\nEnergy Department, GoK, wherein the Government\nhas stated that, it has accepted the views of the\nESCOMs, in the matter of extension of time to\nachieve CoD of the Solar Projects under farmers'\nscheme invoking Force Majeure conditions of the\nPPA and hence has requested the Commission to\napprove such extension of time for achieving CoD.I am directed to inform you that, the\naction of the ESCOMs to permit the developers\nto commission the projects beyond the original\nscheduled CoD as per PPA, has been approved\nby the Commission, which however, has noted\nthat the tariff applicable in each case needs54to be examined on merits of each individual\n case.I am also directed to inform you that, the\n ESCOMs may advice the concerned SPD/SPVs\n under Land Owners/ Farmers scheme to file a\n petition, each before the Commission with all the\n relevant grounds/documents for justifying their\n claims for extension of time under Force majeure\n conditions of the PPA.Further, the ESCOMs are hereby directed not\n to send any SPPA in respect of these cases for\n approval of the Commission, till the petition(s) filed\n by the SPDs/SPVs before the Commission, is/are\n disposed of.(Emphasis added)\n\n\n\nFrom the correspondences between BESCOMs and the\n\nCommission, Government of Karnataka also requested\n\nthe Commission to extend time for the reasons\n\ncommunicated in the letter dated 23.06.2017. The letter\n\nof the Government to the Commission dated\n\n23.06.2017 reads as follows:-55"From:The Additional Chief Secretary to Government,\nEnergy Department, Bangalore.To:The Secretary,\nKarnataka Electricity Regulatory Commission,\n6th& 7th Floor, Mahalakshmi Chambers,\nNo.9/2, M.G.Road, Bengaluru-560 001.Sir,\n\nSub: Extension of time for SCOD in respect of 1 to 3\n MWs Solar Power Plants in Karnataka under\n Farmers Category - reg.Ref: 1. Government same file No.Letter dated\n 23.04.2017.2. Your letter No.KERC/S/F-31/Vol.A11/17-18/ 212 D:09-05-2017.3. MD, CESC DO.letterNo.CESC/MD/GM\n (coml.) RA 2/17-18/DO-63 D:11-05-20174. MD, HESCOM letter\n No.HESCOM/GM(T)/EE/ (RA)/AEE/17-\n 18/3624 D: 15-05-2017.5. MD, GESCOM letter\n NO.GESCOM/CEE(CP)/EE/ AEE\n (PTC)2016-17/7945 D:16-05-20176. MD, MESCOM Letter\n No.MESCOM/MD/PS/99 D. 17-05-2017.--In inviting kind reference to the above, for the\nGovernment proposal under ref (1) regarding56considering approval to the extension of COD of\nSolar Power Projects of capacity 1 to 3 MW under\nland owning farmers category in BESCOM, the\nHon'ble Commission vide reference (2), has\nrequested the Government to furnish the details of\nsimilarly placed cases in the other ESCOMs, in\norder to take view in the matter.In this regard, other ESCOMs have also\nsubmitted their request on the subject matter. The\nESCOM wise details of the projects under land\nowner Farmers is as below:... ... ... ....As per the above table, out of 304 MW PPA\nsigned, 131 MW projects have been commissioned\nwithin SCOD. Extension of time has been issued by\nESCOMs for 129 MW capacity. Proposals to an\nextent of 31 MW capacity is pending at ESCOMs\nlevel, since the Hon'ble Commission has directed all\nESCOMs not to allow any extension of time beyond\nthe schedule COD, without obtaining prior opinion\nof the Commission.From the proposals submitted by all\nESCOMs it is clear that the reasons for delay\nin execution of the project are common and57the main reasons for considering the\nextension of SCOD are as below:a. Delay in getting land conversions.\n b. Delay in getting evacuation approval,\n Bay extension approval, CEIG approval\n etc.\n c. Delay in financial closure due to delay\n in the above mentioned permits.\n d. Delay due to demonetization of the\n Indian Currency.e. Delay in getting Railway Crossing\n approval\n f. Delay in getting MEI switchgears.The Managing Directors of CESC, HESCOM,\nGESCOM and MESCOM vide letters under ref (3),\n(4) (5) & (6) have explained the reasons for giving\nextension of SCOD and summed up saying that this\nscheme under farmers category is brought into\neffect with the approval of the Solar Policy by the\nCabinet. Government considers it as a preferred\nand prestigious one. Further, it is standalone\nscheme in the energy sector not only in\nKaranata but also in the entire country.58Particularly the following are brought to the\nnotice of the Hon'ble Commission:1. The ESCOMs have constituted Committees under\n the Chairmanship of the respective Directors\n (Technical) to scrutinize and recommend the\n eligible cases for giving extensions of SCOD and\n based on the scrutiny and recommendations of\n the Commission the respective ESCOMs have\n given extensions as required under Clause 8.3(b) of the PPA.2. The extensions are given under Force Majeure as\n per 8.3 (a) (vi) of the PPA which read as:"Inability\n despite complying with all legal requirements to\n obtain renew and maintain required licenses or\n Legal Approvals."Hence ESCOMs have given extensions of COD on\nidentical reasons under PPA clause 2.5 (Extension\nof time) andArticle 8 (Force Majeure).In all these\ncases extensions of COD is given by ESCOMs upto\n6 (six) months from the date of SCOD as per PPA\nClause 2.5 andArticle 8clearly mentioning that all\nother terms and conditions shall remain unaltered\nat the KERC approved rate of unit as laid down in59the terms and conditions of PPA in consideration of\n the investment made by the farmer.Accordingly, the reasons given by and the\n opinion of MD's of CESC, HESCOM, GESCOM and\n MESCOM are acceptable to the Government (Copies\n enclosed). In view of the above, I am directed to\n request the Hon'ble Commission to consider\n approval to the extension of COD of Solar Power\n Projects of capacity 1 to 3 MW under land owning\n famers category.(Approved by Hon'ble Energy Minister)."(Emphasis added)\n\nBESCOM communicates to the petitioner on 09.08.2017\n\nthat the petitioner will become liable for difference in\n\ntariff and liquidity damages pertaining to delayed\n\ncommissioning of the project. Here, the BESCOM\n\ndirects the petitioner to file cases before the\n\nCommission forthwith justifying the claim for extension\n\nof time under force majeure conditions. The\n\nGovernment of India also noticed that not only in60Karnataka but in several places due to factors beyond\n\ncontrol of the developers the project could not be\n\ncommissioned and, therefore, directed Energy\n\nDepartment of Government of Karnataka to grant six\n\nmonths extension of time to solar projects. The\n\ncommunication dated 09.04.2018 from the Ministry of\n\nNew and Renewable Energy, Government of India to the\n\nGovernment of Karnataka reads as follows:"To\n The Additional Chief Secretary,\n Energy Department, Govt. of Karnataka,\n Room NO.236, 2nd Floor, Vikas Soudha,\n Dr. B.R.Ambedkar Street,\n Bangalore, Karnataka\n E-mail:[email protected]Subject: Request to restore the original tariff of\n Rs.8.40 per unit for 1-3 MW solar power plants\n commissioned under the Land Owned farmers\n Scheme of Karnataka.--Sir,\n This Ministry has received a letter from Association\n for Land Owned Farmers Solar Power Plants,\n Karnataka on above subjects. Letter is enclosed for\n reference.2. Points highlighted in letter are given below as:61a. Govt. of Karnataka has implemented a\n Land Owned Farmers Scheme with 1-3\n MW solar plants. Under this scheme, PPA\n of 304 MW was signed. Out of 304 MW,\n PPA for 283 MW was signed with Rs.8.4\n per unit tariff. Out of 283 MW, only 131\n MW were commissioned within schemed\n commissioning date (SCOD).b. However, ESCOMs have granted 6 months\n extension for 162 MW solar projects for\n commissioning of these capacities under\n Force Majeure Article 8a(vi) of the PPA.\n These extensions were given due to many\n reasons beyond the solar power\n developers' control viz., Demonetisation,\n Cyclone effect, inordinate delay in NA\n conversion, power evacuation approvals,\n safety approval by CEIG and other\n required statutory approvals.c. KERC has taken a different stand. The\n commission has asked all farmers/PPA\n holders to file petition explaining the\n reasons for extension. The final\n judgment on few petitions clearly\n indicates that the commission has\n taken the unilateral decision to lower\n the tariff from Rs.8.40 to Rs.6.51 or\n Rs.4.36. Due to this, over 57% of the\n commissioned capacities are facing a\n threat of survival of bankruptcy.3. As you are aware that the Government of\nIndia has set a target of setting up 100 GW solar\ncapacities by 2022. While all efforts are being made\nto achieve this target through its various Schemes,62the solar power developers need to be given\n adequate confidence to maximize development of\n solar power capacity in the State. The stand taken\n by KERC on above matters would create an\n uncertainty for the investors and demotivate the\n investors from investing in solar sector.4. In view of above, it is requested that\n Government of Karnataka may take up the above\n matter with KERC underSection 108of the\n Electricity Act, 2003".(Emphasis added)16. With all the aforesaid correspondences,\n\ncommunications, approvals and extension of time, the\n\npetitioner, as was directed, approached the Commission\n\nfor extension of time in O.P.No.214 of 2017. Prayer that\n\nwas sought by the petitioner before the Commission\n\nreads as follows:"A) Approve the extension granted by the\n respondent to new scheduled\n commissioning date viz., 25 August, 2017\n th\n\n accorded by the 1st respondent vide its\n letter dated 6th June, 2017 produced as\n Annexure-P12.B) Direct the respondent to make payment for\n the delivered energy under the PPA dated\n 26thAugust, 2015 produced as Annexure-P2 and the supplemental agreement dated\n 28th September, 2016 produced as63Annexure-P5, at the rate of Rs.8.40 per\n unit from the Commercial Operation Date of\n the petitioner's product for the entire term\n of the PPA.C) Pass such other and incidental orders,\n including an order as to costs as may be\n deemed appropriate under the facts and\n circumstances of the present case."\n\nThe Commission claiming to be considering the case of\n\nthe petitioner observed that there was no force majeure\n\nevent for the petitioner to contend that they could not\n\ncommission the project and rejected the claim of the\n\npetitioner for extension of scheduled date of\n\ncommissioning by the following order:"(a) It is declared that the petitioner is not entitled\n to any of the reliefs, sought for in the petition.(b) The petitioner is entitled to a tariff of Rs.4.36\n (Rupees four and paise thirty-six) only per\n unit, the varied tariff, as applicable on the\n date of commissioning of the petitioner's\n plant, as fixed by the Commission in the order\n dated 12-04-2017 for the term of the PPA, as\n per Article 5.1 of the PPA; and(c) The petitioner is also liable to p[ay damages,\n as provided underArticles 2.2and 2.5.7 of\n the PPA."64Identical orders are passed in all these cases.17. The issue now remains for consideration is,\n\nwhether the Commission could have directed BESCOM\n\nto direct the petitioners and the like to approach the\n\nCommission for extension of time. Having solicited\n\npetitions being filed before the Commission, whether the\n\nCommission has acted as a Judge in its own cause. One\n\nacting as a Judge in his own cause is a hue of bias as\n\nbias has manifold hues and shades, one of which is 'no\n\nman can be a judge of its own cause'. To consider\n\nwhether the Commission has acted as a Judge in its\n\nown cause, it is germane to notice the judgments of the\n\nConstitutional Courts on the issue of bias, its forms and\n\nhues.18. One of the cardinal principles of natural\n\njustice is 'nemo debetesse judex in propria causa' (no\n\nman shall be a judge in his own cause). The deciding\n\nauthority must be impartial and without bias. The Rule65that bias vitiates any findings is a rule of natural\n\njustice. It is trite law that official bias or bias of the\n\nsubject matter is one of the limbs of bias. To appreciate\n\nthe said principle on the touchstone of official bias or\n\nbias to the subject-matter, the test is whether there was\n\na real likelihood of a bias even though such bias has not\n\nin fact taken place. It is apposite to refer DE SMITH IN\n\nHIS JUDICIAL REVIEW OF ADMINSITRATIVE\n\nACTION4, wherein the author observes that a real\n\nlikelihood of bias means at least substantial possibility\n\nof bias.19. In HALSBURY'S LAWS OF ENGLAND5, it has\n\nbeen indicated that the test of bias is whether a\n\nreasonable intelligent man, fully appraised of all the\n\ncircumstances, would feel a serious apprehension of\n\nbias.4(1980 Edn.) at page 26254thEdn., Vol.2 para 5516620. The Divisional Court of the Kings Bench, in\n\nR.V. SUNDERLAND JUSTICES6, has held that the\n\nCourt will have to judge the matter as a reasonable man\n\nwould judge of any matter in the conduct of his own\n\nbusiness.21. Later, Divisional Court of the Kings Bench,\n\nin R.V. SUNDERLAND JUSTICES7, has again held in\n\nanswer to the question whether there was a real\n\nlikelihood of bias depends not upon what actually was\n\ndone but upon what might appear to be done.22. The aforesaid principle is reiterated in\n\nacceptance by the Apex Court inMANAK LAL v.\n\nDR.PREM CHAND8wherein the Hon'ble Apex Court has\n\nheld that the test is not whether in fact, bias has\n\naffected the judgment; the test always is and must be\n\nweather a litigant could reasonably apprehend that a6(1901) 2 KB 357, 373,71923 All ER 233,8AIR 1957 SC 42567bias attributable to a Member of the Tribunal must have\n\noperated against him in the final decision of the\n\nTribunal. It is in this sense that it is often said that\n\njustice must not only be done but must also appear\n\nto be done.23. The aforesaid principles with regard to bias are\n\nconsidered, iterated and elaborated by the Hon'ble Apex\n\nCourt in the subsequent judgment in the case ofK. PARTHASARATHI VS. STATE OF ANDHRA\n\nPRADESH9wherein the Apex Court in paragraphs 14,\n\n15 and 16 has held as follows:"14. The test of likelihood of bias which has\n been applied in a number of cases is based on the\n "reasonable apprehension" of a reasonable man\n fully cognizant of the facts. The courts have\n quashed decisions on the strength of the\n reasonable suspicion of the party aggrieved\n without having made any finding that a real\n likelihood of bias in fact existed (see R. v. Huggins\n [(1895) 1 QB 563] ;R. v. Sussex, JJ., ex. p.9(1974) 3 SCC 45968McCarthy [(1924) 1 KB 256] ; Cottle v. Cottle [(1939)\n2 All ER 535] ; R. v. Abingdon, JJ. ex. p. Cousins\n[(1964) 108 SJ 840] .) But in R. v. Camborne, JJ. ex.p Pearce [(1955) 1 QB 41 at 51] the Court, after a\nreview of the relevant cases held that real\nlikelihood of bias was the proper test and that a\nreal likelihood of bias had to be made to appear not\nonly from the materials in fact ascertained by the\nparty complaining, but from such further facts as\nhe might readily have ascertained and easily\nverified in the course of his inquiries.15. The question then is: whether a real\nlikelihood of bias existed is to be determined\non the probabilities to be inferred from the\ncircumstances by court objectively, or, upon\nthe basis of the impressions that might\nreasonably be left on the minds of the party\naggrieved or the public at large.16. The tests of "real likelihood" and\n"reasonable suspicion" are really inconsistent with\neach other. We think that the reviewing authority\nmust make a determination on the basis of the\nwhole evidence before it, whether a reasonable\nman would in the circumstances infer that there is69real likelihood of bias. The Court must look at the\nimpression which other people have. This follows\nfrom the principle that justice must not only be done\nbut seen to be done. If right minded persons\nwould think that there is real likelihood of\nbias on the part of an inquiring officer, he\nmust not conduct the enquiry; nevertheless,\nthere must be a real likelihood of bias. Surmise\nor conjecture would not be enough. There must\nexist circumstances from which reasonable\nmen would think it probable or likely that the\ninquiring officer will be prejudiced against the\ndelinquent. The Court will not inquire whether\nhe was really prejudiced. If a reasonable man\nwould think on the basis of the existing\ncircumstances that he is likely to be\nprejudiced, that is sufficient to quash the\ndecision [see per Lord Denning, H.R. in\nMetropolitan Properties Co. (F.G.C.) Ltd. v. Lannon\n[(1968) 3 WLR 694 at 707]] We should not,\nhowever, be understood to deny that the Court\nmight with greater propriety apply the "'reasonable\nsuspicion" test in criminal or in proceedings\nanalogous to criminal proceedings."(Emphasis supplied)70The case at hand will have to be judged on the\n\ntouchstone of law with regard to bias as laid down by\n\nthe Apex Court in the afore-extracted judgment.24. It is also germane to notice the decisions of the\n\nApex Court in the case ofA.U. KURESHI v. HIGHCOURTOF GUJARAT10 - and MOHD. YUNUS KHAN v.\n\nSTATE OF U.P.11-. In the case of A.U.KURESHI the\n\nApex Court has held as follows:10. It is an accepted principle of natural\n justice that a person should not be a judge in his or\n her own cause. In common law, this principle has\n been derived from the Latin maxim--nemo\n debetesse judex in propria sua causa. A reasonable\n permutation of this principle is that no Judge\n should adjudicate a dispute which he or she has\n dealt with in any capacity, other than a purely\n judicial one. The failure to adhere to this principle\n creates an apprehension of bias on the part of the\n said Judge.10(2009) 11 SCC 8411(2010) 10 SCC 5397111. It would be useful to refer to the\n observations of P.N. Bhagwati, J. inAshok Kumar\n Yadav v. State of Haryana[(1985) 4 SCC 417 :1986 SCC (L&S) 88] : (SCC p. 418)\n "One of the fundamental principles of\n our jurisprudence is that no man can be a\n judge in his own cause. The question is not\n whether the Judge is actually biased or [has]\n in fact [decided] partially but whether the\n circumstances are such as to create a\n reasonable apprehension in the mind of\n others that there is a likelihood of bias\n affecting the decision. If there is a reasonable\n likelihood of bias it is 'in accordance with\n natural justice and common sense that the\n [Judge] likely to be so biased should be\n incapacitated from sitting'. The basic principle\n underlying this rule is that justice must not\n only be done but must also appear to be\n done."In the case of MOHD. YUNUS KHAN the Apex Court has\n\nheld as follows:72"25. The legal maxim nemo debetesse\njudex in propria causa (no man shall be a\njudge in his own cause) is required to be\nobserved by all judicial and quasi-judicial\nauthorities as non-observance thereof is\ntreated as a violation of the principles of\nnatural justice. (Vide Secy. to Govt., Transport\nDeptt. v. MunuswamyMudaliar [1988 Supp\nSCC 651:AIR 1988 SC 2232], Meenglas Tea\nEstate v. Workmen[AIR 1963 SC 1719]\nand Mineral Development Ltd. v. State of\nBihar [AIR 1960 SC 468].)26. This Court inA.U. Kureshi v. HighCourt of\nGujarat [(2009) 11 SCC 84: (2009) 2 SCC (L&S)\n567]placed reliance uponthe judgment inAshok\nKumar Yadav v. State of Haryana[(1985) 4 SCC\n417: 1986 SCC (L&S) 88] and held that no person\nshould adjudicate a dispute which he or she has\ndealt with in any capacity. The failure to observe\nthis principle creates an apprehension of bias on\nthe part of the said person. Therefore, law requires\nthat a person should not decide a case wherein he\nis interested. The question is not whether the\nperson is actually biased but whether the73circumstances are such as to create a reasonable\n apprehension in the minds of others that there is a\n likelihood of bias affecting the decision.27. The existence of an element of bias\n renders the entire disciplinary proceedings\n void. Such a defect cannot be cured at the\n appellate stage even if the fairness of the\n appellate authority is beyond dispute. (Vide S.\n Parthasarathi v. State of A.P.[(1974) 3 SCC\n 459: 1973 SCC (L&S) 580:AIR 1973 SC 2701]\n and Tilak Chand MagatramObhan v. Kamala\n Prasad Shukla[1995 Supp (1) SCC 21: 1995\n SCC (L&S) 251].)\n (Emphasis supplied)25.In the light of the lawlaid down bythe Apex\n\nCourt in the afore-extracted judgments if the\n\norders/communications of the Commission is noticed, it\n\nwould without doubt get vitiated on account of\n\nCommission soliciting and directing BESCOM not to\n\nissue any extension orders and to direct all the\n\npetitioners to approach the Commission.It is coercing74the petitioners to come before the Commission as it has\n\nalready looked into the file and decided to direct that\n\nBESCOM should not issue any orders and that it would\n\ndecide the case if it is brought before it.26. In my considered view, there cannot be a\n\nbetter example of bias of the subject matter or official\n\nbias on the part of the Commission, to have already pre-judged the issue, directing the parties to come before it\n\nand decide the issue re-affirming what it had already\n\ndecided on hand. It is like saying "you come before\n\nme; I'll adjudicate, else wither none shall\n\nadjudicate"27. The contentions of the learned counsel\n\nappearing for the respondent/BESCOM and the\n\nCommission are unacceptable, as it is a clear case of\n\nofficial bias or bias of the subject matter on the part of\n\nthe Commission. The contention with regard to\n\njudgments concerning bias, quoted (supra), that, they75are all of service jurisprudence and would not be\n\napplicable to the facts of the case at hand is also\n\nrejected, for the reason that bias is that principle of\n\nnatural justice which permeates into every sphere of\n\nlaw, be it any kind of jurisprudence. Therefore, the first\n\nleg of proceedings before the Commission gets vitiated.\n\nIt is, thus, the Commission did not proceed with an\n\nopen mind to consider the case of the petitioners as the\n\nCommission had issued plethora of directions/ letters to\n\nact in a particular manner.Jurisdiction of the Commission:28. The contention of the learned counsel for the\n\npetitioners is that the Commission has no jurisdiction to\n\ndetermine tariff and once an agreement is signed\n\nbetween the parties, the power of the Commission is\n\nrestricted to the period prior to execution of PPA and\n\nonce PPA has been signed, the Commission cannot\n\ninvoke its inherent jurisdiction to issue and modify the76terms and conditions of the Agreement or intervene with\n\nregard to the obligations to be discharged by the parties.28.1. It is also his contention that there is no\n\ndispute between the petitioners and the BESCOM. The\n\nCommission has no jurisdiction to decide the case\n\nwhere there is no dispute underSection 86of the Act.29. These submissions are unacceptable for the\n\nreason that the agreement entered into between the\n\nparties clearly indicates the role of the Commission\n\nparticularly with regard to amendments.Article 12.10of the Agreement extracted (supra) directs that the\n\nagreement would not be amended and if amended by\n\nway of changes being made in the agreement, they\n\nwould be subject to approval of the Commission.30. The very agreement also stipulates the\n\nscheduled commissioning date and the effective date.\n\nThe effective date would mean signing of the agreement77by the parties and the scheduled commission date\n\nwould be 18 months from such effective date. With the\n\naction of the petitioners submitting representations to\n\nBESCOM and the Government of Karnataka or the\n\nGovernment directing extension to be made on several\n\nfactors would without doubt result in change of\n\nscheduled commissioning date, which would be an\n\namendment to the PPA arrived at between the parties.31. Tariff was also determined by the Commission\n\nin the cases at hand. In terms of the agreementArticle\n\n5.1 (supra)deals with a particular tariff which also\n\ndepicts that if there is a delay in commissioning of the\n\nproject beyond the scheduled commissioning date, the\n\ntariff would vary. The varied tariff has a direct link with\n\nthe scheduled commissioning date. If the scheduled\n\ncommissioning date would vary, resulting in variance of\n\ntariff this would again become subject matter of\n\napproval by the Commission. On a plain reading of the78said clauses of the PPA, the jurisdiction of the\n\nCommission cannot be taken away. But, the act of the\n\nCommission in directing or soliciting cases to be filed\n\nbefore it and deciding the cases are such acts of the\n\nCommission which cannot be countenanced.32. I therefore, decline to accept the contention of\n\nthe petitioners that there is no dispute arisen for the\n\nCommission to intervene or the petitioners to approach\n\nthe Commission. The dispute is not with regard to\n\ninterpretation of the agreement insofar as it concerns to\n\nthe parties of the agreement but, it is the events that\n\nwould lead to an amendment to the agreement that\n\nconfers jurisdiction on the Commission, not to solicit,\n\nbut to the petitioners or the parties to the PPA to\n\napproach the Commission in terms ofSection 86of the\n\nAct, which deals with functions of the Commission.Section 86of the Act reads as follows:79"86. Functions of State Commission:- (1)\nThe State Commission shall discharge the\nfollowing functions, namely:-(a) determine the tariff for\n generation, supply, transmission and\n wheeling of electricity, wholesale, bulk or\n retail, as the case may be, within the\n State:Provided that where open access\n has been permitted to a category of\n consumers undersection 42, the State\n Commission shall determine only the\n wheeling charges and surcharge thereon,\n if any, for the said category of\n consumers;(b) regulate electricity purchase\n and procurement process of\n distribution licensees including the\n price at which electricity shall be\n procured from the generating\n companies or licensees or from other\n sources through agreements for\n purchase of power for distribution\n and supply within the State;(c) facilitate intra-State\n transmission and wheeling of electricity;(d) issue licences to persons\n seeking to act as transmission licensees,\n distribution licensees and electricity\n traders with respect to their operations\n within the State;80(e) promote co-generation and\n generation of electricity from renewable\n sources of energy by providing suitable\n measures for connectivity with the grid\n and sale of electricity to any person, and\n also specify, for purchase of electricity\n from such sources, a percentage of the\n total consumption of electricity in the area\n of a distribution licensee;(f) adjudicate upon the disputes\n between the licensees, and generating\n companies and to refer any dispute for\n arbitration;(g) levy fee for the purposes of this\n Act;(h) specify State Grid Code\n consistent with the Grid Code specified\n under clause (h) of sub-section (1) ofsection 79;(i) specify or enforce standards with\n respect to quality, continuity and\n reliability of service by licensees;(j) fix the trading margin in the\n intra-State trading of electricity, if\n considered, necessary; and(k) discharge such other functions\n as may be assigned to it under this Act.(2) The State Commission shall advise the\nState Government on all or any of the following\nmatters, namely :-81(i) promotion of competition, efficiency\n and economy in activities of the\n electricity industry;(ii) promotion of investment in\n electricity industry;(iii) reorganization and restructuring of\n electricity industry in the State;(iv) matters concerning generation,\n transmission , distribution and\n trading of electricity or any other\n matter referred to the State\n Commission by that Government.(3) The State Commission shall ensure\n transparency while exercising its powers and\n discharging its functions.(4) In discharge of its functions, the State\n Commission shall be guided by the National\n Electricity Policy, National Electricity Plan and\n tariff policy published underSection 3."(Emphasis supplied)\n\nFunctions of the Commission as depicted underSection\n\n86of the Act confer manifold jurisdiction on it and one\n\nof which, undoubtedly is the controversy in the case at\n\nhand.8233. On a plain reading ofSection 86of the Act,\n\naction of the Commission was without jurisdiction to\n\nhave solicited cases. But, the obligation of the parties to\n\nthe PPA is to approach the Commission for redressal of\n\nthe controversy. Though it is not a dispute as defined\n\nunderSection 86(1)(b)of the Act, it is the power of the\n\nCommission to regulate the price of sale and purchase\n\nof electricity underSection 86(1)(b)of the Act from\n\ngenerating company and distribution of licensees\n\nthrough agreements i.e, PPA.34. It is apposite to notice the judgment of the\n\nApex Court in the case ofALL INDIA POWER\n\nENGINEER FEDERATION AN OTHERS v. SASAN\n\nPOWER LIMITED12wherein the Apex Court holds as\n\nfollows:"25. It is thus clear that if there is any\n element of public interest involved, the court12(2017) 1 SCC 48783steps in to thwart any waiver which may be\ncontrary to such public interest.26. On the facts of this case, it is clear\nthat the moment electricity tariff gets\naffected, the consumer interest comes in\nand public interest gets affected. This is in\nfact statutorily recognised by theElectricity ActinSections 61to63thereof. UnderSection 61,\nthe appropriate Commission, when it specifies\nterms and conditions for determination of tariff,\nis to be guided inter alia by the safeguarding of\nthe consumer interest and the recovery of the\ncost of electricity in a reasonable manner. For\nthis purpose, factors that encourage competition,\nefficiency and good performance are also to be\nheeded. UnderSection 62of the Act, the\nappropriate Commission is to determine\nsuch tariff in accordance with the\nprinciples contained inSection 61. The\npresent case, however, is covered bySection 63,\nwhich begins with a non obstante clause stating\nthat notwithstanding anything contained inSection 62, the appropriate Commission shall\nadopt the tariff if such tariff has been84determined through a transparent process of\nbidding in accordance with the Guidelines\nissued by the Central Government. The\nGuidelines dated 19-1-2005 issued by the\nCentral Government underSection 63make it\nclear that such Guidelines are framed with the\nfollowing objectives in mind:"These Guidelines have been framed under\nthe above provisions ofSection 63of the Act. The\nspecific objectives of these Guidelines are as\nfollows:(1) Promote competitive procurement of\nelectricity by distribution licensees;(2) Facilitate transparency and fairness in\nprocurement processes;(3) Facilitate reduction of information\nasymmetries for various bidders;(4) Protect consumer interests by facilitating\ncompetitive conditions in procurement of\nelectricity;85(5) Enhance standardisation and reduce\nambiguity and hence time for materialisation of\nprojects;(6) Provide flexibility to suppliers on internal\noperations while ensuring certainty on\navailability of power and tariffs for buyers.xx xx xx xx31. All this would make it clear that even if\na waiver is claimed of some of the provisions of\nthe PPA, such waiver, if it affects tariffs that are\nultimately payable by the consumer, would\nnecessarily affect public interest and would have\nto pass muster of the Commission underSections 61to63of the Electricity Act. This is\nfor the reason that what is adopted by the\nCommission underSection 63is only a\ntariff obtained by competitive bidding in\nconformity with Guidelines issued. If at any\nsubsequent point of time such tariff is\nincreased, which increase is outside the\nfour corners of the PPA, even in cases\ncovered bySection 63, the legislative intent\nand the language ofSections 61and6286make it clear that the Commission alone\n can accept such amended tariff as it would\n impact consumer interest and therefore\n public interest.(Emphasis supplied)\n\nThe Apex Court in the afore-extracted judgment\n\nconsidered power of the regulatory commission and the\n\nchange in the agreements which cannot pass muster\n\nwithout the Commission being privy to such change.35. The Apex Court, little earlier to the afore-\n\nextracted judgment, in the case ofGUJARAT URJA\n\nVIKAS NIGAM LIMITED v. TARINI INFRASTURE\n\nLIMITED13has held as follows:"17. As already noticed,Section\n 86(1)(b)of the Act empowers the State\n Commission to regulate the price of sale\n and purchase of electricity between the\n generating companies and distribution\n licensees through agreements for power\n produced for distribution and supply. As13(2016) 8 SCC 74387held by this Court inV.S. Rice & Oil Mills v. State\nof A.P. [V.S. Rice & Oil Millsv. State of A.P., AIR\n1964 SC 1781], K. Ramanathan v. State of\nT.N. [K. Ramanathan v. State of T.N., (1985) 2\nSCC 116: 1985 SCC (Cri) 162] and D.K. Trivedi\n& Sons v. State of Gujarat [D.K. Trivedi &\nSons v. State of Gujarat, 1986 Supp SCC 20] the\npower of regulation is indeed of wide import. The\nfollowing extracts from the reports in the above\ncases would illuminate the issue:17.1.V.S. Rice & Oil Mills v. State of\nA.P. [V.S. Rice & Oil Millsv. State of A.P., AIR\n1964 SC 1781]: (AIR p. 1787, para 20)\n "20. Then it was faintly argued by\n Mr Setalvad that the power to regulate\n conferred on the respondent bySection\n 3(1)cannot include the power to increase\n the tariff rate; it would include the power\n to reduce the rates. This argument is\n entirely misconceived. The word\n "regulate" is wide enough to confer\n power on the respondent to regulate\n either by increasing the rate, or\n decreasing the rate, the test being\n what is it that is necessary or88expedient to be done to maintain,\n increase, or secure supply of the\n essential articles in question and to\n arrange for its equitable distribution\n and its availability at fair prices."17.2.K. Ramanathan v. State of T.N. [K.\nRamanathanv. State of T.N., (1985) 2 SCC 116 :1985 SCC (Cri) 162] : (SCC pp. 130-31, paras\n18-19)"18. The word "regulation" cannot\n have any rigid or inflexible meaning as to\n exclude "prohibition". The word "regulate"\n is difficult to define as having any precise\n meaning. It is a word of broad import,\n having a broad meaning, and is very\n comprehensive in scope. There is a\n diversity of opinion as to its meaning and\n its application to a particular state of facts,\n some courts giving to the term a somewhat\n restricted, and others giving to it a liberal,\n construction. The different shades of\n meaning are brought out in Corpus Juris\n Secundum, Vol. 76 at p. 611:89'"Regulate" is variously defined\n as meaning to adjust; to adjust, order,\n or govern by rule, method, or\n established mode; to adjust or control\n by rule, method, or established mode,\n or governing principles or laws; to\n govern; to govern by rule; to govern by,\n or subject to, certain rules or\n restrictions; to govern or direct\n according to rule; to control, govern,\n or direct by rule or regulations."Regulate" is also defined as\n meaning to direct; to direct by rule or\n restriction; to direct or manage\n according to certain standards, laws,\n or rules; to rule; to conduct; to fix or\n establish; to restrain; to restrict.'\n\nSee also: Webster's Third New International\nDictionary, Vol. II, p. 1913 and Shorter Oxford\nDictionary, Vol. II, 3rd Edn., p. 1784.19. It has often been said that the\n power to regulate does not necessarily\n include the power to prohibit, and\n ordinarily the word "regulate" is not90synonymous with the word "prohibit". This\nis true in a general sense and in the sense\nthat mere regulation is not the same as\nabsolute prohibition. At the same time, the\npower to regulate carries with it full power\nover the thing subject to regulation and in\nabsence of restrictive words, the power\nmust be regarded as plenary over the\nentire subject. It implies the power to rule,\ndirect and control, and involves the\nadoption of a rule or guiding principle to be\nfollowed, or the making of a rule with\nrespect to the subject to be regulated. The\npower to regulate implies the power to\ncheck and may imply the power to prohibit\nunder certain circumstances, as where the\nbest or only efficacious regulation consists\nof suppression. It would therefore appear\nthat the word "regulation" cannot have any\ninflexible meaning as to exclude\n"prohibition". It has different shades of\nmeaning and must take its colour from the\ncontext in which it is used having regard to\nthe purpose and object of the legislation,\nand the Court must necessarily keep in91view the mischief which the legislature\n seeks to remedy."(Emphasis supplied)\n\nThe role of the Commission and its power to regulate is\n\ndelineated in the aforementioned judgments. In the\n\nlight of the judgments of the Apex Court, the\n\nCommission cannot be kept in the dark when the effect\n\nis amendment to the PPA. Therefore, I decline to accept\n\nthe contention of the learned counsel for the petitioners\n\nthat the Commission has no jurisdiction to entertain the\n\ndispute.36. Insofar as the contention that alternative\n\nremedy of appeal is to be filed by the petitioners in\n\nterms ofSection 111of the Act is concerned, the issue\n\nneed not merit any consideration, in the light of\n\npreceding analysis with regard to action of the\n\nCommission being vitiated and the jurisdiction of the\n\nCommission being upheld. The contention of filing an92appeal before the Appellate Authority in terms ofSection 111of the Act is not gone into.37. For the foregoing reasons, I hold that the\n\naction of the Commission in soliciting petitions to be\n\nfiled before it after having pre-judged the issue is in\n\nviolation of every known canon of principles of natural\n\njustice and is vitiated by bias; the jurisdiction of the\n\nCommission cannot be taken away on the plea of the\n\npetitioners that parties cannot confer jurisdiction;\n\nparties have not conferred jurisdiction, the jurisdiction\n\nis conferred by the Act and the PPA between the parties.38. In the result, I pass the following:ORDER(a) All the writ petitions are allowed, the\n impugned orders passed by the Commission\n in all these cases stand quashed.(b) These matters are remitted back to the\n hands of the Commission for appropriate\n resolution of the dispute bearing in mind the\n observations made in the course of the order93with regard to the controversy brought\n before it.(c) The Commission shall also consider all\n subsequent events that have taken place\n after passage of the impugned orders, while\n passing orders afresh, in the case now\n remitted.(d) Parties to the lis are at liberty to place on\n record all such documents that would\n advance their cause.(e) The Commission shall consider the claims of\n the petitioners and pass appropriate orders\n within six months from the date of receipt of\n a copy of this order.(f) Interim orders granted and subsisting, if\n any, in all these cases shall continue to\n operate till the Commission takes up the\n case for consideration of an interim prayer, if\n sought for by the petitioners.(g) All the contentions, except the ones decided\n in this order, of both the parties are kept\n open.Sd/-JUDGE\n\n\nbkp\nCT:MJ |
ee06d62e-43a0-5501-939e-7ae33242cd45 | court_cases | Calcutta High Court (Appellete Side)Najimul Haque vs The State Of West Bengal & Ors on 28 November, 2023IN THE HIGH COURT AT CALCUTTA\n\n (Criminal Revisional Jurisdiction)\n\n APPELLATE SIDE\n\n\n\nPresent:\n\nThe Hon'ble Justice Shampa Dutt (Paul)\n\n CRR 1054 of 2019\n\n Najimul Haque\n\n Vs\n\n The State of West Bengal & Ors.\n\n\n\nFor the Petitioner : Mr. Ashis Kr. Chowdhury,\n Mr. Rajib Ghosh,\n Mr. Babhru Bahan Bera.\n\nFor the Opposite Party Nos. 2 & 3 : Ms. Chandreyi Alam,\n Ms. Dishari Mukherjee.\n\n\n\nFor the State : Mr. P.K. Datta,\n Ms. Rita Datta.\n\n\n\n\nHearing Concluded on : 20.11.2023\n\nJudgment on : 28.11.2023\n 2\n\n\nShampa Dutt (Paul), J.:1. The present revision has been preferred Challenging the impugned order\n\n dated 18.02.2019 G.R. case being no. 4570 of 2018 passed by the\n\n Learned Chief Judicial Magistrate, Malda by not considering the prayer\n\n of the petitioner for investigation through other investigating agency and\n\n not considering the suspicious death of the deceased daughter of the\n\n petitioner.2. The petitioner/complainant's case is that petitioner's deceased daughter\n\n Najni Khatun aged about 16 years and his son Sk. Miraj age about 13\n\n years were studying in Kaliyachak Abasik Mission. During his deceased\n\n daughter Najni Khatun's stay in Kaliyachak Abasik Mission the\n\n authorities of the Mission did not give an opportunity to the children of\n\n the petitioner to contact with him and the petitioner was also not\n\n permitted to visit his children to collect information regarding their\n\n progress in study.3. On 28.10.2018 the Assistant Teacher of Kaliyachak Abasik Mission\n\n named Ataur Rahaman told the petitioner over phone to take his son Sk.Miraj to his house as his son was permitted to take leave due to holidays\n\n and after that the father of the petitioner Faizuddin met the petitioner's\n\n deceased daughter Najni Khatun on 28.10.2018 and Sk. Miraj (brother of\n\n the deceased) was brought to his house by the petitioner's father at\n\n about 7 p.m.34. On 30.10.2018 at about 7 p.m. the petitioner received a call from an\n\n unknown mobile number and the person introduced himself as a teacher\n\n of Kaliyachak Abasik Mission. The person told the petitioner to come to\n\n Kaliyachak Abasik Mission on 31.10.2018.5. On 30.10.2018, the petitioner received another call from a student\n\n named Arun Ghosh and he told the petitioner that his daughter Najni\n\n Khatun fell from the rooftop of Kaliyachak Abasik Mission and was\n\n admitted in Malda Medical College. The petitioner sent one Mister Sk, the\n\n resident of Sultanganj and the friend of the petitioner's brother-in-law to\n\n Kaliyachak Abasik Mission to inquire about his deceased daughter Najni\n\n Khatun. The Headmaster of Kaliyachak Abasik Mission Mr. Amirul Islam\n\n told Mister Sk that he made guardian call of Najni Khatun on 30.10.2018\n\n but as her guardian was absent on 30.10.2018, again on 31.10.2018 he\n\n made guardian call of Najni Khatun but on the night of 30.10.2018 he\n\n was informed that Najni Khatun fell from the rooftop of Kaliyachak\n\n Abasik Mission.6. The petitioner then rushed to the Hospital and found his daughter in\n\n serious condition. She died at Malda Medical College at 10.30 p.m. on\n\n 31.10.2018.7. The complaint was lodged with Kaliachak Police Station, Malda and at\n\n first was received as a General Diary being no. 1414 dated 31.10.2018\n\n letter which was then registered as a F.I.R. being no. 796/18 dated431.10.2018. On completion of investigation charge sheet was submitted\n\n for offence punishable underSections 306/34of the Indian Penal Code.8. The petitioner states that during investigation, the concerned\n\n Investigation Officer prepared the case Diary in a collusive manner, by\n\n showing the case as suicidal in nature. It is stated that if the daughter of\n\n the petitioner would have fallen from the terrace of a five storied building,\n\n the nature of factures, trauma and injuries all over the body and vital\n\n organs of the body would definitely supports medical science, but the\n\n same violates the principle of medical jurisprudence.9. It is submitted that the Investigating Officer did not take any legal course\n\n by inviting a Ld. Magistrate to record the dying declaration of the\n\n deceased and the post mortem was conducted by the medical officer\n\n without informing a Magistrate. Even the inquest report was prepared\n\n without the presence of Magistrate.10. The petitioner along with other witnesses approached the investigating\n\n officer to record their statements underSection 164Cr.P.C. before the\n\n Magistrate but the investigating officer refused to record their statement\n\n before the Magistrate. The investigating officer did not record his\n\n statement underSection 161Cr.P.C. Even the investigating officer of the\n\n Kaliachak P.S., Malda neither seized any article nor send any sample of\n\n visera for chemical analysis as well as did not hold any investigation in\n\n presence of a Magistrate and as such the petitioner apprehends that the\n\n mode of action done by the investigating officer of Kaliachak P.S., Malda5is such that the accused persons may be free. The total mode of action\n\n and investigation towards the death of the daughter of the petitioner was\n\n not proper and fair. Even the charge sheet was not submitted within the\n\n prescribed time limit which opened the door of enlarging bail to the\n\n accused persons due to investigating officer's collusive mode of action.11. That there are sufficient materials as well testimonial evidences of the\n\n eye witnesses to prove the actual offence committed by the accused\n\n persons. The student of the Kaliachak Abasik Mission are the eye\n\n witnesses of the incident whose statements were not taken by the\n\n investigating officer.12. The petitioner states that due to malicious and vitiated investigation by\n\n the investigating officer the petitioner apprehends that his daughter has\n\n not committed suicide, but she has been murdered by the accused\n\n persons after committing rape upon her and all these aspects have been\n\n suppressed by the investigating officer and the IO of Kaliachak P.S.,\n\n Malda tried to save the accused person by way of ignoring the\n\n circumstantial evidence.13. Being dissatisfied with the acts and action of the Investigating Officer,\n\n the petitioner filed an application for further reinvestigation. After\n\n hearing, the Learned Chief Judicial Magistrate again directed the\n\n Inspector-in-Charge Kaliachak Police Station to depute a competent\n\n police officer not below the rank of a Sub-Inspector other than the\n\n previous Investigating Officer to do further investigation of the case and6further report without considering the further investigation by any other\n\n agency.14. Being aggrieved, the present revision has been filed.15. Written notes of Argument has been filed on behalf of the petitioner,\n\n stating there in that despite the deceased being initially admitted to\n\n Kaliyachak Hospital and later transferred to Malda Medical College, the\n\n investigating agency made no effort to examine the doctors or staff of\n\n either hospital during the course of the investigation.16. The doctor who examined the victim girl on the very first instance, his\n\n statement has not been recorded by the Investigating Officer and even no\n\n step has been taken by the hospitals authorities where the treatment of\n\n the victim girl was done for recording the dying declaration of the victim\n\n girl, because the incident was not initially informed to the police\n\n authority and the Investigating Officer intentionally neglected to record\n\n the statement of Dr. Tapash Sarkar who examined the victim girl at the\n\n first instance in Kaliachak Hospital.17. Critical witnesses, including the petitioner and his father, were not\n\n examined by the Investigating Agency. In fact the investigating agency\n\n did not even make an endeavour to record their statements either underSection 161of the Code of Criminal Procedure or underSection 164of\n\n the Code of Criminal Procedure.18. The investigation appears to have been carried out in a manner that aims\n\n to shield the accused individuals involved, as evident from the failure to7interrogate the school staff, students, and roommates present during the\n\n incident.19. The post-mortem of the deceased's body was not video graphed, in\n\n violation of directions of the Hon'ble Supreme Court and this Hon'ble\n\n Court. The post-mortem report, which indicates injuries, appears\n\n dubious, as it paradoxically describes the deceased's scalp as healthy\n\n despite the alleged fatal fall from the rooftop (5th floor).20. The investigating agency failed to obtain the viscera report, a vital piece\n\n of evidence, which could have helped determine the actual cause of Najni\n\n Khatun's death, especially considering the doubts raised about the\n\n accuracy and adequacy of the post-mortem report.21. It appears from the facts narrated hereinbefore that the present\n\n investigating agency, right from the beginning, has made overt attempts\n\n to shield the accused persons, who happen to hold considerable\n\n influence and clout. Despite the gravity of the case, the investigation\n\n conducted by the Investigating Agency has been lackluster and\n\n inadequate. This approach has resulted in the failure to collect vital\n\n evidence and uncover the true facts surrounding the incident. It thus\n\n appears from the fact narrated herein before that the present\n\n investigating agency from the very beginning tried to shield the accused\n\n persons.22. That the investigating officer has not done the investigation in a free, fair\n\n and impartial manner.823. Mr. Ashis Kumar Chowdhury has relied upon the following Judgments\n\n on behalf of the petition:-Vinay Tyagi vs Irshad Alialias Deepak and Ors., (2013) 5\n\n SCC 762."43. At this stage, we may also state another well-\n settled canon of the criminal jurisprudence that the\n superior courts have the jurisdiction underSection 482of the Code or evenArticle 226of the Constitution of\n India to direct "further investigation", "fresh" or "de\n novo" and even "reinvestigation". "Fresh", "de novo"and "reinvestigation" are synonymous expressions and\n their result in law would be the same. The superior\n courts are even vested with the power of transferring\n investigation from one agency to another, provided the\n ends of justice so demand such action. Of course, it is\n also a settled principle that this power has to be\n exercised by the superior courts very sparingly and\n with great circumspection.45. The power to order/direct "reinvestigation" or "de\n novo" investigation falls in the domain of higher courts,\n that too in exceptional cases. If one examines the\n provisions of the Code, there is no specific provision for\n cancellation of the reports, except that the investigating\n agency can file a closure report (where according to the\n investigating agency, no offence is made out). Even\n such a report is subject to acceptance by the learned\n Magistrate who, in his wisdom, may or may not accept\n such a report. For valid reasons, the court may, by\n declining to accept such a report, direct "further\n investigation", or even on the basis of the record of the\n case and the documents annexed thereto, summon the\n accused."Rubabbuddin Sheikh vs State of Gujarat and Ors., (2010) 2\n\n SCC 200.9"60. Therefore, in view of our discussions made\n hereinabove, it is difficult to accept the contentions of\n Mr Rohatgi, learned Senior Counsel appearing for the\n State of Gujarat that after the charge-sheet is\n submitted in the court in the criminal proceeding it was\n not open for this Court or even for the High Court to\n direct investigation of the case to be handed over to\n CBI or to any independent agency. Therefore, it can\n safely be concluded that in an appropriate case when\n the court feels that the investigation by the police\n authorities is not in the proper direction and in order to\n do complete justice in the case and as the high police\n officials are involved in the said crime, it was always\n open to the court to hand over the investigation to the\n independent agency like CBI. It cannot be said that\n after the charge-sheet is submitted, the court is not\n empowered, in an appropriate case, to hand over the\n investigation to an independent agency like CBI.61. Keeping this discussion in mind, that is to say, in\n an appropriate case, the court is empowered to hand\n over the investigation to an independent agency like\n CBI even when the charge-sheet has been submitted,\n we now deal with the facts of this case whether such\n investigation should be transferred to the CBI\n Authorities or any other independent agency in spite of\n the fact that the charge-sheet has been submitted in\n court. On this ground, we have carefully examined the\n eight action taken reports submitted by the State police\n authorities before us and also the various materials\n produced and the submissions of the learned counsel\n for both the parties."24. Learned counsel for State Mr. P.K. Datta has submitted on placing\n\n the case diary and a written notes of Argument that the Hostel in-charge, Manjur Basak in her Statement underSection 161Cr.P.C.has stated that for the last few days the victim remained very silent\n\n and she was given a guardian call and since the guardian did not\n\n come, Head Sir Amirul Islam, Habibur Rahaman, Ataur Rahaman, Md10Badiruddin, Akbar Hossain verbally abused her for which she\n\n committed suicide.25. Sehanaz Parveen, Roommate of the Victim Stated that the victim for\n\n the last few days remained silent, as she was given a guardian call.Since no guardian came, she was verbally abused by Habibur, Amirul,\n\n Ataur, Badiruddin, Akbar Hossain. On 30/10/2018 evening when\n\n Sehanaz went to take food with others, she did not see Najni and later\n\n on heard that Najni jumped from the terrace.26. The State has further submitted that no one complained that the\n\n victim was murdered or there were any allegations of sexual assault\n\n upon her.27. It is further state that injuries noted, mainly Hyoid/Thyroid bone\n\n intact rules out any manual strangulation. It is seen from the PM\n\n report that tear of 3rd to 5th ribs of victim, tear of pleura, lungs, spleen\n\n and clotted blood in peritoneal cavity and multiple displace fracture\n\n over them are injuries ante mortem in nature and they show that the\n\n victim jumped herself and committed suicide. Mere transverse\n\n scratches over thighs are not sufficient to infer sexual assault. No\n\n foreign body was also detected. The factum of scalp/vertebrae being\n\n intact would depend in which posture the body fell and thus the\n\n injuries found do not prima facie give rise to the presumption of\n\n commission of murder and not suicide.1128. It is also submitted that Medical evidence rules out sexual assault and\n\n all witnesses have stated that as the victim was verbally assaulted, she\n\n committed suicide.29. Finally, the Learned Prosecutor has submitted that the case records do\n\n not show that there has been a mala fide investigation and by no\n\n means the said investigation can be said to be unfair, tainted and in\n\n violation of principles of investigative canons. The expert evidence\n\n ruling out any suggestion of sexual assault combined with the factum\n\n that circumstances emanating from evidence would bring the case in\n\n the realm of homicidal/suicidal in nature, the same cannot warrant\n\n that the case be handed over to a different investigating agency\n\n namely Central Bureau of Investigation in light of Judgment of the\n\n Hon'ble Supreme Court in Criminal Appeal No. 624/2023 (ROYDEN\n\n HAROLD BUTHELLO and Another Vs STATE OF CHATTISGARH) as\n\n neither the accused nor the complainant or informant is entitled to\n\n choose their own investigating agency.30. From the materials on record including the case diary, it appears\n\n that:-i) Through the brother of the deceased was allowed to go\n\n home on 28.10.2018 during holidays, the deceased was not\n\n allowed to go home. There is no investigation on the point that, when the\n\n brother and sister were students of the same school,12why was the sister not allowed to go home with her\n\n brother on 28.10.2018 during the holidays. She died on\n\n 30.10.2018 (After two days) in the school hostel.ii) The Head master of the School told Mister Sk (the person\n\n sent immediately by the victim's father on being informed\n\n over phone) that he made guardian call of Najni Khatun\n\n (Victim) on 30.10.2018 but as her guardian was absent on\n\n 30.10.2018, again on 31.10.2018, he made guardian call of\n\n the victim but in the night of 30.10.2018, he was informed\n\n that the victim fell from the rooftop of the School. In the total length and breath of the case diary there is\n\n not ever a whisper as to why there was a guardian call.There is thus no investigation to find out the reason for\n\n the guardian call, as stated.The said part of investigation is vital as allegedly,\n\nimmediately after that the victim fell to her death, who was aged\n\nonly 16 years.These indicate severe laches on the part of the\n\ninvestigating officer and thus in the investigation.The reason for scolding the victim on the date of incident\n\nallegedly by the Headmaster and the teachers has also not been\n\nbrought on record.13No response, by the victim's parents to a guardian call, is\n\n not a cogent ground to abuse and rebuke the victim as alleged. So\n\n this was also important to be investigated.More so as this is the only ground put forward by the\n\n investigating agency, for the victim to commit suicide.iii) The Complainant has stated in his statement underSection\n\n 161Cr.P.C. that his father and victim's grandfather.Faijuddin had met the victim in the school on 28.10.18.Faijuddin is one of the closest relative, the\n\n victim last met before her death, but he has not been\n\n examined.iv) The Height of the five storied building from where the victim\n\n fell is 60 feet.The postmortem report show's:-a) The scalp as healthy and intact.b) Hyoid/thyroid intact.c) Several injuries including fractures.d) No examination was conducted to rule out sexual\n\n assault.e) The (SEVERE) injuries are confined to the chest\n\n area.31. No opinion as to the nature, extent and location of the injuries has\n\n been taken nor investigated.1432. A girl aged 16 years has died in her own boarding school.33. The investigation has not been fair nor thorough.34. The points noted above have not been addressed not investigated\n\n to rule out any foul play.35. These are required to be investigated.36. The trial court has directed further investigation by the same agency\n\n as it does not have the power to order further investigation/or\n\n reinvestigation by a different agency (Chandrababu Vs @ Moses vs\n\n State through Inspector of Police & Ors. (2015) 8 SCC 774).37. In Anant Thanur Karmuse vs. State of Maharashtra, Criminal\n\n Appeal No. 13 of 2023, on 24 February, 2023, the Supreme Court\n\n held:-"8. Now, so far as the power of the Constitutional Courts to\n order further investigation / re-investigation / de novo\n investigation even after the chargesheet is filed and charges\n are framed is concerned, the following decisions are\n required to be referred to:- 8.1 In the case of Bharati Tamang\n (supra), after taking into consideration the decisions of this\n Court in the case ofBabubhai Vs. State of Gujarat, (2010) 12\n SCC 254 (paras 40 and 42) and the subsequent decision of\n this Court in the case ofRam Jethmalani Vs. Union of India(2011) 8 SCC 1 and other decision on the point, ultimately\n the principles, which are culled out are as under:-"41. From the various decisions relied upon by the petitioner\n counsel as well as by respondents' counsel, the following\n principles can be culled out.41.1. The test of admissibility of evidence lies in its\n relevancy.1541.2. Unless there is an express or implied constitutional\nprohibition or other law, evidence placed as a result of even\nan illegal search or seizure is not liable to be shut out.41.3. If deficiency in investigation or prosecution is visible or\ncan be perceived by lifting the veil which try to hide the\nrealities or covering the obvious deficiency, Courts have to\ndeal with the same with an iron hand appropriately within\nthe framework of law.41.4. It is as much the duty of the prosecutor as of the Court\nto ensure that full and material facts are brought on record\nso that there might not be miscarriage of justice.41.5. In order to ensure that the criminal prosecution is\ncarried on without any deficiency, in appropriate cases this\nCourt can even constitute Special Investigation Team and\nalso give appropriate directions to the Central and State\nGovernments and other authorities to give all required\nassistance to such specially constituted investigating team\nin order to book the real culprits and for effective conduct of\nthe prosecution.41.6. While entrusting the criminal prosecution with other\ninstrumentalities of State or by constituting a Special\nInvestigation Team, the High Court or this Court can also\nmonitor such investigation in order to ensure proper conduct\nof the prosecution.41.7. In appropriate cases even if the charge-sheet is filed it\nis open for this Court or even for the High Court to direct\ninvestigation of the case to be handed over to CBI or to any\nother independent agency in order to do complete justice.41.8. In exceptional circumstances the Court in order to\nprevent miscarriage of criminal justice and if considers\nnecessary may direct for investigation de novo." 8.2 In the\ncase of Dharam Pal (supra), after taking into consideration\nthe catena of decisions on the point, it is observed and held\nthat the constitutional courts can direct for further\ninvestigation or investigation by some other investigating\nagency. It is observed that the purpose is, there has to be a\nfair investigation and a fair trial. It is observed that the fair\ntrial may be quite difficult unless there is a fair investigation.\nIt is further observed and held that the power to order fresh,\nde novo or re- investigation being vested with the16constitutional courts, the commencement of a trial and\nexamination of some witnesses cannot be an absolute\nimpediment for exercising the said constitutional power\nwhich is meant to ensure a fair and just investigation. While\nobserving and holding so, in paragraphs 24 and 25, it is\nobserved and held s under:-"24. Be it noted here that the constitutional courts can direct\nfor further investigation or investigation by some other\ninvestigating agency. The purpose is, there has to be a fair\ninvestigation and a fair trial. The fair trial may be quite\ndifficult unless there is a fair investigation. We are\nabsolutely conscious that direction for further investigation\nby another agency has to be very sparingly issued but the\nfacts depicted in this case compel us to exercise the said\npower. We are disposed to think that purpose of justice\ncommands that the cause of the victim, the husband of the\ndeceased, deserves to be answered so that miscarriage of\njustice is avoided. Therefore, in this case the stage of the\ncase cannot be the governing factor.25. We may further elucidate. The power to order fresh, de\nnovo or reinvestigation being vested with the constitutional\ncourts, the commencement of a trial and examination of\nsome witnesses cannot be an absolute impediment for\nexercising the said constitutional power which is meant to\nensure a fair and just investigation. It can never be forgotten\nthat as the great ocean has only one test, the test of salt, so\ndoes justice has one flavour, the flavour of answering to the\ndistress of the people without any discrimination. We may\nhasten to add that the democratic set-up has the potentiality\nof ruination if a citizen feels, the truth uttered by a poor man\nis seldom listened to. Not for nothing it has been said that\nsun rises and sun sets, light and darkness, winter and\nspring come and go, even the course of time is playful but\ntruth remains and sparkles when justice is done. It is the\nbounden duty of a court of law to uphold the truth and truth\nmeans absence of deceit, absence of fraud and in a criminal\ninvestigation a real and fair investigation, not an\ninvestigation that reveals itself as a sham one. It is not\nacceptable. It has to be kept uppermost in mind that\nimpartial and truthful investigation is imperative. If there is\nindentation or concavity in the investigation, can the "faith"in investigation be regarded as the gospel truth? Will it have\nthe sanctity or the purity of a genuine investigation? If a\ngrave suspicion arises with regard to the investigation,17should a constitutional court close its hands and accept the\n proposition that as the trial has commenced, the matter is\n beyond it? That is the "tour de force" of the prosecution and\n if we allow ourselves to say so it has become "idée fixe" but\n in our view the imperium of the constitutional courts cannot\n be stifled or smothered by bon mot or polemic. Of course, the\n suspicion must have some sort of base and foundation and\n not a figment of one's wild imagination. One may think an\n impartial investigation would be a nostrum but not doing so\n would be like playing possum. As has been stated earlier,\n facts are self-evident and the grieved protagonist, a person\n belonging to the lower strata. He should not harbour the\n feeling that he is an "orphan under law"."38. In State through Central Bureau of Investigation vs. Hemendhra\n\n Reddy etc. etc., in Criminal Appeal Nos. ............. Of 2023 (arising\n\n out of SLP (Crl.) Nos. 7628-7630 of 2017), on 28 April, 2023, held:-"Difference between "Further Investigation" and "Re-\n investigation"51. There is no doubt that "further investigation" and "re-\n investigation" stand altogether on a different footing.In\n Ramchandran v. R. Udhayakumar and Others reported in\n (2008) 5 SCC 413, this Court has explained the fine\n distinction between the two relying on its earlier decision\n inK. Chandrasekhar v. State of Kerala and Othersreported\n in (1998) 5 SCC 223. We quote paras 7 and 8 as under:"7. At this juncture it would be necessary to take note\n ofSection 173of the Code. From a plain reading of the\n above section it is evident that even after completion of\n investigation under sub-section (2) ofSection 173of the\n Code, the police has right to further investigate under sub-\n section (8), but not fresh investigation or reinvestigation. This\n was highlighted by this Court inK. Chandrasekhar v. State\n of Kerala[(1998) 5 SCC 223 : 1998 SCC (Cri) 1291] . It was,\n inter alia, observed as follows : (SCC p. 237, para 24) "24.\n The dictionary meaning of „further‟ (when used as an\n adjective) is „additional; more; supplemental‟. „Further‟\n investigation therefore is the continuation of the earlier\n investigation and not a fresh investigation or reinvestigation\n to be started ab initio wiping out the earlier investigation\n altogether. In drawing this conclusion we have also drawn\n inspiration from the fact that sub-section (8) clearly\n envisages that on completion of further investigation the18investigating agency has to forward to the Magistrate a\n„further‟ report or reports--and not fresh report or reports--\nregarding the „further‟ evidence obtained during such\ninvestigation."8. In view of the position of law as indicated above, the\ndirections of the High Court for reinvestigation or fresh\ninvestigation are clearly indefensible. We, therefore, direct\nthat instead of fresh investigation there can be further\ninvestigation if required underSection 173(8)of the Code.\nThe same can be done by CB CID as directed by the High\nCourt." Position of Law on the subject of "Further\nInvestigation"77. We may summarise our final conclusion as under:(i) Even after the final report is laid before the Magistrate\nand is accepted, it is permissible for the investigating\nagency to carry out further investigation in the case. In other\nwords, there is no bar against conducting further\ninvestigation underSection 173(8)of the CrPC after the final\nreport submitted underSection 173(2)of the CrPC has been\naccepted.(ii) Prior to carrying out further investigation underSection\n173(8)of the CrPC it is not necessary that the order\naccepting the final report should be reviewed, recalled or\nquashed.(iv) Further investigation is merely a continuation of the\nearlier investigation, hence it cannot be said that the\naccused are being subjected to investigation twice over.Moreover, investigation cannot be put at par with\nprosecution and punishment so as to fall within the ambit of\nClause (2) ofArticle 20of the Constitution. The principle of\ndouble jeopardy would, therefore, not be applicable to\nfurther investigation.(v) There is nothing in theCrPCto suggest that the court is\nobliged to hear the accused while considering an application\nfor further investigation underSection 173(8)of the CrPC.84. In the aforesaid context, we may only say that the\ngeneral rule of criminal justice is that "a crime never dies".\nThe principle is reflected in the well-known maxim nullum\ntempus aut locus occurrit regi (lapse of time is no bar to\nCrown in proceeding against offenders). It is settled law that19the criminal offence is considered as a wrong against the\nState and the Society even though it has been committed\nagainst an individual. Normally, in serious offences,\nprosecution is launched by the State and a Court of law has\nno power to throw away prosecution solely on the ground of\ndelay. Mere delay in approaching a Court of law would not\nby itself afford a ground for dismissing the case. Though it\nmay be a relevant circumstance in reaching a final verdict.\n(See:Japani Sahoo v. Chandra Sekhar Mohantyreported in\n(2007) 7 SCC 394.)85. The following observations in Hasanbhai (supra), have\nbeen made by this Court in reference to further investigation:"13. ....if there is necessity for further investigation, the\nsame can certainly be done as prescribed by law. The mere\nfact that there may be further delay in concluding the trial\nshould not stand in the way of further investigation if that\nwould help the court in arriving at the truth and do real and\nsubstantial as well as effective justice. ..."86. Thus, the assurance of a fair trial is to be the first\nimperative in the dispensation of justice.[Reference:Commissioner of Police, Delhi and Another v.\nRegistrar, Delhi HighCourt, New Delhi reported in (1996) 6\nSCC 323].The need for fair investigation has also been\nemphasized inVinay Tyagi(supra) where it was observed\nas under:"48. What ultimately is the aim or significance of the\nexpression "fair and proper investigation" in criminal\njurisprudence? It has a twin purpose: Firstly, the\ninvestigation must be unbiased, honest, just and in\naccordance with law; secondly, the entire emphasis on a fair\ninvestigation has to be to bring out the truth of the case\nbefore the court of competent jurisdiction. ...."87. Reference may also be placed on the decision inPooja\nPal v. Union of India and Othersreported in (2016) 3 SCC\n135, where the fundamental rights enshrined underArticle\n21of the Constitution of India were discussed in the context\nof "speedy trial" juxtaposed to "fair trial" in the following\nmanner:"83. A "speedy trial", albeit the essence of the fundamental\nright to life entrenched inArticle 21of the Constitution of20India has a companion in concept in "fair trial", both being\n inalienable constituents of an adjudicative process, to\n culminate in a judicial decision by a court of law as the final\n arbiter. There is indeed a qualitative difference between\n right to speedy trial and fair trial so much so that denial of\n the former by itself would not be prejudicial to the accused,\n when pitted against the imperative of fair trial. As\n fundamentally, justice not only has to be done but also must\n appear to have been done, the residuary jurisdiction of a\n court to direct further investigation or reinvestigation by any\n impartial agency, probe by the State Police notwithstanding,\n has to be essentially invoked if the statutory agency already\n in charge of the investigation appears to have been\n ineffective or is presumed or inferred to be not being able to\n discharge its functions fairly, meaningfully and fructuously.\n As the cause of justice has to reign supreme, a court of law\n cannot reduce itself to be a resigned and a helpless\n spectator and with the foreseen consequences apparently\n unjust, in the face of a faulty investigation, meekly complete\n the formalities to record a foregone conclusion. Justice then\n would become a casualty. Though a court's satisfaction of\n want of proper, fair, impartial and effective investigation\n eroding its credence and reliability is the precondition for a\n direction for further investigation or reinvestigation,\n submission of the charge-sheet ipso facto or the pendency of\n the trial can by no means be a prohibitive impediment. The\n contextual facts and the attendant circumstances have to be\n singularly evaluated and analysed to decide the\n needfulness of further investigation or reinvestigation to\n unravel the truth and mete out justice to the parties. The\n prime concern and the endeavour of the court of law is to\n secure justice on the basis of true facts which ought to be\n unearthed through a committed, resolved and a competent\n investigating agency.".(Emphasis supplied)"39. Further investigation leads to collection of further evidence to unveil\n\n the truth.40. Re-investigation in addition to collection of further evidence, also has a\n\n second look and fresh assessment of the evidence already on record(case21diary), while submitting a report in final form which in cases of this\n\n nature, is required for a fair and just investigation.41. The Supreme Court (Majority decision) in Romila Thapar & Ors. Vs\n\n Union of India & Ors., Writ Petition (Criminal) No. 260 of 2018 on\n\n 28th September, 2018, held :-"19. After the high-pitched and at times emotional\n arguments concluded, each side presenting his case with\n equal vehemence, we as Judges have had to sit back and\n ponder over as to who is right or whether there is a third\n side to the case. The petitioners have raised the issue of\n credibility of Pune Police investigating the crime and for\n attempting to stifle the dissenting voice of the human rights\n activists. The other side with equal vehemence argued that\n the action taken by Pune Police was in discharge of their\n statutory duty and was completely objective and\n independent. It was based on hard facts unraveled during\n the investigation of the crime in question, pointing towards\n the sinister ploy to destabilize the State and was not\n because of difference in ideologies, as is claimed by the so\n called human rights activists.20. After having given our anxious consideration to the rival\n submission and upon perusing the pleadings and\n documents produced by both the sides, coupled with the fact\n that now four named accused have approached this Court\n and have asked for being transposed as writ petitioners, the\n following broad points may arise for our consideration:-(i) Should the Investigating Agency be changed at the behest\n of the named five accused?(ii) If the answer to point (i) is in the negative, can a prayer of\n the same nature be entertained at the behest of the next\n friend of the accused or in the garb of PIL?(iii) If the answer to question Nos.(i) and/or (ii) above, is in\n the affirmative, have the petitioners made out a case for the\n relief of appointing Special Investigating Team or directing22the Court monitored investigation by an independent\nInvestigating Agency?(iv) Can the accused person be released merely on the basis\nof the perception of his next friend (writ petitioners) that he\nis an innocent and law abiding person?21. Turning to the first point, we are of the considered\nopinion that the issue is no more res integra.InNarmada\nBai Vs. State of Gujarat and Ors.1, in paragraph 64, this\nCourt restated that it is trite law that the accused persons\ndo not have a say in the matter of appointment of\nInvestigating 1 (2011) 5 SCC 79 Agency. Further, the\naccused persons cannot choose as to which Investigating\nAgency must investigate the offence committed by them.Paragraph 64 of this decision reads thus:-"64. ..... It is trite law that accused persons do not have a\nsay in the matter of appointment of an investigation agency.\nThe accused persons cannot choose as to which\ninvestigation agency must investigate the alleged offence\ncommitted by them." (emphasis supplied)22. Again inSanjiv Rajendra Bhatt Vs. Union of India and\nOrs.2, the Court restated that the accused had no right with\nreference to the manner of investigation or mode of\nprosecution. Paragraph 68 of this judgment reads thus:"68. The accused has no right with reference to the manner\nof investigation or mode of prosecution. Similar is the lawlaid down bythis Court inUnion of India v. W.N.\nChadha3,Mayawati v. Union of India4,Dinubhai\nBoghabhai Solanki v. State of Gujarat5,CBI v. Rajesh\nGandhi6, Competition Commission of India v. SAIL7 andJanta Dal v. H.S. Choudhary.8"(emphasis supplied)23. Recently, a three-Judge Bench of this Court inE.\nSivakumar Vs. Union of India and Ors.9, while dealing with\nthe appeal preferred by the "accused" challenging the order\nof the High Court directing investigation by CBI, in\nparagraph 10 observed:23"10. As regards the second ground urged by the petitioner,\nwe find that even this aspect has been duly considered in\nthe impugned judgment.In paragraph 129 of the impugned\njudgment, reliance has been placed onDinubhai Boghabhai\nSolanki Vs. State of Gujarat10, wherein it has been held\nthat in a writ petition seeking impartial investigation, the\naccused was not entitled to opportunity of hearing as a\nmatter of course.Reliance has also been placed inNarender\nG. Goel Vs. State of Maharashtra11, in particular, paragraph\n11 of the reported decision wherein the Court observed that\nit is well settled that the accused has no right to be heard at\nthe stage of investigation. By entrusting the investigation to\nCBI which, as aforesaid, was imperative in the peculiar\nfacts of the present case, the fact that the petitioner was not\nimpleaded as a party in the writ petition or for that matter,\nwas not heard, in our opinion, will be of no avail. That per se\ncannot be the basis to label the impugned judgment as a\nnullity."24. This Court in the case ofDivine Retreat Centre Vs.\nState of Kerala and Ors.12, has enunciated that theHigh 9 (2018) 7 SCC365 10 Supra @ Footnote 5 11\n(2009) 6 SCC 65 12 (2008) 3 SCC 542 Court in exercise\nof its inherent jurisdiction cannot change the\ninvestigating officer in the midstream and appoint an\ninvestigating officer of its own choice to investigate into a\ncrime on whatsoever basis. The Court made it amply\nclear that neither the accused nor the complainant or\ninformant are entitled to choose their own\nInvestigating Agency to investigate the crime in which\nthey are interested. The Court then went on to clarify that\nthe High Court in exercise of its power underArticle 226of\nthe Constitution can always issue appropriate directions at\nthe instance of the aggrieved person if the High Court is\nconvinced that the power of investigation has been exercised\nby the investigating officer mala fide.25. Be that as it may, it will be useful to advert to the\nexposition inState of West Bengal and Ors. Vs. Committeefor Protection of Democratic Rights, West Bengal and Ors.13\nIn paragraph 70 ofthe said decision, the Constitution Bench\nobserved thus:24"70. Before parting with the case, we deem it necessary to\nemphasise that despite wide powers conferred byArticles\n32 13 (2010) 3SCC 571 and 226 of the Constitution, while\npassing any order, the Courts must bear in mind certain\nself-imposed limitations on the exercise of these\nConstitutional powers. The very plenitude of the power\nunder the said articles requires great caution in its exercise.\nInsofar as the question of issuing a direction to the CBI to\nconduct investigation in a case is concerned, although no\ninflexible guidelines can be laid down to decide whether or\nnot such power should be exercised but time and again it\nhas been reiterated that such an order is not to be passed\nas a matter of routine or merely because a party has levelled\nsome allegations against the local police. This extraordinary\npower must be exercised sparingly, cautiously and in\nexceptional situations where it becomes necessary to\nprovide credibility and instil confidence in investigations or\nwhere the incident may have national and international\nramifications or where such an order may be necessary for\ndoing complete justice and enforcing the fundamental rights.\nOtherwise the CBI would be flooded with a large number of\ncases and with limited resources, may find it difficult to\nproperly investigate even serious cases and in the process\nlose its credibility and purpose with unsatisfactory\ninvestigations."27. In view of the above, it is clear that the consistent view\nof this Court is that the accused cannot ask for changing the\nInvestigating Agency or to do investigation in a particular\nmanner including for Court monitored investigation. The first\ntwo modified reliefs claimed in the writ petition, if they were\nto be made by the accused themselves, the same would end\nup in being rejected. In the present case, the original writ\npetition was filed by the persons claiming to be the next\nfriends of the concerned accused (A16 to A20). Amongst\nthem, Sudha Bhardwaj (A19), Varvara Rao (A16), Arun\nFerreira (A18) and Vernon Gonsalves (A17) have filed signed\nstatements praying that the reliefs claimed in the subject\nwrit petition be treated as their writ petition. That\napplication deserves to be allowed as the accused\nthemselves have chosen to approach this Court and also in\nthe backdrop of the preliminary objection raised by the State\nthat the writ petitioners were completely strangers to the\noffence under investigation and the writ petition at their\ninstance was not maintainable. We would, therefore,\nassume that the writ petition is now pursued by the accused25themselves and once they have become petitioners\n themselves, the question of next friend pursuing the remedy\n to espouse their cause cannot be countenanced. The next\n friend can continue to espouse the cause of the affected\n accused as long as the concerned accused is not in a\n position or incapacitated to take recourse to legal remedy\n and not otherwise.30. We find force in the argument of the State that the\n prayer for changing the Investigating Agency cannot be dealt\n with lightly and the Court must exercise that power with\n circumspection. As a result, we have no hesitation in taking\n a view that the writ petition at the instance of the next friend\n of the accused for transfer of investigation to independent\n Investigating Agency or for Court monitored investigation\n cannot be countenanced, much less as public interest\n litigation."42. The said judgment was referred to by the Supreme Court inVinubhai\n\n Haribhai Malaviya Vs The State of Gujaraton 16.10.2019 in\n\n Original Appeal 478-479 of 2017, wherein a Three Judge Bench\n\n held:-"9. The question of law that therefore arises in this case is\n whether, after a charge-sheet is filed by the police, the\n Magistrate has the power to order further investigation, and\n if so, up to what stage of a criminal proceeding.38. However, having given our considered thought to the\n principles stated in these judgments, we are of the view that\n the Magistrate before whom a report underSection 173(2)of\n the Code is filed, is empowered in law to direct "further\n investigation" and require the police to submit a further or a\n supplementary report. A three-Judge Bench of this Court\n inBhagwant Singh [Bhagwant Singh v. Commr. of Police,\n (1985) 2 SCC 537 : 1985 SCC (Cri) 267] has, in no uncertain\n terms, stated that principle, as aforenoticed.40. Having analysed the provisions of the Code and the\n various judgments as aforeindicated, we would state the\n following conclusions in regard to the powers of a Magistrate26in terms ofSection 173(2)read withSection\n173(8)andSection 156(3)of the Code:40.1. The Magistrate has no power to direct\n"reinvestigation" or "fresh investigation" (de novo) in the\ncase initiated on the basis of a police report.40.2. A Magistrate has the power to direct "further\ninvestigation" after filing of a police report in terms ofSection\n173(6)of the Code.40.3. The view expressed in Sub-para 40.2 above is in\nconformity with the principle of law stated inBhagwant\nSinghcase [Bhagwant Singh v. Commr. of Police, (1985) 2\nSCC 537 : 1985 SCC (Cri) 267] by a three- Judge Bench and\nthus in conformity with the doctrine of precedent.40.4. Neither the scheme of the Code nor any specific\nprovision therein bars exercise of such jurisdiction by the\nMagistrate. The language ofSection 173(2)cannot be\nconstrued so restrictively as to deprive the Magistrate of\nsuch powers particularly in face of the provisions ofSection\n156(3)and the language ofSection 173(8)itself. In fact, such\npower would have to be read into the language ofSection\n173(8).40.5. The Code is a procedural document, thus, it must\nreceive a construction which would advance the cause of\njustice and legislative object sought to be achieved. It does\nnot stand to reason that the legislature provided power of\nfurther investigation to the police even after filing a report,\nbut intended to curtail the power of the court to the extent\nthat even where the facts of the case and the ends of justice\ndemand, the court can still not direct the investigating\nagency to conduct further investigation which it could do on\nits own.40.6. It has been a procedure of propriety that the police\nhas to seek permission of the court to continue "further\ninvestigation" and file supplementary charge- sheet. This\napproach has been approved by this Court in a number of\njudgments. This as such would support the view that we are\ntaking in the present case."xxx xxx xxx2748. What ultimately is the aim or significance of the\nexpression "fair and proper investigation" in criminal\njurisprudence? It has a twin purpose: Firstly, the\ninvestigation must be unbiased, honest, just and in\naccordance with law; secondly, the entire emphasis on a fair\ninvestigation has to be to bring out the truth of the case\nbefore the court of competent jurisdiction. Once these twin\nparadigms of fair investigation are satisfied, there will be\nthe least requirement for the court of law to interfere with the\ninvestigation, much less quash the same, or transfer it to\nanother agency. Bringing out the truth by fair and\ninvestigative means in accordance with law would\nessentially repel the very basis of an unfair, tainted\ninvestigation or cases of false implication. Thus, it is\ninevitable for a court of law to pass a specific order as to the\nfate of the investigation, which in its opinion is unfair,\ntainted and in violation of the settled principles of\ninvestigative canons.49. Now, we may examine another significant aspect which\nis how the provisions ofSection 173(8)have been\nunderstood and applied by the courts and investigating\nagencies. It is true that though there is no specific\nrequirement in the provisions ofSection 173(8)of the Code to\nconduct "further investigation" or file supplementary report\nwith the leave of the court, the investigating agencies have\nnot only understood but also adopted it as a legal practice to\nseek permission of the courts to conduct "further\ninvestigation" and file "supplementary report" with the leave\nof the court. The courts, in some of the decisions, have also\ntaken a similar view. The requirement of seeking prior leave\nof the court to conduct "further investigation" and/or to file a\n"supplementary report" will have to be read into, and is a\nnecessary implication of the provisions ofSection 173(8)of\nthe Code. The doctrine of contemporanea expositio will fully\ncome to the aid of such interpretation as the matters which\nare understood and implemented for a long time, and such\npractice that is supported by law should be accepted as part\nof the interpretative process.50. Such a view can be supported from two different points\nof view: firstly, through the doctrine of precedent, as\naforenoticed, since quite often the courts have taken such a\nview, and, secondly, the investigating agencies which have\nalso so understood and applied the principle. The matters\nwhich are understood and implemented as a legal practice28and are not opposed to the basic rule of law would be good\npractice and such interpretation would be permissible with\nthe aid of doctrine of contemporanea expositio. Even\notherwise, to seek such leave of the court would meet the\nends of justice and also provide adequate safeguard against\na suspect/accused.51. We have already noticed that there is no specific\nembargo upon the power of the learned Magistrate to direct\n"further investigation" on presentation of a report in terms\nofSection 173(2)of the Code. Any other approach or\ninterpretation would be in contradiction to the very language\nofSection 173(8)and the scheme of the Code for giving\nprecedence to proper administration of criminal justice. The\nsettled principles of criminal jurisprudence would support\nsuch approach, particularly when in terms ofSection 190of\nthe Code, the Magistrate is the competent authority to take\ncognizance of an offence. It is the Magistrate who has to\ndecide whether on the basis of the record and documents\nproduced, an offence is made out or not, and if made out,\nwhat course of law should be adopted in relation to\ncommittal of the case to the court of competent jurisdiction or\nto proceed with the trial himself. In other words, it is the\njudicial conscience of the Magistrate which has to be\nsatisfied with reference to the record and the documents\nplaced before him by the investigating agency, in coming to\nthe appropriate conclusion in consonance with the principles\nof law. It will be a travesty of justice, if the court cannot be\npermitted to direct "further investigation" to clear its doubt\nand to order the investigating agency to further substantiate\nits charge-sheet. The satisfaction of the learned Magistrate\nis a condition precedent to commencement of further\nproceedings before the court of competent jurisdiction.\nWhether the Magistrate should direct "further investigation"or not is again a matter which will depend upon the facts of\na given case. The learned Magistrate or the higher court of\ncompetent jurisdiction would direct "further investigation" or\n"reinvestigation" as the case may be, on the facts of a given\ncase. Where the Magistrate can only direct further\ninvestigation, the courts of higher jurisdiction can direct\nfurther, reinvestigation or even investigation de novo\ndepending on the facts of a given case. It will be the specific\norder of the court that would determine the nature of\ninvestigation.In this regard, we may refer to the\nobservations made by this Court inSivanmoorthy v.\nState[(2010) 12 SCC 29: (2011) 1 SCC (Cri) 295]."2934. A Bench of 5 learned Judges of this Court inHardeep\nSingh v. State of Punjab and Ors.(2014) 3 SCC 92 was\nfaced with a question regarding the circumstances under\nwhich the power underSection 319of the Code could be\nexercised to add a person as being accused of a criminal\noffence. In the course of a learned judgment answering the\naforesaid question, this Court first adverted to the\nconstitutional mandate underArticle 21of the Constitution\nas follows:"8. The constitutional mandate underArticles 20and21of\nthe Constitution of India provides a protective umbrella for\nthe smooth administration of justice making adequate\nprovisions to ensure a fair and efficacious trial so that the\naccused does not get prejudiced after the law has been put\ninto motion to try him for the offence but at the same time\nalso gives equal protection to victims and to society at large\nto ensure that the guilty does not get away from the clutches\nof law. For the empowerment of the courts to ensure that the\ncriminal administration of justice works properly, the law\nwas appropriately codified and modified by the legislature\nunderCrPCindicating as to how the courts should proceed\nin order to ultimately find out the truth so that an innocent\ndoes not get punished but at the same time, the guilty are\nbrought to book under the law. It is these ideals as\nenshrined under the Constitution and our laws that have led\nto several decisions, whereby innovating methods and\nprogressive tools have been forged to find out the real truth\nand to ensure that the guilty does not go unpunished." In\nparagraph 34, this Court adverted to Common Cause v.Union\nof India (1996) 6 SCC 775, and dealt with when trials before the\nSessions Court; trials of warrant-cases; and trials of summons-\ncases by Magistrates can be said to commence, as follows:"34.InCommon Cause v. Union of India[(1996) 6 SCC 775 :\n1997 SCC (Cri) 42 : AIR 1997 SC 1539] , this Court while\ndealing with the issue held: (SCC p. 776, para 1) "1. II (i) In\ncases of trials before the Sessions Court the trials shall be\ntreated to have commenced when charges are framed\nunderSection 228of the Code of Criminal Procedure, 1973\nin the cases concerned.(ii) In cases of trials of warrant cases by Magistrates if the\ncases are instituted upon police reports the trials shall be\ntreated to have commenced when charges are framed\nunderSection 240of the Code of Criminal Procedure, 197330while in trials of warrant cases by Magistrates when cases\nare instituted otherwise than on police report such trials\nshall be treated to have commenced when charges are\nframed against the accused concerned underSection 246of\nthe Code of Criminal Procedure, 1973.(iii) In cases of trials of summons cases by Magistrates the\ntrials would be considered to have commenced when the\naccused who appear or are brought before the Magistrate\nare asked underSection 251whether they plead guilty or\nhave any defence to make." (emphasis supplied) The Court\nthen concluded:"38. In view of the above, the law can be summarised to the\neffect that as "trial" means determination of issues\nadjudging the guilt or the innocence of a person, the person\nhas to be aware of what is the case against him and it is\nonly at the stage of framing of the charges that the court\ninforms him of the same, the "trial" commences only on\ncharges being framed. Thus, we do not approve the view\ntaken by the courts that in a criminal case, trial commences\non cognizance being taken."35. Paragraph 39 of the judgment then referred to the\n"inquiry" stage of a criminal case as follows:"39.Section 2(g)CrPC and the case lawsreferred to above,\ntherefore, clearly envisage inquiry before the actual\ncommencement of the trial, and is an act conducted\nunderCrPCby the Magistrate or the court.The word "inquiry" is, therefore, not any inquiry relating to\nthe investigation of the case by the investigating agency but\nis an inquiry after the case is brought to the notice of the\ncourt on the filing of the charge-sheet. The court can\nthereafter proceed to make inquiries and it is for this reason\nthat an inquiry has been given to mean something other\nthan the actual trial." A clear distinction between "inquiry"and "trial" was thereafter set out in paragraph 54 as\nfollows:"54. In our opinion, the stage of inquiry does not contemplate\nany evidence in its strict legal sense, nor could the\nlegislature have contemplated this inasmuch as the stage for\nevidence has not yet arrived. The only material that the\ncourt has before it is the material collected by the31prosecution and the court at this stage prima facie can apply\nits mind to find out as to whether a person, who can be an\naccused, has been erroneously omitted from being arraigned\nor has been deliberately excluded by the prosecuting\nagencies. This is all the more necessary in order to ensure\nthat the investigating and the prosecuting agencies have\nacted fairly in bringing before the court those persons who\ndeserve to be tried and to prevent any person from being\ndeliberately shielded when they ought to have been tried.\nThis is necessary to usher faith in the judicial system\nwhereby the court should be empowered to exercise such\npowers even at the stage of inquiry and it is for this reason\nthat the legislature has consciously used separate terms,\nnamely, inquiry or trial inSection 319CrPC."36. Despite the aforesaid judgments, some discordant notes\nwere sounded in three recent judgments.InAmrutbhai\nShambubhai Patel v. Sumanbhai Kantibai Patel(2017) 4\nSCC 177, on the factsin that case, the Appellant/Informant\ntherein sought a direction underSection 173(8)from the Trial\nCourt for further investigation by the police long after\ncharges were framed against the Respondents at the\nculminating stages of the trial.The Court in its ultimate conclusion was correct, in that, once\nthe trial begins with the framing of charges, the stage of\ninvestigation or inquiry into the offence is over, as a result of\nwhich no further investigation into the offence should be\nordered. But instead of resting its judgment on this simple\nfact, this Court from paragraphs 29 to 34 resuscitated some\nof the earlier judgments of this Court, in which a view was\ntaken that no further investigation could be ordered by the\nMagistrate in cases where, after cognizance is taken, the\naccused had appeared in pursuance of process being\nissued. In particular, Devarapalli Lakshminarayana Reddy\n(supra) was strongly relied upon by the Court. We have\nalready seen how this judgment was rendered without\nadverting to the definition of "investigation" inSection 2(h)of\nthe CrPC, and cannot therefore be relied upon as laying\ndown the law on this aspect correctly. The Court therefore\nconcluded:"49. On an overall survey of the pronouncements of this\nCourt on the scope and purport ofSection 173(8)of the Code\nand the consistent trend of explication thereof, we are thus\ndisposed to hold that though the investigating agency32concerned has been invested with the power to undertake\nfurther investigation desirably after informing the court\nthereof, before which it had submitted its report and\nobtaining its approval, no such power is available therefor to\nthe learned Magistrate after cognizance has been taken on\nthe basis of the earlier report, process has been issued and\nthe accused has entered appearance in response thereto. At\nthat stage, neither the learned Magistrate suo motu nor on\nan application filed by the complainant/informant can direct\nfurther investigation. Such a course would be open only on\nthe request of the investigating agency and that too, in\ncircumstances warranting further investigation on the\ndetection of material evidence only to secure fair\ninvestigation and trial, the life purpose of the adjudication in\nhand.50. The unamended and the amended sub-section (8)\nofSection 173of the Code if read in juxtaposition, would\noverwhelmingly attest that by the latter, the investigating\nagency/officer alone has been authorised to conduct further\ninvestigation without limiting the stage of the proceedings\nrelatable thereto. This power qua the investigating\nagency/officer is thus legislatively intended to be available\nat any stage of the proceedings. The recommendation of the\nLaw Commission in its 41st Report which manifestly\nheralded the amendment, significantly had limited its\nproposal to the empowerment of the investigating agency\nalone.51. In contradistinction,Sections\n156,190,200,202and204CrPC clearly outline the powers\nof the Magistrate and the courses open for him to chart in\nthe matter of directing investigation, taking of cognizance,\nframing of charge, etc. Though the Magistrate has the power\nto direct investigation underSection 156(3)at the pre-\ncognizance stage even after a charge-sheet or a closure\nreport is submitted, once cognizance is taken and the\naccused person appears pursuant thereto, he would be\nbereft of any competence to direct further investigation either\nsuo motu or acting on the request or prayer of the\ncomplainant/informant. The direction for investigation by\nthe Magistrate underSection 202, while dealing with a\ncomplaint, though is at a post-cognizance stage, it is in the\nnature of an inquiry to derive satisfaction as to whether the\nproceedings initiated ought to be furthered or not. Such a\ndirection for investigation is not in the nature of further33investigation, as contemplated underSection 173(8)of the\nCode. If the power of the Magistrate, in such a scheme\nenvisaged byCrPCto order further investigation even after\nthe cognizance is taken, the accused persons appear and\ncharge is framed, is acknowledged or approved, the same\nwould be discordant with the state of law, as enunciated by\nthis Court and also the relevant layout ofCrPCadumbrated\nhereinabove. Additionally had it been the intention of the\nlegislature to invest such a power, in our estimate,Section\n173(8)CrPC would have been worded accordingly to\naccommodate and ordain the same having regard to the\nbackdrop of the incorporation thereof.In a way, in view of\nthe three options open to the Magistrate, after a report is\nsubmitted by the police on completion of the investigation, as\nhas been amongst authoritatively enumerated inBhagwant\nSingh [Bhagwant Singh v. Commr. of Police, (1985) 2 SCC\n537 : 1985 SCC (Cri) 267] , the Magistrate, in both the\ncontingencies, namely; when he takes cognizance of the\noffence or discharges the accused, would be committed to a\ncourse, whereafter though the investigating agency may for\ngood reasons inform him and seek his permission to conduct\nfurther investigation, he suo motu cannot embark upon such\na step or take that initiative on the request or prayer made\nby the complainant/informant. Not only such power to the\nMagistrate to direct further investigation suo motu or on the\nrequest or prayer of the complainant/informant after\ncognizance is taken and the accused person appears,\npursuant to the process, issued or is discharged is\nincompatible with the statutory design and dispensation, it\nwould even otherwise render the provisions ofSections\n311and319CrPC, whereunder any witness can be\nsummoned by a court and a person can be issued notice to\nstand trial at any stage, in a way redundant. Axiomatically,\nthus the impugned decision annulling the direction of the\nlearned Magistrate for further investigation is unexceptional\nand does not merit any interference. Even otherwise on\nfacts, having regard to the progression of the developments\nin the trial, and more particularly, the delay on the part of\nthe informant in making the request for further investigation,\nit was otherwise not entertainable as has been rightly held\nby the High Court."37. This judgment was followed in a recent Division Bench\njudgment of this Court inAthul Rao v. State of Karnataka\nand Anr.(2018) 14 SCC 298 at paragraph 8.InBikash\nRanjan Rout v. Statethrough the Secretary (Home),34Government of NCT of Delhi (2019) 5 SCC 542, after\nreferring to a number of decisions this Court concluded as\nfollows:"7. Considering the lawlaid down bythis Court in the\naforesaid decisions and even considering the relevant\nprovisions ofCrPC, namely,Sections\n167(2),173,227and228CrPC, what is emerging is that\nafter the investigation is concluded and the report is\nforwarded by the police to the Magistrate underSection\n173(2)(i)CrPC, the learned Magistrate may either (1) accept\nthe report and take cognizance of the offence and issue\nprocess, or (2) may disagree with the report and drop the\nproceedings, or (3) may direct further investigation\nunderSection 156(3)and require the police to make a further\nreport. If the Magistrate disagrees with the report and drops\nthe proceedings, the informant is required to be given an\nopportunity to submit the protest application and thereafter,\nafter giving an opportunity to the informant, the Magistrate\nmay take a further decision whether to drop the proceedings\nagainst the accused or not. If the learned Magistrate accepts\nthe objections,in that case, he may issue process and/or\neven frame the charges against the accused. As observed\nhereinabove, having not been satisfied with the investigation\non considering the report forwarded by the police\nunderSection 173(2)(i)CrPC, the Magistrate may, at that\nstage, direct further investigation and require the police to\nmake a further report. However, it is required to be noted\nthat all the aforesaid is required to be done at the pre-\ncognizance stage. Once the learned Magistrate takes the\ncognizance and, considering the materials on record\nsubmitted along with the report forwarded by the police\nunderSection 173(2)(i)CrPC, the learned Magistrate in\nexercise of the powers underSection 227CrPC discharges\nthe accused, thereafter, it will not be open for the Magistrate\nto suo motu order for further investigation and direct the\ninvestigating officer to submit the report. Such an order after\ndischarging the accused can be said to be made at the post-\ncognizance stage. There is a distinction and/or difference\nbetween the pre- cognizance stage and post-cognizance\nstage and the powers to be exercised by the Magistrate for\nfurther investigation at the pre-cognizance stage and post-\ncognizance stage. The power to order further investigation\nwhich may be available to the Magistrate at the pre-\ncognizance stage may not be available to the Magistrate at\nthe post-cognizance stage, more particularly, when the35accused is discharged by him. As observed hereinabove, if\nthe Magistrate was not satisfied with the investigation\ncarried out by the investigating officer and the report\nsubmitted by the investigating officer underSection\n173(2)(i)CrPC, as observed by this Court in a catena of\ndecisions and as observed hereinabove, it was always\nopen/permissible for the Magistrate to direct the\ninvestigating agency for further investigation and may\npostpone even the framing of the charge and/or taking any\nfinal decision on the report at that stage. However, once the\nlearned Magistrate, on the basis of the report and the\nmaterials placed along with the report, discharges the\naccused, we are afraid that thereafter the Magistrate can\nsuo motu order further investigation by the investigating\nagency. Once the order of discharge is passed, thereafter\nthe Magistrate has no jurisdiction to suo motu direct the\ninvestigating officer for further investigation and submit the\nreport. In such a situation, only two remedies are available:(i) a revision application can be filed against the discharge or(ii) the Court has to wait till the stage ofSection 319CrPC.However, at the same time, considering the provisions\nofSection 173(8)CrPC, it is always open for the\ninvestigating agency to file an application for further\ninvestigation and thereafter to submit the fresh report and\nthe Court may, on the application submitted by the\ninvestigating agency, permit further investigation and permit\nthe investigating officer to file a fresh report and the same\nmay be considered by the learned Magistrate thereafter in\naccordance with law. The Magistrate cannot suo motu direct\nfor further investigation underSection 173(8)CrPC or direct\nreinvestigation into a case at the post-cognizance stage,\nmore particularly when, in exercise of powers underSection\n227CrPC, the Magistrate discharges the accused.\nHowever,Section 173(8)CrPC confers power upon the officer\nin charge of the police station to further investigate and\nsubmit evidence, oral or documentary, after forwarding the\nreport under sub-section (2) ofSection 173CrPC. Therefore,\nit is always open for the investigating officer to apply for\nfurther investigation, even after forwarding the report under\nsub-section (2) ofSection 173and even after the discharge\nof the accused. However, the aforesaid shall be at the\ninstance of the investigating officer/police officer in charge\nand the Magistrate has no jurisdiction to suo motu pass an\norder for further investigation/reinvestigation after he\ndischarges the accused." Realising the difficulty in\nconcluding thus, the Court went on to hold:36"10. However, considering the observations made by the\nlearned Magistrate and the deficiency in the investigation\npointed out by the learned Magistrate and the ultimate goal\nis to book and/or punish the real culprit, it will be open for\nthe investigating officer to submit a proper application before\nthe learned Magistrate for further investigation and conduct\nfresh investigation and submit the further report in exercise\nof powers underSection 173(8)CrPC and thereafter the\nlearned Magistrate to consider the same in accordance with\nlaw and on its own merits."38. There is no good reason given by the Court in these\ndecisions as to why a Magistrate‟s powers to order\nfurther investigation would suddenly cease upon process\nbeing issued, and an accused appearing before the\nMagistrate, while concomitantly, the power of the police to\nfurther investigate the offence continues right till the stage\nthe trial commences. Such a view would not accord with the\nearlier judgments of this Court, in particular, Sakiri (supra),\nSamaj Parivartan Samudaya (supra),Vinay Tyagi(supra),\nandHardeep Singh(supra);Hardeep Singh(supra) having\nclearly held that a criminal trial does not begin after\ncognizance is taken, but only after charges are framed.\nWhat is not given any importance at all in the recent\njudgments of this Court isArticle 21of the Constitution and\nthe fact that the Article demands no less than a fair and just\ninvestigation. To say that a fair and just investigation would\nlead to the conclusion that the police retain the power,\nsubject, of course, to the Magistrate‟s nod underSection\n173(8)to further investigate an offence till charges are\nframed, but that the supervisory jurisdiction of the\nMagistrate suddenly ceases mid-way through the pre-trial\nproceedings, would amount to a travesty of justice, as\ncertain cases may cry out for further investigation so that an\ninnocent person is not wrongly arraigned as an accused or\nthat a prima facie guilty person is not so left out. There is no\nwarrant for such a narrow and restrictive view of the\npowers of the Magistrate, particularly when such powers\nare traceable toSection 156(3)read withSection\n156(1),Section 2(h), andSection 173(8)of the CrPC, as has\nbeen noticed hereinabove, and would be available at all\nstages of the progress of a criminal case before the trial\nactually commences. It would also be in the interest of\njustice that this power be exercised suo motu by the\nMagistrate himself, depending on the facts of each case.\nWhether further investigation should or should not be37ordered is within the discretion of the learned Magistrate\n who will exercise such discretion on the facts of each case\n and in accordance with law.If, for example, fresh facts come\n to light which would lead to inculpating or exculpating\n certain persons, arriving at the truth and doing substantial\n justice in a criminal case are more important than avoiding\n further delay being caused in concluding the criminal\n proceeding, as was held in Hasanbhai Valibhai Qureshi\n (supra).Therefore, to the extent that the judgments inAmrutbhai Shambubhai Patel(supra),Athul Rao(supra) andBikash Ranjan Rout(supra) have held to the contrary, they\n stand overruled.Needless to add,Randhir Singh Rana v.\n State (Delhi Administration) (1997) 1 SCC 361 and Reeta\n Nag v. State of West Bengal and Ors.(2009) 9 SCC 129 also\n stand overruled."43. By a Judgment dated 12.10.2022 the Supreme Court in Criminal\n\n Appeal No. 1768 of 2022 (Devendra Nath Singh Vs State of Bihar &\n\n Ors) relying upon several precedents including Vinubhai Haribhai\n\n Malaviya Vs The State of Gujarat (Supra) held:-"12.5. The case ofDivine Retreat Centre(supra) has had\n the peculiarity of its own.Therein, the Criminal Case bearing\n No. 381 of 2005 had been registered at Koratty Police\n Station on the allegations made by a female remand\n prisoner that while taking shelter in the appellant-Centre,\n she was subjected to molestation and exploitation and she\n became pregnant; and thereafter, when she came out of the\n Centre to attend her sister‟s marriage, she was implicated\n in a false theft case and lodged in jail. Parallel to these\n proceedings, an anonymous petition as also other petitions\n were received in the High Court, which were registered as a\n suo motu criminal case. In that case, the High Court, while\n exercising powers underSection 482CrPC, directed that the\n said Criminal Case No. 381 of 2005 be taken away from the\n investigating officer and be entrusted to the Special\n Investigating Team („SIT‟). The High Court also directed the\n said SIT to investigate/inquire into other allegations levelled\n in the anonymous petition filed against the appellant-Centre.\n However, this Court did not approve the order so passed by\n the High Court and in that context, while observing that no\n unlimited and arbitrary jurisdiction was conferred on the38High Court underSection 482CrPC, explained the\n circumstances under which the inherent jurisdiction may be\n exercised as also the responsibilities of the investigating\n officers, inter alia, in the following words: -"27. In our view, there is nothing like unlimited arbitrary\n jurisdiction conferred on the High Court underSection 482of\n the Code. The power has to be exercised sparingly, carefully\n and with caution only where such exercise is justified by the\n tests laid down in the section itself. It is well settled thatSection 482does not confer any new power on the High\n Court but only saves the inherent power which the Court\n possessed before the enactment of the Code. There are three\n circumstances under which the inherent jurisdiction may be\n exercised, namely, (i) to give effect to an order 29 under the\n Code, ( ii ) to prevent abuse of the process of court, and ( iii)\n to otherwise secure the ends of justice."44. The Supreme Court in Anant Thanur Karmuse vs. State of\n\n Maharashtra (Supra) has held that further Investigation can be\n\n directed even after filing of charge sheet.45. CRR 1054 of 2019 is thus allowed.46. The learned Chief Judicial Magistrate, Malda shall through the\n\n Officer-in-Charge, Kaliachak Police Station hand over the\n\n investigation ofKaliachak P.S.Case No.796/18 dated 31.10.2018\n\n underSections 306/34IPC corresponding to G.R. No. 4570 of 2018\n\n pending before the Court of the learned Chief Judicial Magistrate,\n\n Malda for Re-investigation to the CID, WEST BENGAL, within 7\n\n days from the date of receipt of this order. The CID shall submit a\n\n report on reinvestigation keeping in mind the observations made39in this judgment before the learned Chief Judicial Magistrate,\n\n Malda within six months of taking up the reinvestigation.47. All connected applications, if any, stand disposed of.48. Interim order, if any, stands vacated.49. Copy of this judgment be sent to the learned Trial Court for necessary\n\n compliance.50. Urgent certified website copy of this judgment, if applied for, be\n\n supplied expeditiously after complying with all, necessary legal\n\n formalities.(Shampa Dutt (Paul), J.) |
116ff4e0-06f9-567c-aaed-98c5c5dce793 | court_cases | Rajasthan High CourtM/S Kamlesh Metacast Pvt. Ltd vs State Of Rajasthan on 25 June, 2021HIGH COURT OF JUDICATURE FOR RAJASTHAN\n BENCH AT JAIPUR\n\n S.B. Civil Contempt Petition No.609/2020\nM/s Kamlesh Metacast Pvt. Ltd., Having Its Registered Office At\nA-28, Basement Anita Colony, Bajaj Nagar, Jaipur-302015\nThrough Its Authorized Signatory, Shri Inder Kumar Son Of Shri\nParbhu Dayal Resident Of Village Kali Pahadi, Tehsil Nimrana,\nDistrict Alwar.\n ----Petitioner\n Versus\n1. State Of Rajasthan, Through Additional Chief Secretary,\n Mines Department, Government Of Rajasthan,\n Secretariat, Jaipur(Rajasthan)- 302001.\n2. Shri Subodh Agarwal, IAS, Additional Chief Secretary,\n Department Of Mines And Petroleum, Government Of\n Rajasthan, Secretariat, Jaipur-302001\n3. Mr. O. P. Kasara, IAS, The Joint Secretary Department Of\n Mines And Petroleum, Government Of Rajasthan,\n Secretariat, Jaipur-302001.\n4. Shri K.B. Pandya, IAS, The Director, Department Of Mines\n And Geology, Khanij Bhawan, Shastri Circle, Udaipur-\n 313001.\n ----RespondentsFor Petitioner(s) : Mr. Kamlakar Sharma, Sr. Advocate\n with Ms. Alankrita Sharma\nFor Respondent(s) : Mr. Jaivardhan Singh Shekhawat for\n Mr. R.P. Singh, AAG\n\n\n\n HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA\n\n Judgment\n\n\nReserved on 21.05.2021\n\nPronounced on 25th June, 20211. The respondents although had not complied with the\n\nTribunal's order as well as this court's order and have flouted(Downloaded on 28/06/2021 at 08:40:22 PM)(2 of 2) [CCP-609/2020]\n\n\n the order, as noticed, but taking into consideration the order\n\n passed in the contempt petition directing them to take a\n\n decision within three days and accordingly the decision taken\n\n by them, though found to be wrongful by this court now, it\n\n cannot be said that non-compliance of the order is deliberate\n\n and willful. The interpretation of an order passed by judicial\n\n body may be wrongful or unjustified. However, it cannot be\n\n said to be deliberate and willful attempt to flout the court's\n\n order.2. In view thereof, I do not find any reason to hold the\n\n respondents of having committed deliberate and willful\n\n contempt within the meaning ofSection 2 (2)of the\n\n Contempt of Courts Act, 1971 and notices are therefore\n\n discharged.3. The contempt petition is accordingly dismissed.(SANJEEV PRAKASH SHARMA),J\n\n Karan Bhutani /(Downloaded on 28/06/2021 at 08:40:22 PM)Powered by TCPDF (www.tcpdf.org) |
9e66b29f-1632-5f90-bd37-77253f832f1a | court_cases | Patna High Court - OrdersPrakash Kumar vs The State Of Bihar on 2 August, 2022Bench:Chakradhari Sharan Singh,Khatim RezaIN THE HIGH COURT OF JUDICATURE AT PATNA\n CRIMINAL APPEAL (DB) No.516 of 2021\n Arising Out of PS. Case No.-301 Year-2016 Thana- BIDUPUR District- Vaishali\n ======================================================\n1. BINOD KUMAR BHAGAT S/O SRI RAMBRISH BHAGAT R/o village-\n Kuttubpur, P.O.- Kuttubpur Saidpur, P.S.- Biddupur, District- Vaishali\n2. Pramod Kumar S/o Sri Rambrish Bhagat R/o village- Kuttubpur, P.O.-\n Kuttubpur Saidpur, P.S.- Biddupur, District- Vaishali\n ... ... Appellants\n Versus\n The State of Bihar\n ... ... Respondent\n ======================================================\n with\n CRIMINAL APPEAL (DB) No. 503 of 2021\n Arising Out of PS. Case No.-301 Year-2016 Thana- BIDUPUR District- Vaishali\n ======================================================\n PRAKASH KUMAR Son of Paramhans Bhagat Resident of Village - Bajitpur\n Saidat, P.S.- Bidupur, District - Vaishali\n ... ... Appellant\n Versus\n The State of Bihar\n ... ... Respondent\n ======================================================\n with\n CRIMINAL APPEAL (DB) No. 523 of 2021\n Arising Out of PS. Case No.-301 Year-2016 Thana- BIDUPUR District- Vaishali\n ======================================================\n SUNITA DEVI W/o Surendra Bhagat Resident of Village - Kuttubpur Dighra,\n P.O.- Kuttubpur Saidpur, P.S.- Biddupur, District - Vaishali.\n ... ... Appellant\n Versus\n The State of Bihar\n ... ... Respondent\n ======================================================\n with\n CRIMINAL APPEAL (DB) No. 543 of 2021\n Arising Out of PS. Case No.-301 Year-2016 Thana- BIDUPUR District- Vaishali\n ======================================================\n1. UPENDRA BHAGAT S/o Late Jhabbu Bhagat R/o village- Kutubpur, P.S.-\n Bidupur, District- Vaishali (Hajipur)\n2. Bindeshwar Singh S/o Late Ganesh Singh R/o village- Kutubpur, P.S.-\n Bidupur, District- Vaishali (Hajipur)\n3. Ajay Kumar S/o Jagadev Bhagat R/o village- Kutubpur, P.S.- Bidupur,\n District- Vaishali (Hajipur)\n\n ... ... Appellant/s\n Versus\n The State of Bihar Bihar\n Patna High Court CR. APP (DB) No.516 of 2021(8) dt.02-08-2022\n 2/11\n\n\n\n\n ... ... Respondent/s\n ======================================================\n with\n CRIMINAL APPEAL (DB) No. 552 of 2021\n Arising Out of PS. Case No.-301 Year-2016 Thana- BIDUPUR District- Vaishali\n ======================================================\n RAUSHAN KUMAR Son of Surendra Bhagat Resident of Village- Kutubpur\n Dighra, P.S.- Bidupur, District- Vaishali (Bihar)\n ... ... Appellant\n Versus\n The State of Bihar\n ... ... Respondent\n ======================================================\n with\n CRIMINAL APPEAL (DB) No. 604 of 2021\n Arising Out of PS. Case No.-301 Year-2016 Thana- BIDUPUR District- Vaishali\n ======================================================\n SURENDRA BHAGAT Son of Jittu Bhagat Resident of Village - Kutubpur,\n P.s.- Bidupur, Distt.- Vaishali (Hajipur).\n ... ... Appellant\n Versus\n The State of Bihar\n ... ... Respondent\n ======================================================\n Appearance :\n (In CRIMINAL APPEAL (DB) No. 516 of 2021)\n For the Appellant/s : Mr. Ajay Kumar Thakur\n Ms.Vaishnavi Singh\n Mr. Udbhav\n For the Respondent/s : Mr.Abhimanyu Sharma\n (In CRIMINAL APPEAL (DB) No. 503 of 2021)\n For the Appellant/s : Mr.Mahendra Thakur\n For the Respondent/s :\n (In CRIMINAL APPEAL (DB) No. 523 of 2021)\n For the Appellant/s : Mr. Ajay Kumar Thakur\n Ms.Vaishnavi Singh\n Mr. Udbhav\n For the Respondent/s : Mr.Dilip Kumar Sinha\n (In CRIMINAL APPEAL (DB) No. 543 of 2021)\n For the Appellant/s : Mr.Satyendra Narayan Singh\n For the Respondent/s :\n (In CRIMINAL APPEAL (DB) No. 552 of 2021)\n For the Appellant/s : Mr. Shiw Kumar Prabhakar\n For the Respondent/s : Mr.Ajay Mishra\n (In CRIMINAL APPEAL (DB) No. 604 of 2021)\n For the Appellant/s : Mr.Satyendra Narayan Singh\n For the Respondent/s : Mr.Satya Narayan Prasad\n For the Informant in all cases : Mr. Bindhyachal Singh, Senior Advocate\n ======================================================\n CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN\n SINGH\n and\n HONOURABLE MR. JUSTICE KHATIM REZA\n Patna High Court CR. APP (DB) No.516 of 2021(8) dt.02-08-2022\n 3/11\n\n\n\n\n ORAL ORDER\n\n (Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN\n SINGH)\n\n8 02-08-2022These appeals have been placed before us for\n\n considering prayer of the appellants for their release on bail\n\n underSection 389(1)of the Code of Criminal Procedure.2. By the judgment and order dated 28.06.2021 and\n\n 30.06.2021 passed by the learned trial court, the appellants have\n\n been convicted and sentenced as under: -Cr. Appellant Convicted under Sentence\n Appeal No. & name Sections\n (D.B.) of the\n No. appellant\n Imprisonment Fine (Rs.) In default of\n fine\n 516 of 1 and 2 302/149, 120(B) Life 20,000/-2021 (Binod of the Indian each under\n Kumar Penal Code Section\n Bhagat and 302/149,\n Pramod 120(B) of\n Kumar) the Indian\n Penal Code\n 148 of the Indian R.I. for three\n Penal Code years\n 341 read with 149 Simple\n of the Indian imprisonment\n Penal Code for one month\n\n\n 503 of Prakash 302/149, 120(B) Life 20,000/-\n 2021 Kumar of the Indian under\n Penal Code Section\n 302/149 of\n the Indian\n Penal Code\n\n 148 of the Indian R.I. for three\n Penal Code years\n 341 read with 149 Simple\n of the Indian imprisonment\n Penal Code for one month\n\n 523 of Sunita Devi 302/149, 120(B) Life 20,000/-\n 2021 of the Indian each under\n Penal Code Section\n 302/149,\n 120(B) ofPatna High Court CR. APP (DB) No.516 of 2021(8) dt.02-08-20224/11theIndian\n Penal Code148 of the Indian R.I. for three\n Penal Code years\n 341 read with 149 Simple\n of the Indian imprisonment\n Penal Code for one month\n\n 543 of Upendra 302/149, 120(B) Life 20,000/-2021 Bhagat, of the Indian each under\n Bindeshwar Penal Code Section\n Singh and 302/149,\n Ajay Kumar 120(B) of\n theIndian\n Penal Code148 of the Indian R.I. for three\n Penal Code years\n 341 read with 149 Simple\n of the Indian imprisonment\n Penal Code for one month\n\n 552 of Raushan 302/149, 120(B) Life 20,000/-2021 Kumar of the Indian each under\n Penal Code Section\n 302/149,\n 120(B) of\n the Indian\n Penal Code\n 148 of the Indian R.I. for three\n Penal Code years\n 341 read with 149 Simple\n of the Indian imprisonment\n Penal Code for one month\n\n 604 of Surehdra 302/149, 120(B) Life 20,000/-\n 2021 Bhagat of the Indian each under\n Penal Code Section\n 302/149,\n 120(B) of\n the Indian\n Penal Code\n 148 of the Indian R.I. for three\n Penal Code years\n 341 read with 149 Simple\n of the Indian imprisonment\n Penal Code for one month\n\n Section 27 of the Seven Years 5000/-\n Arms Act3. The sentences have been ordered to run\n\n concurrently and the period already spent in jail during\n\n investigation and trial has been directed to be set off under\n Patna High Court CR. APP (DB) No.516 of 2021(8) dt.02-08-20225/11Section 428of the Code of Criminal Procedure. The trial court\n\n has also ordered for payment of fifty percent of the amount of\n\n fine to the dependents of deceased Ashok Kumar and Sangita\n\n Devi underSection 357of the Code of Criminal Procedure as\n\n compensation.4. The occurrence is said to have taken place on\n\n 19.10.2016 at 01 p.m. Two persons died in the occurrence, one\n\n of them was son of the informant and the other, his daughter-in-\n\n law, i.e., wife of another son of the informant. Fardbeyan of the\n\n informant was recorded at 10:30 a.m. on the next day on\n\n 20.10.2016 at P.M.C.H, Patna.5. The case of the prosecution, as disclosed in the\n\n fardbeyan, is that at 09:00 a.m., on the date of occurrence,\n\n Surendra Bhagat, the appellant in Cr. Appeal (D.B.) No. 604 of\n\n 2021 and his wife, Sunita Devi, appellant in Cr. Appeal (D.B.)\n\n No. 523 of 2021, armed with a lathi, danda and a sickle came to\n\n the informant's house and abused him. They were asking about\n\n the whereabouts of his elder son. On hearing hulla, the younger\n\n son of the informant arrived, who was assaulted by them by\n\n means of danda in his right hand. Appellant, Sunita Devi, is said\n\n to have assaulted him with her slippers. On being confronted by\n\n the informant as to why they were doing so, they disclosed that\n\n they would kill Ashok Kumar (the deceased), the informant's\n Patna High Court CR. APP (DB) No.516 of 2021(8) dt.02-08-20226/11son, as they were helping someone concerning the affairs of Zila\n\n Parishad. They, however, made a retreat on arrival of the\n\n villagers. It is further alleged that after sometime, the informant\n\n saw Surendra Bhagat, appellant of Cr. Appeal (D.B.) No. 604 of\n\n 2021, Manoj Kumar, Harendra Bhagat, Ajay Kumar, appellant\n\n No. 3 of Cr. Appeal (D.B.) No. 543 of 2021, Rajesh Kumar,\n\n Ranjit Kumar, Raushan Kumar, appellant of Cr. Appeal (D.B.)\n\n No. 552 of 2021, Upendra Bhagat, appellant No.1 of Cr. Appeal\n\n (D.B.) No. 543 of 2021, Pramod Kumar, appellant no. 2 of Cr.\n\n Appeal (D.B.) No. 516 of 2021, Binod Kumar Bhagat, appellant\n\n no. 1 of Cr. Appeal (D.B.) No. 516 of 2021, Pawan Kumar,\n\n Prakash Bhagat and Bindeshwar Singh, appellant no. 2 of Cr.\n\n Appeal (D.B.) No. 543 of 2021 and other 8-10 persons sitting\n\n outside the nearby Aanganbadi Centre. All of them thereafter\n\n reached in front of the informant's house and started playing\n\n cards. It is further alleged that some of the accused persons\n\n entered into the informant's house and some surrounded the\n\n house. It was the specific case of the informant that Surendra\n\n Bhagat, appellant of Cr. Appeal (D.B.) No. 604 of 2021, Manoj\n\n Kumar, Harendra Bhagat were armed with guns. He further\n\n disclosed that Surendra Bhagat fired at Ashok Kumar (deceased-1) because of which he sustained firearm injuries and\n\n subsequently died after nearly a month. Sunita Devi (deceased-Patna High Court CR. APP (DB) No.516 of 2021(8) dt.02-08-20227/112), wife of the informant's son, who rushed to the place of\n\n occurrence after hearing sound of gunshot, was shot at by\n\n Manoj Kumar.6. The case of the prosecution, as disclosed in the\n\n First Information Report, has been supported by the prosecution\n\n witnesses.7. We have heard Mr. Ajay Kumar Thakur, learned\n\n counsel appearing on behalf of the appellants in Cr. Appeal\n\n (D.B.) Nos. 604 of 2021 and 523 of 2021, Mr. Mahendra\n\n Thakur, learned counsel appearing on behalf of the appellant in\n\n appellant of Cr. Appeal (D.B.) No. 503 of 2021, Mr. Satyendra\n\n Narayan Singh, learned counsel appearing on behalf of the\n\n appellants in Cr. Appeal (D.B.) Nos. 543 of 2021 and 604 of\n\n 2021 and Mr. Shiw Kumar Prabhakar, learned counsel\n\n appearing on behalf of the appellant in Cr. Appeal (D.B.) No.\n\n 552of 2021. We have also heard Mr. Bindhyachal Singh, learned\n\n Senior Counsel appearing on behalf of the informant and\n\n learned Additional Public Prosecutors appearing on behalf of the\n\n State.8. Mr. Ajay Kumar Thakur, learned counsel for the\n\n appellants has submitted that, according to the prosecution's\n\n case, the occurrence had taken place on 19.10.2016 at 01:00\n\n p.m., whereas the fardbeyan was recorded on the next day at\n Patna High Court CR. APP (DB) No.516 of 2021(8) dt.02-08-20228/1110:00 a.m.. He contends that no explanation has been put forth\n\n by the prosecution for such delay in recording the fardbeyan of\n\n the informant. He has accordingly submitted that the\n\n prosecution version as disclosed in the First Information Report\n\n is an afterthought and implication of these appellants is visibly\n\n because of political rivalry. He has further submitted that so far\n\n the occurrence, which is said to have taken place at 01:00 p.m.\n\n on 19.10.2016, no specific role of these appellants has been\n\n attributed, leading to death of two persons, though there is such\n\n evidence against the appellant-Surendra Bhagat and one Manoj\n\n Kumar.9. Mr. Bindhyachal Singh, learned Senior Counsel\n\n appearing on behalf of the informant has opposed the prayer for\n\n bail and has submitted that based on evidence adduced at the\n\n trial, the prosecution has been able to establish beyond all\n\n reasonable doubts the charge against these appellants of\n\n commission of offence punishable underSection 302of the\n\n Indian Penal Code read with 149 and 120 B thereof. He has\n\n submitted that the witnesses are consistent on the point that\n\n before the occurrence had taken place, the persons, named in the\n\n First Information Report, had assembled with premeditated\n\n mind and thereafter committed the offence. He has accordingly\n\n submitted that the appellants do not deserve privilege of bail\n Patna High Court CR. APP (DB) No.516 of 2021(8) dt.02-08-20229/11underSection 389(1)of the Code of Criminal Procedure.10. Prayer for bail of the appellants has been opposed\n\n by learned Additional Public Prosecutors representing the State\n\n in different Appeals.11. Despite opportunity granted to the State to file\n\n written objection in terms of first Proviso ofSection 389(1)of\n\n the Code of Criminal Procedure to the State, no such written\n\n objection is there on record.12. Mr. Ajay Mishra, learned Additional Public\n\n Prosecutor appearing on behalf of the State in Cr. Appeal (D.B.)\n\n No. 552 of 2021 has submitted that a written objection has been\n\n filed in the said Cr. Appeal on-line today itself. He has been\n\n permitted to file hard copy of the written objection in Court,\n\n which has been taken on record.13. On perusal of the impugned judgment and order of\n\n the trial Court and upon considering the evidence on record, we\n\n find substance in the submission made on behalf of the\n\n appellants that there is no allegation of any specific overt act\n\n against any of the appellants except the appellant of Cr. Appeal\n\n (D.B.) No. 604 of 2021, Surendra Bhagat, who is said to have\n\n opened fire, leading to firearm injuries sustained by Ashok\n\n Kumar (deceased-1), the son of the informant, who died one\n\n month after he sustained the injury. Further, there appears to be\n Patna High Court CR. APP (DB) No.516 of 2021(8) dt.02-08-202210/11no justification on record for delayed recording of the fardbeyan\n\n on the next day. In the facts and circumstances in which the\n\n occurrence is said to have taken place, the submission on behalf\n\n of the appellants that their implication may be result of an\n\n afterthought of the informant in the wake of admitted political\n\n rivalry cannot be completely brushed aside.14. In the facts and circumstances and rival\n\n submissions, as noted above, in our view, the prayer for release\n\n on bail of the appellant, Surendra Bhagat of Cr. Appeal (D.B.)\n\n No. 604 of 2021 being the main assailant, deserves to be\n\n rejected. His prayer for bail is accordingly rejected.15. In the nature of evidence, which has come during\n\n the trial, as has been noted above, in our opinion, a case is made\n\n out for release of appellants on bail during the pendency of the\n\n appeal. The prayer of the appellants for their release on bail is\n\n allowed.16. Let the appellants, namely, Binod Kumar Bhagat\n\n and Pramod Kumar of Cr. Appeal No. 516 of 2021, Prakash\n\n Kumar of Cr. Appeal No. 503 of 2021, Sunita Devi of Cr.\n\n Appeal No. 523 of 2021, Upendra Bhagat, Bindeshwar Singh\n\n and Ajay Kumar of Cr. Appeal No. 543 of 2021 and Raushan\n\n Kumar of Cr. Appeal No. 552 of 2021 be released on bail,\n\n during the pendency of this appeal, on furnishing bail bond of\n Patna High Court CR. APP (DB) No.516 of 2021(8) dt.02-08-202211/11Rs. 10,000/- (Ten Thousand) each with two sureties of the like\n\n amount each to the satisfaction of the learned Additional\n\n Sessions Judge-X, Vaishali at Hajipur, in Sessions Trial No. 138\n\n of 2017 arising out of Bidupur P.S. Case No. 301 of 2016. The\n\n sentences in their case shall remain suspended in the meanwhile.\n\n Realization of fine shall remain stayed during the pendency of\n\n this appeal.(Chakradhari Sharan Singh, J)\n\n\n (Khatim Reza, J)\nPawan/-U T |
0e72d1a2-47e7-5fb4-8529-50a0116f8fc4 | court_cases | Gujarat High CourtAzruddin @ Azhar @ Kitli Ismailbhai ... vs State Of Gujarat on 9 April, 2020Author:Bela M. TrivediBench:Bela M. TrivediC/SCA/5298/2020 IA ORDER\n\n\n\n\n IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n\n\n CIVIL APPLICATION (FOR TEMPORARY BAIL) NO. 2 of 2020\n In R/SPECIAL CIVIL APPLICATION NO. 5298 of 2020\n==========================================================AZRUDDIN @ AZHAR @ KITLI ISMAILBHAI SHAIKH\n Versus\n STATE OF GUJARAT\n==========================================================\nAppearance:MR NIMESH M PATEL for the PETITIONER(s) No.\nMS AISHWARYA GUPTA, AGP for the RESPONDENT(s) No.\n==========================================================\n\n CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI\n\n Date : 09/04/2020\n\n IA ORDER1. Heard learned Advocates for the parties through video\nconferencing.2. The application has been filed seeking temporary bail for a\nperiod of 30 days on the ground that he is required to be treated in\nprivate hospital due to his ill health.3. It is sought to be submitted by the learned Advocate Mr. Patel\nappearing for the applicant that the applicant had undergone surgery\nin the past and now he has developed some infection and therefore he\nis required to be treated in the hospital, however due to the current\nlockdown declared by the State due to COVID19 Pandemic situation,\nthe jail authority is not taking him to the hospital and therefore the\npresent application is being filed.4. Learned AGP Ms. Gupta is not being connected to the video\nconferencing due to poor connectivity.Page 1 of 2Downloaded on : Thu Apr 09 21:01:49 IST 2020C/SCA/5298/2020 IA ORDER5. Having regard to the submissions made by the learned Advocate\nMr. Patel appearing for the applicant and to the documents on record,\nit appears that the applicant has been detained under the Prevention\nof AntiSocial Activities Act in view of the order dated 18.02.2020\npassed by the respondent No. 2. Having regard to the nature of\noffences registered against him and the order of detention passed\nagainst him underPASA Act, the present application seeking\ntemporary bail cannot be granted, however it is directed that the jail\nauthority at Bhuj shall give proper medical treatment to the applicant,\nand if required shall be taken to the government hospital for his\ntreatment, as may be necessary.6. Subject to the aforesaid direction the present application is\nrejected. The Registry is directed to send a copy of this order through\nFax to the concerned Jail Authority.(BELA M. TRIVEDI, J)\nSINDHU NAIRPage 2 of 2Downloaded on : Thu Apr 09 21:01:49 IST 2020 |
24ba22a3-5a37-5019-889f-38c51affa61d | court_cases | Jammu & Kashmir High Court/ vs Ut Of Jammu And Kashmir And Others on 11 April, 2023Author:Vinod Chatterji KoulBench:Vinod Chatterji KoulHIGH COURT OF JAMMU & KASHMIR AND LADAKH\n AT JAMMU\n\n WP(Crl) No. 54/2022\n\n Reserved on 05.04.2023.\n Pronounced on 11 .04.2023.\n\n\nShah Nawaz\n .... /Petitioner(s)\n\n Through :- Mr. Waheed Chowdhary Advocate.\n\n V/s\n\nUT of Jammu and Kashmir and others ....Respondent(s)\n\n\n Through :- Mrs. Monika Kohli Sr. AAG\n\nCoram: HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE\n\n ORDER1 The Order No.24/PSA of 2022 dated 03.10.2022, issued by District\n\nMagistrate, Ramban placing detenu, namely, Shah Nawaz S/o Ghulam\n\nMohammad Tragwal R/o Lahni Gundi Dharam, Tehsil Goold District Ramban\n\nunder preventive detention in terms of J&K Public Safety Act, so as to prevent\n\nhim from acting in any manner prejudicial to the maintenance of public order\n\nand directing his lodgement in Central Jail Kot Bhalwal, Jammu, has been\n\nchallenged, in this writ petition.2. The order of detention though challenged on various grounds, yet learned\n\ncounsel for the petitioner has vehemently urged that the material relied upon by\n\nthe detaining authority while passing impugned detention order has not been\n\nprovided to detenu to enable him to make an effective and meaningful\n\nrepresentation.3. Respondents, in their objections, have submitted that there is no illegality in\n\nthe order of detention, as it was necessary to place the detenu under preventive\n\ndetention. The detenu has been indulging in activities which are prejudicial to\n\nthe maintenance of public order. The grounds taken by the detenu are said to be\n\nlegally misconceived, untenable and without any merit. It is further contended\n\nthat the grounds of detention were read over to the detenu in English and\n\nexplained to him in Urdu language which he understood fully and that his\n\nsignatures were also obtained on the execution report of detention.4. I have heard learned counsel for the parties and considered the matter.5. The main ground taken by the detenu, in this writ petition, is that he\n\nwas not in a position to make an effective and meaningful representation either\n\nto the detaining authority or to the Government against his detention because he\n\nwas not provided the material by the detaining authority, thus, there is violation\n\nof provisions ofArticle 22 (5)of the Constitution of India and in absence of such\n\nmaterial he was prevented from making an effective representation.6. To evaluate the submission vis-à-vis non-furnishing of material to\n\ndetenu that has been relied upon by detaining authority while issuing impugned\n\ndetention order, it would be appropriate to go through the detention record,\n\nproduced by learned counsel for respondents. Detention record contains,\n\namongst others, Execution Report, which reveals that only four leaves have been\n\nfurnished to detenu. It does not show or suggest that detenu has been furnished\n\ncopy of dossier and other relevant material relied upon by detaining authority\n\nwhile issuing impugned detention order.7. Bare reading of impugned detention order reveals that\n\nSr. Superintendent of Police, Ramban vide his letter dated 30.09.2022, produced\n\ndossier, material record, and other connected documents in respect of detenu and\n it was only after perusal thereof that impugned detention order has been issued\n\nby detaining authority. Grounds of detention attribute various incidents and\n\ninstances to detenu and mention that detenu has been instigating/provoking the\n\nmasses particularly youths of Gool and its adjoining area against the\n\nGovernment. The material, relied upon by detaining authority, thus, assumes\n\nsignificance in the facts and circumstances of the case. It needs no emphasis, that\n\nthe detenu cannot be expected to make a meaningful exercise of his\n\nConstitutional and Statutory rights guaranteed underArticle 22(5)of the\n\nConstitution of India and Section 13 of the J&K Public Safety Act, 1978, unless\n\nand until the material on which the detention order is based, is supplied to the\n\ndetenu. It is only after the detenu has all the said material available he can make\n\nan effort to convince the detaining authority and thereafter the Government that\n\ntheir apprehensions concerning the activities of detenu are baseless and\n\nmisplaced. If detenu is not supplied the material, on which detention order is\n\nbased, he will not be in a position to make an effective representation against his\n\ndetention order. Failure on the part of detaining authority to supply the material\n\nrelied at the time of making the detention order to detenu, renders detention\n\norder illegal and unsustainable. While saying so, I draw the support from the law\n\nlaid down in Thahira Haris Etc. Etc.v. Government of Karnataka, AIR 2009\n\nSC 2184;Union of India v. Ranu Bhandari, 2008, Cr. L. J. 4567; Dhannajoy\n\nDass v. District Magistrate, AIR, 1982 SC 1315;Sofia Gulam Mohd Bham v.\n\nState of Maharashtra and othersAIR 1999 SC 3051; andSyed Aasiya\n\nIndrabi v. State of J&K & others, 2009 (I) S.L.J 219.8. In the present case, it is submission of respondents that there are very\n\nserious allegations against detenu as he has been instigating and provoking the\n\ngeneral masses against the Government and that he tried to create communal\n tension for which he usually remained busy in instigating the youths to vitiate\n\nthe peaceful atmosphere of Gool. In this regard, taking recourse to preventive\n\ndetention laws would not be warranted. Detention cannot be made a substitute\n\nfor ordinary law and absolve investigating authorities of their normal functions\n\nof investigating crimes, which detenu may have committed. After all, preventive\n\ndetention cannot be used as an instrument to keep a person in perpetual custody\n\nwithout trial. The Supreme Court in Rekha v. State of Tamil Nadu AIR 2011\n\nSCW 2262, while emphasizing need to adhere to procedural safeguards,\n\nobserved:"It must be remembered that in case of preventive detention no\n offence is proved and the justification of such detention case is\n suspicion or reasonable probability, and there is no conviction\n which can only be warranted by legal evidence. Preventive\n detention is often described as "jurisdiction of suspicion", The\n Detaining Authority passes the order of detention on subjective\n satisfaction. Since Clause (3) ofArticle 22specifically excludes\n the applicability of Clauses (1) and (2), the detenue is not entitled\n to a lawyer or the right to be produced before a Magistrate within\n 24 hours of arrest. To prevent misuse of this potentially\n dangerous power the law of preventive detention has to be strictly\n construed and meticulous compliance with the procedural\n safeguards, however, technical, is, in our opinion, mandatory and\n vital."9. No doubt the offences alleged to have been committed by detenu are\n\nsuch as to attract punishment under the prevailing laws but that has to be done\n\nunder the said prevalent laws and taking recourse to preventive detention laws\n\nwould not be warranted. Preventive detention involves detaining of a person\n\nwithout trial in order to prevent him from committing certain types of offences.\n\nBut such detention cannot be made a substitute for the ordinary law and absolve\n\nthe investigating authorities of their normal functions of investigating crimes\n\nwhich the detenu may have committed. After all, preventive detention cannot be\n\nused as an instrument to keep a person in perpetual custody without trial. Regard\n in this respect is had to the judgements rendered in the case of Rekha (supra) as\n\nalso in Sama Aruna v. State of Telengana AIR 2017 SC 2662.11. Based on the above discussion, the petition is allowed and Detention\n\nOrder No.24/PSA of 2022 dated 03.10.2022, issued by District Magistrate,\n\nRamban against the above-named detenu,, is quashed. Consequently,\n\nrespondents are directed to set the detenu at liberty forthwith provided he is not\n\nrequired in any other case.Detention record be returned to the learned Sr. AAG.(Vinod Chatterji Koul)\n Judge\n\nJammu:11. 04.2023.Sanjeev\n\n Whether order is reportable:Yes/No |
127338ef-00f4-5066-8511-3b1b22f5683e | court_cases | Delhi District CourtMr. Jitender Kumar vs Mr. Ramesh Bajaj on 29 September, 2021IN THE COURT OF MS. EKTA GAUBA MANN\n PO:MACT-1 (NORTH): ROHINI: DELHI\n\nMACT No. 6225/16\nFIR No. 98/14\nPS Others.\n\nMr. Jitender Kumar\nS/o Mr. Randhir Singh\nR/o Barrack no.14, New Police Line,\nKingsway Camp, PS Mukherjee Nagar, Delhi.\n ....Petitioner\n\n VERSUS\n\n 1. Mr. Ramesh Bajaj\n S/o Mr. Krishan Baldev\n R/o Village Shahbad, Tehsil Tijara,\n Alwar, Rajasthan.\n\n 2. The Shriram General Insurance Company Limited\n E-8, EPIP, RIICO, Industrial Area,\n Sitapur, Jaipur, Rajasthan.\n Also at: 1001, Ground Floor,\n Arya Samaj Road, Naiwala, Karol Bagh,\n New Delhi.\n ....Respondents\n\n DATE OF INSTITUTION : 01.04.2016\n AWARD RESERVED ON : 24.09.2021\n DATE OF AWARD : 29.09.2021\n\n FORM - IV B\nSUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY\n CASES TO BE INCORPORATED IN THE AWARD\n\n 1 Date of accident : 18.06.2014\nMACT no.6225/16 Page 1 of 23\nJitender Kumar Vs. Ramesh Bajaj & Anr.\n 2 Name of injured : Sh. Jitender Kumar\n 3 Age of the injured : 44 years\n 4 Occupation of the injured : Government Service (Constable in\n Delhi Police)\n 5 Income of the injured : Rs.37,822/- per month, as per salary slip\n 6 Nature of injury : Not mentioned.\n 7 Medical treatment taken by the : PGI Rohtak Hospital, Haryana.\n injured Medanta Hospital, Gurgaon, Haryana.\n Sunder Lal Jain Hospital, Ashok Vihar,\n Phase-3, Delhi.\n 8 Period of hospitalization : 23.06.2014 to 28.06.2014.\n 9 Whether any permanent : N/A.\n disability ? If yes, give details.\n\n\n10. Computation of Compensation\nS.No Heads Awarded by the Tribunal\n\n.11. Pecuniary Loss(i) Expenditure on treatment 54,229/-(ii) Expenditure on conveyance 10,000/-\n(iii) Expenditure on special diet 10,000/-\n(iv) Cost of nursing/attendant Nil\n(v) Loss of earning capacity Nil\n(vi) Loss of income 17,082/-\n(vii) Any other loss which may require any 78,021\n special treatment or aid to the injured for\n the rest of his life. Loss of commuted leave\n and earned leave.\n12. Non-Pecuniary Loss:MACT no.6225/16 Page 2 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.(i) Compensation for mental and physical 5000/-\n shock\n(ii) Pain and suffering 5000/-\n(iii) Loss of amenities of life Nil\n(iv) Disfiguration Nil\n(v) Loss of marriage prospects Nil\n(vi) Loss of earning, inconvenience, hardships, As above.\n disappointment, frustration, mental stress,\n dejectment and unhappiness in future life\n etc.13. Disability resulting in loss of earning capacity(i) Percentage of disability assessed and nature Nil\n of disability as permanent or temporary(ii) Loss of amenities or loss of expectation of Nil\n life span on account of disability(iii) Percentage of loss of earning capacity in Nil\n relation of disability(iv) Loss of future income - (Income X Nil\n %Earning capacity X Multiplier)14. TOTAL COMPENSATION Rs. 1,79,332/-15. INTEREST AWARDED 9% per annum16. Interest amount up to the date of award Rs. 88,769/-(179322 x66x9/1200)17. Total amount including interest Rs. 2,68,101/- rounded up to\n Rs. 2,68,200/-18. Award amount released 10% plus amount of\n medical bills19. Award amount kept in FDRs 90%20. Mode of disbursement of the award amount In phased manner\n to the claimant (s) (Clause29)21. Next date for compliance of the award. 01.11.2021MACT no.6225/16 Page 3 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.(Clause 31)\n\n FORM - V\n COMPLIANCE OF THE PROVISIONS OF THE MODIFIED\nCLAIMS TRIBUNAL AGREED PROCEDURE TO BE MENTIONED\n IN THE AWARD1. Date of the accident 18.06.2014\n (The present accident pertains to out station)2. Date of intimation of the accident by the investigating No DAR filed\n officer to the Claims Tribunal (Clause 2)3. Date of intimation of the accident by the investigating No intimation\n officer to the insurance company. (Clause 2)4. Date of filing of Report undersection 173Cr.P.C. Not known\n before the Metropolitan Magistrate (Clause 10)5. Date of filing of Detailed Accident Information Report No DAR filed\n (DAR) by the investigating Officer before Claims\n Tribunal (Clause 10)6. Date of Service of DAR on the Insurance Company N/A\n (Clause 11)7. Date of service of DAR on the claimant(s). (Clause 11) -do-8. Whether DAR was complete in all respects? (Clause -do-16)9. If not, whether deficiencies in the DAR removed later -do-\n on?10. Whether the police has verified the documents filed -do-\n with DAR? (Clause 4)11. Whether there was any delay or deficiency on the part -do-\n of the Investigating Officer? If so, whether any\n action/direction warranted?12. Date of appointment of the Designated Officer by the Not known\n insurance Company. (Clause20)13. Name, address and contact number of the Designated -do-\n Officer of the Insurance Company. (Clause 20)MACT no.6225/16 Page 4 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.14. Whether the designated Officer of the Insurance No\n Company submitted his report within 30 days of the\n DAR? (Clause 20)15. Whether the insurance company admitted the liability? No\n If so, whether the Designated Officer of the insurance\n company fairly computed the compensation in\n accordance with law. (Clause 23)16. Whether there was any delay or deficiency on the part Yes\n of the Designated Officer of the Insurance Company? If\n so, whether any action/direction warranted?17. Date of response of the claimant (s) to the offer of the N/A\n Insurance Company. (Clause 24)18. Date of the Award 29.09.202119. Whether the award was passed with the consent of the No\n parties? (Clause 22)20. Whether the claimant(s) were directed to open saving Yes\n bank account(s) near their place of residence? (Clause18)21. Date of order by which claimant(s) were directed to 02.03.2019\n open saving bank account (s) near his place of\n residence and produce PAN Card and Aadhar Card and\n the direction to the bank not issue any cheque\n book/debit card to the claimant(s) and make an\n endorsement to this effect on the passbook(s). (Clause18)22. Date on which the claimant (s) produced the passbook 26.11.2019\n of their saving bank account near the place of their\n residence along with the endorsement, PAN Card and\n Aadhar Card? (Clause 18)23. Permanent Residential Address of the Claimant(s) Barrack no.14,\n (Clause 27) New Police\n Line, Kingsway\n Camp, PS\n Mukherjee\n Nagar, Delhi.MACT no.6225/16 Page 5 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.24. Details of saving bank account(s) of the claimant(s) and State Bank of\n the address of the bank with IFSC Code (Clause 27) India, Sector-1/2\n Branch, Rohini,\n Delhi having no.38932907553.25. Whether the claimant(s) saving bank account(s) is near Yes\n his place of residence? (Clause 27)26. Whether the claimant(s) were examined at the time of Yes\n passing of the award.27. Account number, MICR number IFSC Code, name and State Bank of\n branch of the bank of the Claims Tribunal in which the India, Rohini\n award amount is to be deposited/transferred Courts Complex\n Branch, Delhi.MICR code-\n 110002427. IFSC\n Code-\n SBIN0010323.\n AWARD1. Vide this order, I shall dispose of the claim petition filed underSection 166&140of the Motor Vehicle's Act by the petitioner seeking compensation from\nthe respondents with respect to the injuries suffered by him in an accident\noccurred on 18.06.2014.2. Brief facts of the petition are that on 18.06.2014, petitioner was sitting on\nthe pillion seat of the motorcycle no. HR36Q 5474 driven by his friend Manoj\nKumar and were going towards Gurgaon from Rewari and at about 10 pm when\nthey were crossing the Roharai Mode Chowk and almost crossed the 3/4th\nportion of the road then in the meantime a Maruti Van bearing registration no.\nRJ02 UA 1140 driven by its driver i.e. respondent no. 1 in a high speed and in a\nrash and negligent manner came from the right hand side and hit their motorcycleMACT no.6225/16 Page 6 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.with a great force and as a result, petitioner and his friend Sh. Manoj Kumar fell\ndown and petitioner suffered grievous injuries all over his body and Manoj\nKumar sustained minor injuries and the motorcycle was also got damaged.\nPetitioner and his friend Manoj Kumar were shifted to Rewari Trauma Centre\nand from there, petitioner was referred to PGI Rohtak Hospital and from there he\nwas shifted to Medanta Hospital, Gurgaon, Haryana and discharged on the same\nday after treatment. Petitioner remain admitted in Sunder Lal Jain Hospital from\n23.06.2014 to 28.06.2014. Petitioner remained under treatment till the filing of\nthe petition as his injuries were not healed up properly and he suffered great\nmental pain, shock and agony besides financial loss due to the said accident.\nPetitioner is a constable in Delhi Police and was residing at Barrak No. 14, New\nPolice Line, Kingsway Camp, PS Mukherjee Nagar, Delhi and getting salary of\nRs. 37,822/- per month and he took 10 days commuted leave w.e.f. 24.06.2014\nand 164 days earned leave w.e.f. 04.07.2014. Petitioner has filed the present\npetition claiming compensation of Rs. 30 lacs from the respondents along with\ninterest @ 12% per annum from the date of filing the petition till its realization.\nAn interim award of Rs. 25,000/- has also been claimed.3. The claim of the petitioner has been contested by both the respondents.\nRespondent no. 1 Ramesh Bajaj being driver as well as owner of the offending\nvehicle and respondent no. 2 The Shri Ram General Insurance Company Limited,\nbeing the insurer of the offending vehicle. Respondent no. 1 in his written\nstatement has inter alia stated that he has been falsely implicated in the present\nmatter and the accident took place solely due to negligence of the petitioner and\nnot due to his negligence and the vehicle was duly insured with the respondent\nno. 2 and responsibility to pay compensation, if any is of respondent no. 2.\nRespondent no. 2 in his written statement has raised the plea that the petition isMACT no.6225/16 Page 7 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.bad for misjoinder of necessary parties as respondent no. 2 is not a necessary\nparty because the offending vehicle was not insured with respondent no. 2 at the\ntime of accident and the respondent no. 2 is implicated as a party on the basis of\nforged insurance policy as it has not received any premium with respect to the\nsame and so there is no contract of insurance. Respondent no. 2 has also alleged\nthat the petition is not maintainable in Delhi because the accident took place in\nRoharai District Rewari, Haryana.4. From the pleadings of the parties, the following issues were framed vide\norder dated 16.12.2016: -i) Whether petitioner suffered injuries in a vehicular accident occurred on\n18.06.2014 at about 10 pm on Roharai Mode Crossing, Rewari, Haryana due\nto rash or negligent driving of Maruti Van No. RJ02 UA 1140 by Ramesh Bajaj\n(respondent no. 1)? OPPii) Whether petitioner is entitled to compensation, if yes, what amount and\nfrom whom of the respondents? OPPiii) Relief?5. In order to prove his claim petitioner has filed his evidence by way of\naffidavit Ex. PW1/A and reiterated the averments made in the petition and relied\nupon documents Ex. PW1/1 to Ex. PW1/34, mentioned in his affidavit. Petitioner\nhas also examined PW2 HC Dinesh Khatri to prove the service record of the\npetitioner i.e. his pay slip Ex. PW2/1, leaves record of petitioner i.e. Ex. PW2/2\nto Ex. PW2/5 and the medical record Ex. PW2/6, Ex. PW1/22, Ex. PW1/23 and\nEx. PW1/32 and he also proved that the department paid bill amount of Rs.\n79,995/- directly to Sunder Lal Jain Hospital and except this payment, the\ndepartment has not reimbursed any other medical bill of the petitioner. PW3\nSantosh Kumar Upadhayay, Record Clerk from Sunder Lal Jain Hospital wasMACT no.6225/16 Page 8 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.examined and he proved the treatment record of the petitioner including the final\nbill as Ex. PW3/1.6. Respondent no. 1 Ramesh Bajaj to rebut the allegations of the petitioner\nexamined himself as R1W1 and tendered his affidavit Ex. R1W1/A in evidence and\nrelied upon the documents Ex. R1W1/1 to R1W1/3 and reiterated the averments\nmade in his written statement.7. Respondent no. 2 Shri Ram General Insurance Company Ltd. examined, its\nlegal officer Rama Raman as R2W1 and he tendered his evidence by way of\naffidavit Ex. R2W1/A reiterating the averments made in their written statement and\nalso relied upon documents i.e. complaint to police and their postal receipts i.e. Ex.\nR2W1/1 to Ex. R2W1/5 (although objected to on the mode of proof).7.A Court examined as court witness Sh. Gaurav Parashar, Legal Officer of\nrespondent no. 2 / Ins. Co.8. I have heard Ld. Counsels for both the parties and gone through the record.9. My finding issues wise are as under:-ISSUE NO. 1.Whether petitioner suffered injuries in a vehicular accident occurred on\n18.06.2014 at about 10 pm on Roharai Mode Crossing, Rewari, Haryana due to\nrash or negligent driving of Maruti Van No. RJ02 UA 1140 by Ramesh Bajaj\n(respondent no. 1)? OPP10. Onus to prove this issue was upon the petitioner and to prove his case petitioner\nhas examined himself as PW1 and tendered his affidavit in evidence as Ex. PW1/A. In\nhis cross examination, petitioner stated that accident took place when they crossed\nRoharai More and after being hit he fell down on his right side. He further stated that\nthey gave indication by blowing horn at that time of crossing that more (road crossing).\nHe further stated that the speed of offending vehicle at that time of accident was\nabout 70-80 KMPH and speed of their motorbike was about 20- 25\nKMPH. He also stated that police came at spot after 5-7 minutes ofMACT no.6225/16 Page 9 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.the accident and took him to hospital. Petitioner to prove his injuries has\nexamined PW3 Santosh Kumar Upadhayay, Record Clerk from Sunder Lal Jain\nHospital and he proved the treatment record including final bill as Ex. PW3/1.\nFurther respondent no. 1 in his evidence as R1W1 has not denied the accident or\nthe fact that petitioner has suffered injuries as a result of the accident. Also,\nR2W1 Rama Raman, Legal Officer of respondent no. 2 has neither denied that\nthe accident took place nor denied that petitioner sustained injuries in the said\naccident. Petitioner to prove his injuries has relied upon his medical record i.e.\nEx. PW1/1 to Ex. PW1/20 and Ex. PW1/24 to Ex. PW1/31.11. Considering the contention of respondent no. 1 that respondent no. 1 has\nbeen acquitted in the criminal case and so he is not responsible for rash and\nnegligent driving and hence he cannot be held liable to pay any compensation.\nAlso, petitioner himself as PW1 in his cross-examination has stated that he does\nnot know if respondent no. 1 Ramesh Bajaj has been acquitted in the criminal\ncase registered about the accident in question. This contention of respondent\nno. 1 does not hold good due to the reason that it is a settled law that judgment of\na criminal case is not binding before the Claims Tribunal. Further the acquittal\nof accused in a criminal case is not a ground to exonerate respondent no. 1 with\nrespect to rash and negligent driving as judgment in a criminal case is based on\nthe principle of "beyond reasonable doubt" while the judgment by the Claims\nTribunal is based on the principle of "preponderance of probabilities". Relying\nupon the judgment of Mahila Dhanvanti and Ors Vs. Phulwant Mahendra\nSingh, Miscellaneous Appeal no.239/1992 decided by Hon'ble Madhya\nPradesh High Court on 29.07.1993 in which it is held as under:"The plaintiff can prove the accident but cannot prove how it happened to\nestablish negligence. This hardship is to be avoided by applying the principle ofMACT no.6225/16 Page 10 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.res ipsa loquitur. The general purport of the words res ipsa loquitur is that the\naccident speaks for itself or tells its own story". Thus, Claims Tribunal while\ndealing with the law of torts in motor accident cases applies the principle of "res\nipsa loquitur". In view of above discussion, it is proved that petitioner suffered\ninjuries on his person due to the said accident on account of rash and negligent\ndriving of the offending vehicle No. RJ02 UA 1140 by the respondent no. 1.\nThis issue is decided in favour of petitioner and against the respondents.ISSUE NO. 2Whether petitioner is entitled to compensation, if so what amount and from\nwhich of the respondents? OPP13. It is not disputed that petitioner has suffered injuries due to the accident,\ntherefore being injured petitioner is natural eye-witness of the accident and well\nwithin his rights / entitled to claim compensation from respondents.\nNow coming to the question as to which of the respondent is liable to pay a\ncompensation14. Considering the fact that although respondent no. 1 has relied upon the\ninsurance policy and stated that compensation, if any would be paid by\nrespondent no. 2 / Insurance Co. However, respondent no. 2 / Insurance Co. has\ndenied its liability to pay compensation, if any on the ground that the said policy\nis a fake policy.15. Considering the contention of respondent no. 2 / Insurance Co. that the\npresent petition is bad for misjoinder of necessary party as respondent no. 2 /\nInsurance Co. is not a necessary party because the offending vehicle bearing\nregistration no. RJ02 UA 1140 was not insured at the time of accident and\nrespondent no. 2 has been implicated on the basis of forged/ fake insurance\npolicy. This contention of respondent no. 2 / Insurance Co. does not hold goodMACT no.6225/16 Page 11 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.due to the reason that respondent no. 2 / Insurance Co. has made the complaint to\npolice as alleged, if any on 16.06.2017 while the present written statement\nraising the said contention was filed on 08.08.2016. This shows that it is an after\nthought. Further, respondent no. 2 / Insurance Co. has not placed on record any\ndocument to show that the said insurance policy was fake / forged.16. Considering the contention of respondent no. 2 / Insurance Co. that the\ncause of action does not arose in Delhi as the accident took place at Rohrai\nDistrict Rewari, Haryana and so the present petition is not maintainable here.\nThis contention does not hold good due to the reason that petitioner, being a\nConstable in Delhi police was residing in Barrack no. 14, New Police Line,\nKingsway Camp, PS Mukherjee Nagar, Delhi - 110009 within the jurisdiction of\nPS Mukherjee Nagar at the time of accident and underSection 166(2)of the\nMotor vehicle Act, petition can be made to the Claims Tribunal having\njurisdiction over the area where the accident occurred or within local limits of\nwhose jurisdiction the claimant resides or carries on his business. This fact was\neven proved by PW2 HC Dinesh Khatri as he proved that petitioner was posted\nin 2nd Battalion of DAP on the date of accident i.e. 18.06.2014.17. Considering the contention of respondent no. 2 / Insurance Co. that as per\nInsurance Regulatory & Development Authority of India, certain details are to be\nprovided to the insurer at the time of renewing insurance policy or changing\ninsurer. Respondent no. 2 / Insurance Co. has alleged that no such information\nwas incorporated in the insurance policy relied upon by respondent no. 1. This\ncontention of respondent no. 2 / Insurance Co. does not hold good due to the\nreason that this contention has not been raised in the entire pleadings by the\nrespondent no. 2 / Insurance Co. Neither the said contention has been raised\nin the evidence of respondent no. 2 / Insurance Co. nor even suggested in theMACT no.6225/16 Page 12 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.cross-examination of petitioner or respondent no. 1. Since this contention has\nnot been suggested so it is an after thought and it can be of no use to the\nrespondent no. 2 / Insurance Co.18. Considering the contention of respondent no. 2 / Insurance Co. that\nrespondent no. 1 has not filed any complaint against the agent who issued the\nfake insurance policy and also not filed any complaint against the respondent no.\n2 / Insurance Co. in the District Consumer Form for denying the insurance\ncoverage on account of said policy. This contention of respondent no. 2 does not\nhold good due to the reason that respondent no. 1 is well within his right to file a\ncomplaint or not. Further, respondent no. 1 has taken the consistent stand\nthroughout the trial that he has taken a valid insurance policy by paying\nRs. 5300/- in cash to the agent Sh. Dharambir of Shubham Insurance. Even, the\nphotograph of the said shop has been placed on record by the respondent no. 1\nRamesh Bajaj.19. Although, the main contention of respondent no. 2 / Insurance Co. is that\nthe said insurance policy of the offending vehicle is fake and relying upon the\nmaxim "Frans et jus nunguam cohabitant" meaning thereby that fraud and justice\nnever dwell together is applicable in the present case. But, this contention has not\nbeen proved by the respondent no. 2 / Insurance Co. and so this contention does\nnot hold good. Further, petitioner as PW1 in his cross examination stated that he\nremembered the number of offending vehicle on his own. He further stated that\nhe received copy of insurance policy of offending vehicle from police station.\nRespondent no. 1 as R1W1 in his evidence has again reiterated his stand that\noffending vehicle i.e. Maruti Van no. RJ02 UA 1140 was duly insured with\nShriram General Insurance Company Limited vide policy valid from 15.06.2014\nto 15.06.2015 and insurance company had issued the policy which duly bear theMACT no.6225/16 Page 13 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.signature of agent and stamp of the insurance company and he had paid Rs.\n5300/- to Dharambir R/o Rai Khera working in name and style of Shubham\nInsurance and having shop at Tijara, District Alwar, Rajasthan. He further\ndeposed that he has got the vehicle insured by authorized agent of respondent no.\n2 / insurance company and respondent no. 2 / Ins. Co. is liable to pay\ncompensation, if any to the petitioner. He relied upon insurance policy Ex.\nR1W1/2. Further the insurance policy Ex. R1W1/2 has not been objected to by\nthe respondent no. 2 on the ground of mode of proof in the evidence of\nrespondent no. 1 as R1W1. This shows that the insurance policy Ex. R1W1/2\nhas been admitted by respondent no. 2 / Ins. Co. on mode of proof. Even,\nrespondent no. 1 in his cross examination has stated that he has paid Rs. 5300/-\nin cash being premium of insurance policy of the car in question to the agent Sh.\nDharambir of Shubham Insurance. In his cross examination, he also stated that\nhe came to know from Lilu Ram about Dharambir that he was an insurance agent\nat Raikhera, Tijara District Alwar. He further stated that he himself has paid the\npremium amount of the insurance policy in cash to Sh. Dharambir. He further\nstated that the said agent has not issued any receipt with respect to the amount\nreceived. He further stated that the said person has given him the insurance\npolicy after two days after receipt of payment. He further stated that the\ninsurance policy was given to him by said Dharambir himself and was not sent\nby post. He further stated that he has not been able to recollect as to from whom\nthe policy of previous year was obtained. He further sated that he does not know\nthe said Dharambir was a fraudulent person or that he was not authorized to issue\nany policy. This shows that respondent no. 1 has given a consistent stand even in\nhis cross-examination. This fact corroborates the testimony of respondent no. 1.20. Although respondent no. 2 examined R2W1Mr. Rama Raman, its LegalMACT no.6225/16 Page 14 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.Officer and he relied upon the documents i.e. complaint made to the police and\npostal receipts R2W1/1 to Ex. R2W1/5. All the said documents were objected to\nwhich shows that the respondent no. 2 / Ins. Co. has not been able to prove even\nits complaint to the police with regard to the said insurance policy. R2W1 Rama\nRaman in his cross examination has stated that he does not know as to on which\ndate the company received the notice of the present case or on which date the\nwritten statement was filed. He further stated that he has not filed any complaint\npersonally. At that stage, complaint Ex. R2W1/1 was shown to him and he\nreplied that it is signed by one Mr. Ravinder, who is member of the fraud\ncontrolling team. He further stated that he does not know as to whether any\nfraud controlling team has ever been constituted by the company or not or\nwhether name of Mr. Ravinder had been put in that team. He does not know as\nto who is the authorized person / officer to constitute that team. He also\nadmitted that the complaint was sent by post and the tracking report of said post\nto the effect that the complaint has actually received by receiver has not been\nfiled. He further stated that he does not know if apart from sending the\ncomplaint by post, their Insurance Company had pursued the complaint or not\nand if so, with whom and when. He admitted that when the insurance company\ncomes to know that someone is claiming some compensation on account of fake\npolicy, insurance company has to register FIR immediately. He has also admitted\nthat in this matter, no such FIR is being lodged by the company. He also\nadmitted that in this matter, the insurance company has filed written statement\nfirst and thereafter lodged the complaint to SP / SHO concerned. This shows that\nR2W1 Rama Raman has not taken any clear stand. He also proved that\nrespondent no. 2 / Insurance Co. had not taken any steps for registration of FIR\non the said insurance policy.MACT no.6225/16 Page 15 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.21. R2W1 Rama Raman in his cross-examination stated that he does not know\nif the insurance company had given its agency to one Mr. Dharambir who is the\nproprietor of M/s Shubham Insurance having its office at Tijara, District Alwar,\nRajasthan. He further stated that he cannot bring the list of their authorized\nagents operating in District Alwar or Tehsil Tijara, Rajasthan. He admitted that\nhe is not aware of the fact that his insurance company had initiated any complaint\nor any query against the person who according to record has issued this fake\npolicy in the name of respondent no. 2. He also stated that he cannot tell if the\ninsurance company had made any efforts with respect to agency given to Mr.\nDharambir in the name of Shubham Agency. He further vol. Stated that the\nconcerned department of insurance company could tell this. He also stated that\nhe has not brought list of agency provided / authorizing for issuing insurance\npolicy in the area of Tijara District Alwar, Rajasthan. He further deposed that\ninsurance company had not submitted any document with respect to issuance or\nnon issuance of the policy on the court file. He denied the suggestion that they\nhave not submitted that list of agents / franchises of Tijara District Alwar,\nRajasthan on the court file just to conceal the truth. He also denied the\nsuggestion that Dharambir the owner of the Shubham Agency was authorized\nagent of respondent no. 2 and FIR in this case was not lodged intentionally to\nfavour the agent Dharambir.He also denied the suggestion that complaint Ex.\nR2W1/1 filed by Insurance Co. to police is just to avoid the liabilities of\ninsurance company. The burden of proof underSection 106of the Indian\nEvidence Act 1872 is upon the person who has special knowledge of the said\nfact. In the present matter whether the said insurance policy was fake or not, it\nwas within the special knowledge of the insurance company. Thus, insurance\ncompany is having the burden of proof to prove that the said policy is fake byMACT no.6225/16 Page 16 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.placing on record the correct particulars of the said policy number or by placing\non record the list of authorized agents operating in the area of Tijara District\nAlwar, Rajasthan. But, respondent no. 2 / Insurance Co. has not discharged his\nburden of proof and not placed on record any document to prove that the said\ninsurance policy is fake. So, respondent no. 2 / Insurance Co. has failed to prove\nhis averments.21. Even Sh. Gaurav Parashar, Legal Manager of the insurance company /\nrespondent no. 2 was called and examined as court witness. He stated that in\ncases where the insurance company is of the opinion that there is some fraud\ncommitted / being committed or likely to be committed with their company, by\ninsured / claimant then they refer such matter to the concerned team which\ncompletes the inquiry and give the report. He further stated that this matter has\nbeen referred to Fraud Control Unit. He also stated that there is no follow up by\ntheir team so far. This shows that even the court witness Gaurav Parashar from\nthe respondent no. 2 / Insurance Co. has admitted that there is no outcome of\nsuch referral to the Fraud Control Unit of the company. However, respondent no.\n1 Ramesh Bajaj has given consistent stand and his veracity is even tested in his\ncross examination and it has corroborated his credibility as a witness. The above\ndiscussion shows that respondent no. 1 has taken the said insurance policy and so\nrespondent no. 2 / Insurance Co. is liable to indemnify the insured / owner and to\npay compensation to the petitioner.Now coming to the quantum of compensation, as to how much compensation\npetitioner is entitled to22. Being injured, petitioner is well within his rights to claim compensation.In his\nevidence by way of affidavit Ex. PW1/A, it is deposed by PW1 / petitioner that from\nthe spot of accident, he was taken to Rewari Trauma Centre and where from heMACT no.6225/16 Page 17 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.was referred to PGI Rohtak Hospital and thereafter on 19.06.2014 he was taken\nto Medanta Hospital, Gurgaon, Haryana and he was discharged on the same day.\nIt is further deposed by PW1 that thereafter on 23.06.2014, the petitioner was\nadmitted in Sunder Lal Jain Hospital, Delhi and discharged on 28.06.2014. PW1\ndeposed that he incurred more than Rs.55,000/- on his medical treatment,\nRs.30,000/- on special diets, Rs.20,000/- on conveyance and Rs.30,000/- on\nattendant charges. However medical bills of Rs.54,229/- have been placed on\nfile. Petitioner examined PW3 Mr. Santosh Kumar Upadhyay, Record Clerk\nfrom Sunder Lal Jain Hospital, Ashok Vihar, Delhi who had brought the\ntreatment record of patient Mr. Jitender Kumar which includes the bill and he\nproved the same as Ex.PW3/1. Hence the said amount of Rs.54,229/- is granted\nto petitioner towards medical expenses. There is no evidence except deposition\nof petitioner to verify that he spent any amount on special diets or conveyance.\nSeeing serious nature of injuries suffered by him, petitioner is granted a sum of\nRs. 10,000/- for special diets and Rs. 10,000/- for conveyance. In absence of any\nevidence, no reason to allow any compensation in name of attendant charges.\nRequest in this regard is declined. The petitioner has claimed compensation\ntowards loss of earning during treatment. He deposed that he was Constable with\nDelhi Police and was getting Rs.37,822/- per month. Petitioner examined PW2\nHC Dinesh Khattri from Second Battalion, DCP Office, Accounts Branch, NPL\nKingsway Camp, Delhi who had brought the summoned record of Ct. Jitender\nKumar who was posted in 2nd Battalion, DAP on the date of accident i.e. 18.06.2014\nand he has proved the pay slip for the month of May and June 2014 as collectively\nEx.PW2/1. He deposed that Ct. Jitender Kumar remained on leave for 10 days\n(commuted leave) from 24.06.2014 to 04.07.2014 and 164 days earned leave\nw.e.f. 04.07.2014 and he proved attested copy of leave record as Ex. PW2/2.MACT no.6225/16 Page 18 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.He deposed that due to leave taken by petitioner, their department had deducted\nRs.17,082/- from his salary as overpayment and he proved attested copy of\nstatement of salary showing his recovery Ex. PW2/3 and attested copy of\napplication for leave as Ex. PW2/4, attested copies of daily diary regarding\ndeparture, hospitalization, medical rest and joining as Ex. PW2/5. He deposed\nthat Ct. Jitender remained admitted in Sunder Lal Jain Hospital from 23.06.2014\nto 29.06.2014 and their department had directly paid bill amount of Rs.79,995/-\nto Sunder Lal Jain Hospital and except this payment their department had not\nreimbursed any other medical bill to Ct. Jitender Kumar and he proved attested\ncopies of entire medical record containing discharge slip and medical bills as Ex.\nPW2/6. He also proved that documents as Ex. PW1/22, Ex. PW1/23 and Ex.\nPW1/32 were issued by their department. In the cross-examination he deposed\nthat the commuted leaves are medical leaves and the earned leaves are\nencashable at the time of retirement. If a person takes earned leaves continuously\nthen the department deduct certain allowances and the above mentioned\nRs.17,082/- were deducted for certain allowances, over paid to the petitioner\nwhile he remained on earned leave. He further deposed that their department had\nsanctioned 174 days leaves due to the accident of petitioner Sh. Jitender Kumar.\nand he resumed his services on 15.12.2014 after availing above mentioned\nleaves. Accordingly, petitioner is granted a sum of Rs.17,082/- towards loss of\nearning during treatment as the said amount was deducted by his department.Petitioner submitted that he has received full salary from the department during\nthe leave period but he has lost his leaves. Ld. counsel for petitioner has prayed\nfor compensation with respect to leave taken by the petitioner during the\ntreatment. As per record, petitioner has taken commuted leaves for 10 days from\n24.06.2014 to 04.07.2014 and 164 days earned leave w.e.f. 04.07.2014. It is trueMACT no.6225/16 Page 19 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.that medical leave used to lapse if not taken by employee, but if this accident\nwould not have happened, the medical leave would have been used at some other\nrelevant time and therefore, the petitioner is granted leave encashment for 169\ndays. Therefore, amount of Rs 78,021/- (11050 (basic) + 2800 (grade pay) =\n13850 / 30 = 461.66 x 169) awarded to the petitioner towards commuted leaves\nand earned leaves.23. Apart from amounts mentioned above, petitioner is allowed Rs.5000/- for\npain and suffering and Rs. 5000/- for mental & physical shock due to this\naccident, making a total of Rs.1,79,332/-, detail of which is given as under:-(i) Medical Expenses Rs. 54,229/-\n(ii) Special diets Rs. 10,000/-\n(iii) Conveyance Rs. 10,000/-\n(iv) Loss of earning during treatment Rs. 17,082/-\n(v) Loss of commuted and earned leave Rs. 78021/-\n(vi) Pain & suffering Rs. 5000/-\n(vii) Mental & physical shock Rs. 5000/-\n Total Rs. 1,79,332/-This issue is accordingly decided in favour of the petitioner and against\nrespondents by holding that petitioner is entitled for compensation from\nrespondent no.2 / Ins. Co.ISSUE No.3 (RELIEF)24. Petition in hands is allowed. Respondent no.2 is directed to pay Rs.\n2,68,200/- which includes 66 months interest @ 9% per annum to the petitioner\nas compensation in this case, within 30 days from today, failing which it,\nrespondent no. 2 would be liable to pay further interest @ 9% p.a from the date\nof award on the amount of Rs. 1,79,332/- till realization of amount.MACT no.6225/16 Page 20 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.DISBURSEMENT25. Statement of petitioner about disbursement of amount of compensation\nwas recorded. Further petitioner has got his bank account opened in terms of\nmodified direction of Hon'ble High Court and filed photocopy of his bank\npassbook of such account. Considering circumstances of petitioner, it is directed\nthat out of the total amount of compensation, 90% amount, except amount\nawarded towards medical expenses, be kept in FDRs to be released to the\npetitioner in a phased manner i.e. Rs. 10,000/- monthly directly crediting in his\nsaving bank account and remaining 10% amount along with amount awarded\ntowards medical expenses be released to him through his saving bank account,\nparticulars of which are mentioned in the above proforma, this amount will be\nwithdrawn only by way of withdrawal slip and by no other mode or digital mode\ni.e. Debit card / Credit card /ATM/NEFT/RTGS/letter etc.26. The salient features as prescribed in the judgment inRajesh Tyagi & Ors.\nVs. Jaibir Singh & Ors. FAO842/2003 Date of Decision: 8 th January, 2021\nare to be applied: -(a) The Bank shall not permit any joint name(s) to be added in the\n savings bank account or fixed deposit accounts of the claimant(s) i.e.\n the savings bank account(s) of the claimant(s) shall be an individual\n savings bank account(s) and not a joint account(s).(b) The original fixed deposit shall be retained by the bank in safe\n custody. However, the statement containing FDR number, FDR\n amount, date of maturity and maturity amount shall be furnished by\n bank to the claimant(s).(c) The monthly interest be credited by Electronic Clearing System\n (ECS) in the savings bank account of the claimant(s) near the place ofMACT no.6225/16 Page 21 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.their residence.(d) The maturity amounts of the FDR(s) be credited by Electronic\n Clearing System (ECS) in the savings bank account of the claimant(s)\n near the place of their residence.(e) No loan, advance, withdrawal or pre-mature discharge be allowed\n on the fixed deposits without permission of the Court.(f) The concerned bank shall not issue any cheque book and/or debit\n card to claimant(s). However, in case the debit card and/or cheque\n book have already been issued, bank shall cancel the same before the\n disbursement of the award amount. The bank shall debit card(s) freeze\n the account of the claimant(s) so that no debit card be issued in\n respect of the account of the claimant(s) from any other branch of the\n bank.(g) The bank shall make an endorsement on the passbook of the\n claimant(s) to the effect that no cheque book and/or debit card have\n been issued and shall not be issued without the permission of the\n Court and claimant(s) shall produce the passbook with the necessary\n endorsement before the Court on the next date fixed for compliance.(h) It is clarified that the endorsement made by the bank along with the\n duly signed and stamped by the bank official on the passbook(s) of the\n claimant(s) is sufficient compliance of clause above.27. Respondent no. 2 is directed to deposit amount of compensation, as stated\nabove, with this tribunal within 30 days, with advance notice to petitioner.\nRespondent no. 2 is further directed that if any amount is required to be\ndeducted towards TDS, it would furnish details of amount and TDS\ncertificate as well.MACT no.6225/16 Page 22 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.Notice be also sent to the In-charge, Computer Branch (North) to\nsend a copy of this judgment to Nodal Officer of SBI on his Email ID i.e.Digitally signed[email protected]. EKTA by EKTAGAUBA MANNFile be consigned to record room. GAUBA Date:2021.09.29\n MANN 18:31:07 +0530\n\nAnnounced in the open court (EKTA GAUBA MANN)\non 29.09.2021 PO, MACT-1 (North)\n Rohini Courts, DelhiMACT no.6225/16 Page 23 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr. |
a9eb439c-9483-5c02-ba47-4d8f730800d3 | court_cases | Chattisgarh High CourtBhola Ram And Anr vs Sundar Singh And Ors on 9 February, 20231\n\n NAFR\n\n HIGH COURT OF CHHATTISGARH, BILASPUR\n\n Second Appeal No. 321 of 2013\n\n 1. Bhola Ram S/o Shri Chaitu Aged About 50 Years\n\n 2. Vishambhar S/o Shri Chaitu Aged About 48 Years\n\n Both are resident of village Sukulkari, Tahsil & Police Station- Masturi,\n District Bilaspur (CG) Revenue District Bilaspur(CG)(Plaintiffs)\n\n ---- Appellants\n\n Versus\n\n 1. Sundar Singh S/o Shri Santram Aged About 75 Years R/o Masturi, Ps.\n Masturi, Civil And Revenue Distt. Bilaspur, C.G.\n\n 2. State Of Chhattisgarh Through The District Collector, Bilaspur(CG)\n\n 3. Zila Sakhari Bhoomi Vikas Bank Branch- Masturi, Tahsil Masturi, Civil\n And Revenue District Bilaspur, C.G.\n\n 4. Aryan Ispat Pawan (Power) Pvt. Ltd. Rajendra Nagar Chowk, Link\n Road, Bilaspur, through Its Director, Shri Vinod Kumar Jain, S/o Shri\n Laxmichand Jain, R/o Kranti Nagar, Bilaspur, Tahsil and Police Station\n Bilaspur, District : Bilaspur, (CG)(Defendants)\n\n ---- RespondentsFor Appellants :Shri A.N. Bhakta, Advocate\nFor Respondent No.2/State: Shri Sanjeev Kumar Agrawal, Panel LawyerSingle Bench : Hon'ble Shri Justice Sanjay S. Agrawal\n\n Judgment/Order on Board\n\n09.02.2023\n\n Heard on admission.2. This appeal has been preferred by the Plaintiffs underSection 100of\n\nthe Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC'),\n\nquestioning the legality and propriety of the judgment and decree dated\n\n04.03.2013 passed in Civil Appeal No.4-A/2012, whereby, the learned2appellate court while affirming the judgment and decree dated 25.08.2011\n\npassed by the 7th Civil Judge, Class-II, Bilaspur(CG) in Civil Suit No.11-\n\nA/2011, has dismissed the appeal. The parties to this appeal shall be referred\n\nhereinafter as per their description before the Courts below.3. Briefly stated the facts of the case are that a suit for declaration of title\n\nand injunction was instituted by the Plaintiffs with regard to the property in\n\nquestion bearing Khasra Nos. 482/4, 482/5, 493/5, 703/2 and 705, total\n\nadmeasuring 3.67 acres, situated at village Sukulkari, Tahsil Masturi, District\n\nBilaspur(CG) as described in the plaint schedule. According to the Plaintiffs,\n\nthe property in question was held by their father, namely, Chaituram and after\n\nhis death, they inherited the same, however, Defendant No.1-Sundar Singh\n\nhas obtained the revenue papers mutated in his name on 27.06.1981 without\n\nany authority and, based upon which trying to alienate the same to someone\n\nelse. Further contention of the Plaintiffs is that the Defendant No.1, in\n\nconnivance with Defendant No.3-Zila Sahkari Bhoomi Vikas Bank, has\n\npurchased the property in question in auction on 20.06.1975., however, the\n\nalleged auction was made without following its due procedure, therefore, the\n\nproperty in question as purchased by him, would not confer any right, title or\n\ninterest upon him. It is pleaded further that after purchasing the same as\n\nsuch, he sold the suit property to Defendant No.4- Aryan Ispat Pawan (Power)\n\nPvt. Ltd. during the pendency of the suit by executing a registered deed of\n\nsale on 22.08.2009, therefore, the said Defendant has also not derived any\n\nvalid title upon the suit land.4. The Defendants have contested the aforesaid claim. Defendant No. 1-\n\nSundar Singh in his written statement has stated that the property in question\n\nwas mortgaged by the Plaintiffs' father- Chaituram in Zila Sahkari Bhoomi\n\nVikas Bank after obtaining the loan from it and since he failed to repay the3loan amount, therefore, the property in question was put in auction, where he\n\nvalidly purchased the same and obtained the revenue papers mutated in his\n\nname. It is contended further that the suit is barred by virtue ofSection 82of\n\nthe Chhattisgarh Co-operative Societies Act, 1960 and has been framed even\n\nwithout questioning the alleged auction proceedings, therefore, deserves to\n\nbe dismissed.5. From perusal of the record, it appears that the property in question as\n\ndescribed in the plaint schedule was mortgaged by the Plaintiffs' father-\n\nChaituram after obtaining the loan amount from Defendant No.3- Zila Sahkari\n\nBhoomi Vikas Bank, Branch Masturi, District Bilaspur and it appears further,\n\nas reflected from the evidence of DW-3, namely, Smt. Pushpa Kale, who was\n\nthe Branch Manager of the said Bank, that when the said Chaituram has\n\nfailed to deposit the loan amount, the property in question mortgaged by him\n\nwas put in auction on 24.06.1979 and in pursuance thereof, the property in\n\nquestion was sold and was accordingly purchased by Defendant No.1-\n\nSundar Singh. Pertinently to be noted here further that the alleged auction\n\nwas taken place on 24.06.1979 and the Plaintiffs' father, namely, Chaituram,\n\nwho mortgaged the property in question in the said Bank died in the year\n\n1980 but, he never tried to question the authenticity of the said auction\n\nproceedings. Be that as it may, after his sad demise, it cannot be said at the\n\ninstance of the Plaintiffs that the Defendant No.1 has not acquired any valid\n\ninterest over the property in question based upon the auction sale or the\n\nPlaintiffs could be entitled to be declared the owner of it.6. In view of the aforesaid background, the courts below have, therefore,\n\nnot committed any illegality in dismissing the claim and, I, therefore, do not\n\nfind any question of law, much less the substantial questions of law which\n\narise for determination in this appeal.47. The appeal being devoid of merits, is accordingly dismissed at the\n\n admission stage itself.No order as to costs. Sd/-\n\n\n (Sanjay S. Agrawal)\n JUDGE\nsunita5HIGH COURT OF CHHATTISGARH, BILASPUR\n\n Order SheetSA No. 321 of 2013Bhola Ram & Anr. Versus Sundar Singh & Ors.\n\n\n\n 09/02/2023 Shri A.N. Bhakta, counsel for the Appellants.Shri Sanjeev Kumar Agrawal, Panel Lawyer for the State/\n Respondent No.2.Arguments heard on admission.Judgment/order dictated in open Court. Signed and dated\n separately. Sd/-(Sanjay S. Agrawal)\n Judge\n\n\n\n\nsunita |
746f714d-1cc2-593f-8d61-f2c10e0e3b39 | court_cases | Jammu & Kashmir High CourtFarooq Ahmad And Ors vs State Of J&K And Another on 10 March, 2023Author:Sanjay DharBench:Sanjay DharHIGH COURT OF JAMMU & KASHMIR AND LADAKH\n AT JAMMU\n\n Reserved on: 20.02.2023\n Pronounced on: 10.03.2023\n\n CRM(M) No. 827/2021\n c/w\n CRM(M) No. 208/2022\n\n\nFarooq Ahmad and ors. .....Appellant(s)/ Petitioner(s)\n\n Through: - Mr. K. S. Johal, Sr. Advocate with\n Mr. Karman Singh Johal, Advocate\n Mr. Rahul Pant, Sr. Advocate with\n Mr. Anirudh Sharma, Advocate\nVs.\n\n\nState of J&K and another ...Respondent(S)\n\n Through: - Mr. Sumeet Bhatia,GA\n Mr. Gagan Kohli, Advocate\n\nCORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE\n\n JUDGMENTCRM(M) No. 827/20211) The petitioners have challenged FIR No. 162/2021 for offences underSections 458,323,149,341,504,506,427IPC and 4/25Arms Actregistered with the Police Station, Udhampur.2) As per the impugned FIR, on 29.04.2021, at about 6.00 PM, petitioner\n\nNo. 1/accused misbehaved with the complainant/respondent No. 4 while he\n\nwas standing on the gate of his house. Petitioner No. 1 is alleged to have\n\nused abusive and vulgar language against the family of the complainant, who2 CRM(M) No. 827/2021c/w CRM(M) No. 208/2021objected to the same but in the meantime, while the complainant was\n\nproceeding towards his house, petitioner No. 1 came from behind, armed\n\nwith a baseball bat and he gave a beating to the complainant. It is alleged\n\nthat petitioner No. 1 went back to his house after extending threats to the\n\ncomplainant and he came back after sometime alongwith other\n\npetitioners/accused, who are alleged to have criminally trespassed into the\n\nhouse of the complainant armed with lathies, baseball bat and tokas. The\n\ncomplainant was slammed and kicked by the petitioners/accused and even\n\nthe ladies present in the house were also attacked and beaten up. It is further\n\nalleged that son of the complainant, Abuzar was also attacked by the\n\npetitioners. When brother of the complainant, Saleem Banday came to\n\nrescue him from the clutches of the petitioners, his vehicle was also attacked\n\nwith weapons by the petitioners and in the process, the petitioners also\n\nreceived injuries.3) It appears that the complainant had presented an application\n\ncontaining the aforesaid allegations before the Special Mobile Magistrate\n\n(Sub Judge), Udhampur with a prayer to direct registration of the FIR. The\n\nlearned Magistrate, it seems, passed an order dated 05.05.2021, whereby\n\nSHO, Police Station, Udhampur was directed to verify the allegations made\n\nin the application and send the report by the next date of hearing\n\ni.e.17.05.2021. The Police of Police Station, Udhampur instead of sending\n\nthe report to the learned Magistrate proceeded to register the impugned FIR.4) The petitioners have challenged the impugned FIR on the grounds\n\nthat the said FIR is a counterblast to the FIR bearing No. 146/2021 lodged3 CRM(M) No. 827/2021c/w CRM(M) No. 208/2021by Talib Hussain (petitioner No. 8) against the complainant party in respect\n\nof the same occurrence. It has been further submitted that the impugned FIR\n\nhas been lodged with a view to wreck vengeance upon the petitioners as the\n\ncomplainant has long standing enmity with them. The petitioners have\n\nfurther contended that the Police instead of submitting a report to the learned\n\nMagistrate, on its own registered the impugned FIR, thereby circumventing\n\nthe process of law initiated by the Magistrate.5) I have heard learned counsel for the parties and perused the record\n\nincluding the case diaries of the two FIRs.6) A perusal of the record shows that in order to get the FIR registered\n\nwith the Police, the complainant/respondent No. 4 initially approached the\n\nPolice Station and thereafter, the SSP concerned. It has been stated that\n\nwhen the complainant failed to get the desired result of registration of FIR,\n\nhe filed an application underSection 156(3)Cr.P.C. before learned Judicial\n\nMagistrate 1st Class (Sub Judge) Udhampur. The learned Magistrate vide\n\norder dated 05.05.2021 directed the SHO, Udhampur to verify the\n\nallegations and submit his report by the next date of hearing i.e. 17.05.2021.\n\nA perusal of the minutes of the proceedings of the learned Magistrate would\n\nreveal that on 17.05.2021, an application was made by the SHO, Police\n\nStation, Udhampur before the learned Magistrate seeking extension of 15\n\ndays time in submitting his report. While these proceedings were going on,\n\nthe impugned FIR came to be registered by SHO, Police Station, Udhampur\n\non 18.05.2021.4 CRM(M) No. 827/2021c/w CRM(M) No. 208/20217) The question that arises for consideration is as to whether the action of\n\nthe Police to register the impugned FIR when there was no direction from\n\nthe learned Magistrate to register the case is in accordance with law,\n\nparticularly when the learned Magistrate had specifically directed the SHO\n\nconcerned to submit his report after verifying the allegations made in the\n\napplication.8) Learned counsel for the petitioners has submitted that the course\n\nadopted by the Police in registering the impugned FIR, without waiting for\n\nthe direction of the learned Magistrate amounts to usurping the jurisdiction\n\nof the learned Magistrate and the same cannot be countenanced in law.9) Per contra, learned counsel for the respondents has submitted that the\n\nPolice have otherwise got power to register an FIR once it comes to its\n\nnotice that a cognizable offence has been committed. It has been submitted\n\nthat an order underSection 156(3)Cr.P.C. is only a preemptory reminder to\n\nthe SHO of a Police Station to perform its statutory duty of registration of\n\nFIR and that no particular form of order is needed for such purpose.10) It is true that the incharge of a Police Station is vested with the power\n\nto register an FIR once information with regard to cognizable offence is\n\ngiven to him. It is also not in dispute that a Magistrate while passing a\n\ndirection underSection 156(3)Cr.P.C. is only reminding the officer incharge\n\nof a Police Station about his statutory duty to register an FIR in respect of a\n\ncognizable offence. However, in the instant case, when the complainant had\n\napproached the Police for registration of FIR, they did not deem it5 CRM(M) No. 827/2021c/w CRM(M) No. 208/2021appropriate to register the FIR presumably because already an FIR had been\n\nregistered by the Police relating to the same occurrence on the basis of the\n\nversion given to the Police by the petitioners herein.11) When the application was made by the complainant before the learned\n\nMagistrate, options available to the learned Magistrate were, either to direct\n\nthe officer incharge of a Police Station to straightway register an FIR and\n\nundertake the investigation or to direct preliminary verification of the\n\nallegations made in the application. The third course that was open to the\n\nMagistrate was to treat the application as a private complaint and take\n\ncognizance of the offence and proceed in accordance with the provisions\n\ncontained in Chapter XV of the Cr. P.C.12) In the instant case, the learned Magistrate appears to have chosen the\n\nsecond option of directing the preliminary verification with regard to the\n\nallegations made in the complaint. The power to direct preliminary\n\nverification of the allegations made in an application underSection 156(3)Cr.P.C. has been recognized by the Supreme Court inLalita Kumari v.\n\nGovt. of U.P, (2014) 2 SCC 1 as also in the case ofMrs. Priyanka\n\nSrivastava and Anr. Vs. State of UPand ors., 2015 2 Crimes (SC) 179.In this regard paragraph 27 of thePriyanka Srivastava's case (supra) is\n\nrelevant to the context, the same is reproduced as under:"27. In our considered opinion, a stage has come in this country\n whereSection 156(3)Cr.P.C. applications are to be supported\n by an affidavit duly sworn by the applicant who seeks the\n invocation of the jurisdiction of the Magistrate. That apart, in an\n appropriate case, the learned Magistrate would be well advised\n to verify the truth and also can verify the veracity of the\n allegations. This affidavit can make the applicant more\n responsible. We are compelled to say so as such kind of6 CRM(M) No. 827/2021c/w CRM(M) No. 208/2021applications are being filed in a routine manner without taking\n any responsibility whatsoever only to harass certain persons.\n That apart, it becomes more disturbing and alarming when one\n tries to pick up people who are passing orders under a statutory\n provision which can be challenged under the framework of said\n Act or underArticle 226of the Constitution of India. But it\n cannot be done to take undue advantage in a criminal court as if\n somebody is determined to settle the scores. We have already\n indicated that there has to be prior applications under Section\n 154(1) and 154(3) while filing a petition under Section 156(3).\n Both the aspects should be clearly spelt out in the application\n and necessary documents to that effect shall be filed. The\n warrant for giving a direction that an the application\n under Section 156(3) be supported by an affidavit so that the\n person making the application should be conscious and also\n endeavour to see that no false affidavit is made. It is because\n once an affidavit is found to be false, he will be liable for\n prosecution in accordance with law. This will deter him to\n casually invoke the authority of the Magistrate under Section\n 156(3). That apart, we have already stated that the veracity of\n the same can also be verified by the learned Magistrate, regard\n being had to the nature of allegations of the case. We are\n compelled to say so as a number of cases pertaining to fiscal\n sphere, matrimonial dispute/family disputes, commercial\n offences, medical negligence cases, corruption cases and the\n cases where there is abnormal delay/laches in initiating criminal\n prosecution, as are illustrated in Lalita Kumari are being filed.\n That apart, the learned Magistrate would also be aware of the\n delay in lodging of the FIR."(Emphasis supplied)13) InRamdev Food Products Pvt. Ltd vs. State of Gujarat, 2015 3\n\nCrimes (SC) 354, the Supreme Court has again emphasized the fact that\n\nprompt registration of FIR is mandatory but checks and balances on power\n\nof police are equally important. The Court further went on to observe that\n\npower of investigation is not mechanical. It requires application of mind in\n\nthe manner provided. The Court further observed that existence of power\n\nand its exercise are different. According to the Supreme Court delicate\n\nbalance has to be maintained between the interest of society and liberty of an\n\nindividual.14) Again, the Supreme Court in the case ofAnil Kumar vs. M. K.\n\nAiyappa, (2013) 10 SCC 705 has observed as under:7 CRM(M) No. 827/2021c/w CRM(M) No. 208/2021"11. The scope ofSection 156(3)CrPC came up for\n consideration before this Court in several cases. This Court in\n Maksud Saiyed case [(2008) 5 SCC 668] examined the\n requirement of the application of mind by the Magistrate before\n exercising jurisdiction under Section 156(3) and held that where\n jurisdiction is exercised on a complaint filed in terms of Section\n 156(3) orSection 200CrPC, the Magistrate is required to apply\n his mind, in such a case, the Special Judge/Magistrate cannot\n refer the matter under Section 156(3) against a public servant\n without a valid sanction order. The application of mind by the\n Magistrate should be reflected in the order. The mere statement\n that he has gone through the complaint, documents and heard\n the complainant, as such, as reflected in the order, will not be\n sufficient. After going through the complaint, documents and\n hearing the complainant, what weighed with the Magistrate to\n order investigation underSection 156(3)CrPC, should be\n reflected in the order, though a detailed expression of his views\n is neither required nor warranted. We have already extracted the\n order passed by the learned Special Judge which, in our view,\n has stated no reasons for ordering investigation."15) For the foregoing analysis of law on the subject, it is clear that a\n\nMagistrate does have power to direct preliminary verification into the\n\nallegations made in an application underSection 156(3)Cr.P.C. so as to\n\nascertain whether any cognizable offence is made out. Such course has to be\n\nadopted by a Magistrate in appropriate cases, if the Magistrate feels that it\n\nnot a clear-cut case where FIR should be straightway registered. The order\n\nof the learned Magistrate passed on 05.05.2021 directing preliminary\n\nverification into allegations made in the application filed by the complainant\n\nis, therefore, in accordance with law. Even otherwise, discretion of a\n\nMagistrate in directing preliminary verification in a particular case cannot be\n\ngone into by a superior court, unless it is shown that there is perversity in the\n\nexercise of discretion by the Magistrate.16) In the instant case, a lawful direction passed by the learned\n\nMagistrate, it seems, has been circumvented by the Police by registering the\n\nFIR, inasmuch as, the Police in spite of getting a direction regarding8 CRM(M) No. 827/2021c/w CRM(M) No. 208/2021preliminary verification of the allegations, registered the FIR straightway. It\n\nseems that the Police in the instant case at the initial stage did not thought it\n\nappropriate to straightway register an FIR, keeping in view the fact that an\n\nFIR relating to the occurrence had already been registered, but when the\n\nlearned Magistrate was seized of the matter, the Police did not allow the\n\nlearned Magistrate to apply her mind to the material prior to passing an\n\nappropriate direction. It is to be noted that a direction regarding registration\n\nof an FIR has to be passed only after application of the mind. In the present\n\ncase before the learned Magistrate could apply her mind to the application of\n\nthe complainant and the report the Police, the proceedings pending before\n\nher were rendered redundant by the action of the Police. This amounts to an\n\nillegality which is writ large on the face of the record.17) Another question that arises for consideration is as to what should be\n\nthe future course of action in these circumstances. One option would be to\n\nallow the investigation to go on, on the basis of the impugned FIR already\n\nregistered and thereby perpetuate the illegality committed by the Police and\n\nthe other option would be to find a way-out so as to cure this illegality.18) In the case ofN. H. Rishbud and Inder Singh vs. State of Delhi,\n\nAIR 1955 SC 196, the Supreme Court has ruled thatSection 5Aof the\n\nPrevention of Corruption Act, 1947 is mandatory and not directory and went\n\non to hold that the illegality committed in the course of an investigation does\n\nnot affect the competence and jurisdiction of the Court for trial. TheCourt\n\nfurther heldthat where cognizance of the case has been taken and the case9 CRM(M) No. 827/2021c/w CRM(M) No. 208/2021has proceeded to termination the validity of the preceding investigation does\n\nnot vitiate the result unless miscarriage of justice has been caused thereby.19) InState of Harayana and others vs. Bhajan Lal and others, 1992\n\nSupp (1) SCC 335, the Supreme Court after noticing theratiolaid down inN. H. Rishbud and Inder Singh's case (supra) explained that in the case\n\nbefore it the question relating to legal authority of SHO was raised at the\n\ninitial stage, therefore, it would be proper and desirable that the investigation\n\nshould proceed only on the basis of the valid order in strict compliance of\n\nthe mandatory provision ofSection 5A(1)of the Prevention of Corruption\n\nAct,1947.20) It is thus clear that if the illegality in undertaking the investigation is\n\npointed out at the earliest when the investigation is at its inception, it cannot\n\nbe brushed aside as the Investigating Agency as well as the complainant\n\nwould be free to take appropriate steps for proceeding in accordance with\n\nlaw but if the investigation has culminated in filing of charge sheet before\n\nthe competent Court then unless it is shown that prejudice would be caused\n\nto any party by quashing the investigation, an order setting aside the\n\ninvestigation would not be desirable.21) Coming to the facts of the instant case, the petitioners approached the\n\nCourt immediately after the registration of the impugned FIR. In fact, the\n\nimpugned FIR, as already noted, has been lodged on 18.05.2021 and instant\n\npetition has been filed on 13.12.2021 i.e. within a few months of lodging of\n\nthe impugned FIR. The case diary shows that the investigation in the instant10 CRM(M) No. 827/2021c/w CRM(M) No. 208/2021case has not proceeded substantially because of the stay order passed by this\n\nCourt on 15.12.2021. Thus, the investigation of the case is still at its\n\ninception and as such, illegality committed by the Police in registering the\n\nimpugned FIR, can be cured at this stage by passing appropriate directions.22) In view of what has been discussed herein before, interests of justice\n\nwould be served by quashing the impugned FIR and passing appropriate\n\ndirections to the Investigating Agency to place its report before the learned\n\nJudicial Magistrate 1st Class (Sub Judge), Udhampur, who after considering\n\nthe report of the Police would be at liberty to pass orders in accordance with\n\nlaw. Needless to mention here that the learned Magistrate may either direct\n\nthe Police to register the FIR afresh and proceed to conduct the investigation\n\nin the case or he can proceed in terms of Chapter XIV of theCr.P.Cand\n\ntake cognizance of the offences on the basis of the police report together\n\nwith the preliminary evidence.23) Accordingly, the impugned FIR is quashed and the respondent, SHO,\n\nPolice Station, Udhampur is directed to place the material collected by him\n\nduring investigation of the impugned FIR before the learned Special Mobile\n\nMagistrate (Sub Judge), Udhampur, who shall, after reviving the application\n\nof the complainant under Section 156(3) Cr. P.C., pass appropriate directions\n\nin accordance with law, of course, upon application of his mind to the\n\nmaterial that may be placed before him.24) The petition stands disposed of in above terms.11 CRM(M) No. 827/2021c/w CRM(M) No. 208/2021CRM(M) No. 208/202225) The petitioners have challenged FIR No. 146/2021 for offences underSections 382,323,34of IPC and 4/25 ofArms Actregistered with Police\n\nStation Udhampur.26) As per FIR No. 146/2021, on 29.04.2021 at about 6.30 p.m. the\n\npetitioners/accused Mohd Saleem Banday, Mohd Rafi and\n\nMohd Najeem Din launched an attack upon Mohd Farooq, petitioner No. 1\n\nin CRM(M) No. 827/2021 with a sharp edged weapon and when the\n\ncomplainant/Talib Hussain came to know it, he rushed to the spot but the\n\nabove named petitioners hit him as well as his wife with the car and\n\ninflicted injuries upon them. It is further alleged that Mohd Din, who was\n\narmed with stick and his grandson also came on spot and they gave a beating\n\nto Mohd Farooq, who has suffered grievous injuries. A gold chain, one\n\nwatch and cash amounting to Rs. 20,000/- are also alleged to have been\n\nsnatched by the accused from Mohd Farooq.27) The petitioners, Mohd Saleem Banday etc. have challenged the\n\naforesaid FIR on the grounds that the same has been lodged by the\n\ncomplainant party in order to wreck vengeance upon them. It has been\n\nsubmitted that the complainant party has long standing enmity with the\n\npetitioners, therefore, they want to involve them in the false and frivolous\n\nlitigation.12 CRM(M) No. 827/2021c/w CRM(M) No. 208/202128) A perusal of the allegations made in the two impugned FIRs prima\n\nfacie shows that the rival parties have given two contrary versions of the\n\nsame occurrence. It appears that time and place of occurrence in both the\n\nFIRs is the same. It is a settled law that counter FIR in respect of an\n\noccurrence giving a version contrary to the version given by the other party,\n\nis permissible in law. However, it would be appropriate if the final reports in\n\nthe two cases are examined by the same Court together.29) In view the above, the decision in this petition is deferred till the\n\noutcome of the proceedings before the learned Special Mobile Magistrate\n\n(Sub Judge), Udhampur, which relate to the allegations in FIR No.\n\n162/2021. Accordingly, this petition is directed to be listed on 20.04.2023\n\nfor awaiting the directions that may be passed by learned Special Mobile\n\nMagistrate 1st Class (Sub Judge), Udhampur, as indicated herein before.30) Case diaries in both the cases be returned to the learned counsel\n\nappearing for the State.(SANJAY DHAR)\n JUDGE\nJammu\n10.03.2023\nKaram Chand/Secy.Whether the order is speaking: Yes/No\n Whether the order is reportable: Yes/No |
f8a5c58a-e308-5df0-a4a5-bacb9a67e8d6 | court_cases | Madhya Pradesh High CourtJain Enterprises Guna Through Owner ... vs Manager Guna on 7 August, 2023Author:Rohit AryaBench:Rohit Arya,Deepak Kumar Agarwal1\n IN THE HIGH COURT OF MADHYA PRADESH\n AT GWALIOR\n BEFORE\n HON'BLE SHRI JUSTICE ROHIT ARYA\n &\n HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL\n ON THE 7 th OF AUGUST, 2023\n WRIT PETITION No. 21496 of 2022\n\n BETWEEN:-\n SHADORA BROTHERS THROUGH ITS PROPRIETOR\n SANTOSH JAIN S/O SHRI RATANCHAND JAIN R/O BADA\n JAIN MANDIR ROAD CHAUDHARY MOHALLA GUNA\n (MADHYA PRADESH)\n\n .....PETITIONER\n (BY SHRI S.K. SHRIVASTAVA- ADVOCATE)\n\n AND\n 1. GUNA MARKETING COOPERATIVE SOCIETY\n GUNA MANAGER GUNA (MADHYA PRADESH)\n\n 2. PRESIDENT MARKETING COOPERATIVE SOCIETY\n GUNA GUNA (MADHYA PRADESH)\n\n 3. SUB DIVISIONAL OFFICER CUM COMPETENT\n AUTHORITY UNDER LOK PARISAR BEDAKHALI\n ADHINIYAM GUNA GUNA (MADHYA PRADESH)\n\n 4. COLLECTOR GUNA (MADHYA PRADESH)\n\n .....RESPONDENTS\n (BY SHRI PURSHOTTAM SHARMA - ADVOCATE FOR RESPONDENTS NO. 1\n AND 2 AND SHRI M.P.S. RAGHUVANSHI - ADDITIONAL ADVOCATE\n GENERAL FOR RESPONDENT NO.3 AND 4/STATE)\n\n MISC. PETITION No. 4425 of 2022\n\n BETWEEN:-\n JAIN ENTERPRISES GUNA THROUGH OWNER\n RAJENDRA KUMAR JAIN S/O SHRI KEWAL CHAND\n JAIN, AGED ABOUT 45 YEARS, OCCUPATION: OWNER\nSignature Not Verified\nSigned by: YOGENDRA\nOJHA\nSigning time: 8/8/2023\n6:18:54 PM\n 2\n JAIN ENTERPRISES GUNA R/O NEAR JAIN TEMPLE\n CHAUDHARY MOHALLA TEHSIL AND DISTRICT GUNA\n (MADHYA PRADESH)\n\n .....PETITIONER\n (BY SHRI RAJIV JAIN- ADVOCATE)\n\n AND\n 1. MANAGER GUNA MARKETING CO OPERATIVE\n SOCIETY LTD STATION ROAD GUNA (MADHYA\n PRADESH)\n\n 2. PRESIDENT GUNA MARKETING CO OPERATIVE\n SOCIETY LIMITED STATION ROAD (MADHYA\n PRADESH)\n\n 3. COLLECTOR GUNA (MADHYA PRADESH)\n\n 4. THE SDO REVENUE DEPARTMENT GUNA\n (MADHYA PRADESH)\n\n .....RESPONDENTS\n (BY SHRI PURSHOTTAM SHARMA - ADVOCATE FOR RESPONDENTS NO. 1\n AND 2 AND SHRI M.P.S. RAGHUVANSHI - ADDITIONAL ADVOCATE\n GENERAL FOR RESPONDENT NO.3 AND 4/STATE )\n\n These petitions coming on for admission this day, JUSTICE ROHIT\n ARYA passed the following common:\n ORDERThis order shall govern disposal of Writ Petition No. 21496/2022 and\n Miscellaneous Petition No. 4425/2022.Petitioner, a sub-lessee, is before this Court taking exception to the\n impugned order dated 18.08.2022 passed by the Collector, Guna.Factual matrix relevant for disposal of both the petitions is in narrow\n compass. Admittedly, the premises in question is a godown constructed by\n respondents No. 1 and 2 over the government land. The said land was given on\n lease to respondent No. 1 and 2 by respondent No. 4 for its own use vide lease-\n deed dated 11.03.1980. However, respondents No. 1 and 2 constructedSignature Not VerifiedSigned by: YOGENDRAOJHASigning time: 8/8/20236:18:54 PM3godown for unauthorizedly letting out the same to the petitioner on rent on\n 12.04.2002.It appears that the respondents No. 1 and 2 filed an application under\n Section 4 of Madhya Pradesh Lok Parisar (Bedakhali) Adhiniyam, 1974\n (hereinafter referred as "the Act") calling upon the petitioner to vacate the\n premises. The reply thereto was filed vide Annexure P/5 on 24.01.2019. The\n Sub Divisional Officer/respondent No.3 has narrated the complete pleadings in\n it's communication dated 23.03.2021 (Anneuxre P/2) addressed to the Collector\n wherein it was pointed out that premises in question falls within the definition of\n unauthorized occupation as defined under Section 2(e) of the Act inasmuch as\n the land in question was leased out to respondents No. 1 and 2 by the Collector\n for its own use but the same (godown) has unauthorizedly been let out to the\n petitioner in violation of the aforesaid lease dated 11.03.1980. Therefore, it was\n requested that the Collector may take decision for cancellation of lease granted\n in favour of respondents No. 1 and 2. It further appears that respondents No. 1\n and 2 approached the Collector against the recommendation purportedly under\n Section 9 of the Act. The Collector has passed impugned order dated\n 18.08.2022. The Collector did not find any error in the recommendation made\n by the Sub-Divisional Officer. The original lease in favour of respondents No.1\n and 2 was a government lease for it's own use but respondents No. 1 and 2\n\n instead has sublet the land (godown) to the petitioner unauthorizedly and\n illegally. In such circumstances, the act of respondents No. 1 and 2 was found\n to be patently illegal. Consequently, it has been ordered that the unauthorized\n occupant be evicted.Learned counsel for the petitioner submits that the entire proceedings\n initiated before the Sub-Divisional Officer and also before the Collector are notSignature Not VerifiedSigned by: YOGENDRAOJHASigning time: 8/8/20236:18:54 PM4in-conformity with the provisions contained under the Act. According to him,\n the Sub-Divisional Officer was the Competent Authority to initiate proceedings\n and pass the order of eviction as provided under Section 5 of the Act against\n which the appeal is provided under Section 9 of the Act. Therefore, the\n impugned order passed by the Collector deserves to be set-aside.Per contra, Shri Raghuvanshi, learned Additional Advocate General\n submits that the public premises was given on lease to the Cooperative Society\n for the purpose specified in the lease document with no provision of granting\n sublease by the lessee in favour of third person. The original lessee i.e.\n respondents No. 1 and 2 have acted in violation of terms and conditions of the\n lease. As such the occupation of the petitioner over the godown constructed on\n such land falls within the scope of unauthorized occupation on a public\n premises.The purpose of the Madhya Pradesh Lok Parisar (Bedakhali) Adhiniyam,\n 1974 is to ensure that the person in occupation found to be in unauthorized\n occupation is afforded an opportunity before an order of eviction is passed\n against him. The factual matrix in hand suggests that the petitioner has been\n afforded due opportunity through notice and time to file reply at any stage. If\n the petitioner is an unauthorized occupant, it is liable for eviction as rightly held\n by the Collector. Mere procedural lapse as pointed out by the petitioner in no\n way has caused any prejudice to the petitioner regard being had to the facts in\n hand and the object of the Act. With the aforesaid, learned Additional Advocate\n General for State prays for dismissal of both the petitions.Learned counsel for the respondents No.1 and 2 states that the lease\n premises was sublet to the petitioner to obtain the funds as it was difficult forSignature Not VerifiedSigned by: YOGENDRAOJHASigning time: 8/8/20236:18:54 PM5the society to meet out the establishment cost during Covid-19 period,\n therefore, no exception can be taken in the matter of sublease of the premises\n given to the petitioner.Upon hearing learned counsel for the parties, we are of the view that\n respondents No. 1 and 2 have acted unauthorizedly and illegally while subletting\n the premises to the petitioner for its own gains without permission or consent of\n respondents No. 3 and 4. Therefore, Shri Raghuvanshi rightly contended that\n the petitioner falls within the scope of unauthorized occupation as defined under\n Section 2(g) of the Act. For ready reference, clause 2(g) of the Act is quoted\n blow:-....Under such circumstances, the petitioner had an opportunity to contest\n the proceedings initiated against him for eviction and since a well reasoned\n order is passed, we are of the view that there is hardly any scope to contend\n that the petitioner is denied any right whatsoever to justify it's continuance in the\n premises by virtue of sublease. We are of the view that the act of respondent\n No. 1 and 2 subletting the government premises to the petitioner was illegal per\n se, therefore, no exception can be taken to the order of eviction of unauthroized\n occupant on public premises.At this stage, learned counsel for the petitioner prays for time to vacate\n the premises and hand over the possession to the respondents No. 3 and 4.Shri Raghuvanshi, opposes the prayer with submission that such person\n who is in unauthorized occupation should not deserve any equitable\n consideration.Without commenting upon the opposition made, this Court hereby grants\n three months' time to vacate the premises and hand over it's vacate possessionSignature Not VerifiedSigned by: YOGENDRAOJHASigning time: 8/8/20236:18:54 PM6to respondent No. 3 and 4, failure thereof, shall entitle respondent No. 3 and 4\n to take forceful possession.With the aforesaid, both the petition stands disposed of.(ROHIT ARYA) (DEEPAK KUMAR AGARWAL)\n JUDGE JUDGE\n ojhaSignature Not VerifiedSigned by: YOGENDRAOJHASigning time: 8/8/20236:18:54 PM |
b70367b3-a3a2-56b4-a915-ba72e31070d3 | court_cases | Telangana High CourtTelangana Reddy Sanghala Ikya Vedika vs The State Of Telangana on 26 May, 2022Author:K.LakshmanBench:K.LakshmanTHE HONOURABLE SRI JUSTICE K.LAKSHMAN\n\n WRIT PETITION NO.23939 OF 2022\n\nORDER:Heard Smt.B.Rachana Reddy, learned counsel for the petitioner\n\nand Sri A.Santosh Kumar, learned Government pleader attached to the\n\nlearned Advocate General, appearing for the respondents.2. This Writ Petition is filed to declare the action of the\n\nrespondents in not according permission to the petitioner to conduct a\n\npublic meeting under the name and style of 'Reddla Maha Sangrammam'\n\nproposed on 27.05.2022, as illegal and arbitrary.3. Today learned Government Pleader appearing for the\n\nrespondents has produced the proceedings, dated 26.05.2022, issued by\n\nthe Commissioner of Police, Hyderabad City, wherein, it is stated that the\n\npermission as sought for by the petitioner is rejected for the reasons\n\nmentioned therein.4. Now, learned counsel for the petitioner submits that the\n\npetitioner has conducted similar meeting on 07.03.2021 and the\n\nAssistant Commissioner of Police, Pet Basheerabad, Hyderabad, has\n\naccorded permission to the petitioner vide proceedings, dated 03.03.2021\n\non imposition of certain conditions. She submits that there is no\n\ncomplaint that the petitioner herein or its Members have violated any of\n\nthe said conditions imposed by the Assistant Commissioner of Police.\n\nShe further submits that the President of petitioner Association is ready\n to submit an undertaking saying that the association or its members or\n\nhe will not violate the conditions imposed by the police officials and that\n\nhe will take responsibility in the event of any untoward incident to be\n\nhappened.5. In view of the said submissions, this Writ petition is disposed\n\nof granting liberty to the petitioner herein to submit an undertaking in\n\nthe manner stated supra by today itself. On submission of the said\n\nundertaking, respondent Nos.2 and 3 shall accord permission to the\n\npetitioner herein to conduct meeting i.e., 'Reddla Maha Sangrammam' on\n\n27.05.2022 at 6.00 PM to 8.00 PM at Medchal Check Post, NH 44, AGS\n\nDevelopers Venture, SR Nos. 453, 454 and 455 on the very same\n\nconditions, which were imposed vide order dated 03.03.2021 in\n\nW.P.No.5019 of 2021. The petitioner has to restrict its members to 2000.\n\nIn the event of violation of any of the conditions imposed by respondent\n\nNos.2 and 3 in the permission, liberty is granted to them to take action,\n\nin accordance with law. Further, the petitioner shall not turn the said\n\nmeeting into any other rally, or parades, meeting or gathering etc.\n\n Miscellaneous petitions, pending if any, shall stand closed._________________\n K.LAKSHMAN, J\n\n26TH May, 2022\nNote:Issue C.C.Today\n (B/o)\n YVL/BV. |
90ef5dd2-72e2-5584-b67d-ae4662e56cca | court_cases | Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member services -- Free for one month.\n\nIncome Tax Appellate Tribunal - Kolkata\nM/S Jayanta Food Products, Kolkata vs Dcit, Cpc, Bangalore on 16 February, 2022\n 1\n I.T.A. Nos. 383-384/Kol/2021\n Jayanta Food Products, Assessment Years: 2018-19 & 2019-20\n\n\n आयकर अपील य अधीकरण, यायपीठ -"C (SMC)" कोलकाता,\n IN THE INCOME TAX APPELLATE TRIBUNAL "C(SMC)" BENCH: KOLKATA\n [Before Shri A. T. Varkey, Judicial Member]\n I.T.A. Nos. 383 & 384/Kol/2021\n Assessment Years: 2018-19 & 2019-20\n\n Jayanta Food Products Vs. Deputy Commissioner of Income-\n (PAN: AACFJ3216B) tax, CPC.\n Appellant Respondent\n\n\n Date of Hearing (Virtual) 08.02.2022\n Date of Pronouncement 16.02.2022\n For the Appellant None\n For the Respondent Shri Archana Gupta, Sr. DR\n\n ORDER\n\n These are appeals preferred by the assessee against the separate orders of the\nCommissioner of Income Tax (Appeals), National Faceless Appeal Centre [hereinafter\nreferred to as 'CIT(A)'] dated 30/07/2021 for assessment years 2018-19 and 2019-20.\n\n2. None appeared on behalf of the assessee at the time of hearing. At the outset, it is\nnoticed that the only issue in both these appeals that is in dispute before this Tribunal is\nagainst the action of the Ld. CIT(A) confirming disallowance of employees' contribution\nmade to the respective funds of the Government under PF & ESI Act. According to the\nauthorities below, since the assessee has not remitted the employees' contribution on the due\ndate as prescribed by the PF & ESI Act, the contribution made belatedly cannot be allowed.\nHowever, according to the assessee since the assessee has undisputedly made the remittance\nin respect of employees' contribution of PF as well as ESI before filing of the return of\nincome u/s 139 of the Act, no disallowance is warranted. According to the assessee, the\nCIT(A) erred in referring to the Amendment brought in by Finance Act 2021 w.e.f.\n01.04.2021 which inserted an Explanation to section 36(1)(va) and section 43B of the Act\nand erred in holding it as clarificatory and so, retrospective in nature. Whereas according to\nassessee, it is only prospective in nature and cannot disturb the binding judicial precedents in\nfavour of assessee. According to the assessee, any way this issue is no longer res integra as\n 2\n I.T.A. Nos. 383-384/Kol/2021\n Jayanta Food Products, Assessment Years: 2018-19 & 2019-20\n\n\nheld by this Tribunal in the case of Lumino Industries Ltd. vs. ACIT, Circle-5(1), Kolkata in\nI.T.A. No.365/Kol/2021 for AY 2015-16 order dated 17.11.2021, wherein assessee's favour\nview was taken by the Tribunal after holding that the amendment brought in by Finance Act,\n2021 w.e.f 1.04.2021 is prospective in operation and so will be in force from AY 2021-22\nonwards and not retrospective. The relevant portions of decision which reads as under:-\n\n "4. Ground no. 1 is preferred by the assessee against the action of Ld. CIT(A) (NFAC)\n [hereinafter referred to Ld. CIT(A)] confirming the action of AO disallowing the sum of Rs.\n 10,946/- being contribution of employees' share towards ESI, PF, Superannuation Fund or any other\n fund set up for the welfare of the employee u/s 36(1)(va) read with Section 2(24)(x) of the Income\n Tax Act, 1961 [hereinafter referred to as the Act] when the payments were made within the due dates\n of filing of return u/s 139 of the Act.\n\n 5. Brief facts of the case as noted by the AO is that from the Tax Audit Report submitted by the\n assessee, he noted that the assessee company has made delayed payment amounting to Rs. 10,946/-\n in respect of employees contribution towards provident fund as per the Provident Fund (hereinafter\n referred to as the PF Act). According to AO, in view of Section 2(24)(x) rws 36(1)(va) of the Act, the\n employees contribution is to be paid within the due date of payment as prescribed in the respective\n Acts (PF/ESI Act) to claim deduction. The AO took note of the decision of the Hon'bleGujrat High\n Court in the case of CIT vs. Gujrat State Road Transport Corporation [265 CTR 64] and the case of\n LKP Securities Ltd. passed by the ITAT Mumbai wherein it was held that employees' contribution\n can be allowed only if the same is deposited within the due date prescribed under the respective Act's\n and not within the due date of filing return of income. And the AO cited the CBDT Circular No.\n 22/2015 dated 17.12.2015 for disallowing Rs. 10,946/- which was added back to the total income of\n the assessee.\n\n 6. Aggrieved the assessee preferred an appeal before the Ld. CIT(A) who confirmed the appeal\n by holding as under:\n\n "5.c) Findings:-\n\n The addition in this case involves a disallowance on account of delayed payment in respect of\n Employees' contribution to EPF as per the provisions of Section 36(1)(va) of the Act. The\n appellant has stated that the same should have been allowed as the payments were made\n before the due date of the filing of the ITR. The appellant has quoted a number of judgments\n in his favour. However it is seen that the Hon'bleGujrat High Court in CIT vs. Gujarat State\n Road Transport Corporation (2014) 366 ITR 170 (Guj) and the Hon'ble Kerala High Court in\n CIT vs. Merchant (2015) 280 CTR 381 (Ker) have clearly held that the scope of section 43B\n and Section 36(1)(va) are different and thus, there is no question of reading both the\n provisions together to consider whether the assessee is entitled to deduction in respect of the\n sum belated by paid towards such contribution, especially, when such sums are received by\n the assessee (employer) from his employee.\n\n The explanation to Section 36(1)(va) of the IT Act, 1961 clearly defines that the 'due date\n means the date by which the assessee is required as an employer to credit as employees'\n contribution into the employees' account". This fact has been further clarified in the amended\n provisions of the Section 36(1)(va) in the Finance Act, 2021 wherein it has been stated that the\n provisions of Section 43B does not apply to Section 36(1)(va) and is deemed to never have\n been applied to a sum received by the assessee from any of his employees to which provisions\n of sub-clause (x) of clause (24) of section 2 of the IT Act, applies. The clarificatory amendment\n is, by its very definition, retrospective in nature and, therefore, the disallowance as made by\n the AO is perfectly in order, and therefore, the addition is confirmed.\n 3\n I.T.A. Nos. 383-384/Kol/2021\n Jayanta Food Products, Assessment Years: 2018-19 & 2019-20\n\n This ground of appeal is dismissed."\n\n7. Aggrieved by the action of Ld. CIT(A) the assessee is before us.\n\n8. We have heard both the parties and perused the records. We find that the assessee had\nremitted the payment which are in the nature of contribution of employees' share towards PF to the\nfund set up for the welfare of the employees within the due date of filing of return of income u/s\n139(1) of the Act. In the present case the AO have disallowed the payment made towards these funds\nby relying on CBDT Circular No. 22/2015 dated 17.12.2015 and by taking note of the decision of\nHon'bleGujrat High Court in the case of M/s Gujrat State Road Transport (supra) and ITAT\n(Mumbai) decision in the case of M/s LKP Securities(supra) that the employees contribution to\nPF/ESI can be allowed only if the same has been deposited within the due date prescribed under the\nrespective Act (PF and ESI Act) and not before the due date of filing of return of income. On appeal,\nthe Ld. CIT(A) has taken note of the amendment brought in by Finance Act, 2021, by virtue of it has\nbeen clarified that Section 43B does not apply to Section 36(1)(va) of the Act and it is deemed to\nnever have been applied to a sum received by the assessee from any of his employees to which\nprovisions of Section 2(24)(x) applies. And thus according to Ld. CIT(A), it is a clarificatory\namendment and so is retrospective in operation and therefore he upheld the action of AO which\naction of Ld. CIT(A) has been challenged before us.\n\n9. Assailing the action of Ld. CIT(A) the Ld. A.R. ShriMiraj D Shah submitted that the\namendment brought in by the Finance Act 2021 is prospective in nature and for buttressing this\nsubmission he drew our attention to the decision of Hon'ble Supreme Court in the case of M/s M.M.\nAqua Technologies Ltd. vs. CIT, Delhi and drew our attention to Para 22 wherein the Hon'ble\nSupreme Court has held that if the retrospectivity of a taxing statute is urged due to the expression\nused in the Statute is "for the removal of doubts" cannot be presumed to be retrospective, if it alters\nor changes the law as it earlier stood and has relied on several decisions of the Hon'ble Supreme\nCourt which reads as under:\n\n "22. Second a retrospective provision in a tax act which is 'for the removal of doubts'\n cannot be presumed to be retrospective, even where such language is used, if it alters or\n changes the law as it earlier stood. This was stated in SedcoForexInternational Drill. Inc. vs.\n CIT (2005) 12 SCC 717 as follows:\n\n 17. As was affirmed by this Court in Goslino Mario [(2000) 10 SCC 165] a\n cardinal principle of the tax law is that the law to be applied is that which is in force\n in the relevant assessment year unless otherwise provided expressly or by necessary\n implication. (See also Reliance Jute and Industries Ltd. v. CIT [(1980) 1 SCC 139].)\nAn Explanation to a statutory provision may fulfil the purpose of clearing up an\n ambiguity in the main provision or an Explanation can add to and widen the scope of\n the main section [See Sonia Bhatia v. State of U.P., (1981) 2 SCC 585, 598]. If it is in\n its nature clarificatory then the Explanation must be read into the main provision with\n effect from the time that the main provision came into force [See Shyam Sunder v.\n Ram Kumar, (2001) 8 SCC 24 (para 44); Brij Mohan Das Laxman Das v. CIT, (1997)\n 1 SCC 352, 354; CIT v. Podar Cement (P) Ltd., (1997) 5 SCC 482, 506]. But if it\n changes the law it is not presumed to be retrospective, irrespective of the fact that the\n phrases used are "it is declared" or "for the removal of doubts".\n\n 18. There was and is no ambiguity in the main provision of Section 9(1)(ii). It\n includes salaries in the total income of an assessee if the assessee has earned it in\n India. The word "earned" had been judicially defined in S.G. Pgnatale [(1980)\n 124ITR 391 (Guj)] by the High Court of Gujarat, in our view, correctly, to mean as\n income "arising or accruing in India". The amendment to the section by way of an\n Explanation in 1983 effected a change in the scope of that judicial definition so as to\n include with effect from 1979, "income payable for service rendered in India".\n 4\n I.T.A. Nos. 383-384/Kol/2021\n Jayanta Food Products, Assessment Years: 2018-19 & 2019-20\n\n 19. When the Explanation seeks to give an artificial meaning to "earned in\n India" and brings about a change effectively in the existing law and in addition is\n stated to come into force with effect from a future date, there is no principle of\n interpretation which would justify reading the Explanation as operating\n retrospectively.\n\n 23. This being the case, Explanation 3C is clarificatory - it explains Section 43B(d) as it\n originally stood and does not purport to add a new condition retrospectively, as has wrongly\n been held by the High Court.\n\n 24. Third, any ambiguity in the language of Explanation 3C shall be resolved in favour\n of the assessee as per Cape Brandy Syndicate v. Inland Revenue Commissioner (supra) as\n followed by judgments of this Court - See Vodafone International Holdings BV v. Union of\n India, (2012) 6 SCC 613 at paras 60 to 70 per Kapadia, C.J. and para 333, 334 per\n Radhakrishnan, J."\n\n10. And according to Ld. A.R. the Ld. CIT(A) erred in holding the later amendment brought in\nby Finance Act, 2021 to be retrospective and for that proposition he cited the Constitution Bench\ndecision of the Hon'ble Supreme Court in the case of CIT vs. Vatika Township Pvt. Ltd. 2015 (1)\nSCC 1 which decision has been taken note of by the Hon'ble Supreme Court in the case of M/s\nSnowtex Investment Ltd. vs. PCIT dated 30.04.2019 [Civil Appeal No(s). 4483 of 2019, Special\nLeave to appeal (c ) No. 20017/2017] wherein the Hon'ble Supreme Court has explained the test to\nbe applied to find out whether the intent of the legislature/Parliament is to give retrospective\noperation of law by taking note of the decision in the case of Vatika Township (supra) and held as\nunder:\n\n The Test to be applied is essentially one of the intent of the legislature.\n\n 28. In a more recent decision in Commissioner of Income Tax vs. Vatika Township Pvt.\n Ltd. (2015) 1 SCC 1, a Constitution Bench of this Court held thus:\n\n 42.1. "Notes on Clauses" appended to the Finance Bill, 2002 while proposing\n insertion of proviso categorically states that 'this amendment will take effect from\n 1.6.2002.' These become epigraphic 1 words, when seen in contradistinction to other\n amendments specifically stating those to be clarificatory or retrospectively depicting\n clear intention of the legislature. It can be seen from the same notes that a few other\n amendments in the Income tax Act made by the same Finance Act specifically making\n those amendments retrospective. For example, clause 40 seeks to amend S. 92-F.\n Clause (iii-a) of S. 92-F is amended "so as to clarify that the activities mentioned in\n the said clause include the carrying out of any work in pursuance of a contract".\n (emphasis supplied). This amendment takes effect retrospectively from 01.04.2002.\n Various other amendments also take place retrospectively. The Notes on Clauses\n show that the legislature is fully aware of three concepts:\n\n i) prospective amendment with effect from a fixed date;\n\n ii) retrospective amendment with effect from a fixed anterior date; and\n\n iii) clarificatory amendments which are retrospective in nature."\n\n 29. In M/s. Vijay Industries (supra), decided on 1 March 2019, a three judge Bench of\n this Court held that the provisions of Section 80AB which were introduced by the Finance (No.\n 2) Act, 1980 with effect from 1 April 1981 could not be regarded as clarificatory in nature.\n The Court held that the provision was made with prospective effect and the amendment would\n not apply to assessment year 1979-1980 and 1980-1981 because the amended provision was\n brought on the statute book after the assessment years in question.\n 5\n I.T.A. Nos. 383-384/Kol/2021\n Jayanta Food Products, Assessment Years: 2018-19 & 2019-20\n\n 30. In conclusion, we therefore, hold that the amendment which was brought by\n Parliament to the Explanation to Section 73 by the Finance (No 2) Act 2014 was with effect\n from 1 April 2015. In its legislative wisdom, the Parliament amended Section 43(5) with effect\n from 1 April 2006 in relation to the business of trading in derivatives, Parliament brought\n about a specific amendment in the Explanation to Section 73, insofar as trading in shares is\n concerned, with effect from 1 April 2015. The latter amendment was intended to take effect\n from the date stipulated by Parliament and we see no reason to hold either that it was\n clarificatory or that the intent of Parliament was to give it retrospective effect.\n\n 31. The consequence is that in A.Y. 2008-2009, the loss which occurred to the assessee\n as a result of its activity of trading in shares (a loss arising from the business of speculation)\n was not capable of being set off against the profits which it had earned against the business of\n futures and options since the latter did not constitute profits and gains of a speculative\n business.(Emhasis given by us )\n\n11. Citing the aforesaid case law, ShriMiraj D Shah contended that in order to find out the\nlegislative intent as to whether the Parliament/legislature intended the amendment/explanation\nbrought in later to be retrospective in operation or not, then one may take the assistance of "Notes\non Clauses" which are appended to the Finance Bill concerned. ShriMiraj Shah drawing our\nattention to the Constitution Bench decision of Hon'be Supreme Court in Vatika Township Ltd.\n(supra) pointed out that Parliament/Legislature is aware of the three concepts before an amendment\nis brought in, which can be discerned from reading of the "Notes on Clauses" to the Bill which are\n(i) prospective amendment with effect from a fixed date; (ii) retrospective amendment with effect\nfrom a fixed anterior date; and (iii) clarificatory amendments which are retrospective in nature.\n\n12. So according to the Ld. A.R. in order to understand whether the amendment brought in by\nFinance Act, 2021, is retrospective or prospective in operation in respect of the present case, he\ndrew our attention to the memorandum explaining the Notes on Clauses of Finance Act, 2021.\nAccording to him, the clause 8 & 9 of the memorandum is relevant which are reproduced hereunder:\n\n "Rationalisation of various Provisions\n\n Payment by employer of employee contribution to a fund on or before due date\n\n Clause (24) of section 2 of the Act provides an inclusive definition of the income. Sub-\n clause (x) to the said clause provide that income to include any sum received by the\n assessee from his employees as contribution to any provident fund or superannuation\n fund or any fund set up under the provisions of ESI Act or any other fund for the\n welfare of such employees. "\n\n Section 36 of the Act pertains to the other deductions. Sub-section (1) of the said\n section provides for various deductions allowed while computing the income under the\n head "Profits and gains of business or profession.\n\n Clause (va) of the said sub-section provides for deduction of any sum received by the\n assessee from any of his employees to which the provisions of sub-clause (x) of clause\n (24) of section 2 apply, if such sum is credited by the assessee to the employee's\n account in the relevant fund or funds on or before the due date. Explanation to the\n said clause provides that, for the purposes of this clause, "due date" to mean the date\n by which the assessee is required as an employer to credit an employee's contribution\n to the employee's account in the relevant fund under any Act, rule, order or\n notification issued there-under or under any standing order, award, contract of\n service or otherwise.\n\n Section 43B specifies the list of deductions that are admissible under the Act only\n upon their actual payment. Employer's contribution is covered in clause (b) of section\n 6\n I.T.A. Nos. 383-384/Kol/2021\n Jayanta Food Products, Assessment Years: 2018-19 & 2019-20\n\n 43B. According to it, if any sum towards employer's contribution to any provident\n fund or superannuation fund or gratuity fund or any other fund for the welfare of the\n employees is actually paid by the assessee on or before the due date for furnishing the\n return of the income under subsection (1) of section 139, assessee would be entitled to\n deduction under section 43B and such deduction would be admissible for the\n accounting year. This provision does not cover employee contribution referred to in\n clause (va) of sub-section (1) of section 36 of the Act..\n\n Though section 43B of the Act covers only employer's contribution and does not cover\n employee contribution, some courts have applied the provision of section 43B on\n employee contribution as well. There is a distinction between contribution and\n employee's contribution towards welfare fund. It may be noted that employee's\n contribution towards welfare funds is a mechanism to ensure the compliance by the\n employers of the labour welfare laws. Hence, it needs to be stressed that the\n employer's contribution towards welfare funds such as ESI and PF needs to be clearly\n distinguished from the employee's contribution towards welfare funds. Employee's\n contribution is employee own money and the employer deposits this contribution on\n behalf of the employee in fiduciary capacity. By late deposit of employee contribution,\n the employers get unjustly enriched by keeping the money belonging to the employees.\n Clause (va) of sub-section (1) of Section 36 of the Act was inserted to the Act vide\n Finance Act 1987 as a measures of penalizing employers who mis-utilize employee's\n contributions.\n\n Accordingly, in order to provide certainty, it is proposed to -\n\n (i) amend clause (va) of sub-section (1) of section 36 of the Act by inserting another\n explanation to the said clause to clarify that the provision of section 43B does not\n apply and deemed to never have been applied for the purposes of determining the\n "due date" under this clause; and\n\n (ii) amend section 43B of the Act by inserting Explanation 5 to the said section to\n clarify that the provisions of the said section do not apply and deemed to never have\n been applied to a sum received by the assessee from any of his employees to which\n provisions of sub-clause (x) of clause (24) of section 2 applies.\n\n These amendments will take effect from 1st April, 2021 and will accordingly apply to\n the assessment year 2021-22 and subsequent assessment years. [Clauses 8 and\n 9]"[Emphasis given by us]\n\n13. Therefore, taking us through the relevant clauses of Notes of Clauses of Finance Act, 2021,\nhe pointed out to us that it is explicitly made clear that amendment will take effect from 1st April,\n2021 and therefore will accordingly apply to the assessment year 2021-11and subsequent years.\nTherefore according to ShriMiraj Shah the amended provision of Section 43B as well as Section\n36(1)(va) are not applicable in the assessment year under consideration for the present case as it is\nfor AY 2017-18 and therefore according to him, the decision of the Hon'ble Jurisdictional Calcutta\nHigh Court is binding on this issue as held in the case of CIT vs. M/s Vijayshree Ltd. in ITAT No.243\nof 2011 & GA No. 26607 of 2011, CIT vs. Philips Carbon Black Ltd. in GA No. 1382 of 2014 & ITAT\n31 of 2014, CIT vs. M/s Coal India Ltd. in ITA 12 of 2015, M/s Akzo Nobel India Ltd. vs. CIT in ITA\nNo. 110 of 2011 and therefore the claim of the assessee should be allowed. According to him, the\njurisdictional High Court's decision on this issue is therefore binding on this Tribunal ; and since\nthe employees' contribution was remitted by the assessee before the due date of filing of return of\nincome u/s 139(1) of the Act it is an allowable deduction. Therefore he wants us to overturn the\ndecisions of the lower authorities and uphold the claim of deduction on this issue.\n\n 14. Per contra, the Ld. D.R. ShriJayantaKhanra supporting the decision of authorities below has\ncontended that the Hon'ble Delhi High Court in the case of CIT vs. Bharat Hotel Ltd. in 410 ITR 417\n 7\n I.T.A. Nos. 383-384/Kol/2021\n Jayanta Food Products, Assessment Years: 2018-19 & 2019-20\n\nhas decided this issue in favour of the revenue and the Delhi Tribunal has followed the order of the\nHon'ble Delhi High Court in Bharat Hotel (supra) and upheld the action of the Department\ndisallowing the amount deposited by the assessee company in respect of the employees' contribution\nsince it was not deposited within the due date as prescribed by PF Fund and ESI Act. So therefore\nthe Ld. D.R. does not want us to interfere in the impugned order passed by the authorities below.\n\n15. In his rejoinder, the Ld. A.R. ShriMiraj D Shah contended that even though the Delhi High\nCourt in the case of Bharat Hotels Ltd. (supra) had held in favor of the revenue, however the\nHon'ble High Court in that case (Bharat Hotels Ltd.) had not considered the earlier Division Bench\njudgment of the Delhi High Court which was binding on a Division Bench in the case of CIT vs.\nAimil Ltd. &Ors. Reported in 321 ITR 508 (Delhi) wherein the head notes reads as under:\n\n "Late deposit of PF and ESI - During the assessment proceedings, the Assessing Officer (AO)\n found that the assessee had deposited employers' contribution as well as employees'\n contribution towards provident fund and ESI after the due date, as prescribed under the\n relevant Act/Rules. Accordingly, he made addition of Rs. 42,58,574/- being employees'\n contribution under Section 36(1)(va) of the Act and Rs. 30,68,583/- being employers'\n contribution under Section 43B of the Act. CIT(A) deleted the addition by holding that the\n assessee had made the payment before the due date" of filing of the return, which was a fact\n apparent from the record - that if the employees' contribution is not deposited by the due date\n prescribed under the relevant Acts and is deposited late, the employer not only pays interest\n on delayed payment but can incur penalties also, for which specific provisions are made in the\n Provident Fund Act as well as the ESI Act. Therefore, the Act permits the employer to make\n the deposit with some delays, subject to the aforesaid consequences. Insofar as the Income Tax\n Act is concerned, the assessee can get the benefit if the actual payment is made before the\n return is filed, as per the principle laid down by the Supreme Court in Vinay Cement - Decided\n in favor of assessee."[Emphasis given by us]\n\n16. Thus it was pointed out by the Ld. A.R. that the Hon'ble High Court Division Bench had\nearlier held in M/s Aimil Ltd. (supra) that the PF/ESI Act permits the employer to make deposit with\nsome delays, subject to the consequents as per the respective PF/ESI Acts, however insofar as the\nIncome Tax Act is concerned, the assessee can get the benefit of deduction if the actual payment is\nmade before the return is filed as per the principle laid down by the Hon'ble Supreme Court in Vinay\nCements reported in 213 CTR 268 (SC). Therefore, according to Ld. A.R., since the later judgment of\nthe Division Bench of Hon'ble Delhi High Court in Bharat Hotels Ltd.(supra) did not consider the\nCo-ordinate Bench decision as the case of CIT vs. Aimil Ltd. (supra) it cannot be a stare-decise. And\nmoreover it is settled position of law that when there is conflict between two decisions of the High\nCourt of equal strength [(DB) in this case], it cannot be said that later judgment need to be followed,\nunless a Full Bench of the High Court settled the issue either wise. However, when it comes to fiscal\nstatutes, according to ShriMiraj D Shah, in such circumstance [i.e, conflict of decisions/views of\nBenches of same strength and when there is no decision on the issue of jurisdictional High Court]\nthen, the decision in favour of assessee should be followed as held by the Hon'ble Supreme Court in\nthe Vegetable Products Ltd. 82 ITR 192 (SC) wherein it is settled when two views/interpretations are\npossible on an issue, then the view which is in favour of the assessee need to be followed. Taking note\nof this aspect, it was brought to our notice that the latest Delhi Tribunal order and Hyderabad\nTribunal Orders have held in favour of the assessee in NCC Ltd. vs. ACIT dated 27.09.2021 and also\nHyderabad Bench decision in ACIT vs. Nava Bharat Ventures Ltd. (2021) 10 TMI 403 wherein\nTribunal was pleased to direct deletion of the disallowance made by the AO in respect of the\npayment of employees contribution to ESI/PF. Therefore he prayed that the disallowance made by\nauthorities below be deleted on this score.\n\n17. Have heard both the parties. We note that the Finance Bill, 2021 has brought in an\namendment which disallows the employees' contribution made in PF and ESI if not made within the\ndue date as prescribed by the respective statutes (PF and ESI Act). So after the amendment has been\ninserted according to ShriMiraj D Shah takes effect from 1st April, 2021 i.e AY 2021-22 and\nsubsequent assessment year and if the remittance of PF/ESI Employees' Contribution is not made\n 8\n I.T.A. Nos. 383-384/Kol/2021\n Jayanta Food Products, Assessment Years: 2018-19 & 2019-20\n\nwithin the time prescribed by the PF/ESI Act then the remittance cannot be allowed as a deduction\nwhich is prospective in operation. Whereas according to Ld. CIT(A), the amendment brought in is\nclarificatory in nature so, retrospective in operation. So we have to adjudicate this issue whether the\namendment brought in by Finance Act, 2021 is prospective or retrospective in operation. We note\nthat before this amendment has been inserted by Finance Bill, 2021, the Hon'ble Jurisdictional\nCalcutta High Court in the case of ShriVijayshree Ltd. Ltd.(supra), M/s Philips Carbon Black\nLtd.(supra), M/s Coal India Ltd.(supra), M/s Akzo Nobel India Ltd. (supra) has held that the\npayment of employees' contribution if made by an assessee before the due date of filing of return of\nincome u/s 139(1) of the Act, is allowable as a deduction. We note that by Finance Act, 2021, the\nprovision of Section 36(1)(va) as well as Section 43B has been amended to this extend by inserting\nthe Explanation 2 whereby it is clarified that the provision of Section 43B shall not apply and shall\nbe deemed never to have been applied for the purpose of determining the due date under this clause.\nFor ready reference, we reproduce the Explanation-2 to Section 36(1)(va) as under:\n\n "Section 36(1)(va)\n\n Explanation-2 - For the removal of doubts, it is hereby clarified that the provisions of Section\n 43B shall not apply and shall be deemed never to have been applied for the purpose of\n determining the 'due date' under this clause'\n\n 18. We find that this amendment has been brought in the Act to provide certainty about the\napplicability of Section 43B in respect of belated payment of employees' contribution. In order to test\nwhether the amendment brought in later is retrospective or not one has to apply the test as laid by\nthe Hon'ble Supreme Court in the case of M/s Snowtex Investment Ltd. (supra) wherein the Hon'ble\nSupreme court took note of the law laid down on this issue by the Constitution Bench in M/s Vatika\nTownship Ltd. and held that the intent of the Parliament/legislature need to be looked into for\nascertaining whether the amendment should be retrospective or not. In Vatika Township Ltd. (supra)\nthe Hon'ble Supreme Court held that the notes on clauses appended to the Finance Bill will throw\nlight as to the legislative intent; because it has to be borne in mind that Parliament/legislature is\naware of three concepts before an amendment is brought in, which can be discerned from reading of\nthe "Notes on Clauses" to the Bill which are (i) prospective amendment with effect from a fixed date;\n(ii) retrospective amendment with effect from a fixed anterior date; and (iii) clarificatory\namendments which are retrospective in nature. So when we adjudicate whether the view of LdCIT(A)\nthat the explanation 2 brought in by Finance Act, 2021 is retrospective, let us look at the "Notes on\nClauses and the relevant clauses 8 & 9 of the Finance Bill, 2021 (supra) pertaining to the issue in\nhand which in clear and unambiguous terms spells out the intention of Parliament that the\namendment shall take effect from 1st April, 2021 and therefore will accordingly apply to\nAssessment Year 2021-22 and subsequent years. So since the legislative intent is clear, the\namendment brought in by Finance Act, 2021 on this issue as discussed is prospective and Ld. CIT(A)\nerred in holding otherwise. So till AY 2021-22, the Jurisdictional High Court's view in favor of\nassessee will hold good and is binding on us. As discussed the decision of the Hon'ble Delhi High\nCourt in Bharat Hotels Ltd. (supra) which was in favor of revenue has not considered the decision of\nthe Co-ordinate Division Bench decision in M/s Aimil Ltd.(supra) which is in favour of assessee. So\nwe note that later decision of the Delhi/Hyderabad Tribunal have followed the decision favouring\nassessee in the light of the Hon'ble Supreme Court decision in M/s Vegetable Products (supra). In\nthe light of the aforesaid decision and relying on the ratio of the Hon'ble Supreme Court in the case\nof Vatika Township Pvt. Ltd. (supra) and M/s Snowtex Investment Ltd. (supra) and also taking note\nof the binding decision of the Hon'ble Jurisdictional Calcutta High Court on this issue before us in\nShriVijayshree Ltd. Ltd.(supra), M/s Philips Carbon Black Ltd.(supra), M/s Coal India Ltd.(supra),\nM/s Akzo Nobel India Ltd. (supra), we set aside the impugned order of Ld CIT(A) and direct the AO\nto allow the claim of deduction in respect of employees contribution shares towards ESI, PF, by the\nassessee before the due date of filing of return u/s 139(1) of the Act. Therefore the appeal of assessee\nsucceeds and so, it is allowed in favour of assessee.\n 9\n I.T.A. Nos. 383-384/Kol/2021\n Jayanta Food Products, Assessment Years: 2018-19 & 2019-20\n\n\n3. In the light of the decision of this Tribunal on this issue, I am inclined to allow the\nappeal of the assessee subject to AO's verification that assessee has deposited\nemployees'/employers' contribution before the due date of filing of the return. Therefore, in\nthe light of the above judicial precedents (supra), the A.O. is directed to delete the addition\nprovided the assessee has deposited the employees'/ employer's contribution before the due\ndate of filing of the return. And it is held that the Amendment brought in Finance Act 2021\nw.e.f. 01.04.2021 by inserting an Explanation to section 36(1)(va) and section 43B of the Act\nis prospective in nature and would apply from AY 2021-22 onwards and, therefore, it is held\nthat the amendment is not applicable to these assessment years (Assessment Years 2018-19\nand 2019-20) under consideration.\n\n4. In the result, both the appeals of the assessee are allowed for statistical purposes.\n\n Order is pronounced in the open court on 16th February, 2022.\n\n Sd/-\n (A. T. Varkey)\n Judicial Member\n\n Dated: 16th February, 2022\nJD, Sr. PS\n\nCopy of the order forwarded to:\n\n 1. Appellant- M/s. Jayanta Food Products, P-180, C.I.T. Road, Scheme-VIM, Kolkata-\n 700 054.\n\n 2. Respondent - DCIT, CPC\n\n 3. The CIT(A)-National Faceless Appeal Centre (NFAC)\n 4. CIT- , Kolkata\n 5. DR, Kolkata Benches, Kolkata (sent through e-mail)\n\n True Copy\n\n By Order\n\n\n Assistant Registrar,\n ITAT, Kolkata Benches, Kolkata |
aef6ba55-ba21-58e1-ae7a-42cbef6a5f7e | court_cases | Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member services -- Free for one month.\n\nCustom, Excise & Service Tax Tribunal\nJaymco Polymers P Ltd vs Commissioner Of Customs -Nhava Sheva - I on 9 May, 2022\n 1\n\n\n\n\n CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL\n MUMBAI.\n\n Customs Appeal No. 86184 of 2021\n\n(Arising out of Order-in-Appeal No.407 to 409 (Gr.I & 1A)/2021(JNCH)/Appeals dated\n19.05.2021 passed by the Commissioner of Customs (Appeals), JNCH, Nhava Sheva, Dist.\nRaigad, Maharashtra]\n\nShri Jethanand Rohra, Appellant\nDirector of M/s. Jaymco Polymers Pvt.Ltd.,\nPlot No.16, Additional Ambernath,\nAnand Nagar, MIDC,\nAmbernath-421 506.\n VERSUS\n\nCommissioner of Customs (Import) Respondent\nNS-I, JNCH, Nhava Sheva,\nDist.-Raigad-400 707.\n\n\n AND\n\n Customs Appeal No. 86185 of 2021\n\n(Arising out of Order-in-Appeal No.407 to 409 (Gr.I & 1A)/2021(JNCH)/Appeals dated\n19.05.2021 passed by the Commissioner of Customs (Appeals), JNCH, Nhava Sheva, Dist.\nRaigad, Maharashtra.]\n\n\nM/s Jaymco Polymers Pvt. Ltd. Appellant\nPlot No.16, Additional Ambernath,\nAnand Nagar, MIDC,\nAmbernath-421 506.\n VERSUS\n\nCommissioner of Customs (Import) Respondent\nNS-I, JNCH, Nhava Sheva,\nDist.-Raigad-400 707.\n\n\n\n\nAPPEARANCE:\n\nShri N.D. George, Advocate for the appellant\nShri Manoj Das, Authorised Representative for the respondent\n\nCORAM:\n\nHON'BLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL)\nHON'BLE MR. C.J. MATHEW, MEMBER (TECHNICAL)\n\n\n FINAL ORDER NOS. A/85436-85437/2022\n\n DATE OF HEARING:18.02.2022\n DATE OF DECISION:09.05.2022\n 2\n\n\n\n\nANIL CHOUDHARY:\n\n The appellant, M/s. Jaymco Polymers Pvt. Ltd. carries on business of\n\nmanufacture, import, and trading of various Mixed Mineral Hydrocarbon oil,\n\netc. The other appellant, Jethanand Rohra is the director of the appellant\n\ncompany.\n\n2. The facts in brief are that the appellant in the normal course of\n\nbusiness upon import filed 5 bills of entry during the period December,\n\n2019 and Jan. 2020 for clearance of goods declared as "Mineral\n\nHydrocarbon Oil" CTH 27101988/Mixed Mineral Hydrocarbon Oil - CTH\n\n27101990, as freely importable. One of the raw materials, the appellant\n\nimports for final products is Mineral Hydrocarbon Oil, which is a solvent. The\n\nconsignment /containers were put on hold for drawing samples as Revenue\n\nsuspected mis-declaration. Initially, the Customs Authorities took a sample\n\nfrom import consignment with respect to the Bill of Entry No. 6110507\n\ndated 17.12.2019 on Ist check basis and sent the same for testing to Dy.\n\nChief Chemist, JNCH vide Test Memo No.1059045 dated 17.12.2019. Vide\n\nreport dated 27.12.2019, it was opined as under:-\n\n "The Sample is in the form other than light oil and preparations,\n\n Kerosene (SKO) and Diesel (HSD)".\n\nThe appellant paid duty on 31.12.2019 as the goods were found as declared.\n\nHowever, the said goods were not allowed to be cleared and put on hold by\n\nthe Department. Thereafter, the sample was once again drawn on\n\n07.01.2020 and again forwarded to the Dy. CC, JNCH for retesting. The\n\nsame Dy.CC, JNCH vide his test report no.18/GIIB(I) dated 21.01.2020\n\nopined as under:-\n 3\n "The above tested parameters is in the range of diesel oil.\n\nIt is other than the light oil and preparations solvent (125/240), Kerosene\n\n(SKO) and Vacuum Gas Oil".\n\nThereafter, samples were drawn under Panchnama for other 4 Bills of entry\n\nand forwarded to the DYCC, JNCH for testing. As per test report, it appeared\n\nto Revenue that the goods are Superior Kerosene Oil (SKO) - CTH\n\n27101910 with respect to the three bills of entry and High Speed Diesel\n\n(HSD) of CTH 27101930 in case of 2 bills of entries, import of which is\n\nrestricted and allowed only by the State Trading Enterprises. Thus, it\n\nappeared that the import made by the appellant in absence of specific\n\nauthorisation by DGFT, is prohibited and as such, the same is in\n\ncontravention of FTP, violating the provisions of Section 111 (d) & (m) of\n\nthe Customs Act and thus, liable to confiscation. Show cause notice dated\n\n14.10.2020 was issued and the goods were seized. The details Bill of entry\n\nwise are as follows:-\n\n Table- A\n\nImporter M/s.Jaymco Polymers Pvt.Ltd.\n\nIEC 0310057744\n\nBill of Entry 6356219 dated 04.01.2020\n\nIGM No. 2243189 dated 2.1.2020\n\nCountry of Origin Kuwait\n\nDescription of Goods & CTH Mixed Mineral Hydrocarbon Oil-\n\n CTH27101988\n\nQuantity 85370 Kgs.\n\nInvoice No. & Date MEDUKW032040 dated 04.12.2019\n\nDeclared Invoice Value (C&F) 50365.35 USD\n\nExchange Rate 1.00 USD = 72.15 INR\n\nSupplier M/s. Babji International, Kuwait\n 4\n\n\n\n\nContainer Nos. CAI6215630, FCIU5874098, GLDU5286813,\n MSDU1184242 and TEMU1377294.\n\n\nGoods- as classified by Revenue Diesel CTH27101944\n\nDeclared Assessable Value 3636213\n\nRe-determined value @Rs.43.14/Ltr. 4419434.16\n\n\n\n Table- B\n\nImporter M/s. Jaymco Polymers Pvt. Ltd.\n\nIEC 0310057744\n\nBill of Entry 6227454 dated 25.12.2019\n\nIGM No. 2242451 dated 24.12.2019\n\nCountry of Origin Kuwait\n\nDescription of Goods Mineral Hydrocarbon Oil-CTH27101990\n\nQuantity 167490 Kgs.\n\nInvoice No. and Date KW-SMB-INV-126 dated 03.12.2019\n\nDeclared Invoice Value (C&F) 99656.55 USD\n\nExchange Rate 1.00 USD = 71.90 INR\n\nSupplier M/s. SMB Golden General Trading Co. ,\n Kuwait\nContainer No. CAIU6217886, FCIU4319784,\n GLDU5499608, MEDU2231059,\n MEDU5444103, MEDU5461950,\n MEDU5586197, MEDU5599379,\n MEDU6772513 and MSDU1085208.\n\nGoods as classified by Revenue Kerosene CTH 27101910\n\nDeclared Assessable Value 71,69,963\n\nRe-determined Value @Rs.37.23/Ltr. 79,81,635.46\n\n\n Table- C\n\nImporter M/s. Jaymco Polymers Pvt.Ltd.\n\nIEC 0310057744\n\nBill of Entry 6110507 dated 17.12.2019\n\nIGM No. 2241551 dated 13.12.2019\n\nCountry of Origin Kuwait\n\nDescription of Goods Mixed Mineral Hydrocarbon Oil-\n CTH27101988\n 5\n\n\n\n\nQuantity 73090 Kgs.\n\nInvoice No. and Date KW-SMB-INV-121 dated 13.11.2019\n\nDeclared Invoice Value (C&F) 43123.10 USD\n\nExchange Rate 1.00 USD = 72.40 INR\n\n\nSupplier M/s. Babji International Co. Kuwait.\n\nContainer No. MEDU5654814, MEDU5861745,\n MEDU6929217 and TGHU0968761\n\nGoods as classified by Revenue Diesel CTH 27101944\n\nDeclared Assessable Value 31,24,128.44\n\nRe-determined Value @ Rs.43.14/Ltr. 37,83,723.12\n\n\n Table- D\n\nImporter M/s. Jaymco Polymers Pvt.Ltd.\n\nIEC 0310057744\n\nBill of Entry 6024354 dated 10.12.2019\n\nIGM No. 2241215 dated 10.12.2019\n\nCountry of Origin Qatar\n\nDescription of Goods Mineral Hydrocarbon Oil-CTH27101990\nQuantity 160300 Kgs.\n\nInvoice No. and Date QT-SMB-INV-100 dated 02.12.2019\n\nDeclared Invoice Value (C&F) 95378.50 USD\n\nExchange Rate 1.00 USD = 72.40 INR\n\n\nSupplier M/s. SMB Golden General Trading Co.,\n Kuwait.\nContainer No. CAIU2271662, GLDU3898070,\n MRSU0280314, MSKU2315450,\n MSKU3569491, MSKU4125357,\n MSKU7994523, TCKU1625713,\n TTNU1078568 and TTNU1248474.\n\nGoods as classified by Revenue Kerosene CTH 27101990\n\nAssessable Value 69,09,859\n\nRe-determined 76,39,000.32\n Value @Rs.37.23/Ltr.\n 6\n\n\n\n\n Table- E\n\nImporter M/s. Jaymco Polymers Pvt. Ltd.\n\nIEC 0310057744\n\nBill of Entry 6025517 dated 10.12.2019\n\nIGM No. 2241215 dated 10.12.2019\n\nCountry of Origin Qatar\n\nDescription of Goods Mineral Hydrocarbon Oil-CTH27101990\n\nQuantity 169150 Kgs.\n\nInvoice No. and Date QT-SMB-INV-99 dated 02.12.2019\n\nDeclared Invoice Value (C&F) 100644.25 USD\n\nExchange Rate 1.00 USD = 72.40 INR\n\n\nSupplier M/s. SMB Golden General Trading Co.,\n Kuwait.\nContainer No. HASU1434878, MRKU7389958,\n MRKU7663800, MRKU7853020,\n MRKU8039574, MRKU8138561,\n MRKU8241332, MRKU8411491,\n MRKU8499163 and MRKU9748419.\n\n\nGoods as classified by Revenue Kerosene CTH 27101990\n\nAssessable Value 74,37,174\n\nRe-determined 80,60,741.76\nValue @Rs.37.23/Ltr.\n\n\n\n3. The appellant importer's request to retest the samples, particularly for\n\ngoods of Bill of Entry no.6024354 and 6025517, both dated 10.12.2019\n\n(which were tested as Kerosene), as per Circular No.30/2017 dated\n\n18.07.2017. However the request was denied by the Adjudicating Authority,\n\nrelying on para 2 (g) of the said Board's Circular.\n\n4. Statement of the Director/Jethanand Rohra, was recorded under\n\nSection 108 of the Act, wherein he, inter alia, stated that he had never\n\nvisited any customs House or Bombay Test House and all the documents\n 7\n\n\n\n\nwere handled by the Customers Broker/ IOCC Shipping Company including\n\nthe managing of the documents from Bombay Test House. He further\n\nstated that Shri Taranjeet Singh Rathore is the person in the Customs\n\nbroker firm, handling all the customs clearances.\n\n5. It appeared to Revenue that the appellants have been importing\n\nKerosene /diesel by mis-declaring the same as MHO/MMHO and IMRO in\n\nconnivance with the supplier and the Customs Broker. It further appeared\n\nthat the appellants have admitted to the import of prohibited goods by way\n\nof mis-declaration and to get the same cleared for home consumption.\n\n6. As the provisional release was not being given, the appellant had also\n\napproached the Hon'ble Bombay High Court for directions to allow proper\n\nstorage of the consignment being inflammable and had also prayed for\n\nprovisional release to be allowed by the Revenue. Thereafter, Revenue\n\npassed order dated 31.08.2020 for provisional release, subject to the\n\nconditions:-\n\n (i) Execution of bond of Rs. 2,90,36,082/-;\n\n (ii) Security deposit of Rs.3,77,32,753/- on account of differential duty,\n\n fine and penalty that may be levied at the time of adjudication; and\n\n(iii) Payment of self-assessed duty, where it is not paid.\n\n7. The appellant objected to taking of assessable value of Rs.80.11/- per\n\nlitre, determined by the Department for the purpose of provisional release,\n\nand in fact, the customs duty has been applied twice. The Hon'ble Bombay\n\nHigh Court, while passing the final order in respect of the Writ Petition\n\nNo.2451/2020, observed as follows:-\n\n i. Petitioner is granted liberty to file appeal before the CESTAT under\n\n Section 129-A(1)(a) of the Customs Act against the order dated\n\n 31.08.2020.\n 8\n ii. If such appeal is filed within a period of four weeks from today and\n\n an application is made for early hearing, CESTAT shall decide the\n\n appeal within a period of four weeks thereafter considering the\n\n limited nature of the grievance of the petitioner.\n\n iii. In so far adjudication process is concerned let the Adjudicating\n\n Authority initiate the adjudication process by issuance of show\n\n cause notice under Section 124 of the Customs Act, and take the\n\n proceedings to its logical conclusion one way or the other by\n\n following the due procedure and principles of natural justice within\n\n a period of four weeks from the date of receipt of a copy of this\n\n order.\n\n iv. Petitioner is also granted liberty to file application before the\n\n respondents for sale for the seized goods and if such application is\n\n filed, respondent shall take a considered decision thereon in\n\n accordance with law, within a period of two weeks from the date of\n\n receipt of the application with due intimation to the petitioner.\n\n v. All contentions are kept open and we have not expressed any\n\n opinion on merit or otherwise."\n\n8. In compliance to the direction issued by the Hon'ble Bombay High\n\nCourt, appellant had filed an appeal bearing no. C/86035/2020 before the\n\nHon'ble Tribunal challenging the Order-in-original dated 31.08.2020 (on pro.\n\nrelease) by the Commissioners of Custom, (NS(V) alongwith an early\n\nhearing application. Show Cause Notice No. 519/2020-21/SIIB (I) JNCH\n\ndated 13.10.2020 was issued upon the appellant as to why the seized goods\n\nshould not be confiscated under Section 111(d) and (m) of the Customs Act,\n\n1962, and also as to why Penalty should not be imposed on the Appellant\n\nunder Section 112(a) and 114AA of the Customs Act, 1962. Personal hearing\n 9\n\n\n\n\nin respect of the said Notice was scheduled on 22.10.2020 and duly attended\n\nby the Appellant's authorized representative. Pursuant to the hearing, the\n\nAppellant under cover of his email dated 23.10.20, filed its defence reply\n\ndated 22.10.2020 wherein categorically rebutted all the allegations and\n\ninsinuations levelled against it in the Notice, as also adduced cogent reasons\n\nand submissions alongwith binding precedents to show and establish that\n\nthe product in question was not kerosene / High speed diesel. Meanwhile the\n\nHon'ble Tribunal was pleased to allow the early hearing application and the\n\nmatter was ultimately scheduled for final hearing on 01.12.2020 on its\n\nspecific prayers with regard to harsh and unreasonable conditions imposed\n\nby the Commissioner of Customs, NS(V) while permitting the provisional\n\nrelease of the consignment in question. The Appellant was shocked and\n\nsurprised by the Adjudication Order dated 23.11.2020 passed by the\n\nAdjudicating Authority and thereafter apprised this Tribunal about the same,\n\nand withdrew its appeal filed before the Tribunal against the Order dated\n\n31.08.2020 (prov. release).\n\n\n9. In the Order-in-Original No. 427/2020/ADC/NS-I/Gr. I&IA/JNCH dated\n\n23.11.2020, it was ordered:-\n\n\na. Amendment of Description and CTH in the subject Bills of Entry and\n re-assessment accordingly;\n\nb. Rejected the declared value under Section 14 of the Customs Act,\n 1962 read with Rule 12 of Customs Valuation Rule and re-determined\n the same;\n\nc. Confiscation of the goods namely Keorsene (IS:1459) (changed\n classification) covered under 03 Bills of Entry No.\n 6227454/25.12.2019, 6022517/10.12.2019, 6024354/10.12.2019\n having re-determined value of Rs. 2,36,81,377.54 u/s 111(d) and\n 111(m) of the Customs Act, 1962;\n\nd. Confiscation of the goods namely HS Diesel (IS:1460) (changed\n classification) covered under 02 Bills of Entry No. 6356219/04.01.2020\n 10\n\n\n\n\n and 6110507/17.12.2019 having re-determined value of Rs.\n 82,03,157.28 u/s 111(d) and 111(m) of the Customs Act, 1962;\n\ne. Gave an option to the importer to redeem the confiscated goods on\n payment of Redemption Fine of Rs. 2,08,44,548/- under Section\n 125(1) of the Customs Act, 1962 and on payment of applicable duty in\n addition to redemption fine and penalty;\n\nf. Imposed a penalty of Rs. 64,00,000/- on the importer M/s Jaymco\n Polymers Pvt. Ltd. under Section 112(a) of the Customs Act, 1962;\n\ng. Imposed a penalty of Rs. 64,00,000/- on Shri Jethanand B. Rohra,\n Director under Section 112(a) of the Customs Act, 1962;\n\nh. Imposed a penalty of Rs. 48,00,000/- on Shri Jethanand B. Rohra\n under Section 114AA of the Customs Act, 1962;\n\ni. Imposed a penalty of Rs. 64,00,000/- on Shri Taranjeet Singh Rathore\n under Section 112(a) of the Customs Act, 1962;\n\nj. Imposed a penalty of Rs. 64,00,000/- on Shri Taranjeet Singh Rathore\n\n (staff of CHA) under Section 114AA of the Customs Act, 1962;\n\n10. Being aggrieved, the appellants preferred appeals before the\n\nCommissioner (Appeals), inter alia, on the grounds that --\n\n A. Onus is cast upon the Department to prove mis-declaration/ mis-\n\n classification, had not been discharged in the instant case, rendering\n\n the impugned order completely untenable. Reliance is placed on the\n\n case laws:\n\n i. HPL Chemicals Ltd. Vs. CCE 2006(197) ELT 324 (SC)\n\n ii Hindustan Ferodo Ltd. Vs CCE 1997 (89) ELT (SC)\n\n B. The Test reports issued by DYCC, JNCH does not cover all the\n properties/parameters as enlisted under IS:1460 or IS:1459,\n rendering the same completely inconclusive and thus unreliable. The\n consignment imported vide Bill of Entry No. 6024354 dated\n 10.12.2019, 6025517 dated 10.12.2019 and 6227454 dated\n 25.12.2019 is alleged to be Kerosene. The Appellant urged that the\n DYCC, JNCH has failed to test material parameters such as burning\n Quality and Colour, which are otherwise mandated under IS:1459, to\n be satisfied for conforming whether a product is 'kerosene' or not.\n 11\nThe Appellant has relied upon settled law laid down by the Hon'ble\nApex Court in the case of CCE vs Sushma Textiles Ltd 2004 (167) ELT\n487 (S.C.)\n\nC. The samples have not been drawn in accordance with the\nmethodology in the prescribed containers as required under the BIS\nSpecification IS 1447-1 rendering the Test Reports, a complete nullity.\n\nD. Non-specification of method of testing in the Test Reports\nrenders the same completely unreliable.\n\nE. Case laws relied by court below in the impugned order are\nirrelevant.\n\n i. Reliance Cellulose Products Ltd. Vs CCE 1997 (93) ELT 646 (SC)\n\n ii. Anand Mohata Agro Indus P. Ltd. Vs C.C. Import 2019\n\n (370) ELT 1656\n\n iii. Collector of Customs, Madras and ors Vs D. Bhoormull\n\n 1983 (13) ELT 1546 (SC)\n\nF. The issue in dispute is no longer res-integra and stands decided\nby the Tribunal in favour of importer in the case of Swarna Oil\nServices Vs. CC in Final Order No. A/11026-11028/2020 dated\n01.06.2020\n\nG. Denial of re-testing in the instant case is against direction in Cir.\nNo.30/2017, in violation of principles of N justice, hence completely\nuntenable and vitiates the impugned order.\n\nH. No reliance whatsoever ought to have been placed on the\nAppellant's statement dated 31.12.2019 having been recorded under\nforce and duress, which have been retracted immediately.\n\nI. Denial of cross examination in the instant case is denial of right\nto a fair trial, in violation of mandate of section 138 B, hence\ncompletely illegal and untenable. Reliance is placed upon case law laid\ndown by the Hon'ble Madras High Court in the case of Thilagarathinam\nMatch Works VS CCE 2013 (295) ELT 195 (Mad)\n 12\n\n\n\n\n J. Non-furnishing of the documents, referred to and relied upon in\n the show cause notice\n\n K. Re-determination of value in the instant case is completely\n bereft of any merits\n\n L. There has been no violation of any policy condition and/or\n provisions of the Foreign Trade Policy.\n\n M. The impugned order confiscating the consignments in question\n under Section 111(d) and 111(m) of the Customs Act, 1962 is\n completely untenable.\n\n N. Imposition of Redemption Fine under Section 125 of the Customs\n Act, 1962 is bad.\n\n O. Imposition of Penalty upon the Appellant under Section 112(a) &\n 114 AA of the Customs Act, 1962 is bad.\n\n\n11. The Director, Shri Jethanand Rohra had also filed appeal before the\n\nCommissioner (Appeals) on the following grounds:-\n\n A. The main Appellant has already laid down cogent reasons to\n prove that the said reliance placed by the OA on Test Reports and the\n consequent conclusions drawn thereto are completely untenable and\n devoid of merits. He requested to rely upon the said submissions\n urged by the main appellant in their appeal memorandum.\n\n B. There is no evidence other than the statement dated\n 31.12.2019, which is relied upon in the instant case to impinge the\n Appellant. The said statement was recorded under force and duress; it\n was not voluntary and did not represent the correct factual position.\n He had duly registered his retraction of the said statement dated\n 31.12.2019, under cover of his letter dated 01.01.2020. The Appellant\n submits that it is a settled law that no reliance can be placed on a\n statement unless the same is corroborated with some reliable and\n independent evidence.\n\n C. There was no connivance between the overseas supplier and the\n Appellant. The COO, Certificate of Analysis and other documents are\n prepared by the overseas supplier and admittedly no proceedings have\n been initiated against them.\n 13\n\n\n\n\n D. The findings of the Adj. Authority that the Appellant had\n connived with the CHA in order to import prohibited goods is\n completely bereft of any merits and not supported by any evidence. No\n reliance ought to have been placed on the Statement of Shri\n Tarachand Rathod, staff of CHA as Shri Rathod had retracted from his\n statement dated 21.08.2020 under cover of his letter dated\n 24.08.2020. Shri Rathod has also filed an affidavit before the Hon'ble\n Bombay High Court during the course of proceeding with regard to\n provisional release of the goods, citing that his statement was\n recorded under-force and duress. The said affidavit and letter of\n retraction was duly filed before the OA.\n\n E. Further the Cross examination of Shri Rathod was denied by the\n OA. In this regard, the Appellant has relied upon the judgment of the\n Hon'ble Madras High Court in the case of Thilagarathiam Match Works\n Vs. CCE 2013 (295) E.L.T. 195 (Mad) wherein the Hon'ble Court had\n held in no uncertain terms, that right to cross examine is a\n fundamental principle of fair trial covered within the ambit of principles\n of natural justice and Section 138 B of the Act.\n\n F. The Appellant cannot be penalized under Section 112(a) of the\n Act as the appellant has not done any act or omitted to do any act,\n which has rendered the goods liable for confiscation under Section 111\n of the Act. Penalty under Section 114AA of the Act is imposable only\n when a person knowingly or intentionally makes, signs or uses or\n causes to be made, signed or used any declaration, statement or\n document which is false or incorrect in any material particular in the\n transaction of any business for the purposes of the Act. As the\n Appellant was not concerned in making false statement or document,\n the imposition of penalty on the appellant is unsustainable.\n\n12. Against the same impugned order-in-original dated 23.11.2020, the\n\nRevenue also filed appeal before the Commissioner (Appeals), inter alia, on\n\nthe following grounds :-\n\n A. Adjudicating Authority has ordered to release the goods on\n payment of Redemption Fine of Rs. 2,08,44,548/- to the importer.\n 14\n Hon'ble Supreme Court in case of Atul Automations Pvt. Ltd. has inter\n alia held that - "A harmonious reading of the statutory provisions of\n the Foreign Trade Act and Section 125 of the Customs Act will\n therefore not detract from the Redemption of such restricted goods\n imported without authorization, upon payment of the market value."\n\n B. The Adjudicating Authority did not take into consideration the\n ruling of the Apex Court and allowed Redemption of the goods on\n payment of redemption fine Rs. 2,08,44,548/- which was less than re-\n determined assessable value of the goods i.e. Rs. 3,18,84,535/-\n\n C. Provided that where it is established to the satisfaction of the\n Adjudicating Authority that any goods or materials which are liable to\n confiscation under Rule 17(1) of the Foreign Trade (Regulation) Rules,\n 1993 had been imported for personal use and for any trade or industry\n such goods or material, shall not be ordered to be confiscated. Under\n Rule 17(2) of the said Rules, the Adjudicating Authority may permit\n the redemption of the confiscated goods or materials upon payment of\n redemption fine equivalent to the market value of such goods or\n materials.\n\n D. The importer has violated the policy condition for import of\n SKO/Diesel and therefore is liable for confiscation under Rule 17(1) of\n the Foreign Trade (Regulation Rules, 1993). As per Rule 17(2) of the\n said Rules, the Adjudicating Authority was required to impose\n redemption fine equivalent to the market value of the goods.\n\n13. The Commissioner (Appeals) was pleased to uphold the order-in-\n\noriginal dated 23.11.2020, and dismissed all the 3 cross appeals by these\n\nappellants and Revenue.\n\n14. Being aggrieved, the appellant is before this Tribunal, inter alia, on\n\nthe grounds urged before the Court below.\n\n15. Ld. Counsel for the appellant further urges that the test reports issued\n\nby the DYCC/JNCH are not reliable for the reasons that firstly, the samples\n 15\n\n\n\n\nwere not drawn properly, as prescribed in IS 1447-1 and secondly, the test\n\nreports are not conclusive as the DYCC/JNCH have not tested all the\n\nparameters suggested in Indian Standards for petroleum products. It is\n\nurged that test of all parameters prescribed is mandatory to conclusively\n\nestablish the identity of the alleged petroleum products (Diesel/Kerosene).\n\nSince the test reports of the so called representative samples have not\n\nbeen carried out in respect of the certain characteristics, the test reports are\n\nunreliable. Hence, the orders of the court below, relying on the test reports\n\nare vitiated and fit to be set aside. Evidently, the Court Below has relied\n\nupon unreliable test reports and thus, have failed to discharge the burden of\n\nproof in support of their allegations of mis-declaration or mis-classification of\n\nthe goods under dispute.\n\n16. Ld. Counsel relies on the ruling of the Apex Court in the case of\n\nSushama Textiles (supra), wherein it is held that for want of test of all\n\nthe required parameters, the test reports are inconclusive and thus,\n\nunreliable to draw any adverse conclusion against the assessee. Ld. Counsel\n\nhave further assailed the test report bills of entry-wise as follows:-\n (16.1) Bill of Entry No. 6227454 dated 25.12.2019 and Test Report No.\n 19 SIIB (I) dated 07.01.2020\n\n\n 16.1.1 Insofar as the consignment imported vide the Bill of\n Entry No.6227454 dated 25.12.2019 is concerned, reliance has been\n placed on the Test Report No. 19 SIIB (I) dated 07.01.2020 by the\n Respondent to hold that the consignment imported is, one of kerosene.\n In addition, the Respondent has also tabulated the following\n parameters which according to him were tested and reported in the\n said Test Report dated 07.01.2020. Thereafter, the Respondent has\n held that "As per above Test Reports, I find that tests have been\n 16\n\n\n\n\ncarried out as per specification mentioned in IS 1459/1460 and tested\nall 10 parameters and confirms to Superior Kerosene Oil/Diesel. "\n\n\n i. Density at 15°C = 0.7888 g/ml\n ii. K. V. at 40°C = 1.15 cst\n iii. Flash Point = 46oC\n iv. Acidity (inorganic) = Nil\n v. Smoke Point = 23 mm\n vi. Ash Content = Nil\n vii. Initial Boiling Point = 150.08oC\n viii. Volume distilled at 200°C = More than 40%\n ix. 90 % Distilled at = 236.02oC\n x. Final Boiling Point = 248.9oC\n\n 16.1.2. The Appellant submits that the aforesaid reliance placed\n by the Respondent on the Test Report and the consequent\n conclusions drawn in the impugned order, to hold the product in\n question is kerosene, are completely untenable. The Appellant\n submits that the Respondent has erroneously assumed that the\n parameter of acidity (inorganic) has been tested and reported in the\n Test Report. The Test Report is, in fact, completely silent and has not\n reported the said parameter, clearly evidencing the callous approach\n of the Respondent. In view thereof, the Respondent has erred in\n holding that 10 parameters have been tested and reported in the Test\n Report as per the Specification IS 1459.\n\n 16.1.3 What the Respondent has failed to appreciate is that there\n are 8 parameters/properties under the IS 1459: 1974 which are\n required to be tested and reported for confirming whether a product\n is kerosene or not and not 10, as otherwise held by him. What the\n Respondent has further failed to appreciate, that though the Test\n Report has reported 9 parameters, however, in effect these are only 6\n parameters which have been tested and reported in the Test Report,\n as Initial Boiling Point, Final Boiling Point, Volume Distilled at\n 200°C and 90% distilled at, form part of a single parameter viz.\n Distillation Range.\n\n\n16.1.4 Further, what the Respondent has failed to take cognizance\nof the fact, out of the said 6 parameters, only 3 parameters viz. Flash\nPoint, Smoke Point and Distillation range, match the list of the\nparameters mandated under IS 1459: 1974. In other words, out of the\n 17\n\n\n\n\n 8 parameters mandated under IS 1459: 1974, only 3 parameters viz.\n Flash Point, Smoke Point and Distillation range have been tested and\n reported, and the rest 5 mandatory parameters have not been tested\n and reported at all. The other 3 parameters tested and reported in the\n Test Report viz. density, ash content and kinematic viscosity have\n not been envisaged by the IS 1459: 1974, and accordingly are\n inconsequential to the case at hand.\n\n\n16.1.5 The mandatory 5 parameters/properties enlisted under IS\n1459: 1974, which have not been tested and reported in the Test\nReport are as under:\n\n i. Acidity (inorganic)\n ii. Burning Quality, which includes testing the Char Value,\n mg/kg of oil consumed and Bloom on glass chimney\n iii. Color (Sayabolt)\n iv. Copper strip corrosion for 3h at 50°C\n v. Total Sulphur, percent by mass\n\n16.1.6 In view of the aforesaid, inasmuch as the Test Report has not\ntested and reported the aforesaid 5 mandatory parameters/ properties,\nthe said Test Report is completely inconclusive to hold that the\nconsignment is one of kerosene. In view thereof, the said Test Report,\nby no stretch of imagination, could have been used as a reliable piece\nof evidence for seizing the consignment in question or draw any\nadverse inference/ conclusion against the Appellant. Thus, even if\nColor (Sayabolt) and Burning Quality test is not considered, still the\nRespondent has failed to show and establish the satisfaction of the\nother three mandatory parameters rendering the Test Reports\ncompletely inconclusive and thereby unreliable. The impugned order,\nthus, deserves to be quashed and set aside.\n\n\n16.1.7 The Appellant had categorically urged and brought on record\nthe aforementioned 5 mandatory parameters having not been tested,\n 18\n\n\n\n\n reported and satisfied, however, the Respondent has chosen to ignore\n the same, rendering the impugned order completely untenable.\n\n 16.2 Bills of Entry No. 6024354 dated 10.12.2019 corresponding Test\n Reports No. 231 SIIB (I) dated 17.12.2019.\n\n Insofar as the Bill of Entry No. 6024354 dated 10.12.2019 is concerned,\n reliance has been placed on the Test Reports No. 231dated 17.12.2019 by\n the Respondent to hold that the consignment imported is Kerosene is bad\n and untenable for same reasons and errors, as enumerated in para 16.1.1 to\n 16.1.7.\n\n\n\n16.3 Bills of Entry No.6025517 dated 10.12.2019\n and corresponding Test Report No. 232 SIIB (I)\n dated 17.12.2019\n\n16.3.1 Insofar as the Bill of Entry No. 6025517dated 10.12.2019 is\nconcerned, reliance has been placed on the Test Reports No. 232 dated\n17.12.2019 by the Respondent to hold that the consignment imported is\nKerosene. In addition, the Respondent has, after tabulating the parameters\ntested and reported in the said Test Report dated 17.12.2019 held that "As\nper above Test Reports, I find that tests have been carried out as per\nspecification mentioned in IS 1459/1460 and tested all 10 parameters and\nconfirms to Superior Kerosene Oil/Diesel. "In this regards, the Appellant\nsubmits that the said reliance placed by the Respondent on the Test Report\nand the conclusions drawn thereon is completely untenable to say the least.\n\n\n\n16.3.2. What the Respondent has failed to appreciate, there are 8\nparameters/properties under the IS 1459: 1974 which are required to be\ntested and reported for confirming whether a product is kerosene or not and\nnot 10 parameters, as otherwise held by him. What the Respondent has\nfurther failed to appreciate, that though the Test Report has reported 10\nparameters, however, in effect these are only 7 parameters which have been\ntested and reported in the Test Report as Initial Boiling Point, Final Boiling\n 19\n\n\n\n\n Point, Volume Distilled at 200°C and 90% distilled at, form part of a single\n parameter viz. Distillation Range. In view thereof, the Respondent has erred\n in holding that 10 parameters have been tested.\n\n\n\n16.3.3. Further what the Respondent has failed to take cognizance of the\nfact that Out of the said 7 parameters, only 4 parameters viz. Flash Point,\nAcidity, Distillation range and Smoke Point match to those parameters which\nare required to be tested under IS 1459: 1974. In other words, out of the 8\nparameters mandated under IS 1459: 1974, only 4 parameters have been viz.\nFlash Point, Acidity, Smoke Point and Distillation range have been tested and\nreported, and the rest 4 mandatory parameters have not been tested and\nreported at all. The other 3 parameters tested and reported in the Test Report\nviz. density, ash content and kinematic viscosity have not been envisaged by\nthe IS 1459: 1974 and accordingly are inconsequential to the case at hand.\n\n\n\n16.3.4 The mandatory 4 parameters/properties enlisted under IS 1459:\n1974, which have not been tested and reported in the Test Report are as under:\n\n i. Burning Quality, which includes testing the Char Value,\n mg/kg of oil consumed and Bloom on glass chimney\n ii. Color (Sayabolt)\n iii. Copper strip corrosion for 3h at 50°C\n iv. Total Sulphur, percent by mass\n\n 16.3.5 In view of the aforesaid, inasmuch as the Test Report has not tested\n and reported the aforesaid 4 mandatory parameters/ properties, the said Test\n Report is completely inconclusive to hold that the consignment is one of\n kerosene. In view thereof, the said Test Report, by no stretch of imagination,\n could have been used as a reliable piece of evidence for seizing the\n consignment in question or draw any adverse inference/ conclusion against\n the Appellant. In addition, the Appellant submits that even if Color\n (Sayabolt) and Burning Quality test is not considered, still the Respondent\n 20\n\n\n\n\n has failed to show and establish the satisfaction of the other two mandatory\n parameters rendering the Test Report completely inconclusive and thereby\n unreliable. The impugned order, thus, deserves to be quashed and set aside.\n\n 16.3.6 The Appellant had categorically urged that the said 4 mandatory\n parameters having not been tested, reported and satisfied, the Respondent has\n erred in ignoring the same, rendering the impugned order completely\n untenable.\n\n17. It is further urged that the Revenue have mis-directed itself by\n\npresuming that the product imported is kerosene and thereafter, proceeded\n\nto refer and relied upon some literature to discuss the properties, which\n\ndetermine the quality of kerosene. It is further urged that that the\n\nparameters of burning quality in IS 1459, has clearly stipulated the true\n\ncharacteristics, which are required to be tested and satisfied i.e. CHAR value\n\nbloom on glass chimney. Instead of testing these prescribed particulars, the\n\ntest report reports Flash Point, which is completely illogical, unintelligible\n\nand devoid of any merit.\n\n18. Although the adjudicating authority have referred to characteristics -\n\nCHAR value, bloom on glass chimney, but have failed to show how the said\n\ncharacteristics, which governed the parameters, - burning quality has been\n\nsatisfied. Further, Revenue have failed to appreciate that these\n\ncharacteristics determine not the quality but the burning quality of\n\nkerosene, which is an important parameter for determination of kerosene.\n\nThe test reports being the only evidence relied upon by Revenue in the\n\ninstant case to allege mis-declaration/mis-classification, are wholly\n\ninconclusive and unreliable. It is further urged that the court below have\n\nerred in holding that the two characteristics viz. CHAR value and bloom on\n 21\n\n\n\n\nglass chimney are secondary in nature, which is contrary to the prescription\n\nunder IS1459. These characteristics are of prime importance in\n\ndetermining - whether a sample of product is kerosene or not. Thus, the\n\nobservation of the Court Below that all the tests have been carried out as\n\nper the specification mentioned in IS 1459/1460 and tested all the 10\n\nparameters and confirms to Superior Kerosene Oil/Diesel,is evidently vague.\n\nThe test reports are evidently inconclusive as for diesel IS 1460 requires\n\ntesting, reporting and satisfaction of 22/21 parameters. Admittedly, in\n\nabsence of such test reports, reliance placed by the Court below on the\n\nskeletal test report is vitiated.\n\n19. Thus, the ld. Counsel further urges that two test reports dated\n\n07.01.2020 and 10.01.2020 issued in respect of the two bills of entry dated\n\n17.12.2020 and 04.01.2020 respectively are completely inconclusive and\n\nunreliable. He further urges that the Bill of Entry-wise submissions is as\n\nfollows:-\n\n\n 19.1 Bill of Entry No. 6110507 dated 17.12.2019 and Test Report No.\n 18 dated 07.01.2020\n\n The Appellant submits that it had, in its reply, categorically\n brought on record that with regard to the product/ consignment\n imported under Bill of Entry No.6110507 dated 17.12.2020, the\n Customs had initially drawn samples and forwarded the same to\n DYCC, JNCH for ascertaining the true nature of the consignment\n in question. It is submitted that DYCC, vide its Test Report No.\n 2635 SIIB (I) dated 20.12.2019, had, after testing the parameters of\n "density, flash point (PMCC), kinematic viscosity, Ash content,\n temperature at 85% and 95% recovery, initial and final boiling\n 22\n\n\n\n\n point", clearly opined that the product is neither kerosene nor\n diesel.\n\n19.2 It was submitted that even after obtaining the said Test Report,\nthe Customs, without assigning any reasons thereto, had forwarded\nfresh samples once again to DYCC, JNCH for testing and\nascertaining the nature of the consignment in question. It is\nsubmitted that the DYCC, JNCH thereafter, for the same\nconsignment, issued another Test Report No18 dated 07.01.2020,\nwhich forms the basis of the impugned order, wherein it, after testing\nsimilar parameters to that of its earlier Test Report dated 21.12.2019\nand finding almost identical values, opined that "the above tested\nparameters are in the range of diesel oil. It is other than light oil &\npreparation, solvent (125/240), kerosene and vacuum gas oil".\n\n\n19.3 In view of the aforesaid, it was submitted that inasmuch as\nthe same Lab, on testing similar parameters and arriving at almost\nidentical values, has arrived at two different conclusions, no reliance\nwhatsoever is to be placed on the Test Report dated 07.01.2020 to\ndraw any adverse conclusion or inference against the appellant. The\nRespondent ought to have appreciated the aforesaid submissions\nmade by the Appellant, which goes to the root of the matter,\nhowever, he has completely ignored the same, rendering the\nimpugned order completely untenable.\n\n\n\n 19.4 Even otherwise, what the Respondent has failed to appreciate\n is that the said Test Report does not lay down in concrete terms,\n that the product is diesel. It only lays down that "the above tested\n parameters are in the range of Diesel Oil." In view thereof,\n inasmuch as neither all the parameters have been tested and\n reported nor that the Test Report has arrived at any concrete\n 23\n\n\n\n\n findings, the said Test Report is completely inconclusive, having no\n evidentiary value.\n\n\n\n 19.5 The Appellant submits that what the Respondent has\n further failed to appreciate is that even otherwise the said Test\n Report dated 07.01.2020 is inconclusive and thereby unreliable to\n determine as to whether the product is diesel oil or not. In this\n regard, it is submitted that under IS 1460: 2005, there are 22\n parameters which are required to be tested and reported in order to\n confirm whether a product is diesel oil or not. On a perusal of the\n Test Report dated 07.01.2020, it is observed that though the Test\n Report has reported 10 parameters, however, in effect these are only\n 6 parameters as IBP, FBP, temp. at 85%, 90%, 95% recovery form\n part of a single parameter viz. Distillation.\n\n\n19.6. Further, what the Respondent has failed to appreciate is that\nout of the 22 parameters mandated under IS 1460: 2005, the said Test\nReport has tested and reported only these 6 parameters viz. Density,\nKinematic Viscosity, Flash Point, Ash Content, Cetane Index and\nDistillation (IBP, FBP, temp. at 85%, 90%, 95% recovery). The rest\n16 parameters mandated under IS 1460: 2005 have not been tested\nand reported, which have been enlisted herein below:\n i. Acidity, inorganic\n ii. Acidity, total, mg of KOH/gm\n iii. Carbon residue (Ramsbottom) on 10 percent residue\n iv. Cetane number\n v. Pour point\n vi. Copper strip corrosion for 3 h at 100°C\n vii. Sediment, percent by mass,\n viii. Total contamination\n ix. Total Sulphur\n 24\n\n\n\n\n x. Water content, percent (vlv), Water content mg 1 kg\n xi. Cold filter plugging, point (CFPP)\n xii. Total sediments\n xiii. Oxidation stability, g/m"\n xiv. Polycyclic aromatic hydrocarbon (PAH), percent by mass\n xv. Lubricity corrected wear scar diameter(wsd 1.4) at 60°C\n xvi. Oxygen content, percent by mass\n\n\n 19.7 In view of the aforesaid analysis, in as much as the Test\n Report has not tested and reported the aforesaid 16 mandatory\n parameters/ properties, the said Test Report is inconclusive to hold\n that the consignment is one of diesel oil. Thus the said Test Report,\n by no stretch of imagination, could have been used as a reliable\n piece of evidence for drawing any adverse inference/ conclusion\n against the Appellant.\n\n20. Bill of Entry No. 6356219 dated 04.01.2020 and Test Report No. 30 SIIB\n (I) dated 10.01.2020.\n 20.1 Insofar as the consignment/ product imported under cover of Bill of\n Entry No. 6356219 dated 04.01.2020 is concerned, reliance has been placed\n by the Respondent on the Test Report No.30 dated 10.01.2020 to hold the\n consignment in question is one of diesel oil. In this regards, the Appellant\n submits that the reliance placed by the Respondent is untenable.\n\n\n 20.2 The Appellant submits that what the Respondent has failed to\n appreciate is the fact that there are 21 parameters/properties under the IS\n 1460 (as amended) which are required to be tested and reported for\n confirming whether a product is diesel oil or not. On a perusal of the Test\n Report dated 10.01.2020,it is observed that though the Test Report has\n reported 10 parameters, however, in effect these are only 5 parameters IBP,\n FBP, temp. at 85%, 90%, 95% recovery form part of a single parameter\n viz.Distillation and that the Test Report has reported the parameter of Flash\n 25\n\n\n\n\n Point twice under two separate methods, whereas it was sufficient to report\n the same with any one such method.\n\n\n20.3 Further, what the Respondent has failed to appreciate that out of the\n21 parameters mandated under IS 1460 (as amended), the said Test Report\nhas only tested and reported 5 parameters viz. Density, Kinematic Viscosity,\nFlash Point, Cetane Index and Distillation (IBP, FBP, temp. at 85%, 90%,\n95% recovery). The rest 16 parameters mandated under IS 1460 (as amended)\nhave not been tested and reported, which have been enlisted herein below:\n i. Acidity, inorganic\n ii. Acidity, total, mg of KOH/gm\n iii. Ash, percent by mass\n iv. Carbon residue (Ramsbottom) on 10 percent residue\n v. Cetane number\n vi. Pour point\n vii. Copper strip corrosion for 3 h at 100°C\n viii. Sediment, percent by mass,\n ix. Total contamination\n x. Total Sulphur\n xi. Water content\n xii. Cold filter plugging, point (CFPP)\n xiii. Oxidation stability, g/m"\n xiv. Polycyclic aromatic hydrocarbon (PAH), percent by mass\n xv. Lubricity corrected wear scar diameter(wsd 1.4) at 60°C\n xvi. Oxygen content, percent by mass\n\n\n20.4 In view of the aforesaid analysis, inasmuch as the Test Report has\nnot tested and reported the aforesaid 16 mandatory parameters/ properties, the\nsaid Test Report is completely inconclusive to hold that the consignment is\none of diesel oil. In view thereof, the said Test Report, by no stretch of\nimagination, could have been used as a reliable piece of evidence for drawing\nany adverse inference/ conclusion against the Appellant.\n 26\n20.5 Even otherwise, what the Respondent has failed to appreciate is that\nthe said Test Report does not lay down in concrete terms that the product is\ndiesel. It only lays down that "on the basis of tested parameters, the sample\nunder reference may be considered as diesel." In view thereof, the\nRespondent ought to have discarded such an inconclusive and unreliable test\nreport, which, however, he has failed to do so. The impugned order, thus,\ndeserves to be quashed and set aside.\n\n20.6 Without prejudice to the above, the Appellant submits that it had in\nits reply categorically urged that no reliance whatsoever ought to be placed on\nthe letter dated 11.02.2020 issued by the Jt. Director (NFSG), JNCH,\nNhavaShava in respect of the Test Report dated 10.01.2020. The Appellant\nhad submitted that the Test Report and the conclusion drawn thereon are\ncompletely comprehensible and that there is no confusion as to the fact that\nthe DYCC, JNCH in its Report had concluded that it may be diesel oil. In\nview thereof, the Appellant had submitted that since the conclusion is not\nspecifically stating it is diesel oil, no adverse inference ought to be drawn\nagainst the Appellant. It is submitted that the Customs, on the other hand, has\narbitrarily tried to impinge onto such conclusion and has therefore referred to\nand relied upon the letter dated 11.02.2020 to allege that the product\nimported is diesel oil.\n\n20.7 It was therefore submitted that inasmuch as the said letter dated\n11.02.2020 is at complete divergence to the conclusions drawn by the\nChemical Examiner, DYCC, JNCH in its Test Report dated 10.01.2020, on\nidentical parameters and values, no reliance whatsoever ought to have been\nplaced on the said letter dated 11.02.2020. Accordingly, the Test Report\nopining that the product may be diesel oil is completely inconclusive and\nthereby unreliable to draw any adverse conclusion against the Appellant. The\nimpugned order, thus, deserves to be quashed and set aside.\n 27\n21. It is further urged that both IS 1459 and 1460 require that\n\nrepresentative samples should be drawn in the manner prescribed under IS\n\n1447-Part-I. It is pointed out that with respect to the four bills of entry,\n\nRevenue had drawn samples from the flexy tank of one container each per\n\nbill of entry. The sample so drawn could be by no stretch of imagination be\n\nconsidered as the true representative sample meeting the requirement of IS\n\n1447-Part-I. Admittedly, the number of containers comprising each bill of\n\nentry vary from 4 to 10 and admittedly, Revenue has drawn samples from\n\nonly one container. Thus, the samples so drawn are not true representative\n\nsamples.\n\nThus, for want of drawing proper samples, the test reports are fit to be\n\ndiscarded. Further, as per the facts on record, the customs have drawn and\n\nstored the samples in plastic bottles, which is wholly contrary to IS-1447-I\n\nand thus, contrary to the requirements of IS 1459/1460. It is urged that IS-\n\n1447 in Part-I specifically prescribes that in no circumstances non-linear\n\n(conventional), polyethylene (plastic) containers shall be used to store the\n\nsamples of liquid Hydrocarbons. For reference, the containers prescribed for\n\ndrawing samples under IS 1447-Part I is reproduced as follows:-\n\n 4.1 Sample Containers\n May be clear or brown glass bottles, or cans. The clear bottle is\n advantageous because it may be examined visually for cleanliness\n and also allows visual inspection of the sample for free water or solid\n impurities. The brown glass bottle affords some protection from light.\n The only cans permissible are those with the seams soldered on the\n exterior surfaces with a flux of rosin in a suitable solvent. Such a flux\n is easily removed with gasoline, whereas many others are very\n difficult to remove. Minute traces of flux may contaminate the sample\n 28\n\n\n\n\n so that results obtained on tests of dieletric strength, resistance to\n oxidation, and sludge formation may be erroneous.\n\n 4.1.1 Plastic Bottles\n Made of suitable unpigmented linear polyethylene may be used for\n the handling and storage of gas oil, diesel oil, fuel oil and lubricating\n oil. They should not be used for gasoline, aviation jet fuel, kerosene,\n crude oil, white spirit, medicinal white oil and special boiling point\n products unless testing indicates there is no problem with solubility,\n contamination, or loss of light\n ends.\n NOTES\n 1 In no circumstances shall non-linear (conventional)polyethylene\n containers be used to store samples of liquid hydrocarbons. This is\n to avoid sample contamination or sample bottle failure.\n\n22. In support of his contentions, ld. Counsel relies on the ruling of the\n\nApex Court in the case of Tata Chemicals Vs. CCE reported in 2015\n\n(320) ELT 45. It is further urged, that the observations in the impugned\n\norder by the Court Below- that samples were drawn in presence of the CHA,\n\nwho are the authorised representative of the appellant and The said\n\nrepresentative did not object to at the time of drawing the samples, is of no\n\navail to Revenue. The Revenue cannot take advantage of its wrong.\n\nFurther, such wrong committed goes to root of the matter, vitiating the Test\n\nreports. Thus, the very basis for the allegation of Revenue being un-reliable,\n\nthe impugned order is vitiated and fit to be set aside. It is further urged that\n\nwhen law prescribes a certain thing, to be done in a prescribed manner, it\n\nshould be done in that way or not done at all. It is not open to the Revenue\n\nto circumvent the statutory prescription for drawing samples.\n23. Ld. Counsel further points out that the appellant had admittedly\n\nrequested the Revenue to draw fresh samples as prescribed, and thereafter\n\nsend the same for re-testing. However, without any cogent reasons, the said\n 29\n\n\n\n\nrequest was for arbitrarily rejected. Thus, the impugned order is also bad for\n\nnot following the principles of natural justice.\n\n24. Ld. Counsel also urges that the test reports are also not reliable for\n\nthe reason that nowhere in the report the method of testing used by\n\nDYCC/JNCH has been mentioned, in arriving at the values reported. Thus,\n\nfor this patent defect also, no reliance can be placed on the test reports. For\n\ninstance, the standard/method prescribed for arriving at the reading of flash\n\npoint under IS 1459 : 1974 is P:20. Thus, if any other standard/method is\n\napplied for arriving at the reading of flash point, the said reading may be\n\nincorrect and will not reflect the correct flash point of the sample. Thus, no\n\nlogical conclusion can be drawn based on such test report. It is further urged\n\nthat in view of the glaring mistakes pointed out, the test report may be held\n\nerroneous and inconclusive. Further, the court below has erred by discussing\n\nthe individual values, which is wholly erroneous and leads to nowhere.\n\n\n\n25. Accordingly, ld. Counsel prays for allowing their appeals with\n\nconsequential benefits.\n\n26. Ld. Authorised Representative relies on the impugned order.\n\n26.1 Ld. Authorised Representative urged that due to price difference\n\nof HSD and SKO in India and other countries, there is frequent smuggling\n\ngoing on by way of mis-declaration. Further, urged that on the basis of the\n\ntest reports, it was established that the subject 'Cargo" was not "Mixed\n\nHydrocarbon Oil/Mineral Hydrocarbon Oil as declared, but was HSD/SKO. It\n\nis further urged that request of the importer for re-test was rejected relying\n\non the directions in the Board's Circular No.30/2017-Cus. It is further urged\n\nthat the Director of the appellant company - Mr. J. Roda has, inter alia,\n\nadmitted his statement that they were resorting to mis-declaration and\n 30\n\n\n\n\nforging of documents for importing the restricted goods. It is further urged\n\nthat the appellant in collusion with customs brokers were getting\n\nmanipulated test reports issued from the office of the DYCC-JNCH by braving\n\nthe officers therein. It is further urged that in the retraction made by Mr. J.\n\nRoda, Director of the appellant company is of no avail and has been done\n\nonly on legal advice by way of afterthought.\n\n26.2 Similarly, Mr. Taranjeet Singh, G-Card Holder of the Customs\n\nBroker has also admitted such facts and has affirmed the statement of the\n\nDirector, Mr. J. Roda. It is further urged that HSD and SKO are the restricted\n\ngoods and importable only by State Trading Enterprises. Thus, the said\n\ngoods are prohibited for the appellants, as per definition in Section 2 (33) of\n\nthe Actof the Prohibited Goods. It is further urged that Revenue has rightly\n\nrelied on the principle of preponderance of the probability in absence of\n\ncomprehensive test report. It is further urged that reliance placed by the\n\nappellant on the ruling of the Apex Court in the case of Sushma Textiles\n\n(supra) is misplaced as the said ruling is in relation to textiles.\n\n26.3 It is further urged that admittedly, all tests mentioned in IS\n\nStandard 1459 1460 have not been carried out, but submits that whatever\n\ntests have been conducted the results confirms to the specifications of the\n\nitems as alleged.\n\n26.4 Further, ld. Authorised Representative fairly admits that there\n\nhas been error on the part of the Revenue in the method of sample\n\ncollection. Such admission has also been made in their written submissions\n\nfiled before the Tribunal. It is urged that such ground taken by the appellant\n\nis by way of clever afterthought. It is further urged that prayer for retesting\n\nby the appellant was rejected as the Director of the appellant in his\n\nstatement recorded under Section 108 has admitted that they were\n 31\n\n\n\n\npractising mis-declaration etc. for importing the restricted goods.\n\nAccordingly, he prays for dismissing the appeals.\n\n27. Having considered the rival contentions, we find that the issue\n\ninvolved in these appeals is whether the Revenue was correct in re-\n\nclassifying the imported goods declared as "Mineral Hydrocarbon Oil-CTH\n\n27101988 and Mixed Mineral Hydrocarbon Oil-CTH 27101990" as diesel\n\nunder CTH 27101944 and as Superior Kerosene Oil under CTH 27101932.\n\n28. It is admitted position of law that for a product to be classified under\n\nCTH 27101944/27101932 as SKO, it has to meet with the specifications in\n\nSupplementary Note - (C) under Chapter 27 which reads as under:-\n\n "Superior Kerosene Oil (SKO)" means Hydrocarbon Oil\n conforming to Indian Standards Specification of Bureau of\n Indian Standards IS 1459 : 1974(reaffirmed in 1996)."\n\n29. Thus, the product or material shall consist of refined petroleum\n\ndistillates. It shall be free from visible water sediments and suspended\n\nmaterial. The material shall also comply with the requirements given in\n\nTable-I, when tested according to the appropriate method prescribed under\n\n'P' Series of IS:1448, reference to which is given in Col.4 of the Table-I\n\n(provided at para-37 below).\n\n\n30. It is also not the case of the Revenue that the said three parameters\n\ncan be established by any inferential process or otherwise. So far as sulphur\n\nis concerned, though no testing has been undertaken, we, for the sake of\n\ndiscussion, assume that the said parameter have been met, as the same\n\nforms a part of the suppliers' test reports and is within the parameters\n\nspecified in IS 1459:1974.\n 32\n31. However, in respect of the other two parameters regarding burning\n\nquality and colour, there is absolutely no evidence that the Revenue has\n\nproduced to establish that the said two parameters are met with. Thus,\n\nRevenue has failed to demonstrate how the other two said parameters were\n\nalso met.\n\n32. It is also not in dispute that for a product to be classified as diesel\n\nunder CTH 27101944, it has to meet the specifications as per\n\nSupplementary Note (e) to Chapter 27, which reads as under:-\n\n "High Speed Diesel (HSD) means any Hydrocarbon Oil\n conforming to the Indian specification/standard of BIS,\n IS:1460:2005."\n\n33. It is further evident that as per aforementioned IS 1460:2005, the\n\nproduct has to meet the prescribed 21 parameters, wherein in the present\n\ncase, only six parameters have been tested. The Acidity, Ash%, Copper Strip\n\nCorrosion for 3 h at 50% C, total sulphur contents, etc. have not been tested\n\nso as to verify the product can be classified as diesel-HSD.\n\n34. The law with respect to the burden of proof or classification is on the\n\nRevenue, is well settled by the Hon'ble Supreme Court as held in HPL\n\nChemicals Vs. CCE - 2006 (197) ELT 324, wherein the Hon'ble\n\nSupreme Court has observed as follows:-\n\n\n "29.This apart, classification of goods is a matter\n relating to chargeability and the burden of proof is\n squarely upon the Revenue. If the Department intends\n to classify the goods under a particular heading or\n sub-heading different from that claimed by the\n assessee, the Department has to adduce proper\n evidence and discharge the burden of proof. In the\n present case the said burden has not been discharged\n at all by the Revenue. On the one hand, from the\n trade and market enquiries made by the Department,\n from the report of the Chemical Examiner, CRCL and\n from HSN, it is quite clear that the goods are\n 33\n\n\n\n\n classifiable as "Denatured Salt" falling under Chapter\n Heading No. 25.01. The Department has not shown\n that the subject product is not bought or sold or is not\n known or is dealt with in the market as Denatured\n Salt. Department's own Chemical Examiner after\n examining the chemical composition has not said that\n it is not denatured salt. On the other hand, after\n examining the chemical composition has opined that\n the subject matter is to be treated as Sodium\n Chloride."\n\n35. Similar view was also taken by the Apex Court in Hindustan Ferodo\n\nVs. CCE - 1997 (89) ELT page 16 (SC), wherein it was observed that, " it\n\nis not in dispute before us as it cannot be, that onus of establishing that the\n\nsaid rings fell within Item No.22 lay on the Revenue. Revenue has led no\n\nevidence. The onus was not discharged, therefore, the Tribunal was right in\n\nrejecting the evidence that was produced on behalf of the appellant, the\n\nappeal should nevertheless have been allowed."\n\n36. We further, notice that the appellant had sought cross examination of\n\nthe persons, whose statements were relied upon by the Revenue in support\n\nof its allegations. But the cross examinations have been denied arbitrarily.\n\nThus the impugned order is bad for violation of principles of Natural justice\n\nas well as the mandate of sec. 138B of the Act.\n\n37. We further notice that the issue of classification is well settled, as held\n\nby the Coordinate Bench of this Tribunal at Ahmedabad in Swarna Oil\n\nServices Vs. Commissioner of Customs -2020 (6) TMI 70 -CESTAT-\n\nAhmedabad, wherein it has been held as under:-\n\n Quote\n\n\n 11. It can be seen from the said BIS that for a product to be classified as Kerosene, it has to meet\n the following specifications1459:1974 "2.1 The material shall consist of refined petroleum\n distillates. It shall be free from visible water, sediment and suspended matter. 2.2 The material\n shall also comply with the requirement given in Table I, when tested according to the appropriate\n methods prescribed under 'P' series of IS: 1448*, reference to which is given in column 4 of the\n table."\n 34\n TABLE 1 REQUIREMENT FOR KEROSENE\n\n\n\nSl. Characteristic Requirement Method of\nNo. Test (Ref.to\n 'P' Of\n IS:1448\n\n1. Acidity, inorganic Nil P:2\n2. Burning Quality\n a) Char value, mg/kg of oil\n consumed, Max.\n b) Bloom on glass chimney not darker than grey.\n\n3. Colour (Saybolt)+ Min+10 P:14\n\n4. Copper strip For 3h at 50oC P:15\n corrosion\n5. Distillation: P:18\n a)Percent Min.200oC\n recovered below 20\n b) Final boiling Min.300oC\n point, 0C,\n\n6. Flash point Min 35 P:20\n (Abel),0C,\n7. Smoke Point,mm, Min 18 P:31\n8. Total,sulphur,percent 0.25 Max P:34\n by mass\n\n\n\n\n * Methods of test for petroleum and its products. + Where Saybolt\n chromometer is not available. Lovibond colour of the sample kept in\n an 18-in cell may be measured according to IS:1448 [P:13]-1960\n 'Methods of test for petroleum and its products, P:13 Colour by\n Lovibond tintometer' in which case, the colour shall not be deeper\n than Standard White (IP 4.0). For supplies to Defence, the smoke\n point of the product shall be 21 mm, Min and for Railways it shall be\n 20 mm, Min.\n\n For supplies to Defence, total sulphur content, percent by mass, of\n the product shall be 0.20, Max From a perusal of the test reports of\n CRCL Delhi and CRCL Kandla, assuming the same to be correct,\n notwithstanding the difference in the test results between the two\n qua the parameter regarding final boiling point. It is seen that out of\n the 8 parameters on which the sample has to be tested for\n 35\n\n\n\n\n determining whether or not the same meets with the specifications\n of Kerosene, it is seen from both the test results that test have not\n been undertaken with respect to the following 3 parameters.:\n\n (i) Burning quality\n\n\n (a) Char value, mg/kg of oil consumed, Max\n (b)Bloom on glass chimney\n\n\n (ii) Colour (Saybolt)\n (iii) Total, sulphur, percent by mass, Max\n\n\n\n\n 12. It is also not the Revenue‟s case that the said three\n parameters can be established by any inferential process or\n otherwise. Insofar as sulphur is concerned, though no test have\n been undertaken, we will for the sake of our discussion assume that\n the said parameters have been met, as the same forms a part of the\n suppliers test reports and is within the parameters specified in IS\n 1459:1974 (reaffirmed in 1996). However in respect of the other\n two parameters regarding burning quality and colour there is\n absolutely no evidence that the revenue has produced to establish\n that the said two parameters are met with. The revenue has neither\n through test results nor otherwise lead any evidence to show that\n the said two parameters were also met with.\n\n Unquote\n\n\n\n38. Under the facts and circumstances and the evidences on record, we\n\nfind that in absence of evidences that the imported goods meet all the\n\nspecifications as laid down in Supplementary Note (c ) to Chapter 27 for\n\nclassification of a product as Kerosene and Supplementary Note ( e ) so as\n\nto classify a product as diesel, the case made out by the Revenue cannot be\n\nsustained.\n\n39. We also find that the test reports are vitiated and not reliable as\n\nsampling has been done improperly and not in conformity to the prescribed\n 36\n\n\n\n\nspecifications. We further find that there is miscarriage of justice by denying\n\nthe prayer for retest.\n\nWe further hold that in the facts of the present case there is no scope for\n\napplying preponderance of probability or the principle of probability, as\n\nthere are explicit rules and or instructions laid down for classification. We\n\nalso hold that the Test reports relied upon by Revenue are inconclusive.\n\n40. In view of our findings we allow the appeals and set aside the\n\nimpugned order. The goods under import are to be classified as per CTH\n\nheading claimed/declared by the appellant in the bills of entry. Accordingly,\n\nwe hold that rejection of transaction value is also bad and thus, declared\n\nvalue has to be accepted. Redemption fine and penalties on the appellants\n\nare also set aside.\n\n41. As the goods are lying under seizure and subsequent confiscation by\n\nthe Customs Department for more than two years, for no fault of the\n\nappellant, grant of waiver of detention and demurrage charges is\n\nappropriate and direct that the proper certificate shall be issued by the\n\nconcerned authority. We also direct that the goods in dispute be delivered to\n\nthe appellants forthwith, within a period of two weeks from the date of\n\nreceipt or service of this order.\n\n42. Thus, the appeals are allowed with consequential relief.\n\n [pronounced on 09/05/2022]\n\n\n\n\n(C. J. MATHEW) (ANIL CHOUDHARY)\nMEMBER (TECHNICAL) MEMBER (JUDICIAL)\n\n\nCkp. |
34b0d436-3226-54f1-bcc1-bd528e643855 | court_cases | Himachal Pradesh High CourtSom Dutt vs State Of Himachal Pradesh And Others on 17 April, 2023Bench:Sabina,Satyen Vaidya1IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA\n\n\n CWP No.2681 of 2022 alongwith CWP No.6603, 7755,\n\n\n\n\n .7757, 7758, 7846, 8220 to 8223 and 8847 of 2022\n\n\n\n\n\n Date of Decision : 17th April, 20231. CWP No.2681 of 2022\n\n Som Dutt ...... Petitioner\n Versus\n State of Himachal Pradesh and others ......Respondents2. CWP No.6603 of 2022\n\n Jai Krishan ...... Petitioner\n Versus\n\n State of Himachal Pradesh and others ......Respondents3 CWP No.7755 of 2022Tek Chand ...... Petitioner\n Versus\n\n\n State of Himachal Pradesh and others ......Respondents4. CWP No.7757 of 2022Mast Ram ...... Petitioner\n Versus\n\n\n\n\n\n State of Himachal Pradesh and others ......Respondents5. CWP No.7758 of 2022Geeta Ram ...... Petitioner\n Versus\n\n State of Himachal Pradesh and others ......Respondents6. CWP No.7846 of 2022Amar Singh ...... Petitioner\n Versus\n\n State of Himachal Pradesh and others ......Respondents::: Downloaded on - 19/04/2023 20:34:00 :::CIS27. CWP No.8220 of 2022Inderjeet Singh ...... Petitioner\n Versus\n State of Himachal Pradesh and others ......Respondents\n\n\n\n\n .8. CWP No.8221 of 2022Dev Raj ...... Petitioner\n Versus\n\n\n\n\n\n State of Himachal Pradesh and others ......Respondents9 CWP No.8222 of 2022Bhagat Ram ...... Petitioner\n\n\n\n\n\n Versus\n State of Himachal Pradesh and others ......Respondents10. CWP No.8223 of 2022Madan Lal\n r ...... Petitioner\n\n Versus\n State of Himachal Pradesh and others ......Respondents11. CWP No.8847 of 2022Ajeet Kumar ...... Petitioner\n Versus\n State of Himachal Pradesh and others ......Respondents\n\n\n\n\n Coram:The Hon'ble Ms. Justice Sabina, Acting Chief Justice\n The Hon'ble Mr. Justice Satyen Vaidya, Judge.1Whether approved for reporting?For the Petitioners : Mr. Dheeraj Kanwar, Advocate.For the Respondents : Mr. Mohinder Zharaick, Additional Advocate\n General, for the State.Mr. Shyam Singh Chauhan, Advocate, for the\n Respondents/HRTC.1 Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 19/04/2023 20:34:00 :::CIS3Sabina, Acting Chief Justice (oral)\n\n Vide this order, above mentioned petitions would be disposed of, as\n\n the issue involved in all the cases is the same..2. Facts are taken up from CWP No.2681 of 2022.3. The petitioners have filed petitions underArticle 226of the\n\n\n\n\n\n Constitution of India, seeking mainly the following relief(s):-"a. The Honorable Court may be pleased to direct the\n Respondents to consider the case of the Petitioner for\n\n\n\n\n\n appointment as Inspector from the date of his promotion as\n Driving Instructor with all consequential benefits till date.\n Or in alternative\n\n the Respondents may consider praying the Petitioner same\n\n pay and grade pay as an Inspector is receiving even though\n the Petitioner is serving as Driving Instructor and all the\n promotional avenues open to Inspector may also be made\n available to the present petitioner by the Respondents in the\n\n\n\n same time period as his colleagues who are serving as\n Inspectors and of equal seniority since such inception.b). Issue a writ of Mandamus Or other appropriate writ or\n direction as this Hon'ble Court deems fit directing the\n\n\n\n\n\n Respondent to take the option from the petitioner for\n appointment as Inspector/Driving Instructor. To make rules\n\n\n\n\n\n for appointment as Inspector.c). Consequentially Issue a writ of Mandamus Or other\n appropriate writ or direction as this Hon'ble Court deems fit,\n directing the Respondent to consider the Petitioner to be\n appointed as Inspector."::: Downloaded on - 19/04/2023 20:34:00 :::CIS44. Learned counsel for the petitioners has submitted that the\n\n petitioners were initially appointed as Drivers with the respondents-Corporation. Petitioners were promoted to the posts of Driving Instructor,\n\n\n\n\n .although, no option had been sought from them at the time of their\n\n promotion. Drivers could be promoted as Yard Master, Inspector or\n\n\n\n\n\n Instructor (Driving). Hence, it was incumbent upon the respondents-Corporation to have sought option from the petitioners with regard to their\n\n choice for further promotion.5. Learned counsel for the respondents-Corporation, on the other\n\n hand, has opposed the petitions and has submitted that all the petitioners\n\n who were working as Drivers were eligible for promotion to the posts of\n\n Instructor (Driving). After initiation of promotion process, petitioners were\n\n promoted to the posts of Instructor (Driving). The said promotion orders\n\n\n were served upon the petitioners and they joined as Instructors (Driving).Petitioners had never made any representation against their promotion\n\n\n\n\n orders and had accepted the promotion orders without any agitation.6. After hearing learned counsel for the parties, we are of the opinion\n\n\n\n\n\n that the instant petitions deserve dismissal. Admittedly, petitioners were\n\n\n\n\n\n working as Drivers and have been promoted as Instructors (Driving).Petitioners had joined as Instructors (Driving) in pursuance to the\n\n promotion orders passed in their favour. Although, it is the case of the\n\n petitioners that they had written letter to the Corporation objecting to their\n\n transfer, but the said fact has been denied by the respondents in their\n\n reply. Moreover, no such letter has been placed on record to substantiate::: Downloaded on - 19/04/2023 20:34:00 :::CIS5the plea taken by the petitioners that they had objected to their transfer.Petitioners were promoted as Instructors (Driving) in the year, 2020, but\n\n they have filed the writ petitions in the year, 2022. This fact, in itself,\n\n\n\n\n .shows that the petitioners had duly accepted their promotion orders\n\n voluntarily and the said fact leads to the inference that they had opted to\n\n\n\n\n\n be promoted as Instructors (Driving). Apparently, filing of writ petitions\n\n appears to be an afterthought as they might have come to know that\n\n promotion to the post of Inspectors would lead to better promotional\n\n\n\n\n\n avenues.7. In view of the above facts and circumstances of the case, no\n\n ground for interference is made out.8. Dismissed.Pending miscellaneous application(s), if any, shall also stand\n\n\n disposed of.( Sabina )\n Acting Chief Justice\n\n\n\n\n\n\n ( Satyen Vaidya)\n Judge\n April 17, 2023 (KS)::: Downloaded on - 19/04/2023 20:34:00 :::CIS |
d259615a-f7b3-54c0-91c0-7a7ebdcd2b00 | court_cases | Manipur High CourtSmt. Lhaikhoneng Guite vs State Of Manipur on 20 January, 2022Author:Ahanthem Bimol SinghBench:Ahanthem Bimol SinghIN. 13\nSHOUGRA Digitally\n by\n signed\n\nKPAM SHOUGRAKPAM\n DEVANANDA\nDEVANAN SINGH IN THE HIGH COURT OF MANIPUR\nDA SINGH Date: 2022.01.20\n 20:02:22 +05'30'\n\n AT IMPHAL\n (Video Conference)\n\n Cril. Petn. No. 41 of 2021\n Smt. Lhaikhoneng Guite ... Petitioner\n Vs.\n State of Manipur ... RespondentsB E F O R E\n HON'BLE MR. JUSTICE AHANTHEM BIMOL SINGH\n 20-01-2022\n Heard Mr. Th. Babloo, learned counsel appearing for the\n petitioner and Mr. Y. Ashang, learned P.P. appearing for the respondents.The learned P.P. prayed for granting two weeks' further time for\n filing counter affidavit.Prayer is allowed.List this case again on 10-02-2022.JUDGE\n\n Devananda |
4e8950f6-c2ae-53a6-8975-81f8bde26543 | court_cases | Delhi High CourtGala International Pvt. Ltd. vs Additional Director General, ... on 26 September, 2023IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n % Judgment delivered on: 26.09.2023\n\n + W.P.(C) 7292/2023 & CM APPL. 28343/2023 & CM\n APPL. 44029/2023\n GALA INTERNATIONAL PVT. LTD. ..... Petitioner\n versus\n ADDITIONAL DIRECTOR GENERAL, DIRECTORATE\n OF REVENUE INTELLIGENCE, DELHI & ORS..... Respondents\n AND\n + W.P.(C) 7316/2023 & CM APPL. 28459/2023\n GANESH OVERSEAS PVT LTD. ..... Petitioner\n versus\n ADDITIONAL DIRECTOR GENERAL\n AND ORS. .... Respondents\n AND\n + W.P.(C) 7350/2023 & CM APPL. 28609/2023\n SHIRDI EXIM PVT LTD. ..... Petitioner\n versus\n ADDITIONAL DIRECTOR GENERAL\n AND ORS. .... Respondents\n\n Advocates who appeared in these cases:\n For the Petitioner : Ms. Kavita Jha & Mr. Shammi Kapoor &\n Ms. Swati Agarwal, Advs.\n\n For the Respondents : Mr. Harpreet Singh, Ms. Suhani Mathur &\n Mr. Jatin Kumar Gaur, Advs.\n Mr. Anurag Ojha, Adv. for R-2\n\n\n\n\nSignature Not Verified\nDigitally Signed\nBy:DUSHYANT W.P.(C) Nos.7292/2023, 7316/2023 &7350/2023 Page 1 of 17\nRAWAL\nSigning Date:26.09.2023\n Mr. Ruchir Mishra, Mr. S.K. Saxena, Mr.\n Mukesh Kr. Tiwari, Ms. Reba Jena Mishra\n & Mr. Vipul Pathak, Advs. for UOI.\n Ms. Reema Khorana & Mr. Vikash Kumar,\n Advs. for R-4.\n\n CORAM\n HON'BLE MR JUSTICE VIBHU BAKHRU\n HON'BLE MR JUSTICE AMIT MAHAJAN\n\n JUDGMENTVIBHU BAKHRU, J1. The petitioners have filed their respective petitions impugning a\n common show cause notice dated 30.04.2009 (hereafter 'the\n impugned show cause notice') issued by respondent no.1 (hereafter\n 'the ADG, DRI'). The impugned show cause notice has not been\n adjudicated as yet. The petitioners also impugn the common letters\n dated 20.01.2023 and 06.03.2023 (hereafter 'the impugned letters')\n issued by respondent no.2 [hereafter 'the Commissioner\n (Adjudication)'] calling upon the petitioners to appear for hearing in\n respect of the impugned show cause notice.2. It is contended by the petitioners that the adjudication of the\n impugned show cause notice is barred by limitation as the same has\n not been adjudicated for almost fourteen years. The petitioners have\n also challenged the constitutional validity ofSection 97of the Finance\n Act, 2022 (hereafter 'theFinance Act') as violative of Articles 14,\n 19(1)(g) and 300A of the Constitution of India. The petitioners claim\n\n\nSignature Not Verified\nDigitally SignedBy:DUSHYANT W.P.(C) Nos.7292/2023, 7316/2023 &7350/2023 Page 2 of 17RAWAL\nSigning Date:26.09.2023\n that the said provision authorising an officer of the Directorate of\n Revenue Intelligence (hereafter 'the DRI') to act as a proper officer\n under theCustoms Act, 1962 (hereafter 'theCustoms Act') cannot\n have any retrospective operation. The petitioners also claim that the\n assessees whose cases were decided prior to enactment of theFinance\n Actwould be granted the benefit of the decision of the Supreme Court\n inM/s Canon India Pvt. Ltd. v. Commissioner of Customs1but those\n assessees such as the petitioners, whose cases have not been decided\n would be covered under the retrospective amendment as introduced by\n theFinance Act.3. However, Ms. Jha, learned counsel appearing for the petitioners\n has confined the challenge in the present petitions to the impugned\n show cause notice and the impugned letters on the ground of delay\n while reserving the rights to challenge the constitutional validity ofSection 97of the Finance Act, 2022 at a later stage, if necessary.4. Mr. Harpreet Singh, learned counsel appearing for the\n respondents had countered the submission that the delay in\n adjudication of the impugned show cause notice was fatal to the\n proceedings. He contended that the impugned show cause notice\n involved complicated issues and it was not practicable to complete the\n adjudication within the period of one year as contemplated underSection 28(9)of the Customs Act. He contended thatSection 28(9)of\n the Customs Act, as in force prior to 29.03.2018, required the12021 SCC OnLine SC 200\n\n\n\n\nSignature Not Verified\nDigitally SignedBy:DUSHYANT W.P.(C) Nos.7292/2023, 7316/2023 &7350/2023 Page 3 of 17RAWAL\nSigning Date:26.09.2023\n concerned authority to determine the amount of duty or interest within\n a period of six months or one year as the case may be, if it is possible\n to do so. He submitted that the expression 'possible' as used inSection 28(9)of the Customs Act must be interpreted liberally. Thus,\n in cases where the adjudication of a show cause notice requires\n additional time, the provisions ofSection 28(9)of the Customs Act\n would not preclude the same. Next, he contended that the issue\n whether the officers of the DRI had the jurisdiction to issue the show\n cause notice or adjudicate the same was being debated before the High\n Courts' as well as before the Supreme Court. He submitted that in the\n given circumstances, the impugned show cause notice had been placed\n in the Call Book on 21.07.2016 and therefore was not adjudicated.\n The said notice was retrieved from the Call Book on 20.01.2023 and\n therefore, the resumption of adjudication proceedings could not be\n faulted.5. In view of the rival contentions, the limited question to be\n addressed is whether the time period for adjudicating the show cause\n notices in terms ofSection 28(9)of the Customs Act, as in force prior\n to 29.03.2018, has lapsed. And, whether it is permissible for the\n Commissioner (Adjudicating) to now resume adjudication of the\n impugned show cause notice.Factual Context6. During the years 2000 to 2005, the petitioners were engaged in\n the business of exporting readymade garments and leather goods to\n\n\nSignature Not Verified\nDigitally SignedBy:DUSHYANT W.P.(C) Nos.7292/2023, 7316/2023 &7350/2023 Page 4 of 17RAWAL\nSigning Date:26.09.2023\n buyers in Russia under the Rupee-Rouble Scheme, as well as to other\n overseas buyers under the Drawback Scheme. The impugned show\n cause notice indicates that the officers of the Delhi Zonal Unit of the\n DRI received intelligence that certain Indian companies had made\n fraudulent exports of readymade garments, leather goods and fabrics\n to certain Russian entities with the sole intent to avail various export\n incentives including drawback under the Duty Entitled Pass Book\n Scheme (hereafter 'the DEPB'). It was alleged that the Russian\n companies had not imported any goods from the exporters in question\n and the same were diverted to other countries. The concerned officers\n also claimed that the intelligence received also suggested that the\n Indian exporters were inflating their invoices to avail higher amount of\n export incentives. According to them, the petitioners as well as sole\n proprietorship concern of Sh. Vivek Wadhwa (M/s Bright\n International) were involved in the aforesaid activities.7. In view of the intelligence received, the concerned officers of\n the DRI conducted searches in various premises on 27.10.2006 in the\n belief that the goods liable for confiscation and / or any documents or\n things relevant to any proceedings under theCustoms Actwere\n secreted at those premises. The office premises of the petitioners as\n well as the residential premises ofSh. V.P. Aggarwal, one of the\n Directors of the petitioners' companies, were amongst the premises\n searched on 27.10.2006.Signature Not Verified\nDigitally SignedBy:DUSHYANT W.P.(C) Nos.7292/2023, 7316/2023 &7350/2023 Page 5 of 17RAWAL\nSigning Date:26.09.20238. It is stated that, thereafter, the investigation continued and\n summons were issued underSection 108of the Customs Act to\n various persons including Sh. Sudhir Gulati and Sh. Vishnu Prasad\n Aggarwal. It is stated that Sh. Sudhir Gulati was the Director of M/s\n Gala International Pvt. Ltd. and M/s Ganesh Overseas Pvt. Ltd.\n [Petitioners in W.P.(C) No.7292/2023 and W.P.(C) No.7316/2023]\n and Sh. Vishnu Prasad Aggarwal, at the material time, was the\n Director of the petitioner companies.9. It is stated in the impugned show cause notice that during the\n investigation proceedings,Sh. V.P. Aggarwalvoluntarily deposited\n ₹35,00,000/- (₹15,00,000/- in respect of M/s Gala International Pvt.\n Ltd.; ₹10,00,000/- in respect of M/s Shirdi Exim Pvt. Ltd.; and,\n ₹10,00,000/- in respect of M/s Ganesh Overseas Pvt. Ltd.) towards the\n duty drawback on exports to Russian companies under the Rupee-\n Rouble Scheme and / or DEPB Scheme.10. Thereafter on 30.04.2009, the ADG, DRI issued the impugned\n show cause notice proposing to raise a demand of duty along with\n interest, penalty and fine in lieu of confiscation of goods.11. The ADG, DRI and the Commissioner (Adjudication) filed a\n counter affidavit as well as the additional affidavit in W.P.(C)\n No.7292/2023. Although, the ADG, DRI and the Commissioner\n (Adjudication) have not filed the counter affidavit in other two\n petitions [W.P.(C) Nos.7316/2023 & 7350/2023], however, the\n learned counsel appearing for the ADG, DRI and the Commissioner\n\n\nSignature Not Verified\nDigitally SignedBy:DUSHYANT W.P.(C) Nos.7292/2023, 7316/2023 &7350/2023 Page 6 of 17RAWAL\nSigning Date:26.09.2023\n (Adjudication) submitted that the counter affidavit filed in W.P.(C)\n No.7292/2023 may be read in response to the other two petitions as\n well.12. In W.P.(C) No.7292/2023, the petitioner also filed an\n application placing on record the list of dates and events. It is relevant\n to refer to the proceedings conducted by the respondents after the\n issuance of the impugned show cause notice as set out in the affidavits\n filed by the ADG, DRI and the Commissioner (Adjudication), as well\n as the list of dates as furnished by the petitioners.Period from 30.04.2009 to 21.07.201613. Admittedly, the impugned show cause notice was received by\n the petitioners and they requested for copies of the relied upon\n documents (hereafter 'the RUDs'), as referred in Annexure-B to the\n impugned show cause notice. They specifically demanded the\n authenticated copy of the entire record seized and also sought cross-\n examination of the First Secretary (Trade Embassy of India) whose\n letters were relied upon in the impugned show cause notice. There is\n no serious dispute that the said documents were not immediately\n provided to the petitioners. The petitioners claim that they continued\n to send letters with effect from 02.06.2009 seeking copies of the\n RUDs to enable them to respond to the impugned show cause notice\n but were not provided copies of the RUDs' as sought by them. Even\n according to the respondents, no further proceedings were conducted\n at the material time.Signature Not Verified\nDigitally SignedBy:DUSHYANT W.P.(C) Nos.7292/2023, 7316/2023 &7350/2023 Page 7 of 17RAWAL\nSigning Date:26.09.202314. The respondents state that on 09.08.2010, the Commissioner of\n Central Excise (Adjudication)-I was appointed as the common\n adjudicating authority for the said case by an Order\n F.No.437/39/2010-Cus-IV issued by the Central Board of Excise and\n Customs (hereafter 'the CBEC'). Admittedly, for almost sixteen\n months, the petitioners were neither provided the documents as sought\n by them nor any hearings were held. In the counter affidavit, the\n ADG, DRI and the Commissioner (Adjudication) accept that on\n 13.09.2010, the petitioners had requested the Commissioner of Central\n Excise (Adjudication)-I to arrange for the supply of the RUDs.15. The respondents state that on 28.09.2010, a notice fixing the\n personal hearing on 07.10.2010 was issued to the petitioners. It is\n material to note that even at that stage the RUDs as sought by the\n petitioners were not provided to them. The counter affidavit indicates\n that on 04.10.2010, a letter was issued requesting the ADG, DRI to\n supply the copies of the RUDs to the petitioners.16. The respondents state that thereafter, on 12.10.2010, notices\n were issued to some other noticees (M/s Gomati International and M/s\n Mahindra Traders) to appear before the Commissioner (Adjudication).\n However, it was conceded that no notices were issued to the\n petitioners. It is stated that, thereafter, a hearing was fixed on\n 20.10.2010. The advocate of M/s Gala International Pvt. Ltd. had\n appeared before the Adjudicating Authority on the said date but no\n hearing could take place as the Adjudicating Authority was on leave.Signature Not Verified\nDigitally SignedBy:DUSHYANT W.P.(C) Nos.7292/2023, 7316/2023 &7350/2023 Page 8 of 17RAWAL\nSigning Date:26.09.202317. The petitioners claim that on 10.12.2010, the Commissioner\n (Adjudication) had directed the ADG, DRI to supply documents to the\n petitioners. However, despite the same the ADG, DRI failed to\n provide the same. The respondents state that on 02.12.2010, the\n Commissioner (Adjudication) had sent a letter to the ADG, DRI with a\n request to supply the RUDs to the noticees.18. Apparently, some RUDs were provided to M/s Gala\n International Pvt. Ltd. but the complete RUDs were not provided to it.\n Accordingly, M/s Gala International Pvt. Ltd. sent a letter dated\n 20.12.2010 requesting for the balance RUDs as well as legible copies\n of some of the RUDs provided to it. This is also acknowledged by the\n respondents in their counter affidavit.19. According to the respondents, during the period 02.12.2010 to\n 23.03.2011, the Commissioner (Adjudication) sent letters to the ADG,\n DRI for the supply of the RUDs and one set of the RUDs was\n forwarded to the Commissioner (Adjudication) on 24.03.2011.\n However, the list of dates and events as relied upon by the parties,\n does not indicate that the said documents were provided to the\n petitioners.20. The petitioners sent reminder letters dated 01.05.2011 and\n 14.05.2011 requesting for the RUDs. It is apparent that the RUDs\n were not provided to the petitioners. This is evident from the list of\n dates and events provided by the respondents, which indicate that on\n 24.02.2012, the Commissioner (Adjudication) had informed the Chief\n\n\nSignature Not Verified\nDigitally SignedBy:DUSHYANT W.P.(C) Nos.7292/2023, 7316/2023 &7350/2023 Page 9 of 17RAWAL\nSigning Date:26.09.2023\n Commissioner of Customs, Delhi that despite several reminders, the\n DRI had not provided the RUDs as requested by the petitioners. The\n Commissioner (Adjudication) called upon the Chief Commissioner to\n take up the matter with the Director General, DRI.21. The petitioners state that they continued to write letters from\n 15.12.2010 to 24.07.2013 requesting for copies of the RUDs. It is\n clear from the counter affidavit that the RUDs as sought for by the\n petitioners were not provided to them. The counter affidavit indicates\n that on 23.08.2013, the Commissioner (Adjudication) had made a\n further request to the Chief Commissioner to take up the matter with\n the Director General, DRI regarding non furnishing of RUDs to the\n petitioners. The petitioners claim that by an order dated 26.09.2013,\n the Commissioner (Adjudication) directed that the documents be\n collected within a week from the ADG, DRI and pursuant to the said\n order, some documents were provided to the petitioners, however, the\n complete record as sought for was still not provided to the petitioners.22. On 26.11.2013, the ADG, DRI issued a letter to the petitioners\n informing the petitioners that records were required to be segregated\n and the petitioners could come to the office and segregate the same.\n The letter dated 26.11.2013 is not disputed. It is thus clear that the\n records for the case were not properly segregated at that stage. It is\n obvious that the concerned officers had not taken any steps to do so\n and therefore, called upon the petitioners to come to the office and\n segregate the records.Signature Not Verified\nDigitally SignedBy:DUSHYANT W.P.(C) Nos.7292/2023, 7316/2023 &7350/2023 Page 10 of 17RAWAL\nSigning Date:26.09.202323. It is the petitioners' case that its representatives reached the\n office of the ADG, DRI on 02.12.2013 and found that documents of\n various companies were mixed up and were required to be segregated.\n It is contended on behalf of the petitioners that the records were in\n such a state that it was not possible to segregate or sort out the records\n and documents in a single visit. It is also the petitioners' case that the\n state of the records indicated that the ADG, DRI could not have\n looked into the complete documents for issuing the impugned show\n cause notice.24. Mr. Harpreet Singh, learned counsel appearing for the\n respondents is unable to dispute that the records were mixed up and\n required to be segregated. However, he contends that the records of\n the petitioner companies were not mixed up with the records of other\n companies and in fact, it is the records of the petitioner companies that\n had got mixed up. However, the said contention is without any basis.\n The respondents were given an opportunity to traverse the said\n allegation. The letter calling upon the petitioners to segregate the\n documents is not disputed and Mr. Harpreet Singh fairly states that the\n letter dated 26.11.2013 was issued by the concerned officers of the\n respondents. In the additional affidavit filed by the respondents, the\n respondents had attempted to obfuscate the issue by stating that there\n is no supportive document to show that the representatives of the\n petitioners had visited the DRI office for segregation of the documents\n during the period 02.12.2013 to 06.12.2013. The respondents have not\n categorically denied that the representatives of the petitioners had\n\n\nSignature Not Verified\nDigitally SignedBy:DUSHYANT W.P.(C) Nos.7292/2023, 7316/2023 &7350/2023 Page 11 of 17RAWAL\nSigning Date:26.09.2023\n visited the office of the DRI on 02.12.2013 and had attempted to\n segregate the documents as claimed.25. The list of dates and events as mentioned by the respondents in\n their counter affidavit indicate that certain communications were\n exchanged during the period continuing up to 08.05.2015. The\n petitioners continued to make request for the RUDs, some of which\n were supplied. They also filed their interim reply to the impugned\n show cause notice. The respondents also state that in October, 2013, a\n personal hearing was afforded by the Commissioner (Adjudication) to\n various noticees. Apart from mentioning that certain communications\n were exchanged, nothing else took place during the said period. Thus,\n for all intents and purposes, the proceedings in relation to the\n impugned show cause notice did not progress.26. The respondents state that on 08.05.2015, the office of the\n Commissioner of Central Excise (Adjudication)-I was abolished\n pursuant to cadre restructuring and the files were returned to the\n Jurisdictional Commissionerate. Thereafter, for a period of one year,\n that is, till 04.05.2016, the respondents did not take up the\n proceedings. On 04.05.2016, the case of the petitioners was delegated\n to the ADJ, DRI for adjudication by the Board. However, no\n proceedings took place thereafter as well.27. It is clear from the above that during the prolonged period of\n 03.04.2009 to 21.07.2016, no effective steps were taken for\n adjudication of the impugned show cause notice. It is not disputed\n\n\nSignature Not Verified\nDigitally SignedBy:DUSHYANT W.P.(C) Nos.7292/2023, 7316/2023 &7350/2023 Page 12 of 17RAWAL\nSigning Date:26.09.2023\n that during this period there was no impediment for the concerned\n officers to proceed with the adjudication. The fact that various\n communications were sent by the Adjudicating Authority to the\n concerned officers of the DRI for supply of the RUDs is clearly no\n ground to justify that it was not possible to adjudicate the impugned\n show cause notice during the said period. In view of the above, we are\n unable to accept that it was not feasible or possible for the\n Adjudicating Authority to adjudicate the impugned show cause notice\n till 06.02.2017.Period from 06.02.2017 to 06.03.202328. The respondents state that by the Instruction dated 29.06.2016,\n the Board directed the transfer of the DRI cases where the show cause\n notices had been issued prior to 06.07.2011 to the Call Book and\n accordingly, the adjudication of the impugned show cause notice was\n transferred to the Call Book till 06.02.2017.29. It is affirmed by the respondents that the impugned show cause\n notice was retrieved from the Call Book on 20.01.2023 and on the\n same date a notice was issued to the petitioners fixing the date of\n hearing relating to the impugned show cause notice. In response to the\n said notice, the petitioners once again submitted a letter requesting\n that the RUDs be provided to them. By a subsequent letter dated\n 06.03.2023, the concerned officer had scheduled the personal hearing\n on 20.03.2023.Signature Not Verified\nDigitally SignedBy:DUSHYANT W.P.(C) Nos.7292/2023, 7316/2023 &7350/2023 Page 13 of 17RAWAL\nSigning Date:26.09.202330. It is contended on behalf of Mr. Singh that inCommissioner of\n Customs v. Sayed Ali & Anr.2, the Supreme Court held that Custom\n Preventive Officers were not the proper officers to issue the show\n cause notice underSection 28of the Customs Act. He submitted that\n in view of the said decision the adjudication of the impugned show\n cause notice could not proceed after the decision was rendered. He\n submitted that the decision of the Supreme Court necessitated an\n amendment toSection 28(11)of the Customs Act and by a\n Notification No.44/2011-Customs (N.T.) dated 06.07.2011, the Board\n assigned the functions of a proper officer to the officers of DGDRI,\n DGCEI and Custom (Preventive).The Customs Actwas amended\n retrospectively and thus, the impugned show cause notice could not be\n adjudicated prior to the aforesaid amendment to theCustoms Act. He\n states that, thereafter, this Court inMangali Implex & Ors. v. Union\n of India & Ors.3 had held that the department could not seek to rely\n on the amendedSection 28(11)of the Customs Act as authorising the\n officers of Customs, DRI/DGCEI to exercise powers in relation to non\n levy, short levy or erroneous refund for the period pertaining prior to\n 08.04.2011.31. It is alleged that the impugned show cause notice could not be\n adjudicated after the decision in the case ofMangali Implex & Ors. v.\n Union of India3. However, the said decision was subsequently stayed\n by the Supreme Court. He submitted that in the meanwhile the Board2(2011) 3 SCC 53732016 (335) ELT 605\n\n\n\nSignature Not Verified\nDigitally SignedBy:DUSHYANT W.P.(C) Nos.7292/2023, 7316/2023 &7350/2023 Page 14 of 17RAWAL\nSigning Date:26.09.2023\n issued instructions on 21.07.2016 for placing the show cause notices\n issued prior to 2011 in the Call Book and accordingly, on 21.07.2016,\n the impugned show cause notice was placed in the Call Book.32. It is stated that the impugned show cause notice was retrieved\n from the Call Book on 06.02.2017 in view of the instructions dated\n 06.01.2017. However, the Board opined that it was not feasible to\n adjudicate the notices issued prior to 08.07.2011 and therefore the said\n impugned show cause notice was not adjudicated. It is stated that it\n was re-entered in the Call Book and was retrieved from the Call Book\n on 23.01.2023.33. Admittedly, the petitioners were not informed that the\n impugned show cause notice was put in the Call Book.34. In the given facts, we are inclined to accept the petitioners'\n contention that the present petitions are covered by the ratio of the\n decision of this Court inNanu Ram Goyal v. Commissioner of CGST\n and Central Excise, Delhi & Ors.4 and that deferring the adjudication\n of the impugned show cause notice on account of the Call Book\n procedure was not justified. However, without going into the question\n as to the validity of the action of the respondents in placing the\n impugned show cause notice in a Call Book, it is also apparent that the\n impugned show cause notice was not adjudicated for a period of over4Neutral Citation: 2023:DHC:2596-DB\n\n\n\n\nSignature Not Verified\nDigitally SignedBy:DUSHYANT W.P.(C) Nos.7292/2023, 7316/2023 &7350/2023 Page 15 of 17RAWAL\nSigning Date:26.09.2023\n eight years (30.04.2009 to 21.07.2016) even though there was no\n impediment in adjudicating the same.35.Section 28(9)of the Customs Act, as in force at the material\n time, reads as under:"28. Recovery of [duties not levied or not paid or short-levied\n or short-paid] or erroneously refunded.xxxx xxxx xxxx xxxx\n\n (9) The proper officer shall determine the amount of duty or\n interest under sub-section (8),--\n\n (a) within six months from the date of notice, [where itis possible to do so], in respect of case falling under clause(a) of sub- section (1);(b) within one year from the date of notice, [where it is\n possible to do so] in respect of cases falling under sub-\n section (4):"36. It is at once clear that the period within which the impugned\n show cause notice was required to be adjudicated has long since\n elapsed. The controversy raised is squarely covered by the recent\n decision of this Court inSwatch Group India Pvt. Ltd. & Ors. v.\n Union of India & Ors.5. In view of the above, it is no longer open for\n the respondents to proceed with the adjudication of the impugned\n show cause notice. Accordingly, the impugned letters recommencing\n the adjudication proceedings are set aside. Since the period for\n adjudication of the impugned show cause notice has elapsed, the same\n cannot be adjudicated.5Neutral Citation: 2023:DHC:5764-DB\n\n\n\n\nSignature Not Verified\nDigitally SignedBy:DUSHYANT W.P.(C) Nos.7292/2023, 7316/2023 &7350/2023 Page 16 of 17RAWAL\nSigning Date:26.09.202337. The petitions are allowed in the aforesaid terms. All the\n pending applications are also disposed of.VIBHU BAKHRU, J\n\n\n\n AMIT MAHAJAN, J\n SEPTEMBER 26, 2023\n 'gsr'\n\n\n\n\nSignature Not Verified\nDigitally SignedBy:DUSHYANT W.P.(C) Nos.7292/2023, 7316/2023 &7350/2023 Page 17 of 17RAWAL\nSigning Date:26.09.2023 |
f816c40c-a043-52b7-bcc9-c1b9f00046be | court_cases | Allahabad High CourtSmt Anita vs State Of U.P. And Another on 28 April, 2022Bench: Rahul ChaturvediHIGH COURT OF JUDICATURE AT ALLAHABAD\n \n \n\n?Court No. - 67\n \n\n \nCase :- CRIMINAL REVISION No. - 3588 of 2021\n \n\n \nRevisionist :- Smt Anita\n \nOpposite Party :- State of U.P. and Another\n \nCounsel for Revisionist :- Mewa Lal Shukla\n \nCounsel for Opposite Party :- G.A.\n \n\n \nHon'ble Rahul Chaturvedi,J.Heard learned counsel for the revisionist as well as learned A.G.A.By means of the instant revision, the revisionist is assailing the order dated 30.11.2021 passed by learned Additional Sessions Judge, Court No.22, Allahabad in Sessions Trial no.181 of 2018 undersections 306/302IPC arising out of case crime no.1 of 2018, Police Station-Karchana, District-Prayagraj whereby the application no.11-Kha and 13-Kha undersection 319Cr.P.C. was allowed summoning Anita Devi to face the trial.Contention raised by learned counsel for the revisionist is that the prosecution has been initiated by one Jeet Lal Yadav who has lodged the FIR on 31.12.2017 for the incident said to have taken place on the same day undersection 302IPC, Police Station-Karchana, District-Allahabad against Vijay Shankar Yadav(husband), Anita Devi(revisionist) and Ravi Shankar(dewar) with the allegation that about seven years back, the informant got her daughter married with one Vijay Shankar Yadav from whom she has delivered two baby girls. On this account, she was subject matter of constant goading and tangent remarks by the family members and they became physical sometime with the deceased. It is further submitted that it is alleged in the FIR that all the three named accused persons have jointly burnt the lady along with her two daughters. The post mortem report reveals that all the three persons died on account of burn injuries. However, after holding in-depth probe, police has submitted the charge sheet against Vijay Shankar Yadav and Ravi Shankar dropping the name of the revisionist from the array of charge sheet. Since, the case was non-bailable, the case was committed to the court of sessions, whereby after recording the statement of PW-1, Jeetlal Yadav and PW-2, Nankau Yadav, the application undersection 319Cr.P.C. was moved on 23.11.2021 with the prayer from the Court that the revisionist-Anita(Jethani) be also summoned to face the prosecution. After hearing counsel for the rival parties, learned trial Judge vide order dated 30.11.2021 allowed the same summoning Anita Devi to face the trial. Learned counsel for the revisionist submits that omnibus and general role has been attributed in the FIR for alleged act of torture and tangent remarks and all of sudden, she has taken the extreme step by committing suicide after burning herself along with her two daughters.I have keenly perused the testimonies of PW-1, Jeetlal Yadav and Nankau Yadav that on account of giving birth to two baby girls, her husband Vijay Shankar Yadav and Anita Devi used to make tangent remarks and sometime marpeet was done. PW-1 Jeetlal Yadav in examination-in-chief has submitted that he has talked with her deceased's daughter about 10-12 days prior to the incident in which she has disclosed about the maltreatment committed by all the family members. It is next contended that revisionist has got no reason or occasion for committing any marpeet or extend maltreatment to her. The revisionist is the lady of 45 years and mother of her own children. The evidence indicates that at the time of occurrence, she was not present over the site and that is the reason that the police has dropped the name of the revisionist from the charge sheet.Learned counsel for the revisionist has relied upon the judgement of Hon'ble Apex Court passed in the case of Sugreev Kumar Vs. State of Punjab and others MANU/SC/0389/2019 passed in Crl. Appeal No. 509 of 2018 arising out of SLP No. 9687 of 2018 with regard to the degree to satisfaction required to be invoked while exercising the power under section 319 Cr.P.C."95. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. UnderSection 319CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two-Judge Bench of this Court inVikas v. State of Rajasthan, held that on the objective satisfaction of the court a person may be "arrested" or "summoned", as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons.105. Power underSection 319CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner."Learned counsel for the revisionist has further drawn the attention of the Court to para-12 of the above judgement:12. Provision contained insection 319Cr.P.C. sanction the summoning of any person on the basis of any relevant evidence as available on record. However, it being a discretionary power and an extraordinary one,is to be exercised sparingly and only when cogent evidence is available. The prime facie opinion which is to be formed for exercise of his power requires stronger evidence than mere probability of complicity of a person. The test to be applied is the one which is more than a prime facie case as examined at the time of framing charge but not of satisfaction to be extent that the evidence, if goes uncontroverted, would lead to be conviction of the accused.On this parameter, the name of the revisionist has been taken without attributing any role in the commission of the alleged offence. The police has dropped the name of the revisionist from the chargesheet. Learned counsel for the revisionist has further relied upon the judgement of Hon'ble Supreme Court in the case of Periyasami and others Vs. S. Nallasamy, MANU/SC/0375/2019 decided on 14.3.2019 in Criminal Appeal No. 456 of 2019 arising out of SLP. No. 208 of 2019."The additional accused cannot be summoned underSection 319of the Code in casual and cavalier manner in the absence of strong and cogent evidence. UnderSection 319of the Code additional accused can be summoned only if there is more than prima facie case as is required at the time of framing of charge but which is less than the satisfaction required at the time of conclusion of the trial convicting the accused."Moreover, in the case of Brijendra Singh and others Vs. State of Rajasthan, (2017) SC 2839 decided on 27.04.2017 has stated that," Thus, the 'evidence' recorded during trial was nothing more than the statements which was already there underSection 161Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether 'much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record".After perusal of the statement and the material collected and in the light of the judgments of Hon'ble the Apex Court in the case of (i) Hardeep Singh Vs. State of Punjab and another (2014) 3 SCC Page-92 ; (ii) Brijendra Singh and others Vs. State of Rajasthan 2017(100) ACC 601 (SC); (iii) Labhuji Amratji Thakor and other Vs. State of Gujrat and another 2018(15) SCAL 639; (iv) Sugreev Kumar Vs. State of Punjab and others in Criminal Appeal No.509 of 2019 arising out of SLP(Crl.) No.9687 of 2018; (v) Periyasami and others Vs. S. Nallasamy in Criminal Appeal No.456 of 2019 arising out of SLP(Crl.) No.208 of 2019, I have got no hesitation to quash the order dated 30.11.2021 passed by learned Additional Sessions Judge, Court No.22, Allahabad in Sessions Trial no.181 of 2018.The present criminal revision is hereby allowed. The matter is remanded back for fresh consideration and the learned trial Court is directed to re-visit and re-decide the matter in the light of the ratio laid down by Hon'ble the Apex Court in the aforesaid judgmentsand conclude the same within a period of eight weeks from the date of production of certified copy of this order by passing a well reasoned and speaking order.Order Date :- 28.4.2022\n \nSumit S |
de058d39-cc58-5477-8ea2-a96e4f2a770a | court_cases | High Court of MeghalayaShri Kamesh Kumar Roy vs . The Union Of India on 2 February, 2023Author:W. DiengdohBench:W. DiengdohSerial No. 13\n Regular List\n\n\n\n HIGH COURT OF MEGHALAYA\n AT SHILLONG\n\nWP(C) No. 187 of 2017\n Date of Order: 02.02.2023\nShri Kamesh Kumar Roy Vs. The Union of India\nCoram:\n Hon'ble Mr. Justice W. Diengdoh, Judge\n\nAppearance:\nFor the Petitioner/Appellant(s) : Ms. A.A. Sangma, Adv.\nFor the Respondent(s) : Ms. K. Gurung, Adv. viceDr. N. Mozika, DSG.i) Whether approved for reporting in Yes/No\n Law journals etc.:ii) Whether approved for publication\n in press: Yes/No\n\n\n On prayer made by the petitioner, this matter is adjourned.List the same after 2(two) weeks.Judge\n\nMeghalaya\n02.02.2023\n"N.Swer, Stenographer" |
83b7095a-8b23-5e2d-b93d-7e0dfaa3e646 | court_cases | Orissa High CourtM/S. Durga Raman Patnaik vs Additional Commissioner on 13 October, 2022HIGH COURT OF ORISSA : CUTTACK.\n W.P.(C) No. 7728 of 2022\n (In the matter of an application underArticles 226and227of the Constitution of India, 1950)\n ***M/S. DURGA RAMAN PATNAIK Petitioner\n2ND LANE Mr. Ramesh Chandra\nRAMAKRUSHNA NAGAR Jena,\nBERHAMPUR Advocate for\nODISHA - 760 001 the petitioner,\nREPRESENTED BY ITS\n Mr. Rudra Prasad Kar,\n Advocate,\nCS PRANAB KUMAR MISHRA ...\n Amicus Curiae\n assisted by\n Mr. Mark Wright,\n Advocate\n\n VERSUS\n\nADDITIONAL COMMISSIONER\nOF GST (APPEALS)\n(FIRST APPELLATE\nAUTHORITY) Opposite parties\nHAVING HIS OFFICE Mr. Subash Chandra\nAT GST BHAWAN Mohanty,\nC.R. BUILDING Senior Standing Counsel\nRAJASWA VIHAR (Central Goods and\nBHUBANESWAR Services Tax, Central\n ...\nODISHA - 751 007 Excise & Customs)\n& OTHERSThis matter is taken up by virtual/physical mode.Date of Hearing : 27.09.2022 :: Date of Judgment : 13.10.2022\n\n\n P.T.O.\n :: 2 ::CORAM:MR. JUSTICE JASWANT SINGH\n AND\n\n MR. JUSTICE MURAHARI SRI RAMAN\n\n J UDG ME NT\n\nMurahari Sri Raman, J.--1. The petitioner, proprietorship concern of Sri Durga Raman\n Patnaik with legal name and trade name "DURGA RAMAN\n PATNAIK" registered under the provisions of theCentral Goods\n and Services Tax Act, 2017(referred to as "CGST Act"), while\n assailing the Order dated 07.10.2021 passed in Appeal bearing\n No.228/BBSR-GST/APPEAL/2021 by the Additional\n Commissioner, GST (Appeals) (for brevity referred to as\n "Appellate Authority") vide Annexure-1, questioned the propriety\n of Order dated 21.08.2019 of Superintendent, Berhampur-I Range,\n Berhampur Division (for short, "Registering Authority"), who, in\n exercise of power underSection 29(2)(c)of the said Act, has\n cancelled the registration (Annexure-4).2. Fact leading the petitioner to approach this Court to beseech\n invocation of extraordinary jurisdiction under the provisions of\n Article 226/227 of the Constitution of India, 1950, is that by\n referring to reply dated 31.08.2019 submitted by the petitioner in\n pursuance of terms of Show Cause Notice dated 21.08.2019, the\n Superintendent of Ganjam-I Circle in Berhampur-I Range without\n assigning any reason proceeded to cancel the registration, GSTIN:W.P.(C) No. 7728 of 2022 Page 2 of 70:: 3 ::21ALPPP8146E2ZY on 15.10.2019 invoking provisions ofSection 29(2)(c)of the CGST Act with effect from 15.10.2019\n inasmuch as there was non-filing of returns for consecutive period\n of six months.2.1. Instead of seeking revocation of cancellation of registration underSection 30of the CGST Act before the proper officer, assailing\n aforementioned order dated 15.10.2019, the petitioner preferred\n appeal underSection 107of the CGST Act on 05.08.2021 with a\n delay of around 660 days which came to be rejected on\n 07.10.2021.2.2. It is submitted by the counsel for the petitioner that while the\n Appellate Authority made an observation in his Appellate Order\n that application for revocation of cancellation of registration as\n envisaged inSection 30of the CGST Act read with Rule 23 of the\n Central Goods and Services Tax Rules, 2017 (abbreviated as,\n "CGST Rules") being not filed within prescribed period, instead\n of rejecting the appeal on the ground of limitation by taking\n pedantic view, should have appreciated genuine difficulty faced\n by not only the petitioner but also other similarly placed suppliers\n and recipients and relegated him for availing the benefit of said\n remedial recourse of revocation of order of cancellation of\n registration under said provision as there is no outer limit provided\n under afore-mentioned provisions and the delay for sufficient\n reason being shown can be condoned.2.3. Urging that the Appellate Authority ought to have shown\n pragmatic approach by taking a lenient view, referring to\n Notification No.19/2021-- Central Tax, dated 01.06.2021, issuedW.P.(C) No. 7728 of 2022 Page 3 of 70:: 4 ::by Government of India, Ministry of Finance (Department of\n Revenue), Central Board of Indirect Taxes and Customs, it has\n been submitted that it has provided relief to the taxpayers by\n reducing/waiving late fee for non-furnishing Form GSTR-3B for\n the tax periods from July, 2017 to April, 2021, if the returns for\n these tax periods are furnished between 01.06.2021 to 31.08.2021.\n However, by virtue of Notification No. 33/2021-- Central Tax,\n dated 29.08.2021, the last date to avail benefit of the amnesty\n scheme was extended from 31.08.2021 to 30.11.2021.2.4. Based on the multiple representations received, Government by\n issue of Notification No. 34/2021-- Central Tax [GSR\n No.600(E)], dated 29.08.2021 have also extended the timelines for\n filing of application for revocation of cancellation of registration\n to 30.09.2021, where the due date of filing of application for\n revocation of cancellation of registration falls between 01.03.2020\n to 31.08.2021. The extension was made applicable only in those\n cases where registrations were cancelled under clause (b) or clause(c) of sub-section (2) ofSection 29of the CGST Act.2.5. Such an extension by way of amnesty scheme and extension of\n time limit for filing of application for revocation of cancellation of\n registration was promulgated as a benevolent gesture of the\n Government keeping in mind on the advent of GST regime with\n effect from 01.07.2017 adverse situations were faced by\n suppliers/recipients/taxpayers especially small taxpayers. Due to\n lack of awareness regarding nuances of "strict compliance" of new\n taxation policy, they could not file their returns in time. Such\n difficulties were multiplied by outbreak of Severe AcuteW.P.(C) No. 7728 of 2022 Page 4 of 70:: 5 ::Respiratory Syndrome-associated corona virus (SARS-CoV)\n leading to COVID-19 pandemic. Consequently, such situation was\n declared force majeure which led to promulgation of Section\n 168A by way of theCGST (Amendment) Act, 2020granting\n power to the Government to extend time limit in special\n circumstances.2.6. It is, therefore, argued by the counsel for the petitioner that the\n Appellate Authority was not powerless to grant opportunity to the\n petitioner to deposit tax, interest coupled with penalty and late fee\n and relegate him to approach the Registering Authority underSection 30of the CGST Act by condoning the delay as has been\n done by this Court in very many cases, namely in the case of\n Nirmani Engineers and Constructions Pvt. Ltd. Vrs. The\n Commissioner of CT&GST, Odisha and Others, W.P.(C)\n No.15934 of 2021, wherein vide Order dated 05.05.2021, this\n Court has observed as follows:"2. Mr. Sunil Mishra, learned Additional Standing Counsel for\n Opposite Parties appearing on an advance notice states\n that as long as delay in filing the appeal is condoned, and\n provided the Petitioner complies with all the requirements\n of paying the taxes due, the 3B Return Form filed by the\n Petitioner will be accepted by the Opposite Parties.3. In that view of the matter, the delay in Petitioner's invoking\n the proviso to Rule 23 of the Odisha Goods and Services\n Tax Rules (OGST Rules) is condoned and it is directed that\n subject to the Petitioner depositing all the taxes due and\n complying with other formalities, the GST return filed by\n the Petitioner, provided it is filed on or before 5th July,\n 2021, will be accepted by the Opposite Parties."W.P.(C) No. 7728 of 2022 Page 5 of 70:: 6 ::2.7. It is stated by the petitioner that in exercise of power underSection 128of the CGST Act, the amount of late fee payable by\n registered person for failure to furnish return in Form GSTR-3B\n for the month of July, 2017 onwards by the due date underSection\n 47has been waived by virtue of Notification No.76/2018--Central Tax, dated 31.12.2018 issued by the Government of India\n in Ministry of Finance (Department of Revenue), whereby ninth\n proviso has been inserted by way of amendment vide Notification\n No.19/2021-- Central Tax, dated 01.06.2021, which is to the\n following effect:"Provided also that for the registered persons who failed to\n furnish the return in Form GSTR-3B for the months /quarter of\n July, 2017 to April, 2021, by the due date but furnish the said\n return between the period from the 1st day of June, 2021 to the 31st\n day of August, 2021, the total amount of late fee underSection 47of the said Act, shall stand waived which is in excess of five\n hundred rupees:"2.8. Relying on said proviso, it is, therefore, asserted that had the\n registration been live, the petitioner would have the occasion to\n furnish returns between the period from 01.06.2021 to 31.08.2021\n in Form GSTR-3B for the months/quarter of July, 2017 to April,\n 2021.2.9. Under such premise, the counsel for the petitioner praying for\n setting aside the Appellate Order (Annexure-1), would submit that\n given a chance, besides payment of tax, interest and penalty with\n late fee, all required returns can be furnished. Upon such\n compliance, the petitioner can be directed to make application\n underSection 30for revocation of cancellation of registration.W.P.(C) No. 7728 of 2022 Page 6 of 70:: 7 ::3. It is stated at the Bar that many cases of this nature has been\n rejected by the Appellate Authority by passing a common order,\n as a consequence of which taxpayers even though are ready to\n deposit tax, interest and penalty with late fee and also furnish\n return(s), they are deprived of availing such advantage as is\n bestowed in the aforementioned notifications. Since the Bar\n sought to address the issue, this Court asked Sri Rudra Prasad Kar,\n Advocate to render assistance in this regard.3.1. Mr. Rudra Prasad Kar, learned Advocate has placed the following\n suggestions by way of short note dated 25.08.2022:"GST law being, a New Act, assessees are facing the difficulties in\n switching to procedural compliance electronically through\n internet on the GST Web-Portal. Considering the hardship faced\n by the assessees and more specifically due to COVID-19\n pandemic, various amnesty schemes were introduced by the\n Government of India to ease the technical and procedural\n complicacies faced by the assessees. The provisions of the GST\n enactments and the rules made thereunder, read with various\n clarifications issued by the Central Government, pursuant to the\n decision of the GST Council and the Notification issued\n thereunder, also makes it clear that the intention is only to\n facilitate business and not to debar the assessees from coming\n back into GST fold. The purpose of GST registration is only to\n ensure that just taxes get collected on supplies of goods or\n services or both and is paid to the exchequer. Keeping these\n petitioners outside the bounds of the GST regime is a self-\n defeating move. It will be in the interest of the State to allow\n restoration of the Registration Certificate and facilitate business\n to grow.The provisions of the GST enactments cannot be interpreted so as\n to deny the right to carry on Trade and Commerce to a citizen.\n The constitutional guarantee is unconditional and unequivocal\n and must be enforced regardless of the defect in the scheme of the\n GST enactments. The right to carry on trade or profession also\n cannot be curtailed. Only reasonable restrictions, can be imposed.W.P.(C) No. 7728 of 2022 Page 7 of 70:: 8 ::To deny such rights would militate against the rights underArticle\n 14, read withArticle 19(1)(g)andArticle 21of the Constitution of\n India.Recognizing the difficulties, the Central Board of Indirect Taxes\n and Customs (CBIC) extended the time limit for filing application\n for revocation of cancellation of registration for all the orders\n passed on or before 12.06.2020 was granted time till 31.08.2020\n from which date the period of limitation for revocation of\n registration certificate would be counted. As the application filed\n by the writ-applicants for revocation of cancellation of\n registration was looked into by a quasi judicial authority, the\n order of the Hon'ble Supreme Court extending the period of\n limitation in view of the COVID-19 pandemic would apply and in\n such circumstances, the limitation in accordance with the order\n passed by the Central Board of Indirect Taxes and Customs would\n also stand extended.In view of the above and the various amnesty scheme notified by\n the Department, the Court may consider passing an order in\n consonance with the order of Hon'ble Supreme Court in Union of\n India & Another Vrs. FILCO Trade Centre Pvt. Ltd. & Another,\n SLP(C) No.31709-32710/2018, dated 22.07.2022.The following are the humble suggestions:1. The Hon'ble Court may consider allowing 'three' months\n time to assessees/the registered persons, whose registration\n have been cancelled under clause (b) or clause (c) of sub-section (2) of Section 29 of the GST Act to apply for\n revocation of cancellation of registration from the date of\n passing of the order.2. Accordingly, the GST Authorities/Concerned Officers may\n be directed to consider the application of revocation and\n allow the assessees to comply with the statutory\n requirements namely filing of returns, deposit of tax,\n interest, penalty and late fee within a further period of one\n month.3. Authorities to take a pragmatic view and restore the R.Cs.It is submitted that the Government will not be put to any\n pecuniary loss/revenue loss, rather the above suggestions andW.P.(C) No. 7728 of 2022 Page 8 of 70:: 9 ::directions of this Hon'ble Court will be in the larger interest of\n trade, commerce and economic growth of the nation."4. Mr. Rudra Prasad Kar, learned Advocate, brought attention of this\n Court to the Judgment of Hon'ble Madras High Court rendered in\n the case of Tvl. Suguna Cutpiece Center Vrs. The Appellate\n Authority and Another, W.P.(C) No.25048 of 2021, etc. etc., vide\n Order dated 31.01.2022 reported at 2022 (61) GSTL 515 (Mad) to\n demonstrate that in the said Judgment a batch of matters qua\n certain taxpayers, having failed to furnish returns, registration\n certificates had been cancelled in the years 2018 and 2019 in\n terms ofSection 29(2)(c), and their appeals have also been\n rejected by the Appellate Authority on the ground of limitation;\n nonetheless, the said Court protected them by issue of writ of\n mandamus with certain conditions. He also referred to decisions\n of other High Courts where similar views have been expressed\n and the statute under consideration being a Central statute, the\n views so expressed can be taken cognizance of for the purpose of\n extending akin privilege to the similarly circumstanced taxpayers\n of this State. In furtherance thereof, he urged that many taxpayers\n of this State being in unison to deposit tax, interest and penalty\n with late fee as is required under theCGST Actand rules framed\n thereunder, and non-grant of such opportunity cannot be said to\n enure to the larger interest of the State exchequer and disposing of\n writ petition with a direction to the Registering Authority to\n restore the registration by setting aside the Appellate Order would\n not only meet interest of justice, but also it would not cause\n prejudice to the Revenue. Therefore, he requested for extending\n one-time benefit.W.P.(C) No. 7728 of 2022 Page 9 of 70:: 10 ::5. Copy of suggestions with short note was served on Mr. Subash\n Chandra Mohanty, learned Standing Counsel for the opposite\n parties, who on instruction, submitted that in the event the\n petitioner deposits the required tax, interest, penalty and late fee,\n and furnishes all the returns, subject to verification by the\n authority concerned, the revocation of registration, upon duly\n constituted application underSection 30of the CGST Act, could\n be considered by the Registering Authority.6.The CGST Act, 2017was promulgated and brought into force\n with effect from 01.07.2017, which is an Act to make provision\n for levy and collection of tax on intra-State supply of goods or\n services or both by the Central Government and the matters\n connected therewith or incidental thereto. Likewise, the Odisha\n Goods and Services Tax Act, 2017 (for brevity, "OGST Act") was\n enacted to make provision for levy and collection of tax on intra-\n State supply of goods or services or both by the State of Odisha\n and the matters connected therewith or incidental thereto. Thus,\n the resultant effect upon introduction of the CGST Act and the\n OGST Act is that certain other statutes includingOdisha Value\n Added Tax Act, 2004and the Odisha Entry Tax Act, 1999 which\n were imposing indirect taxes stood repealed and in their place\n indirect taxes are levied under the CGST Act and the OGST Act.\n The levy of tax on goods and services is being made by the\n Central Government under the provisions of theCGST Act, 2017and concurrent power has been conferred on the State Government\n to levy goods and services tax under the provisions under the\n OGST Act. Relevant provisions involved for facilitatingW.P.(C) No. 7728 of 2022 Page 10 of 70:: 11 ::adjudication of the issue raised in the present case do require to be\n mentioned.Section 29"Cancellation or suspension of registration.--(1) ***\n (2) The proper officer may cancel the registration of a personfrom such date, including any retrospective date, as he may\n deem fit, where,--(a) a registered person has contravened such provisions\n of the Act or the rules made thereunder as may be\n prescribed; or(b) a person paying tax under Section 10 has not\n furnished returns for three consecutive tax periods;\n or(c) any registered person, other than a person specified\n in Clause (b), has not furnished returns for a\n continuous period of six months; or(d) any person who has taken voluntary registration\n under sub-section (3) of Section 25 has not\n commenced business within six months from the date\n of registration; or(e) registration has been obtained by means of fraud,\n wilful misstatement or suppression of facts:Provided that the proper officer shall not cancel the\n registration without giving the person an opportunity of\n being heard.Provided further that during pendency of the proceedings\n relating to cancellation of such period and in such manner\n as may be prescribed."Section 30"Revocation of cancellation of registration.--W.P.(C) No. 7728 of 2022 Page 11 of 70:: 12 ::(1) Subject to such conditions as may be prescribed, any\n registered person, whose registration is cancelled by the\n proper officer on his own motion, may apply to such officer\n for revocation of cancellation of the registration in the\n prescribed manner within thirty days from the date of\n service of the cancellation order.Provided that such period may, on sufficient cause being\n shown, and for reasons to be recorded in writing, be\n extended,--(a) by the Additional Commissioner or the Joint\n Commissioner, as the case may be, for a period not\n exceeding thirty days;(b) by the Commissioner, for a further period not\n exceeding thirty days, beyond the period specified in\n clause (a).(2) The proper officer may, in such manner and within such\n period as may be prescribed, by order, either revoke\n cancellation of the registration or reject the application:Provided that the application for revocation of cancellation\n of registration shall not be rejected unless the applicant has\n been given an opportunity of being heard.(3) The revocation of cancellation of registration under theCentral Goods and Services Tax Actshall be deemed to be\n a revocation of cancellation of registration under this Act."Rule 22\n "Cancellation of registration.--(1) Where the proper officer has reasons to believe that the\n registration of a person is liable to be cancelled underSection 29, he shall issue a notice to such person in Form\n GST REG-17, requiring him to show cause, within a period\n of seven working days from the date of the service of such\n notice, as to why his registration shall not be cancelled.W.P.(C) No. 7728 of 2022 Page 12 of 70:: 13 ::(2) The reply to the show cause notice issued under sub-rule (1)\n shall be furnished in Form REG-18 within the period\n specified in the said sub-rule.(3) Where a person who has submitted an application for\n cancellation of his registration is no longer liable to be\n registered or his registration is liable to be cancelled, the\n proper officer shall issue an order in Form GST REG-19,\n within a period of thirty days from the date of application\n submitted under Rule 20 or, as the case may be, the date of\n the reply to the show cause issued under sub-rule (1),\n cancel the registration, with effect from a date to be\n determined by him and notify the taxable person, directing\n him to pay arrears of any tax, interest or penalty including\n the amount liable to be paid under sub-section (5) ofSection 29.(4) Where the reply furnished under sub-rule (2) is found to be\n satisfactory, the proper officer shall drop the proceedings\n and pass an order in Form GST REG-20:Provided that where the person instead of replying to the\n notice served under sub-rule (1) for contravention of the\n provisions contained in clause (b) or clause (c) of sub-\n section (2) of Section 29, furnishes all the pending returns\n and makes full payment of the tax dues along with\n applicable interest and late fee, the proper officer shall\n drop the proceedings and pass an order in Form GST-REG20.(5) The provisions of sub-rule (3) shall, mutatis mutandis,\n apply to the legal heirs of a deceased proprietor, as if the\n application had been submitted by the proprietor himself."Rule 23\n "Revocation of cancellation of registration.--(1) A registered person, whose registration is cancelled by the\n proper officer on his own motion, may submit an\n application for revocation of cancellation of registration, in\n Form GST REG-21, to such proper officer, within a period\n of thirty days from the date of the service of the order of\n cancellation of registration at the common portal, eitherW.P.(C) No. 7728 of 2022 Page 13 of 70:: 14 ::directly or through a Facilitation Centre notified by the\n Commissioner:Provided that no application for revocation shall be filed, if\n the registration has been cancelled for the failure of the\n registered person to furnish returns, unless such returns are\n furnished and any amount due as tax, in terms of such\n returns, has been paid along with any amount payable\n towards interest, penalty and late fee in respect of the said\n returns.Provided further that all returns due for the period from the\n date of the order of cancellation of registration till the date\n of the order of revocation of cancellation of registration\n shall be furnished by the said person within a period of\n thirty days from the date of order of revocation of\n cancellation of registration:Provided also that where the registration has been\n cancelled with retrospective effect, the registered person\n shall furnish all returns relating to period from the effective\n date of cancellation of registration till the date of order of\n revocation of cancellation of registration within a period of\n thirty days from the date of order of revocation of\n cancellation of registration.]\n (2) (a) Where the proper officer is satisfied, for reasons to\n be recorded in writing, that there are sufficient\n grounds for revocation of cancellation of\n registration, he shall revoke the cancellation of\n registration by an order in Form GST REG-22 within\n a period of thirty days from the date of the receipt of\n the application and communicate the same to the\n applicant.(b) The proper officer may, for reasons to be recorded in\n writing, under circumstances other than those\n specified in clause (a), by an order in Form GST\n REG-05, reject the application for revocation of\n cancellation of registration and communicate the\n same to the applicant.W.P.(C) No. 7728 of 2022 Page 14 of 70:: 15 ::(3) The proper officer shall, before passing the order referred\n to in clause (b) of sub-rule (2), issue a notice in Form GST\n REG-23 requiring the applicant to show cause as to why the\n application submitted for revocation under sub-rule (1)\n should not be rejected and the applicant shall furnish the\n reply within a period of seven working days from the date of\n the service of the notice in Form GST REG-24.\n (4) Upon receipt of the information or clarification in Form\n GST REG-24, the proper officer shall proceed to dispose of\n the application in the manner specified in sub-rule (2)\n within a period of thirty days from the date of the receipt of\n such information or clarification from the applicant."7. The Hon'ble Gujarat High Court in the case of Aggarwal Dyeing\n and Printing Works Vrs. State of Gujarat & 2 Other(s), R/Special\n Civil Application No. 18860 of 2021, vide Judgment dated\n 24.02.2022 discussed the provisions enshrined for registration\n with reference to the rules framed thereunder in the following\n manner:"8.1 Scheme of the Act:*** The related provisions for certificate of registration\n and its cancellation, under the said Act are as under:i.Section 2(107)defines the term "taxable person"means a person who is registered or liable to be\n registered underSection 22orSection 24.ii. Chapter VI pertains to Registration.Section 22provides for person liable for registration.Section 23pertains to person who shall not be liable for\n registration whereasSection 24provides for\n compulsory registration in certain cases specified\n therein.Section 25provides application to be made\n within period of thirty days and prescribes procedure\n to be followed for registration.Section 26provides\n deemed registration.W.P.(C) No. 7728 of 2022 Page 15 of 70:: 16 ::iii. The Gujarat Goods and service Rules, 2017 has come\n into effect from 22nd June, 2017. Chapter III deals\n with subject "Registration". Rule 8 provides for\n Application for registration. Rule 10 provides for\n Issue of registration certificate. Rule 16 provides for\n suo motu registration.iv.Section 29confers power upon the proper officer for\n cancellation of Registration.Section 30provides for\n revocation of cancellation of registration. Against the\n aforesaid substantive provisions prescribed under the\n Act, the corresponding rules framed thereunder are\n also required to be looked into.v. Rule 20 provides for filing of application for\n cancellation of registration by the dealer. Rule 21\n provides for Registration to be cancelled by the\n proper officer in certain cases. Rule 22 deals for\n procedure to be adhered to while proceeding for with\n cancellation of registration. Rule 23 deals with\n Revocation of cancellation of registration.9. In light of the aforesaid provisions, we notice that\n registration of any business entity under the GST Law\n implies obtaining a unique number from the concerned tax\n authorities for the purpose of collecting tax on behalf of the\n Government and to avail input tax credit for the taxes on\n his inward supplies. Without registration, a person can\n neither collect tax from his customers nor claim any input\n tax credit of tax paid by him. It appears that registration in\n GST is PAN based and State specific. Thus, supplier has to\n get himself registered in each of such State or Union\n Territory from where he effects supply.The Actempowers\n proper officer and registration granted under GST can be\n cancelled for specified reasons. The cancellation can either\n be initiated by the department on their own motion or the\n registered person can apply for cancellation of his\n registration.9.1 From the bare reading of the Rules, 2017 along with\n statutory provision, the reasons for cancellation can be\n culled out as under:W.P.(C) No. 7728 of 2022 Page 16 of 70:: 17 ::a) a person registered under any of the existing laws,\n but who is not liable to be registered under the GST\n Act;b) the business has been discontinued, transferred fully\n for any reason including death of the proprietor,\n amalgamated with other legal entity, demerged or\n otherwise disposed of;c) there is any change in the constitution of the\n business;d) the taxable person (other than the person who has\n voluntarily taken registration under sub-section (3)\n ofSection 25of the CGST Act, 2017) is no longer\n liable to be registered;e) a registered person has contravened such provisions\n of the Act or the rules made thereunder;f) a person paying tax under composition levy has not\n furnished returns for three consecutive tax periods;g) any registered person, other than a person paying tax\n under composition levy has not furnished returns for\n a continuous period of six months;h) any person who has taken voluntary registration\n under sub-section (3) ofSection 25has not\n commenced business within six months from the date\n of registration;i) registration has been obtained by means of fraud,\n willful misstatement or suppression of facts.9.2 The procedure for cancellation of registration can be\n summarized as under:i. A person already registered under any of the existing\n laws (Central excise, Service tax, VAT etc.), but who\n now is not liable to be registered under the GST Act\n has to submit an application electronically by 31st\n December 2017, in Form GST REG-29 at the\n common portal for the cancellation of registrationW.P.(C) No. 7728 of 2022 Page 17 of 70:: 18 ::granted to him. The Superintendent of Central Tax\n shall, after conducting such enquiry as deemed fit,\n cancel the said registration.ii. The cancellation of registration under the State\n Goods and Services Tax Act or theUnion Territory\n Goods and Services Tax Act, as the case may be,\n shall be deemed to be a cancellation of registration\n underCentral Goods and Services Tax Act.iii. In the event, the Superintendent of Central Tax has\n reasons to believe that the registration of a person is\n liable to be cancelled, a notice to such person in\n Form GST REG-17, requiring him to show cause,\n within a period of seven working days from the date\n of the service of such notice, as to why his\n registration shall not be cancelled; will be issued.\n iv. The reply to the show cause notice issued has to be\n furnished by the registered person in Form REG-18\n within a period of seven working days. iv. In case the\n reply to the show cause notice is found to be\n satisfactory, the Superintendent of Central Tax will\n drop the proceedings and pass an order in Form GST\n REG-20.v. However, when the person who has submitted an\n application for cancellation of his registration is no\n longer liable to be registered or his registration is\n liable to be cancelled, the Superintendent of Central\n Tax will issue an order in Form GST REG-19, within\n a period of thirty days from the date of application\n or, as the case may be, the date of the reply to the\n show cause issued, cancel the registration, with effect\n from a date to be determined by him and notify the\n taxable person, directing him to pay arrears of any\n tax, interest or penalty.vi. The registered person whose registration is cancelled\n shall pay an amount, by way of debit in the electronic\n credit ledger or electronic cash ledger, equivalent to\n the credit of input tax in respect of inputs held in\n stock and inputs contained in semi-finished orW.P.(C) No. 7728 of 2022 Page 18 of 70:: 19 ::finished goods held in stock or capital goods or plant\n and machinery on the day immediately preceding the\n date of such cancellation or the output tax payable on\n such goods, whichever is higher.vii. In case of capital goods or plant and machinery, the\n taxable person shall pay an amount equal to the input\n tax credit taken on the said capital goods or plant\n and machinery, reduced by such percentage as may\n be prescribed or the tax on the transaction value of\n such capital goods or plant and machinery underSection 15, whichever is higher.viii. The cancellation of registration shall not affect the\n liability of the person to pay tax and other dues for\n any period prior to the date of cancellation whether\n or not such tax and other dues are determined before\n or after the date of cancellation.9.3 At the same time, the statute also provides for revocation of\n cancellation:i. When the registration has been cancelled by the\n Proper Officer (Superintendent of Central Tax) on\n his own motion and not on the basis of an\n application, then the registered person, whose\n registration has been cancelled, can submit an\n application for revocation of cancellation of\n registration, in Form GST REG-21, to the Proper\n Officer (Assistant or Deputy Commissioners of\n Central Tax), within a period of thirty days from the\n date of the service of the order of cancellation of\n registration at the common portal, either directly or\n through a Facilitation Centre notified by the\n Commissioner:ii. However, if the registration has been cancelled for\n failure to furnish returns, application for revocation\n shall be filed, only after such returns are furnished\n and any amount due as tax, in terms of such returns,\n has been paid along with any amount payable\n towards interest, penalty and late fee in respect of the\n said returns.W.P.(C) No. 7728 of 2022 Page 19 of 70:: 20 ::iii. On examination of the application if the Proper\n Officer (Assistant or Deputy Commissioners of\n Central Tax) is satisfied, for reasons to be recorded\n in writing, that there are sufficient grounds for\n revocation of cancellation of registration, then he\n shall revoke the cancellation of registration by an\n order in Form GST REG-22 within a period of thirty\n days from the date of the receipt of the application\n and communicate the same to the applicant.\n iv. However, if on examination of the application for\n revocation, if the Proper Officer (Assistant or Deputy\n Commissioners of Central Tax) is not satisfied then\n he will issue a notice in Form GST REG-23\n requiring the applicant to show cause as to why the\n application submitted for revocation should not be\n rejected and the applicant has to furnish the reply\n within a period of seven working days from the date\n of the service of the notice in Form GST REG-24.v. Upon receipt of the information or clarification in\n Form GST REG-24, the Proper Officer (Assistant or\n Deputy Commissioners of Central Tax) shall dispose\n of the application within a period of thirty days from\n the date of the receipt of such information or\n clarification from the applicant. In case the\n information or clarification provided is satisfactory,\n the Proper Officer (Assistant or Deputy\n Commissioners of Central Tax) shall dispose the\n application as per para (iii) above. In case it is not\n satisfactory the applicant will be mandatorily given\n an opportunity of being heard, after which the Proper\n Officer (Assistant or Deputy Commissioners of\n Central Tax) after recording the reasons in writing\n may by an order in Form GST REG-05, reject the\n application for revocation of cancellation of\n registration and communicate the same to the\n applicant.vi. The revocation of cancellation of registration under\n the State Goods and Services Tax Act or theUnion\n Territory Goods and Services Tax Act, as the case\n may be, shall be deemed to be a revocation ofW.P.(C) No. 7728 of 2022 Page 20 of 70:: 21 ::cancellation of registration underCentral Goods and\n Services Tax Act.10. Thus, upon appreciation of the scheme of Act, where\n specific forms have been prescribed at each stage right\n from registration, cancellation and revocation of\n cancellation of registration, the same are to be strictly\n adhered to. At the same time, it is equally important that the\n proper officer empowered under the said Act adheres to the\n principles of natural justice.11. At the outset, we notice that it is settled legal position of law\n that reasons are heart and soul of the order and non-\n communication of same itself amounts to denial of\n reasonable opportunity of hearing, resulting in miscarriage\n of justice. ***"7.1. A conjoint reading of the provisions referred to above juxtaposed\n with provisions contained inSection 39read with Rule 61 would\n clearly indicate that the petitioner is bound to file return for the\n month concerned on or before the 20th of the succeeding month\n concerned. Further a reading ofSection 29(2)(c)of the CGST Act\n would also disclose that it is mandated by the Legislature that if\n there is continuous default of six months on the part of the\n assessee in filing returns, then the competent authority can invoke\n the power conferred underSection 29(2)(c)of the said Act to\n cancel the registration.7.2. In the instant case, it is transpired from pleading in the writ\n petition that though the Superintendent, Berhampur-I Range\n passed order cancelling the registration with effect from\n 15.10.2019, the petitioner has been allowed to deposit an amount\n of Rs.3,09,360/- with late fee of Rs.5,000/- in respect of the tax\n liability for the period October, 2019 and the return in connectionW.P.(C) No. 7728 of 2022 Page 21 of 70:: 22 ::with cancelled GSTIN being 21ALPPP8146E2ZY was allowed to\n be furnished on 22.04.2021.8. It appears, being confused on account of newly introduced\n taxation procedure, instead of taking recourse to the remedy\n available underSection 30read with Rule 23 for revocation of\n cancellation of registration, appeal underSection 107was\n preferred by the petitioner.8.1. In the order of cancellation of registration dated 15.10.2019\n (Annexure-4) it has been reflected as follows:"This has reference to your reply dated 31.08.2019 in response to\n the notice to show cause dated 21.08.2019."However, without assigning any reason for considering said\n response, the proper officer, Superintendent, has cancelled the\n registration.8.2. The appeal preferred by the petitioner has been rejected with the\n following observation:"8. I find that the said appellant Nos.1 to 32 did not file the\n requisite returns as indicated in the respective show cause\n notice issued to them. Therefore, their registrations were\n cancelled. They also did not file application for revocation\n of cancellation of registration within the prescribed time. It\n is also noticed that the said appellants have not filed the\n present appeals within the stipulated time limit prescribed\n underSection 107(1)of CGST Act, 2017.9. As per the provisions ofSection 107(1)of the CGST Act, a\n person is required to file appeal against an order passed by\n an adjudicating authority within the time limit of three\n months from the date on which order is communicated. It is\n noted that Hon'ble Supreme Court in its order dated 8th\n March, 2021 has extended the limitation period prescribedW.P.(C) No. 7728 of 2022 Page 22 of 70:: 23 ::under general law of limitation or under any special (both\n Central and State) due to the onset of Covid-19 virus.\n Hon'ble Supreme Court in the said order has directed that\n in computing the period of limitation for any appeal, the\n period from 15.03.2020 to 14.03.0021 shall stand excluded.\n Further, it has been held in the said order that in cases\n where the limitation would have expired during the period\n between 15.03.2020 till 14.03.2021, notwithstanding the\n actual balance period of limitation remaining, all persons\n shall have limitation period of 90 days from 15.3.2021.10.1 It is also noted that the Hon'ble Supreme Court in its order\n dated 27.04.2021 has restored its earlier order dated\n 08.03.20 21 in view of the extraordinary situation caused by\n the second outburst of COVID-19 virus. Hon'ble Supreme\n Court has ruled that in continuation of the order dated 8th\n March, 2021 direct that the period(s) of limitation, as\n described under any general or special laws in respect of\n all judicial or quasi-judicial proceedings, whether\n condonable or not shall stand extended till further orders.Hon'ble Supreme Court has further clarified that the period\n from 14th March, 2021 till further orders shall also stand\n excluded in computing the limitation period.\n 10.2 In pursuance of the orders of the Hon'ble Supreme Court,\n Central Board of Indirect Taxes and Customs (CBIC) has\n issued a circular No. 157/13/2021-GST dated 20.07.2021.\n In the said circular, it is clarified that period of limitation\n extended by Supreme Court in its order dated 27.04.2021\n shall be applicable in respect of any appeal before the\n appellate authority under theCGST Act. The relevant\n portion of the said Circular is reproduced as under:"5. In other words, the extension of timelines granted by\n the Hon'ble Supreme Court vide its order dated\n 27.04.2021 is applicable in respect of any appeal\n which is required to be filed before Joint/Additional\n Commissioner (Appeals), Commissioner (appeals),\n appellate authority for advance rulings, tribunal and\n various courts against any quasi-judicial order or\n where proceeding for revision or rectification of any\n order is required to be undertaken, and is notW.P.(C) No. 7728 of 2022 Page 23 of 70:: 24 ::applicable to any other proceedings under GST\n laws."11. Thus, taking into account the extension of limitation period\n granted by the CBIC and Hon'ble Supreme Court, I find\n that the appeals by the above Appellant Nos. 1 to 32 are\n filed beyond the prescribed period of limitation. Therefore,\n I am constrained to reject the said appeals filed by the\n Appellant No. 1 to 32. Held accordingly."8.3. It is apparent from the above that while rejecting appeals of 32\n taxpayers on 07.10.2021 by a common order, the Appellate\n Authority had no occasion to notice the further order being passed\n on 10.01.2022 by the Hon'ble Supreme Court taking into\n consideration third surge of COVID-19 virus. Said order dated\n 10.01.2022 having bearing on the case at hand, the appellate order\n deserves to be set aside.8.4. Significant it is to have reference to Notification No.76/2018--Central Tax [GSR 1253(E)], dated 31st December, 2018 issued in\n exercise of power conferred underSection 128along with\n pertinent amendments made thereof subsequently. For better\n appreciation relevant portions of said notification are extracted\n herein below to appreciate that the Government extended the\n benefit to taxpayers to furnish the returns between the period from\n 1st day of July, 2020 to 30th of September, 2020 who failed to\n furnish returns for the months of July, 2017 to January, 2020 by\n the due date:"Government of India Ministry of Finance\n (Department of Revenue)\n Central Board of Indirect Taxes and Customs\n Notification No. 76/2018 - Central Tax\n New Delhi, the 31st December, 2018W.P.(C) No. 7728 of 2022 Page 24 of 70:: 25 ::G.S.R.1253(E),- In exercise of the powers conferred bySection\n 128of the Central Goods and Services Tax Act, 2017 (12 of 2017)\n (hereafter in this notification referred to as the said Act), the\n Central Government, on the recommendations of the Council , and\n in supersession of the notification of the Government of India in\n the Ministry of Finance, Department of Revenue No. 28/2017 -Central Tax, dated the 1st September, 2017 published in the\n Gazette of India, Extraordinary, Part II,Section 3, sub-section (i)\n vide number G.S.R. 1126 (E), dated the 1st September, 2017,\n notification of the Government of India in the Ministry of Finance,\n Department of Revenue No. 50/2017- Central Tax, dated the 24th\n October, 2017, published in the Gazette of India, Extraordinary,\n Part II,Section 3, sub-section (i) vide number G.S.R. 1326 (E),\n dated the 24th October, 2017 and notification of the Government\n of India in the Ministry of Finance (Department of Revenue) No.\n 64/2017- Central Tax, dated the 15th November, 2017, published\n in the Gazette of India, Extraordinary, Part II,Section 3, sub-\n section (i) vide number G.S.R.1420(E), dated the 15th November,\n 2017, except as respects things done or omitted to be done before\n such supersession, hereby waives the amount of late fee payable\n by any registered person for failure to furnish the return in Form\n GSTR-3B for the month of July, 2017 onwards by the due date\n underSection 47of the said Act, which is in excess of an amount\n of twenty-five rupees for every day during which such failure\n continues:Provided that where the total amount of central tax payable in the\n said return is nil, the amount of late fee payable by such\n registered person for failure to furnish the said return for the\n month of July, 2017 onwards by the due date underSection 47of\n the said Act shall stand waived to the extent which is in excess of\n an amount of ten rupees for every day during which such failure\n continues:Provided further that the amount of late fee payable underSection\n 47of the said Act shall stand waived for the registered persons\n who failed to furnish the return in Form GSTR-3B for the months\n of July, 2017 to September, 2018 by the due date but furnishes the\n said return between the period from 22nd December, 2018 to 31st\n March, 2019.***W.P.(C) No. 7728 of 2022 Page 25 of 70:: 26 ::1[Provided also that the total amount of late fee payable for a tax\n period, underSection 47of the said Act shall stand waived which\n is in excess of an amount of two hundred and fifty rupees for the\n registered person who failed to furnish the return in Form GSTR-\n 3B for the months of July, 2017 to January, 2020, by the due date\n but furnishes the said return between the period from 1st day of\n July, 2020 to 30th day of September, 2020:Provided also that where the total amount of Central tax payable\n in the said return is NIL, the total amount of late fee payable for a\n tax period, underSection 47of the said Act shall stand waived for\n the registered person who failed to furnish the return in Form\n GSTR-3B for the months of July, 2017 to January, 2020, by the\n due date but furnishes the said return between the period from 1st\n day of July, 2020 to 30th day of September, 2020.]\n ***2[Provided also that for the registered persons who failed to\n furnish the return in Form GSTR-3B for the months/quarter of\n July, 2017 to April, 2021, by the due date but furnish the said\n return between the period from the 1st day of June, 2021 to the 31st\n day of August, 2021, the total amount of late fee underSection 47of the said Act, shall stand waived which is in excess of five\n hundred rupees:Provided also that where the total amount of central tax payable\n in the said return is nil, the total amount of late fee underSection\n 47of the said Act shall stand waived which is in excess of two\n hundred and fifty rupees for the registered persons who failed to\n furnish the return in Form GSTR-3B for the months/quarter of\n July, 2017 to April, 2021, by the due date but furnish the said\n return between the period from the 1st day of June, 2021 to the\n 31st day of August, 2021:Provided also that the total amount of late fee payable underSection 47of the said Act for the tax period June, 2021 onwards\n or quarter ending June, 2021 onwards, as the case may be, shall\n stand waived which is in excess of an amount as specified in\n column (3) of the Table given below, for the class of registered\n persons mentioned in the corresponding entry in column (2) of the\n said Table, who fail to furnish the returns in Form GSTR-3B by\n the due date, namely: --W.P.(C) No. 7728 of 2022 Page 26 of 70:: 27 ::S. Class of Amount\n No. registered persons (3)\n (1) (2)1. Registered persons whose total amount of central tax Two\n payable in the said return is nil hundred and\n fifty rupees2. Registered persons having an aggregate turnover of up One\n to rupees 1.5 crores in the preceding financial year, thousand\n other than those covered under S. No. 1 rupees3. Taxpayers having an aggregate turnover of more than Two\n rupees 1.5 crores and up to rupees 5 crores in the thousand\n preceding financial year, other than those covered and five\n under S. No. 1 hundred\n rupees]\n\n [F.No.20/06/16/2018-GST]\n (Dr. Sreeparvathy S.L.)\n Under Secretary\n to the Government of India"1. Inserted by Notification No.52/2020-- Central Tax, dated 24.06.2020.2. Inserted by Notification No.19/2021-- Central Tax, dated 01.06.2021.8.5. Minute reading of above mentioned notification gives indication\n that the Government have been considerate in extending the\n benefit to the taxpayers who could not file returns for the\n months/quarter(s) of July, 2017 to April, 2021 within statutory\n period specified. As the registration certificate of the petitioner\n stood cancelled since 15.10.2019 by the time amendments to\n Notification No.76/2018-- Central Tax [GSR 1253(E)], dated 31st\n December, 2018 came into force, there was no scope left for\n availing the advantage conferred thereunder.8.6. Perusal of Common Order dated 31.01.2022 passed in the case of\n Tvl. Suguna Cutpiece Center Vrs. The Appellate Authority and\n Another, 2022 (61) GSTL 515 (Mad) reveals that the Hon'bleW.P.(C) No. 7728 of 2022 Page 27 of 70:: 28 ::Madras High Court considered inter alia the cases of taxpayers\n who have filed writ petition "AGAINST THE ORDER PASSED IN\n\n APPEAL FILED AGAINST THE ORDER OF CANCELLATION OF\n\n REGISTRATION OF GST CERTIFICATE ON ACCOUNT OF THE APPEAL\n\n BEING TIME BARRED". Relevant it is to quote the following from\n said common order:"171. One of the options available noticee whose registration is\n cancelled, is to approach the same authority for revocation\n of cancellation of the registration in the manner prescribed\n within 30 days from the date of service of cancellation of\n registration.172. WhenSection 30was incorporated in the respective GST\n enactments with effect from 1st July, 2017, there was no\n proviso toSection 30(1)of the Act. ***173. Only, a single window of opportunity was given to file\n application within thirty (30) days for revocation of\n cancellation order underSection 30(1). However, right\n from the beginning, GST Council recognised that the GST\n law was new and assessees encountered the difficulties in\n switching to procedural compliance electronically through\n Internet on the GST Web-Portal.174. Considering the hardship faced by the assessees, the GST\n Council in its 33rd Meeting held on 24.02.2019 took a\n decision. Pursuant to aforesaid decision, the Central\n Government, on recommendations of the GST Council, in\n exercise of power conferred underSection 172of the\n Central Goods and Services Tax Act, 2017, inserted a\n proviso toSection 30(1)of the respective GST enactments\n vide Order No.5/2019-GST, Central Board of Indirect\n Taxes and Customs, dated 23.04.2019. Thus, Proviso\n toSection 30(1)of the Act read as under:"Provided that the registered person who was served notice\n under sub-section (2) ofSection 29in the manner as\n provided in clause (c) or clause (d) of sub-section (1) ofSection 169and who could not reply to the said notice,W.P.(C) No. 7728 of 2022 Page 28 of 70:: 29 ::thereby resulting in cancellation of his registration\n certificate and is hence unable to file application for\n revocation of cancellation of registration under sub-section\n (1) ofSection 30of the Act, against such order passed up to\n 31.03.2019, shall be allowed to file application for\n revocation of cancellation of the registration not later than\n 22.07.2019."175. This was a novel and an unconventional method adopted to\n amend the Act. It was contrary to the well-established\n procedure under the Constitution and Law for amending a\n statute. The above amendment was a stop gap arrangement.\n As per the aforesaid proviso which was inserted toSection\n 30(1)of the Act, wherever cancellation orders had been\n passed up to 31.03.2019 and application for revocation was\n not filed within thirty (30) days under sub-section (1) toSection 30, an option was given to file an application for\n revocation of cancellation of the registration not later than\n 22.07.2019.176. Implementing requirement ofSection 30of the GST\n enactments, Rule 23 of the GST Rules, 2017 has been\n prescribed.***177. An alternate remedy is also available in the order of\n cancellation by way of appeal underSection 107of the\n respective GST enactments which option has been exercised\n by some of the writ petitioners but beyond the period of\n limitation.178. A reading ofSection 29of the Act respective GST\n enactments also makes it clear that cancellation of\n registration under the aforesaid section does not affect the\n liability of a person to pay tax and other dues under the Act\n or discharge any obligation under the said Act and the rules\n made under for any period prior to the date of cancellation,\n whether or not such tax and other dues are determined\n before or after the date of cancellation. They also make it\n clear that cancellation of registration under anyone of the\n other GST enactments shall be deemed to be cancellation of\n registration under the other GST enactments.W.P.(C) No. 7728 of 2022 Page 29 of 70:: 30 ::***184. Nationwide, lockdown was imposed on 24.03.2020 due to\n the outbreak of SARS Covid-19 Pandemic. Under these\n circumstances, Government, rose to the occasion based on\n the recommendation of the GST Council and gave a fresh\n opportunity to those persons whose right to file an\n application underSection 30(1)of the Act and the remedy\n under proviso to theSection 30(1)of the Act had expired\n between 20.03.2020 to 29.06.2020 by extending the period\n upto 30.06.2020 vide Notification No.35/2020- Central\n Tax, Central Board of Indirect Taxes and Customs, dated\n 03.04.2020.185. This Notification was issued in the exercise of power\n conferred underSection 168Aof the Central Goods and\n Services Tax Act, 2017 read withSection 20of the\n Integrated Goods and Services Tax Act, 2017 andSection\n 21of the Union Territory Goods and Services Tax Act,\n 2017. This did not address the case of the above petitioners.186. However, on 25.06.2020, the Central Government on the\n recommendations of the Council, in the exercise of power\n conferred underSection 172of the Central Goods and\n Services Tax Act, 2017, issued the Central Goods and\n Services Tax (Removal of Difficulties) Order, 2020 vide\n Order No.01/2020-Central Tax, Central Board of Indirect\n Taxes and Customs, dated 25.06.2020. Relevant portion of\n the said Notification reads as under:1. Short title.--This Order may be called THE CENTRAL GOODS AND\n SERVICES TAX (REMOVAL OF DIFFICULTIES) ORDER,\n 2020.2. For the removal of difficulties, it is hereby clarified\n that for the purpose of calculating the period of thirty\n days for filing application for revocation of\n cancellation of registration under sub-section (1) ofSection 30of the Act for those registered persons\n who were served notice under clause (b) or clause (c)\n of sub-section (2) ofSection 29in the manner asW.P.(C) No. 7728 of 2022 Page 30 of 70:: 31 ::provided in clause (c) or clause (d) of sub-section (1)\n ofSection 169and where cancellation order was\n passed up to 12th June, 2020, the later of the\n following dates shall be considered:a) Date of service of the said cancellation order;or\n b) 31st day of August, 2020.187. The amnesty in the above Government Order pertains to\n cases where orders were passed up to 12.06.2020. ***188. The time for filing appropriate application for revoking the\n cancellation of registration was extended either from date\n of service of the said cancellation order or 31.08.2020\n which was later.189. Thus, all these petitioners whose registration had been\n cancelled prior to 12.06.2020 were given a fresh\n opportunity to file an application for revocation of\n cancellation of registration in terms of the Central Goods\n and Services Tax (Removal of Difficulties) Order, 2020 vide\n Order No.01/2020-Central Tax, Central Board of Indirect\n Taxes and Customs, dated 25.06.2020. However, none of\n the petitioners opted to exercise the privilege.***191. Later, proviso was substituted bySection 122of the\n Finance Act, 2020 which came into force from 01.01.2021\n which reads as under:"Provided that such period may, on sufficient cause being\n shown, and for reasons to be recorded in writing, be\n extended,--(a) by the Additional Commissioner or the Joint\n Commissioner, as the case may be, for a period not\n exceeding thirty days;(b) by the Commissioner, for a further period not\n exceeding thirty days, beyond the period specified in\n clause (a).".W.P.(C) No. 7728 of 2022 Page 31 of 70:: 32 ::192. By Notification No.92/2020-- Central Tax, dated\n 22.12.2020, the Central Government appointed the 1st day\n of January, 2021 as the date on which the provisions ofSection 119,120,121,122,123,124,126,127and131of\n the Act shall come into force. Thus, Section 30 of the GST\n Acts, came into force with effect from 1st day of January,\n 2021. The said Notification reads as under:"Government of India\n Ministry of Finance\n (Department of Revenue)\n Central Board of Indirect Taxes and Customs\n Notification No 92/2020-- Central Tax\n New Delhi, the 22nd December, 2020\n\n S.O. 4643(E).-- In exercise of the powers conferred by sub-\n section (2) ofSection 1of the Finance Act, 2020 (12 of\n 2020) (hereinafter referred to as the said Act), the Central\n Government hereby appoints the 1st day of January, 2021,\n as the date on which the provisions ofSections 119,120,121,122,123,124,126,127and131of the said Act shall\n come into force.[F.No. CBEC-20/06/04/2020-GST]193. Parallel amendments were made to Rule 23 of the\n respective GST Rules and Form GST REG-21 was amended\n vide Notification No.15/2021-- Central Tax, Central Board\n of Indirect Taxes and Customs, dated 18.05.2021. ***194. The above amendment however did not address the case of\n the petitioners whose registrations were cancelled after\n 31.03.2019 and before the above amendment to the Act as\n Rules with effect from 01.01.2021.***196. These petitioners had only one option to file an application\n within a period of 30 days from the date of service of the\n order of cancellation of registration underSection 30(1)of\n the Act which had expired long back.197. Still later, in view of the prevailing situation, Notification\n No.34/2021- Central Tax, Central Board of Indirect TaxesW.P.(C) No. 7728 of 2022 Page 32 of 70:: 33 ::and Customs, dated 29.08.2021 was issued by the Central\n Government once again on the recommendation of the GST\n Council. Notification No.34/2021- Central Tax, Central\n Board of Indirect Taxes and Customs, dated 29.08.2021\n which reads as under:Government of India Ministry of Finance\n (Department of Revenue)\n Central Board of Indirect Taxes and Customs\n Notification No. 34/2021-- Central Tax\n New Delhi, the 29th August, 2021\n\n G.S.R.600(E).- In partial modification of the notifications\n of the Government of India in the Ministry of Finance\n (Department of Revenue), No. 35/2020-Central Tax, dated\n the 3rd April, 2020, published in the Gazette of India,\n Extraordinary, Part II,Section 3, sub-section (i), vide\n number G.S.R. 235(E), dated the 3 rd April, 2020 and No.\n 14/2021-- Central Tax, dated the 1st May, 2021, published\n in the Gazette of India, Extraordinary, Part II,Section 3,\n sub-section (i), vide number G.S.R. 310(E), dated the 1st\n May, 2021, in exercise of the powers conferred bySection\n 168Aof the Central Goods and Services Tax Act, 2017 (12\n of 2017) (hereafter in this notification referred to as the\n said Act), read withSection 20of the Integrated Goods and\n Services Tax Act, 2017 (13 of 2017), andSection 21of the\n Union Territory Goods and Services Tax Act, 2017 (14 of\n 2017), the Government, on the recommendations of the\n Council, hereby notifies that where a registration has been\n cancelled under clause (b) or (c) of sub-section (2) ofSection 29of the said Act and the time limit for making an\n application of revocation of cancellation of registration\n under sub-section (1) ofSection 30of the said Act falls\n during the period from the 1st day of March, 2020 to 31st\n day of August, 2021 the time limit for making such\n application shall be extended upto the 30th day of\n September, 2021.[F. No. CBIC-20006/24/2021-GST]198. The Central Government in the above Notification took a\n decision to extend the time limit up to 30.09.2021 for the\n persons like petitioners. However, this was applicable toW.P.(C) No. 7728 of 2022 Page 33 of 70:: 34 ::those registrations which had been cancelled and time limit\n for filing application for revocation of cancellation of\n registration had expired during the period commencing\n from the 1st day of March, 2020 to 31st day of August,\n 2021. Thus, the time limit for making such application stood\n extended up to the 30th day of September, 2021.199. In the light of the above Notification, the Principal\n Commissioner has also issued clarification vide Circular\n No.158/14/2021--GST, Central Board of Indirect Taxes\n and Customs, dated 06.09.2021, while, tracing out the\n history, in paragraph Nos.3 and 4, it has been clarified as\n follows:"3. Applications covered under the scope of the said\n notification\n 3.1. The said notification specifies that where the due\n date of filing of application for revocation of\n cancellation of registration falls between 1st March,\n 2020 to 31st August, 2021, the time limit for filing of\n application for revocation of cancellation of\n registration is extended to 30th September, 2021.\n Accordingly, it is clarified that the benefit of said\n notification is extended to all the cases where\n cancellation of registration has been done under\n clause (b) or clause (c) of sub-section (2) ofSection\n 29of the CGST Ac, 2017 and where the due date of\n filing of application for revocation of cancellation of\n registration falls between 1st March, 2020 to 31st\n August, 2021. It is further clarified that the benefit of\n notification would be applicable in those cases also\n where the application for revocation of cancellation\n of registration is either pending with the proper\n officer or has already been rejected by the proper\n officer. It is further clarified that the benefit of\n notification would also be available in those cases\n which are pending with the appellate authority or\n which have been rejected by the appellate authority.\n In other words, the date for filing application for\n revocation of cancellation of registration in all cases,\n where registration has been cancelled under clause(b) or clause (c) of sub-section (2) ofSection 29ofW.P.(C) No. 7728 of 2022 Page 34 of 70:: 35 ::CGST Act, 2017and where the due date of filing of\n application for revocation of cancellation of\n registration falls between 1st March, 2020 to 31st\n August, 2021, is extended to 30th September, 2021,\n irrespective of the status of such applications. As\n explained in this para, the said notification would be\n applicable in the following manner:(i) application for revocation of cancellation of\n registration has not been filed by the\n taxpayer--In such cases, the applications for revocation\n can be filed up to the extended timelines as\n provided vide the said notification. Such cases\n also cover those instances where an appeal\n was filed against order of cancellation of\n registration and the appeal had been rejected.(ii) application for revocation of cancellation of\n registration has already been filed and which\n are pending with the proper officer--In such cases, the officer shall process the\n application for revocation considering the\n extended timelines as provided vide the said\n notification.(iii) application for revocation of cancellation of\n registration was filed, but was rejected by the\n proper officer and taxpayer has not filed any\n appeal against the rejection--In such cases, taxpayer may file a fresh\n application for revocation and the officer shall\n process the application for revocation\n considering the extended timelines as provided\n vide the said notification.(iv) application for revocation of cancellation of\n registration was filed, the proper officer\n rejected the application and appeal against the\n rejection order is pending before appellate\n authority--W.P.(C) No. 7728 of 2022 Page 35 of 70:: 36 ::In such cases, appellate authorities shall take\n the cognizance of the said notification for\n extension of timelines while deciding the\n appeal.(v) application for revocation of cancellation of\n registration was filed, the proper officer\n rejected the application and the appeal has\n been decided against the taxpayer--In such cases, taxpayer may file a fresh\n application for revocation and the officer shall\n process the application for revocation\n considering the extended timelines as provided\n vide the said notification.4. It may be recalled that, with effect from 01.01.2021,\n proviso to sub-section (1) ofSection 30of the CGST\n Act has been inserted which provides for extension of\n time for filing application for revocation of\n cancellation of registration by 30 days by Additional/\n Joint Commissioner and by another 30 days by the\n Commissioner. Doubts have been raised whether the\n said notification has extended the due date in respect\n of initial period of 30 days for filing the application\n (in cases where registration has been cancelled\n under clause (b) or clause (c) of sub-section (2) ofSection 29of CGST Act, 2017) under sub-section (1)\n ofSection 30of the CGST Act or whether the due\n date of filing applications for revocation of\n registration can be extended further for the period of\n 60 days (30 + 30) by the Joint Commissioner/\n Additional Commissioner/ Commissioner, as the case\n may be, beyond the extended date of 30.09.2021. It is\n clarified that:(i) where the thirty days' time limit falls between\n 1st March, 2020 to 31st December, 2020, there\n is no provision available to extend the said\n time period of 30 days underSection 30of the\n CGST Act. For such cases, pursuant to the said\n notification, the time limit to apply for\n revocation of cancellation of registrationW.P.(C) No. 7728 of 2022 Page 36 of 70:: 37 ::stands extended up to 30th September, 2021\n only; and(ii) where the time period of thirty days since\n cancellation of registration has not lapsed as\n on 1st January, 2021 or where the registration\n has been cancelled on or after 1st January,\n 2021, the time limit for applying for revocation\n of cancellation of registration shall stand\n extended as follows:(a) Where the time period of 90 days (initial\n 30 days and extension of 30 + 30 days)\n since cancellation of registration has\n elapsed by 31.08.2021, the time limit to\n apply for revocation of cancellation of\n registration stands extended upto 30th\n September 2021, without any further\n extension of time by Joint\n Commissioner/ Additional\n Commissioner/ Commissioner.(b) Where the time period of 60 days (and\n not 90 days) since cancellation of\n registration has elapsed by 31.08.2021,\n the time limit to apply for revocation of\n cancellation of registration stands\n extended up to 30th September 2021,\n with the extension of timelines by\n another 30 days beyond 30.09.2021 by\n the Commissioner, on being satisfied, as\n per proviso to sub-section (1) ofSection\n 30of the CGST Act.(c) Where the time period of 30 days (and\n not 60 days or 90 days) since\n cancellation of registration has elapsed\n by 31.08.2021, the time limit to apply for\n revocation of cancellation of\n registration stands extended up to 30th\n September 2021, with the extension of\n timelines by another 30 days beyond\n 30.09.2021 by the Joint/ AdditionalW.P.(C) No. 7728 of 2022 Page 37 of 70:: 38 ::Commissioner and another 30 days by\n the Commissioner, on being satisfied, as\n per proviso to sub-section (1) ofSection\n 30of the CGST Act."***201. By Circular No.157/13/2021-GST, the Central Board of\n Indirect Taxes and Customs, GST Policy Wing, dated\n 20.07.2021, it was classified as follows:"4. On the basis of the legal opinion, it is hereby\n clarified that various actions/compliances under GST\n can be broadly categorised as follows:a) Proceedings that need to be initiated or\n compliances that need to be done by the\n taxpayers:These actions would continue to be governed\n only by the statutory mechanism and time limit\n provided/ extensions granted under the statute\n itself. Various orders of the Hon'ble Supreme\n Court would not apply to the said proceedings/\n compliances on part of the tax payers.b) Quasi-Judicial proceedings by tax authorities:-The tax authorities can continue to hear an\n dispose off proceedings where they are\n performing the functions as quasi-judicial\n authority. This may inter alia include disposal\n of application for refund, application for\n revocation of cancellation of registration,\n adjudication proceedings of demand notices,\n etc. Similarly, appeals which are filed and are\n pending, can continue to be heard and\n disposed off and the same will be governed by\n those extensions of time granted by the statues\n or notifications, if any.c) Appeals by taxpayers/ tax authorities against\n any quasi-judicial order:W.P.(C) No. 7728 of 2022 Page 38 of 70:: 39 ::Wherever any appeal is required to filed before\n Joint/ Additional Commissioner (Appeals),\n Commissioner (Appeals), Appellate Authority\n for Advance Ruling, Tribunal and various\n courts against any quasi-judicial order or\n where a proceeding for revision or\n rectification of any order is required to be\n undertaken, the time line for the same would\n stand extended as per the Hon'ble Supreme\n Court's order."202. Meanwhile, the Hon'ble Supreme Court taking note of the\n hardship faced by the litigants had also extended the\n limitation by its orders dated 23.03.2020, 08.04.2021,\n 27.04.2021 & 23.09.2021 in Recognizance of Extension of\n Limitation, in Miscellaneous Application No.665/2021 in\n SMW(C) No.3/2020.203. In its order dated 23.09.2021 in the above case, 2021 SCC\n OnLine SC 947, the Hon'ble Supreme Court held as under:-Therefore, we dispose of the M.A. No. 665 of 2021 with the\n following directions:--I. In computing the period of limitation for any suit,\n appeal, application or proceeding, the period from\n 15.03.2020 till 02.10.2021 shall stand excluded.Consequently, the balance period of limitation\n remaining as on 15.03.2021, if any, shall become\n available with effect from 03.10.2021.II. In cases where the limitation would have expired\n during the period between 15.03.2020 till\n 02.10.2021, notwithstanding the actual balance\n period of limitation remaining, all persons shall have\n a limitation period of 90 days from 03.10.2021. In the\n event the actual balance period of limitation\n remaining, with effect from 03.10.2021, is greater\n than 90 days, that longer period shall apply.\n III. The period from 15.03.2020 till 02.10.2021 shall also\n stand excluded in computing the periods prescribed\n underSections 23(4)and 29A of the Arbitration andW.P.(C) No. 7728 of 2022 Page 39 of 70:: 40 ::Conciliation Act, 1996, Section 12A of the\n Commercial Courts Act, 2015 and provisos (b) and(c) ofSection 138of the Negotiable Instruments Act,\n 1881 and any other laws, which prescribe period(s)\n of limitation for instituting proceedings, outer limits\n (within which the court or tribunal can condone\n delay) and termination of proceedings.IV. The Government of India shall amend the guidelines\n for containment zones, to state."Regulated movement will be allowed for medical\n emergencies, provision of essential goods and\n services, and other necessary functions, such as, time\n bound applications, including for legal purposes, and\n educational and job-related requirements."8.7. In the case of Aarcity Builders Private Limited Vrs. Union of India\n and Others, CWP No.19029 of 2021, the Hon'ble Punjab and\n Haryana High Court at Chandigarh vide Judgment dated\n 09.12.2021 taking note of Notification No.34/2021-- Central Tax,\n dated 29.08.2021 and the Central Goods and Services Tax (Fifth\n Removal of Difficulties) Order, 2019 observed as follows:"12. In our considered opinion, the interpretation sought to be\n placed by learned counsel appearing for respondents is\n unduly restricted. It cannot be lost site (sight) of that this\n notification was issued in view of the Covid pandemic,\n wherein even the Supreme Court had passed a blanket\n order of extending the period of limitation. Once the\n petitioners had already been granted benefit of the\n notifications dated 23.04.2019 (Annexure P-6), dated\n 25.06.2020 (Annexure P-7) and dated 29.08.2021\n (Annexure P-10), the time limit for making such application\n should have extended up to the 30th day of September,\n 2021."8.8. In the context of limitation fixed for filing written statement underthe Code of Civil Procedure, 1908, in the case of PrakashW.P.(C) No. 7728 of 2022 Page 40 of 70:: 41 ::Corporates Vrs. Dee Vee Projects Ltd., (2022) 5 SCC 112 =\n (2022) 1 SCC (L&S) 771 = 2022 SCC OnLine SC 180 it has been\n stated as follows:"21. While explaining the sweep and mandate of these\n provisions, this Court said : (SCG Contracts (India) (P)\n Ltd. Vrs. K.S. Chamankar Infrastructure (P) Ltd., (2019) 12\n SCC 210 = (2020) 1 SCC (Civ) 237, SCC p. 214, para 8)\n "8. ... A perusal of these provisions would show that\n ordinarily a written statement is to be filed within a\n period of 30 days. However, grace period of a further\n 90 days is granted which the Court may employ for\n reasons to be recorded in writing and payment of\n such costs as it deems fit to allow such written\n statement to come on record. What is of great\n importance is the fact that beyond 120 days from the\n date of service of summons, the defendant shall\n forfeit the right to file the written statement and the\n court shall not allow the written statement to be taken\n on record. This is further buttressed by the proviso in\n Order 8 Rule 10 also adding that the court has no\n further power to extend the time beyond this period of\n 120 days.***23. If the aforesaid provisions and explained principles are\n literally and plainly applied to the facts of the present case,\n the 120th day from the date of service of summons came to\n an end with 06.05.2021 and the defendant, who had earlier\n been granted time for filing its written statement on\n payment of costs, forfeited such right with the end of 120th\n day i.e. 06.05.2021. However, it is required to be kept in\n view that the provisions aforesaid and their interpretation\n in SCG Contracts (India) (P) Ltd. Vrs. K.S. Chamankar\n Infrastructure (P) Ltd., (2019) 12 SCC 210 = (2020) 1 SCC\n (Civ) 237 operate in normal and non-extraordinary\n circumstances with the usual functioning of courts. It is also\n noteworthy that the above referred provisionsof CPCare\n not the only provisions of law which lay down mandatoryW.P.(C) No. 7728 of 2022 Page 41 of 70:: 42 ::timelines for particular proceedings. The relevant\n principles, in their normal and ordinary operation, are that\n such statutory timelines are of mandatory character with\n little, or rather no, discretion with the adjudicating\n authority for enlargement."Notwithstanding such dicta, taking into consideration irregular\n functioning of the Courts due to the COVID-19 pandemic\n situation, the Hon'ble Supreme Court in the said reported case\n [Prakash Corporates, (supra)] observed as follows:"25. It is not a matter of much debate that, starting from or\n around the month of December 2019, the entire humanity\n faced a situation which was unprecedentedly unfavourable\n and unpleasant to almost all the persons and the\n institutions. It was the outbreak of Covid-19 Pandemic that\n engulfed practically the entire globe; and the highly\n contagious virus called SARS-CoV-2 started playing havoc\n with its rapid transmission from one person to another.\n Covid-19 carried with it the scary possibilities of\n irretrievable damage to the respiratory systems, even\n leading to deaths. In fact, the number of fatalities due to\n this infection had been beyond imagination with survivors\n also living under a constant threat. The unprecedented\n health emergencies due to highly transmissible Covid-19\n Virus led the administrations to take various containment\n measures, including those of travel restrictions and\n lockdowns as also of isolating the infected persons while\n putting their close contacts in quarantine.26. We need not elaborate on the havoc created by Covid-19\n but the relevant aspect for the present purpose is that with\n Covid-19, the movement of persons and working of almost\n all the institutions landed in such difficulties which were\n neither foreseen nor guarded against.27. When the movements and gatherings of persons were\n fraught with dangers and when lockdowns became\n inevitable, the institutions related with the task of\n administration of justice were also required to respond to\n the challenges thrown by this pandemic. In this regard, thisW.P.(C) No. 7728 of 2022 Page 42 of 70:: 43 ::Court, apart from taking various measures of containment,\n also took note of the practical difficulties of the litigants\n and their lawyers; and this led to the suo motu order dated\n 23.03.2020 in Cognizance for Extension of Limitation, In\n re, (2020) 19 SCC 10 = (2021) 3 SCC (Cri) 801.27.1. In the consciously worded order dated 23.03.2020\n [Cognizance for Extension of Limitation, In re, (2020) 19\n SCC 10 = (2021) 3 SCC (Cri) 801], this Court, while taking\n note of the difficulties likely to be faced by the litigants in\n filing their petitions/applications/suits/appeals/ proceedings\n within the period of limitation, ordered that the period of\n limitation in all such proceedings, irrespective of the\n limitation prescribed under general or special laws,\n whether condonable or not, shall stand extended w.e.f.\n 15.03.2020 until further orders. This order was passed in\n exercise of plenary powers of this Court underArticle 142of the Constitution of India, which are complementary to\n other powers specifically conferred by various statutes.\n Even if the above referred provisionsof CPChad not been\n stated in specific terms, the general mandate of the order\n dated 23.03.2020 [Cognizance for Extension of Limitation,\n In re, (2020) 19 SCC 10 = (2021) 3 SCC (Cri) 801] was to\n extend the period of limitation provided in any law for the\n time being in force, irrespective of whether the same was\n condonable or not, w.e.f. 15.03.2020 and until further\n orders.27.2. Noticeably, on 06.05.2020, when special periods of\n limitation under different enactments like the 1996 Act were\n referred to, this Court further ordered [Cognizance for\n Extension of Limitation, In re, (2020) 19 SCC 9 = (2021) 3\n SCC (Cri) 799] that the limitation prescribed thereunder\n shall stand extended w.e.f. 15.03.2020 until further orders.\n It was a time when the country was under the grip of\n lockdown, and the Court provided that in case limitation\n had expired after 15.03.2020, the period between\n 15.03.2020 and lifting of lockdown in the jurisdictional\n area would be extended for a period of 15 days after lifting\n of lockdown.27.3. Further, on 10.07.2020 [Cognizance for Extension of\n Limitation, In re, (2020) 9 SCC 468], this Court enlargedW.P.(C) No. 7728 of 2022 Page 43 of 70:: 44 ::the scope of initial order in relation to the timelines fixed in\n Section 29-A andSection 23(4)of the 1996 Act.\n Significantly,Section 23(4)of the 1996 Act mandates that\n the statement of claim and defence shall be completed\n within a time period of six months. Yet further, it was also\n provided that the time for completing the process of\n compulsory pre-litigation mediation underSection 12-Aof\n the Commercial Courts Act, 2015 shall stand extended for\n 45 days after lifting of lockdown.27.4. On 08.03.2021 [Cognizance for Extension of Limitation, In\n re, (2021) 5 SCC 452 = (2021) 3 SCC (Civ) 40 = (2021) 2\n SCC (Cri) 615 = (2021) 2 SCC (L&S) 50], suggestions\n were made before this Court about lifting of lockdowns and\n likely return of normalcy and, therefore, this Court\n considered it proper to dispose of the said suo motu petition\n with specific directions that while computing the period of\n limitation for any suit, appeal, application or proceeding,\n the period from 15.03.2020 to 14.03.2021 would stand\n excluded. Though the said order dated 08.03.2021\n [Cognizance for Extension of Limitation, In re, (2021) 5\n SCC 452 = (2021) 3 SCC (Civ) 40 = (2021) 2 SCC (Cri)\n 615 = (2021) 2 SCC (L&S) 50] was passed with a belief\n that the adverse effects of the pandemic were receding and\n normalcy was returning but, the spread of virus continued\n and this led to an exponential surge in Covid-19 cases; and\n to the second wave of pandemic in the country around the\n months of March-April 2021. In this turn of events, this\n Court again took up the matter in SMWP No. 3 of 2020 on\n MA No. 665 of 2021, as moved by the Supreme Court\n Advocates-on-Record Association and passed the necessary\n order on 27.04.2021 [Cognizance for Extension of\n Limitation, In re, (2021) 17 SCC 231 = 2021 SCC OnLine\n SC 373] in revival of the previous orders.\n 27.5. At this juncture, we are impelled to refer to the fact that\n much before passing of the order dated 27.04.2021\n [Cognizance for Extension of Limitation, In re, (2021) 17\n SCC 231 = 2021 SCC OnLine SC 373] by this Court, the\n alarming scenario due to the second wave of pandemic was\n indeed taken note of by the High Court of Chhattisgarh;\n and that the High Court issued the above-referredW.P.(C) No. 7728 of 2022 Page 44 of 70:: 45 ::administrative order dated 05.04.2021 for curtailed/\n truncated functioning of the High Court as also the\n subordinate courts. We shall elaborate on this aspect in the\n next segment of discussion but, have indicated the same at\n this juncture to highlight the fact that even before passing of\n the order dated 27.04.2021 by this Court in Cognizance for\n Extension of Limitation, In re, (2021) 17 SCC 231 = 2021\n SCC OnLine SC 373, the trial court dealing with the subject\n suit was already under containment measures; and could\n not have functioned normally.27.6. Reverting to the orders passed by this Court, noticeable it is\n that on 27.04.2021 [Cognizance for Extension of\n Limitation, In re, (2021) 17 SCC 231 = 2021 SCC OnLine\n SC 373], this Court restored the order dated 23.03.2020\n [Cognizance for Extension of Limitation, In re, (2020) 19\n SCC 10 = (2021) 3 SCC (Cri) 801] and it was directed, in\n continuation of the order dated 08.03.2021 [Cognizance for\n Extension of Limitation, In re, (2021) 5 SCC 452 = (2021) 3\n SCC (Civ) 40 = (2021) 2 SCC (Cri) 615 = (2021) 2 SCC\n (L&S) 50], that the periods of limitation as prescribed\n under any general or special laws in respect of all judicial\n or quasi-judicial proceedings, whether condonable or not,\n shall stand extended. Ultimately, the said MA No. 665 of\n 2021 was disposed of on 23.09.2021 [Cognizance for\n Extension of Limitation, In re, (2021) 18 SCC 250 = 2021\n SCC OnLine SC 947] with this Court issuing directions\n similar to those contained in the order dated 08.03.2021\n [Cognizance for Extension of Limitation, In re, (2021) 5\n SCC 452 = (2021) 3 SCC (Civ) 40 = (2021) 2 SCC (Cri)\n 615 = (2021) 2 SCC (L&S) 50] but while providing that in\n computing the period of limitation for any suit, appeal,\n application or proceeding, the period from 15.03.2020 till\n 02.10.2021 shall stand excluded.27.7. We are not elaborating on other directions issued by this\n Court but, when read as a whole, it is but clear that the\n anxiety of this Court had been to obviate the hardships\n likely to be suffered by the litigants during the onslaughts of\n this pandemic. Hence, the legal effect and coverage of the\n orders passed by this Court in SMWP No. 3 of 2020 cannot\n be unnecessarily narrowed and rather, having regard toW.P.(C) No. 7728 of 2022 Page 45 of 70:: 46 ::their purpose and object, full effect is required to be given\n to such orders and directions. [To complete the scenario,\n we may indicate in the passing that even after we had heard\n this matter, there had been re-surge of Covid-19 cases with\n spread of a new variant of the virus. The drastic re-surge in\n the number of Covid cases has led this Court to again deal\n with the matter in SMWP No. 3 of 2020 on an application\n bearing No. 21 of 2022; and by the order dated 10.01.2022\n [Cognizance for Extension of Limitation, In re, (2022) 3\n SCC 117 = (2022) 2 SCC (Civ) 46 = (2022) 1 SCC (Cri)\n 580 = (2022) 1 SCC (L&S) 501], this Court again restored\n the principal order dated 23.03.2020 [Cognizance for\n Extension of Limitation, In re, (2020) 19 SCC 10 = (2021) 3\n SCC (Cri) 801] and in continuation of the previous orders,\n has further directed that the period from 15.03.2020 till\n 28.02.2022 shall stand excluded for the purposes of\n limitation as may be prescribed under any general or\n special laws in respect of all judicial or quasi-judicial\n proceedings. Be that as it may, the fresh order in SMWP\n No. 3 of 2020 need not be elaborated for the present\n purpose.]28. As regards the operation and effect of the orders passed by\n this Court in SMWP No. 3 of 2020, noticeable it is that even\n though in the initial order dated 23.03.2020 [Cognizance\n for Extension of Limitation, In re, (2020) 19 SCC 10 =\n (2021) 3 SCC (Cri) 801], this Court provided that the\n period of limitation in all the proceedings, irrespective of\n that prescribed under general or special laws, whether\n condonable or not, shall stand extended w.e.f. 15.03.2020\n but, while concluding the matter on 23.09.2021\n [Cognizance for Extension of Limitation, In re, (2021) 18\n SCC 250 = 2021 SCC OnLine SC 947], this Court\n specifically provided for exclusion of the period from\n 15.03.2020 till 02.10.2021. A look at the scheme of theLimitation Act, 1963makes it clear that while extension of\n prescribed period in relation to an appeal or certain\n applications has been envisaged underSection 5, the\n exclusion of time has been provided in the provisions likeSections 12to15thereof. When a particular period is to be\n excluded in relation to any suit or proceeding, essentially\n the reason is that such a period is accepted by law to be theW.P.(C) No. 7728 of 2022 Page 46 of 70:: 47 ::one not referable to any indolence on the part of the\n litigant, but being relatable to either the force of\n circumstances or other requirements of law (like that of\n mandatory two months' notice for a suit against the\n Government [VideSection 15of the Limitation Act, 1963]).\n The excluded period, as a necessary consequence, results in\n enlargement of time, over and above the period prescribed.\n 28.1. Having regard to the purpose for which this Court had\n exercised the plenary powers underArticle 142of the\n Constitution of India and issued necessary orders from time\n to time in SMWP No. 3 of 2020, we are clearly of the view\n that the period envisaged finally in the order dated 23-9-\n 2021 [Cognizance for Extension of Limitation, In re, (2021)\n 18 SCC 250 = 2021 SCC OnLine SC 947] is required to be\n excluded in computing the period of limitation even for\n filing the written statement and even in cases where the\n delay is otherwise not condonable. It gets perforce\n reiterated that the orders in SMWP No. 3 of 2020 were of\n extraordinary measures in extraordinary circumstances and\n their operation cannot be curtailed with reference to the\n ordinary operation of law.28.2. In other words, the orders passed by this Court on\n 23.03.2020 [Cognizance for Extension of Limitation, In re,\n (2020) 19 SCC 10 = (2021) 3 SCC (Cri) 801] , 06.05.2020\n [Cognizance for Extension of Limitation, In re, (2020) 19\n SCC 9 = (2021) 3 SCC (Cri) 799], 10.07.2020 [Cognizance\n for Extension of Limitation, In re, (2020) 9 SCC 468] ,\n 27.04.2021 [Cognizance for Extension of Limitation, In re,\n (2021) 17 SCC 231 = 2021 SCC OnLine SC 373] and\n 23.09.2021 [Cognizance for Extension of Limitation, In re,\n (2021) 18 SCC 250 = 2021 SCC OnLine SC 947] in SMWP\n No. 3 of 2020 leave nothing to doubt that special and\n extraordinary measures were provided by this Court for\n advancing the cause of justice in the wake of challenges\n thrown by the pandemic; and their applicability cannot be\n denied in relation to the period prescribed for filing the\n written statement. It would be unrealistic and illogical to\n assume that while this Court has provided for exclusion of\n period for institution of the suit and therefore, a suit\n otherwise filed beyond limitation (if the limitation hadW.P.(C) No. 7728 of 2022 Page 47 of 70:: 48 ::expired between 15.03.2020 to 02.10.2021) could still be\n filed within 90 days from 03.10.2021 but the period for\n filing written statement, if expired during that period, has to\n operate against the defendant.28.3. Therefore, in view of the orders passed by this Court in\n SMWP No. 3 of 2020, we have no hesitation in holding that\n the time-limit for filing the written statement by the\n appellant in the subject suit did not come to an end on\n 06.05.2021.29. It is also noteworthy that even before the scope of the\n orders passed in SMWP No. 3 of 2020 came to be further\n elaborated and specified in the orders dated 08.03.2021\n [Cognizance for Extension of Limitation, In re, (2021) 5\n SCC 452 = (2021) 3 SCC (Civ) 40 = (2021) 2 SCC (Cri)\n 615 = (2021) 2 SCC (L&S) 50] and 23.09.2021\n [Cognizance for Extension of Limitation, In re, (2021) 18\n SCC 250 = 2021 SCC OnLine SC 947], this Court dealt\n with an akin scenario in SS Group (P) Ltd. Vrs. Aaditiya J.Garg, (2022) 11 SCC 445 = 2020 SCC OnLine SC 1050,\n decided on 17.12.2020. In that case, in terms ofSection\n 38(2)(a)of the Consumer Protection Act, 2019, 30 days'\n time provided for filing the written statement expired on\n 12.08.2020 and the extendable period of 15 days also\n expired on 27.08.2020. Admittedly, the written statement\n was filed on 31.08.2020, which was beyond the permissible\n period of 45 days. The Constitution Bench of this Court has\n held in New India Assurance Co. Ltd. Vrs. Hilli\n Multipurpose Cold Storage (P) Ltd., (2020) 5 SCC 757 =\n (2020) 3 SCC (Civ) 338 that the Consumer Court has no\n power to extend the time for filing response to the complaint\n beyond 45 days. After taking note of the applicable\n provisions of law as also the mandate of the Constitution\n Bench, this Court referred to the orders until then passed in\n SMWP No. 3 of 2020 and held that the limitation for filing\n written statement would be deemed to have been extended.30. This Court, inter alia, observed and held as follows: [SS\n Group (P) Ltd. Vrs. Aaditiya J. Garg, (2022) 11 SCC 445 =\n 2020 SCC OnLine SC 1050], SCC paras 10-11)W.P.(C) No. 7728 of 2022 Page 48 of 70:: 49 ::"10. In the present matter, it is an admitted fact that the\n period of limitation of 30 days to file the written\n statement had expired on 12.08.2020 and the\n extended period of 15 days expired on 27.08.2020.\n This period expired when the order dated 23.03.2020\n passed by this Court in Cognizance for Extension of\n Limitation, In re, (2020) 19 SCC 10 = (2021) 3 SCC\n (Cri) 801 was continuing.11. In view of the aforesaid, in our opinion, the limitation\n for filing the written statement in the present\n proceedings before the National Commission would\n be deemed to have been extended as it is clear from\n the order dated 23.03.2020 [Cognizance for\n Extension of Limitation, In re, (2020) 19 SCC 10 =\n (2021) 3 SCC (Cri) 801] that the extended period of\n limitation was applicable to all petitions/\n applications/suits/appeals and all other proceedings.As such, the delay of four days in filing the written\n statements in the pending proceedings before the\n National Commission deserves to be allowed, and is\n accordingly allowed."***\n 32.2. In fact, in S. Kasi Vrs. State, (2021) 12 SCC 1 = 2020 SCC\n OnLine SC 529, this Court also noticed that a coordinate\n Bench of the same High Court had already held [Settu Vrs.\n State, 2020 SCC OnLine Mad 1026] that the said order\n dated 23.03.2020 [Cognizance for Extension of Limitation,\n In re, (2020) 19 SCC 10 = (2021) 3 SCC (Cri) 801] did not\n cover the offences for whichSection 167CrPC was\n applicable but, in the order [S. Kasi Vrs. State, 2020 SCC\n OnLine Mad 1244] impugned, the other learned Single\n Judge of the same High Court took a view contrary to the\n earlier decision of the coordinate Bench; and that was\n found to be entirely impermissible. In any case, the said\n decision, concerning the matter of personal liberty\n referable toArticle 21of the Constitution of India and then,\n relating to the proceedings to be undertaken by an\n investigating officer, cannot be applied to the present case\n relating to the matter of filing written statement by the\n defendant in a civil suit.W.P.(C) No. 7728 of 2022 Page 49 of 70:: 50 ::33. So far as the decision of this Court in Sagufa Ahmed Vrs.Upper Assam Plywood Products (P) Ltd., (2021) 2 SCC 317\n = (2021) 2 SCC (Civ) 178 is concerned, a few relevant\n factors related with the said case need to be noticed. In that\n case, the appellants had moved an application before the\n Guwahati Bench of the National Company Law Tribunal for\n winding up of the respondent company. The petition was\n dismissed on 25.10.2019 [Sagufa Ahmed Vrs. Upper Assam\n Plywood Products (P) Ltd., 2019 SCC OnLine NCLT 749].\n The appellants applied for a certified copy of the order\n dated 25.10.2019 [Sagufa Ahmed Vrs. Upper Assam\n Plywood Products (P) Ltd., 2019 SCC OnLine NCLT 749]\n only on 21.11.2019 or 22.11.2019 and received the certified\n copy of the order through their counsel on 19.12.2019.\n However, the appellants filed the statutory appeal before\n the National Company Law Appellate Tribunal only on\n 20.07.2020 with an application for condonation of delay.\n The Appellate Tribunal dismissed [Sagufa Ahmed Vrs.\n Upper Assam Plywood Products (P) Ltd., 2020 SCC\n OnLine NCLAT 609] the application for condonation of\n delay on the ground that it had no power to condone the\n delay beyond a period of 45 days. Consequently, the appeal\n was also dismissed. In that case, it was indisputable that\n even while counting from 19.12.2019, the period of 45 days\n expired on 02.02.2020 and another period of 45 days, for\n which the Appellate Tribunal could have condoned the\n delay, also expired on 18.03.2020. To overcome this\n difficulty, the appellants relied upon the aforesaid order\n dated 23.03.2020 [Cognizance for Extension of Limitation,\n In re, (2020) 19 SCC 10 = (2021) 3 SCC (Cri) 801].\n 33.1. This Court observed that the appellants were not entitled to\n take refuge under the above order in SMWP No. 3 of 2020\n because what was extended was only the period of\n limitation and not the period up to which delay could be\n condoned in exercise of discretion conferred by the statute.\n This Court said thus: [Sagufa Ahmed Vrs. Upper Assam\n Plywood Products (P) Ltd., (2021) 2 SCC 317 = (2021) 2\n SCC (Civ) 178], SCC p. 322, para 17)\n "17. ...What was extended by the above order\n [Cognizance for Extension of Limitation, In re,W.P.(C) No. 7728 of 2022 Page 50 of 70:: 51 ::(2020) 19 SCC 10 = (2021) 3 SCC (Cri) 801] of this\n Court was only "the period of limitation" and not the\n period up to which delay can be condoned in exercise\n of discretion conferred by the statute. The above\n order [Cognizance for Extension of Limitation, In re,\n (2020) 19 SCC 10 = (2021) 3 SCC (Cri) 801] passed\n by this Court was intended to benefit vigilant litigants\n who were prevented due to the pandemic and the\n lockdown, from initiating proceedings within the\n period of limitation prescribed by general or special\n law. It is needless to point out that the law of\n limitation finds its root in two Latin maxims, one of\n which is vigilantibus et non dormientibus jura\n subveniunt which means that the law will assist only\n those who are vigilant about their rights and not\n those who sleep over them."33.2. One of the significant facts to be noticed is that the said\n decision in Sagufa Ahmed Vrs. Upper Assam Plywood\n Products (P) Ltd., (2021) 2 SCC 317 = (2021) 2 SCC (Civ)\n 178 was rendered by a three-Judge Bench of this Court\n much before the aforesaid final orders dated 08.03.2021\n [Cognizance for Extension of Limitation, In re, (2021) 5\n SCC 452 = (2021) 3 SCC (Civ) 40 = (2021) 2 SCC (Cri)\n 615 = (2021) 2 SCC (L&S) 50] and 27.09.2021 (sic\n 27.04.2021 [Cognizance for Extension of Limitation, In re,\n (2021) 17 SCC 231 = 2021 SCC OnLine SC 373]) in\n SMWP No. 3 of 2020 by another three-Judge Bench of this\n Court. In those final orders, this Court not only provided\n for the extension of period of limitation but also made it\n clear that in computing the period of limitation for any suit,\n appeal, application or proceeding, the period from\n 15.03.2020 to 02.10.2021 shall stand excluded. Such\n proposition of exclusion, which occurred in the later orders,\n was not before this Court in Sagufa Ahmed Vrs. Upper\n Assam Plywood Products (P) Ltd., (2021) 2 SCC 317 =\n (2021) 2 SCC (Civ) 178, which was decided much earlier\n i.e. on 18.09.2020.***34. On behalf of the respondent, much emphasis has been laid\n on the submission that the appellant was regularlyW.P.(C) No. 7728 of 2022 Page 51 of 70:: 52 ::appearing in the Court and, therefore, cannot take\n advantage of the orders passed in SMWP No. 3 of 2020. It\n is true that the appellant had indeed caused appearance in\n the Court in response to the summons and sought time for\n filing its written statement but at the same time, it is also\n undeniable that at the relevant point of time, the second\n wave of pandemic was simmering and then, it engulfed the\n country with rather unexpected intensity and ferocity. Then,\n on 27.04.2021 [Cognizance for Extension of Limitation, In\n re, (2021) 17 SCC 231 = 2021 SCC OnLine SC 373], this\n Court restored the operation of the order dated 23.03.2020\n in Cognizance for Extension of Limitation, In re, (2020) 19\n SCC 10 = (2021) 3 SCC (Cri) 801. Putting all these factors\n together, we are unable to accept the submissions made on\n behalf of the respondent that because of earlier appearance\n or prayer for adjournment, the appellant-defendant would\n not be entitled to the relaxation available under the\n extraordinary orders passed by this Court."8.9. Noteworthy here to take note of the Order dated 10.01.2022\n passed in Cognizance for Extension of Limitation, In re, (2022) 3\n SCC 117 = (2022) 1 SCC (Cri) 580 = (2022) 2 SCC (Civ) 46 =\n (2022) 1 SCC (L&S) 501 = 2022 SCC OnLine SC 27, which\n requires to be reproduced hereunder:"1. In March 2020, this Court took suo motu cognizance of the\n difficulties that might be faced by the litigants in filing\n petitions/applications/suits/appeals/all other quasi\n proceedings within the period of limitation prescribed\n under the general law of limitation or under any special\n laws (both Central and/or State) due to the outbreak of the\n Covid-19 Pandemic.2. On 23.03.2020, this Court directed [Cognizance for\n Extension of Limitation, In re, (2020) 19 SCC 10 = (2021) 3\n SCC (Cri) 801] extension of the period of limitation in all\n proceedings before courts/tribunals including this Court\n w.e.f. 15.03.2020 till further orders. On 8-3-2021\n [Cognizance for Extension of Limitation, In re, (2021) 5\n SCC 452 = (2021) 3 SCC (Civ) 40 = (2021) 2 SCC (Cri)W.P.(C) No. 7728 of 2022 Page 52 of 70:: 53 ::615 = (2021) 2 SCC (L&S) 50] , the order dated 23-3-2020\n [Cognizance for Extension of Limitation, In re, (2020) 19\n SCC 10 = (2021) 3 SCC (Cri) 801] was brought to an end,\n permitting the relaxation of period of limitation between\n 15.03.2020 and 14.03.2021. While doing so, it was made\n clear that the period of limitation would start from\n 15.03.2021.3. Thereafter, due to a second surge in Covid-19 cases, the\n Supreme Court Advocates-on-Record Association\n (SCAORA) intervened in the suo motu proceedings by filing\n Miscellaneous Application No. 665 of 2021 seeking\n restoration of the order dated 23.03.2020 [Cognizance for\n Extension of Limitation, In re, (2020) 19 SCC 10 = (2021) 3\n SCC (Cri) 801] relaxing limitation. The aforesaid\n Miscellaneous Application No. 665 of 2021 was disposed of\n by this Court vide order dated 23.09.2021 [Cognizance for\n Extension of Limitation, In re, 2021 SCC OnLine SC 947],\n wherein this Court extended the period of limitation in all\n proceedings before the courts/tribunals including this Court\n w.e.f. 15.03.2020 till 02.10.2021.4. The present miscellaneous application has been filed by the\n Supreme Court Advocates-on-Record Association in the\n context of the spread of the new variant of the Covid-19 and\n the drastic surge in the number of Covid cases across the\n country. Considering the prevailing conditions, the\n applicants are seeking the following:(i) Allow the present application by restoring the order\n dated 23.03.2020 passed by this Hon'ble Court in\n Cognizance for Extension of Limitation, In re, (2020)\n 19 SCC 10 = (2021) 3 SCC (Cri) 801; and(ii) Allow the present application by restoring the order\n dated 27.04.2021 passed by this Hon'ble Court in\n Cognizance for Extension of Limitation, In re, (2021)\n 17 SCC 231 = 2021 SCC OnLine SC 373; and(iii) Pass such other order or orders as this Hon'ble\n Court may deem fit and proper.W.P.(C) No. 7728 of 2022 Page 53 of 70:: 54 ::5. Taking into consideration the arguments advanced by the\n learned counsel and the impact of the surge of the virus on\n public health and adversities faced by litigants in the\n prevailing conditions, we deem it appropriate to dispose of\n MA No. 21 of 2022 with the following directions:5.1. The order dated 23.03.2020 [Cognizance for\n Extension of Limitation, In re, (2020) 19 SCC 10 =\n (2021) 3 SCC (Cri) 801] is restored and in\n continuation of the subsequent orders dated\n 08.03.2021 [Cognizance for Extension of Limitation,\n In re, (2021) 5 SCC 452 = (2021) 3 SCC (Civ) 40 =\n (2021) 2 SCC (Cri) 615 = (2021) 2 SCC (L&S) 50],\n 27.04.2021 [Cognizance for Extension of Limitation,\n In re, (2021) 17 SCC 231 = 2021 SCC OnLine SC\n 373] and 23.09.2021 [Cognizance for Extension of\n Limitation, In re, 2021 SCC OnLine SC 947] , it is\n directed that the period from 15.03.2020 till\n 28.02.2022 shall stand excluded for the purposes of\n limitation as may be prescribed under any general or\n special laws in respect of all judicial or quasi-judicial proceedings.5.2. Consequently, the balance period of limitation\n remaining as on 03.10.2021, if any, shall become\n available with effect from 01.03.2022.5.3. In cases where the limitation would have expired\n during the period between 15.03.2020 till\n 28.02.2022, notwithstanding the actual balance\n period of limitation remaining, all persons shall have\n a limitation period of 90 days from 01.03.2022. In the\n event the actual balance period of limitation\n remaining, with effect from 01.03.2022 is greater\n than 90 days, that longer period shall apply.5.4. It is further clarified that the period from 15.03.2020\n till 28.02.2022 shall also stand excluded in\n computing the periods prescribed underSections\n 23(4)and29-Aof the Arbitration and Conciliation\n Act, 1996,Section 12-Aof the Commercial Courts\n Act, 2015 and provisos (b) and (c) ofSection 138of\n the Negotiable Instruments Act, 1881 and any otherW.P.(C) No. 7728 of 2022 Page 54 of 70:: 55 ::laws, which prescribe period(s) of limitation for\n instituting proceedings, outer limits (within which the\n court or tribunal can condone delay) and termination\n of proceedings.6. As prayed for by the learned Senior Counsel, MA No. 29 of\n 2022 is dismissed as withdrawn."8.10. It is observed that the order of cancellation of registration was\n passed with effect from 15.10.2019 and in terms ofSection 107the petitioner was required to file the appeal within three months\n from the date of communication of the order and further\n condonable period available was one month therefrom. In the\n present case total period lapsed on 14.02.2020. The Hon'ble\n Supreme Court of India in Prakash Corporates Vrs. Dee Vee\n Projects Ltd., (2022) 5 SCC 112 = (2022) 1 SCC (L&S) 771 =\n 2022 SCC OnLine SC 180 took cognizance of "unprecedentedly\n unfavourable and unpleasant" situation faced by entire humanity\n from or around the month of December 2019. The Appellate\n Authority, while passing order on 07.10.2021, had no occasion to\n take into consideration the orders of the Hon'ble Court more\n particularly Cognizance for Extension of Limitation, In re, (2022)\n 3 SCC 117 = (2022) 1 SCC (Cri) 580 = (2022) 2 SCC (Civ) 46 =\n (2022) 1 SCC (L&S) 501 = 2022 SCC OnLine SC 27 and Prakash\n Corporates Vrs. Dee Vee Projects Ltd., (2022) 5 SCC 112 =\n (2022) 1 SCC (L&S) 771 = 2022 SCC OnLine SC 180. This Court\n finds that the Appellate Authority has not taken note of relevant\n notification(s) and amendments carried thereto as discussed in the\n foregoing paragraphs.8.11. Close reading of orders passed by the Hon'ble Supreme Court\n extending period of limitation, the Judgment rendered in the caseW.P.(C) No. 7728 of 2022 Page 55 of 70:: 56 ::of Tvl. Suguna Cutpiece Center Vrs. The Appellate Authority and\n Another, 2022 (61) GSTL 515 (Mad) unflinchingly discussing the\n purport of amendment(s) to the provisions of the statute, the\n Judgment dated 09.12.2021 of Punjab & Haryana High Court in\n the case of Aarcity Builders Private Limited Vrs. Union of India\n and Others, CWP No.19029 of 2021 and the notifications with the\n clarifications issued by the Central Government persuades this\n Court to conclude that there has been pious intention to facilitate\n the business to be carried out so as to enable smooth payment of\n taxes and not to debar the taxpayers, but to bring them back to\n GST fold. Therefore, this Court, being not oblivious of\n fundamental rights conferred on every citizen underArticle\n 19(1)(g)vis-à-visArticle 14, is one with the view expressed in\n Tvl. Suguna Cutpiece Center and Aarcity Builders Private Limited\n (supra). While subscribing to the observation and interpretation,\n this Court feels it apposite to quote the following from the\n judgment in Tvl. Suguna Cutpiece Center (supra):"209. Thus, the intention of the Government has been to allow the\n persons like the petitioners to file a fresh application and to\n process the application for revocation of the cancellation of\n registration by the officers.210. In my view, no useful purpose will be served by keeping\n these petitioners out of the bounds of GST regime under the\n respective GST enactments other than to allow further\n leakage of the revenue and to isolate these petitioners from\n the main stream contrary to the objects of the respective\n GST enactments.211. The purpose of GST registration is only to ensure just tax\n gets collected on supplies of goods or service or both and is\n paid to the exchequer. Keeping these petitioners outside theW.P.(C) No. 7728 of 2022 Page 56 of 70:: 57 ::bounds of the GST regime is a self-defeating move as no tax\n will get paid on the supplies of these petitioners.\n ***221. While exercising jurisdiction, underArticle 226of the\n Constitution, the powers of the Court to do justice i.e., what\n is good for the society, can neither be restricted nor\n curtailed. This power underArticle 226can be exercised to\n effectuate the rule of law.222. Therefore, power of this Court underArticle 226of the\n Constitution of India is being exercised cautiously in favour\n of the petitioners as this power is conceived to serve the\n ends of law and not to transgress them.223. In Mafatlal Industries Ltd. Vrs. Union of India, (1997) 5\n SCC 536, in Paragraph No.77, the Hon'ble Supreme Court\n observed that\n "So far as the jurisdiction of the High Court underArticle\n 226--or for that matter, the jurisdiction of this Court underArticle 32--is concerned, it is obvious that the provisions\n of the Act cannot bar and curtail these remedies. It is,\n however, equally obvious that while exercising the power\n under Article 226/Article 32, the Court would certainly take\n note of the legislative intent manifested in the provisions of\n the Act and would exercise their jurisdiction consistent with\n the provisions of the enactment. Even while acting in\n exercise of the said constitutional power, the High Court\n cannot ignore the law nor can it override it."224. Notwithstanding the fact that the petitioners have shown\n utter disregard to the provisions of the Acts and have failed\n to take advantage of the amnesty scheme given to revive\n their registration, this Court is inclined to quash the\n impugned orders with grant consequential reliefs subject to\n terms.225. The provisions of the GST enactments cannot be interpreted\n so as to deny the right to carry on Trade and Commerce to\n a citizen and subjects. The constitutional guarantee is\n unconditional and unequivocal and must be enforced\n regardless of the defect in the scheme of the GSTW.P.(C) No. 7728 of 2022 Page 57 of 70:: 58 ::enactments. The right to carry on trade or professoin also\n cannot be curtailed. Only reasonable restriction can be\n imposed. To deny such rights would militate against their\n rights underArticle 14, read withArticle 19(1)(g)andArticle 21of the Constitution of India."8.12. Vide Order dated 17.08.2022 Madras High Court in M. Mallika\n Mahal Vrs. The Commissioner of Central GST & Central Excise,\n W.P. No.10663 of 2022, &c. while ascertaining the position as to\n finality of Judgment in Tvl Suguna Cutpiece Center (supra) has\n observed as follows:"7. All other petitioners have approached this Court direct, by\n way of writ petition, seeking the relief of restoration. A\n learned Single Judge of this Court in a batch of writ\n petitions in WP.Nos.25048 of 2021 and batch has, by way\n of an order dated 31.01.2022, considered the cases of\n identically placed petitioners as before me. In the cases of\n those petitioners as well, orders of revocation had been\n passed and some of the petitioners had approached the\n assessing authority in terms ofSection 30seeking\n revocation, some had appealed the orders of cancellation\n underSection 107and others had merely approached this\n Court underArticle 226of the Constitution of India.8. The learned Judge has considered interim events including\n the position that Amnesty Schemes had not been availed by\n those petitioners. In fine, the learned Judge accepts the case\n of the petitioners, imposing certain conditions in para 229\n of the order. A specific query was put to the State Counsel\n as to whether order dated 31.01.2022 has attained finality.\n He brings to my notice a communication that has been\n addressed by the Additional Chief Secretary/Commissioner\n of Commissioner of Commercial Tax to the GST Council on\n 31.03.2022 seeking the view of the Council and its\n guidance/directions in regard to the order of this Court\n dated 31.01.2022."8.13. An identical fact-situation arose before the Hon'ble Gujarat High\n Court, where the Appellate Authority did not entertain appeal onW.P.(C) No. 7728 of 2022 Page 58 of 70:: 59 ::the ground of limitation qua cancellation of registration being\n made on 10.07.2019. In the case of Tahura Enterprise Vrs. Union\n of India, R/Special Civil Application No.3442 of 2022, by a\n Judgment dated 30.03.2022, said Court observed thus:"8. Indisputably, the cancellation of registration was on the\n ground of non-filing of returns by the writ-applicants. The\n impugned order cancelling the registration came to be\n passed on 10.07.2019. The writ-applicants preferred an\n application before the appellate authority for revocation of\n cancellation of registration, but such application was not\n entertained on the ground that the same was time barred.9. We take notice of the fact that the Central Board of Indirect\n Taxes and Customs extended the time limit for filing\n application for revocation of cancellation of registration\n and the limitation for all the orders passed on or before\n 12.06.2020 was to effectively commence from 31.08.2020.\n As the application filed by the writ applicants for\n revocation of cancellation of registration was looked into\n by a quasi-judicial authority, the order of the Supreme\n Court extending the period of limitation in view of the\n Covid-19 Pandemic would apply and in such\n circumstances, the limitation in accordance with the order\n passed by the Central Board of Indirect Taxes and Customs\n could be said to have been extended.10. Indisputably, the application requesting for restoration of\n registration was filed in July 2021 i.e. during the period\n when the order of the Supreme Court extending the\n limitation was in operation. More importantly, the writ-\n applicants have paid the requisite amount towards tax on\n the basis of self-assessed liability on 06.09.2021. Since the\n registration of certificate of the writ applicants came to be\n cancelled solely on the ground of non-filing of the returns,\n which was on account of non-payment of tax and the writ-\n applicants now having paid such outstanding tax, the\n registration certificate of the writ-applicants should be\n ordered to be restored so that they are able to continue with\n their business."W.P.(C) No. 7728 of 2022 Page 59 of 70:: 60 ::8.14. Refusing to decide the challenge against order of cancellation of\n registration on the ground of limitation would be counter-productive approach as the taxable person is deprived to carry on\n business in the sense that no tax invoice can be raised. This would\n ultimately impact the recovery of taxes and thereby, the action of\n the authority would work against the interest of revenue.\n Therefore, the opposite parties are required to take a pragmatic\n view in the matter. The introduction of GST regime presupposes\n hassle-free and citizen friendly taxation process and the taxpayer\n is not to be treated as a person hostile to the Department. It is but\n obvious that if the taxpayer adopts clandestine business and adopts\n dubious device to evade payment of tax, then he has to be dealt\n with sternly.8.15. In such view of the matter, the writ petition is liable to be allowed\n with certain directions.9. It is pertinent to say that writ petition is maintainable challenging\n the order in appeal, albeit the petitioner is entitled to carry the\n matter before the Appellate Tribunal underSection 112of the\n CGST Act inasmuch as even after lapse of 5 years, the said\n Appellate Tribunal is not constituted underSection 109.9.1. Pertinent here to refer to the ratio of Judgment laid down by the\n Hon'ble Supreme Court in the case of Mohamed Ali Vrs. V. Jaya\n & Others, 2022 SCC OnLine SC 817, in the context of\n maintainability of writ petition qua condonation of delay in\n preferring civil revision underSection 115the Code of Civil\n Procedure, 1908 vis-a-vis availability of alternative remedy. The\n said Hon'ble Court has been pleased to lay down as follows:W.P.(C) No. 7728 of 2022 Page 60 of 70:: 61 ::20. Even otherwise and as observed hereinabove, against the\n ex-parte judgment and decree, the remedy by way of an\n appeal before the First Appellate Court was available.Therefore, the High Court ought not to have entertained the\n revision application underSection 115of CPC and underArticle 227of the Constitution of India. The High Court\n ought not to have entertained such a revision application\n challenging the ex-parte judgment and decree. Once there\n was a statutory alternative remedy by way of an appeal\n available to the defendants, the High Court ought not to\n have entertained a writ petition or revision application\n underArticle 227of the Constitution of India.21. At this stage, the decision of this Court in the case of\n Virudhunagar Hindu Nadargal Dharma Paribalana Sabai\n Vrs. Tuticorin Educational Society, (2019) 9 SCC 538, is\n required to be referred to. In the said decision, it is\n observed and held by this Court that wherever the\n proceedings are underthe Code of Civil Procedureand the\n forum is the civil court, the availability of a remedy underCPC, will deter the High Court and therefore, the High\n Court shall not entertain the revision underArticle 227of\n the Constitution of India especially in a case where a\n specific remedy of appeal is provided underthe CPCitself.\n While holding so, it is observed and held in paragraphs 11\n to 13 as under:--"11. Secondly, the High Court ought to have seen that\n when a remedy of appeal underSection 104(1)(i)read with Order 43, Rule 1(r) of the Civil Procedure\n Code, 1908, was directly available, Respondents 1\n and 2 ought to have taken recourse to the same. It is\n true that the availability of a remedy of appeal may\n not always be a bar for the exercise of supervisory\n jurisdiction of the High Court. In A. Venkatasubbiah\n Naidu Vrs. S. Chellappan, (2000) 7 SCC 695, this\n Court held that "though no hurdle can be put against\n the exercise of the constitutional powers of the High\n Court, it is a well-recognised principle which gained\n judicial recognition that the High Court should direct\n the party to avail himself of such remedies before he\n resorts to a constitutional remedy".W.P.(C) No. 7728 of 2022 Page 61 of 70:: 62 ::12. But courts should always bear in mind a distinction\n between (i) cases where such alternative remedy is\n available before civil courts in terms of the\n provisionsof Code of Civil Procedure, and (ii) cases\n where such alternative remedy is available under\n special enactments and/or statutory rules and the\n fora provided therein happen to be quasi-judicial\n authorities and tribunals. In respect of cases falling\n under the first category, which may involve suits and\n other proceedings before civil courts, the availability\n of an appellate remedy in terms of the provisionsof\n CPC, may have to be construed as a near total bar.Otherwise, there is a danger that someone may\n challenge in a revision underArticle 227, even a\n decree passed in a suit, on the same grounds on\n which Respondents 1 and 2 invoked the jurisdiction\n of the High Court. This is why, a 3-member Bench of\n this Court, while overruling the decision in Surya\n Dev Rai Vrs. Ram Chander Rai, (2003) 6 SCC 675,\n pointed out in Radhey Shyam Vrs. Chhabi Nath,\n (2015) 5 SCC 423 = (2015) 3 SCC (Civ) 67 that\n "orders of civil court stand on different footing\n from the orders of authorities or tribunals or courts\n other than judicial/civil courts".13. Therefore wherever the proceedings are underthe\n Code of Civil Procedureand the forum is the civil\n court, the availability of a remedy underthe CPC,\n will deter the High Court, not merely as a measure of\n self-imposed restriction, but as a matter of discipline\n and prudence, from exercising its power of\n superintendence under the Constitution. Hence, the\n High Court ought not to have entertained the revision\n underArticle 227especially in a case where a\n specific remedy of appeal is provided underthe Code\n of Civil Procedureitself."22. Applying the law laid down by this Court in the aforesaid\n decision to the facts of the case on hand, the High Court\n ought not to have entertained the revision petition underArticle 227of the Constitution of India against the ex-parte\n judgment and decree passed by the learned Trial Court inW.P.(C) No. 7728 of 2022 Page 62 of 70:: 63 ::view of a specific remedy of appeal as provided underthe\n Code of Civil Procedureitself. Therefore, the High Court\n has committed a grave error in entertaining the revision\n petition underArticle 227challenging the ex-parte\n judgment and decree passed by the learned Trial Court and\n in quashing and setting aside the same in exercise of\n powers underArticle 227of the Constitution of India."[Emphasis supplied]\n\n9.2. In the case of Vinod Kumar Vrs. Commissioner of Uttarakhand\n State GST and Others, Special Appeal No. 123 of 2022, vide\n Judgment dated 20th June, 2022 the set of facts available before\n the Hon'ble Uttarakhand High Court was that on account of\n failure to file returns for a continuous period of six months, which\n was mandatory under the Uttarakhand GST Act, the registration\n got cancelled on 21.09.2019 and the appeal before the First\n Appellate Authority was dismissed on the ground of delay;however, the writ petition filed by petitioner/appellant was also\n dismissed as not maintainable. In the Appeal against Order in Writ\n Petition passed by the Single Judge of said High Court while\n holding that writ petition was maintainable, the Court observed\n the following:"4) Thus it is apparent that the Statute does not provide any\n prohibition against exercise of the writ jurisdiction underArticle 226of the Constitution by the High Court. The\n practice of not entertaining the writ petition, except in the\n cases accepted above by the Hon'ble High Court, in a case\n where an alternative and efficacious remedy is available, is\n an internal mechanism, which the Court has imposed upon\n themselves.5) Moreover, this issue whether a writ petition is maintainable\n when the limitation provided for filing an appeal is not\n extendable, as in this case, was considered by the FullW.P.(C) No. 7728 of 2022 Page 63 of 70:: 64 ::Bench of the Gujarat High Court in the case ofPanoli\n Intermediate (India) Pvt. Ltd. Vs Union of India and others,\n 2015 SCC OnLine Guj 570 = AIR 2015 Guj 97 = (2015) 56\n (2) GLR 1395 (FB) = (2015) 3 KLT (SN 40) 30 (F.B.) =\n (2015) 326 ELT 532 = (2016) 2 GLH 337 (FB), where the\n case was referred to the larger Bench for determining three\n questions. The third question is important for this case,\n which is quoted below:(3) When if the statutory remedy of appeal underSection\n 35is barred by the law of limitation whether in a\n Writ Petition underArticle 226of the Constitution of\n India, the order passed by the original adjudicating\n authority could be challenged on merit?6) The answer was given by the Hon'ble Full Bench of the\n Gujarat High Court in paragraph 31 ofthe said judgment,\n especially, in sub-paragraph (3). The Full Bench of the\n Hon'ble Gujarat High Court held that on the third question\n the answer is in affirmative, but with the clarification that\n\n A) The petition underArticle 226of the Constitution can\n be preferred for challenging the order passed by the\n original adjudicating authority in following\n circumstances that:A.1) The authority has passed the order without\n jurisdiction and by assuming jurisdiction\n which there exist none\n A.2) Has acted in flagrant disregard to law or rules\n or procedure or acted in violation of principles\n of natural justice where no procedure is\n specified.B) Resultantly, there is failure of justice or it has\n resulted into gross injustice. We may also sum up by\n saying that the power is there even in aforesaid\n circumstances, but the exercise is discretionary\n which will be governed solely by the dictates of the\n judicial conscience enriched by judicial experience\n and practical wisdom of the judge.W.P.(C) No. 7728 of 2022 Page 64 of 70:: 65 ::7) It is apparent from the record that a notice was given on the\n website, which in our considered opinion, is not sufficient,\n and a personal notice has to be given before cancellation of\n the registration. Therefore, the Court can invoke its\n jurisdiction underArticle 226of the Constitution and hold\n that the orders passed by the learned Commissioner can be\n interfered in a writ jurisdiction."9.3. The present writ petition is, therefore, entertained on the peculiar\n facts of the case and circumstances that prevailed at the relevant\n period.9.4. As already stated, since the Appellate Tribunal has not yet been\n constituted as perSection 109of the CGST Act, there being no\n alternative remedy available for the petitioner to question the\n veracity of the order passed in the first appeal, this Court prefers\n to exercise its writ jurisdiction to undo prejudice and injustice\n caused to the petitioner. Thus, this Court is of the considered view\n that grave injustice would ensue if extraordinary jurisdiction underArticle 226of the Constitution of India is not exercised. In the\n present case scales of justice weigh in favour of the petitioner.9.5. In the event GST registration number is not restored, the petitioner\n would not be in a position to raise a bill as e-invoice system has\n been put in place in the GST regime. So, if the petitioner is denied\n of revival of GST registration number, it would affect his right to\n livelihood (Article 21of the Constitution of India) as also right to\n carry on business [Article 19(1)(g)].If he is denied of his right to\n livelihood because of the fact that his GST Registration has been\n cancelled, and that he has no remedy of appeal especially when\n Appellate Tribunal has not been constituted in terms ofSection\n 109read withSection 112, then it would tantamount to violationW.P.(C) No. 7728 of 2022 Page 65 of 70:: 66 ::of provision enshrined underArticle 21of the Constitution of\n India as the right to livelihood springs from the right to life\n avowed underArticle 21.10. This Court, in the case of one of the parties, namely in the case of\n Suntony Signage Pvt. Ltd., whose registration under theCGST Actbeing cancelled and appeal being rejected on the ground of\n limitation by way of common order dated 07.10.2021, which order\n is subject-matter of challenge in the present writ, allowed the writ\n petition being W.P(C). No.41856 of 2021 [Suntony Signage Pvt.Ltd. Vrs. Principal Commissioner of Central Goods and Services\n Tax & Others] vide Order dated 12.07.2022 by setting aside said\n Appellate Order. In certain other cases, one of them being\n Nirmani Engineers and Constructions Pvt. Ltd. Vrs. The\n Commissioner of CT&GST, Odisha and Others, W.P.(C)\n No.15934 of 2021, vide Order dated 05.05.2021 condoning the\n delay in invoking proviso to Rule 23 of the Odisha Goods and\n Services Tax Rules, 2017, this Court allowed the petitioner therein\n to deposit tax, interest, penalty with late fee and furnish returns for\n the defaulted period.11. Apart from the above, it may be worthwhile to say that the\n Appellate Authority should have borne in mind the predicament\n faced by taxpayers on the introduction of new set of procedures by\n way of promulgation of the CGST Act and the OGST Act and\n rules framed thereunder and time required to be taken to get\n acquainted. It is pertinent to refer to the following excerpts from\n Judgment dated 24.02.2022 delivered by the Hon'ble Gujarat\n High Court in the case of Aggarwal Dyeing and Printing WorksW.P.(C) No. 7728 of 2022 Page 66 of 70:: 67 ::Vrs. State of Gujarat & 2 Other(s), R/Special Civil Application\n No. 18860 of 2021:"15.1 The Appellate authority ought to have appreciated that the\n writ applicants at relevant point of time i.e. in year 2017,\n applied for registration which request was favourably\n considered by the authorities under the Act with a specific\n registration number allotted to the writ applicant. It was a\n transitional phase, whereby the oldCST Actwas repealed\n and the new regime of CGST/ GGST has come into force.\n With the different forms and procedure envisaged\n thereunder, any layman is bound to take time to adhered to\n the norms. The Record reveals that subsequently the writ\n applicants have claimed to have filed their returns and have\n even deposited all dues. We further notice that such exercise\n has been undertaken through the writ applicant's Tax\n Consultant who were professionally engaged to undertake\n such task. Unfortunately, information of the returns for\n certain period not being uploaded, surfaced in the year\n 2019 and the cause explained suggest that circumstances\n were beyond the writ applicant's reach. In such peculiar\n circumstances, it was least expected of the Appellate\n Authority to condone the delay for filing appeal, more so,\n with the onset of Pandemic Covid-19, preventing further\n follow up action. In the peculiar facts and circumstances,\n the authority ought to have condoned the delay which\n unfortunately was not done, despite the writ applicant\n having made a fervent request for condonation of delay in\n filing appeal seeking revocation of cancellation of\n registration."12. On the aforesaid analysis of factual and legal position, it is apt to\n set aside the Appellate Order dated 07.10.2021. As a consequence,\n this Court in the aforesaid circumstances thought of remitting the\n matter to the Appellate Authority for consideration of merits\n afresh. Nevertheless, this matter relates to registration of the\n petitioner which has been cancelled since 15.10.2019 and involves\n right to carry on business and sending the matter back to theW.P.(C) No. 7728 of 2022 Page 67 of 70:: 68 ::Appellate Authority would further delay the process. It is taken\n into consideration that as the consequential effective step is\n required to be taken by the proper officer/Registering\n Authority/Superintendent, it is, therefore, deemed necessary\n instead of directing the Appellate Authority to do the needful, this\n Court requests the proper officer to grant opportunity to the\n petitioner for taking all required step to revive registration. Thus,\n writ of mandamus is liable to be issued keeping in mind the\n notifications and the suggestions put forth by Mr. Rudra Prasad\n Kar, learned Advocate. So does this Court in the present case to\n ensure ends of justice in the light of directions envisaged in Tvl.\n Suguna Cutpiece Center Vrs. The Appellate Authority and\n Another, 2022 (61) GSTL 515 (Mad) by the Madras High Court\n and Order dated 05.05.2021 of this Court in Nirmani Engineers\n and Constructions Pvt. Ltd. Vrs. The Commissioner of CT&GST,\n Odisha and Others, W.P.(C) No.15934 of 2021.13. In the above premise, the following directions are, therefore,\n issued:i. The petitioner is permitted to file returns for the period prior\n to the cancellation of registration, if such returns have not\n already been filed, together with tax defaulted which has\n not been paid prior to cancellation along with interest for\n such belated payment of tax and statutory payments and fee\n fixed for belated filing of returns for the defaulted period\n under the provisions of the Act, within a period of sixty\n days (60) days from the date of receipt of a copy of this\n Judgment, if it has not been already paid.W.P.(C) No. 7728 of 2022 Page 68 of 70:: 69 ::ii. It is made clear that such payment of tax/interest/penalty/\n fine/fee etc. shall not be allowed to be made or adjusted\n from and out of any Input Tax Credit which may be lying\n unutilized or unclaimed in the hands of the petitioner.iii. On payment of tax, interest, penalty and late fee, if any, and\n uploading of returns, as conceded by both the parties, the\n petitioner is at liberty to file the application for revocation\n of cancellation of registration within a period of 7 days\n therefrom along with petition for condonation of delay. In\n such eventuality, the proper officer/registering authority/\n competent authority shall consider the same favourably by\n condoning the delay and revoke the cancellation of\n registration.iv. The opposite parties shall take suitable steps by instructing\n GST Network, New Delhi or any other agency responsible\n for maintaining the Web Portal to make suitable changes in\n the architecture of the GST Web Portal to enable the\n petitioner to file his returns and to pay the\n tax/interest/penalty/fine/fee and it is to be ensured by the\n department that there shall be no technical glitch during the\n period specified herein.v. The above exercise shall be completed by the opposite\n parties within a period of ninety (90) days from the date of\n receipt of a copy of this Judgment.vi. The Authority concerned is at liberty to verify the veracity\n of the claim(s) made in the returns so furnished and takeW.P.(C) No. 7728 of 2022 Page 69 of 70:: 70 ::appropriate steps in accordance with law after affording\n reasonable opportunity of hearing to the petitioner.14. The writ petition is allowed in the above terms. Parties are to bear\n their respective costs. Since the main case has been decided, the\n pending Interlocutory Application, if any, also stands disposed off.(JASWANT SINGH) (M.S. RAMAN)\n JUDGE JUDGE\n\n\n\n\nAks High Court of Orissa, Cuttack\n October 13, 2022W.P.(C) No. 7728 of 2022 Page 70 of 70 |
bfef0189-895b-532d-84ae-7bb2860da5c1 | court_cases | Jammu & Kashmir High Court - Srinagar BenchGeneral Manager Road Transport ... vs Ghulam Nabi Mir And Others on 22 November, 2021Author:Javed Iqbal WaniBench:Javed Iqbal WaniRegular\n S. No. 16\n\n\n\n HIGH COURT OF JAMMU & KASHMIR AND LADAKH\n AT SRINAGAR\n\n CONC 61/2017\n IA (1/2018)\nGeneral Manager Road Transport Corporation\n\n ... Petitioner/Appellant(s)\nThrough: Mr. Altaf Haqani, Sr. Advocate\n with Mr. Shakir Haqani, Adv.\n\n V/s\nGhulam Nabi Mir and others\n ... Respondent(s)\n\nThrough: Mr. Saqib Amin, Advocate\n\nCORAM: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE\n\n ORDER22-11-20211.In the instant application, applicant seeks condonation of delay\n in filing an appeal underSection 173of the Motor Vehicles Act,\n 1988 against an award dated 31.10.2014 passed by the Motor\n Accident Claims Tribunal, Anantnag (for brevity "Tribunal"), in\n Claim petition No. 13/2006 titled as "Ghulam Nabi Mir vs. State\n of J&K and others".2. The background facts those emerge from the case in hand are\n that on 03.11.2004 non-applicant/respondent No. 1 herein while\n going for some official work, was hit by the offending vehicle\n (Tata Indigo) of respondent no. 6 crushing his left foot. It is\n submitted that due to his injury, and permanent disability of\n 40%, the non-applicant respondent no. 1 herein remained\n admitted in Bone and Joint Hospital, Barzullah, Srinagar, and\n was operated upon. It is contended that the accident occurred due\n to the rash and negligent driving of respondent no. 6.CONC 61/2017 Page 2 of 63. It is being stated that the non-applicant/respondent No. 1\n instituted a claim petition underSections 166/140of Motor\n Vehicle Act whereafter an award came to be passed by the\n Tribunal on 31.10.2014 allowing an award of Rs.2,00,000/- to\n the claimant.4. The aforesaid award (supra) is questioned in the time-barred\n appeal accompanying the instant application.5. In the instant application seeking condonation of delay, the\n applicant pleads that the delay caused in filing of the appeal is\n not deliberate or wilful. It is submitted that the delay has been\n caused due to the fact that the corporation was not a party and\n instead the claim had been filed against the appellant.6. Despite several opportunities, respondents have not filed\n objections.7. Heard learned counsel for the parties.8. Before proceeding to analyze the application and grounds urged\n therein, it would be appropriate and advantageous to refer to the\n legal position enumerated by the Apex Court on the subject of\n condonation of delay.9. The law on the subject ofsection 5of the Limitation Act is no\n more res integra and there is a long line of decisions rendered\n and delivered by the Hon'ble Apex Court on the subject.10. It is established that the law of limitation has to be applied with\n all its rigor prescribed by a statute. AlthoughSection 5of J&K\n Limitation Act Samvat, 1995 provides for extension of theCONC 61/2017 Page 3 of 6period of limitation in certain cases, and appellant/applicant\n seeking such extension is required to satisfy the court that there\n has been a sufficient cause for not preferring the appeal or\n making the application within the prescribed period.11. Apex Court in State of Madhya Pradesh and others and\n Bherulal, 2020 (10) SSC 654, at paras 3 and 5 has observed as\n under:"3. No doubt, some leeway is given for the Government\n inefficiencies but the sad part is that the authorities keep on relying\n on judicial pronouncements for a period of time when technology\n had not advanced and a greater leeway was given to the\n Government [LAOv.Katiji]. This position is more than elucidated\n by the judgment of this Court inPost Master General v. Living\n Media India Ltd.(2012) 3 SCC 563 where the Court observed as\n under:"27) It is not in dispute that the person(s) concerned were\n well aware or conversant with the issues involved including\n the prescribed period of limitation for taking up the matter\n by way of filing a special leave petition in this Court. They\n cannot claim that they have a separate period of limitation\n when the Department was possessed with competent persons\n familiar with court proceedings. In the absence of plausible\n and acceptable explanation, we are posing a question why\n the delay is to be condoned mechanically merely because the\n Government or a wing of the Government is a party before\n us.28) Though we are conscious of the fact that in a matter\n of condonation of delay when there was no gross negligence\n or deliberate inaction or lack of bonafide, a liberal\n concession has to be adopted to advance substantial justice,\n we are of the view that in the facts and circumstances, the\n Department cannot take advantage of various earlier\n decisions. The claim on account of impersonal machinery\n and inherited bureaucratic methodology of making several\n notes cannot be accepted in view of the modern technologies\n being used and available. The law of limitation undoubtedly\n binds everybody including the Government.29) In our view, it is the right time to inform all the\n government bodies, their agencies and instrumentalities that\n unless they have reasonable and acceptable explanation forCONC 61/2017 Page 4 of 6the delay and there was bonafide effort, there is no need to\n accept the usual explanation that the file was kept pending\n for several months/years due to considerable degree of\n procedural red- tape in the process. The government\n departments are under a special obligation to ensure that they\n perform their duties with diligence and commitment.Condonation of delay is an exception and should not be used\n as an anticipated benefit for government departments. The\n law shelters everyone under the same light and should not be\n swirled for the benefit of a few.30) Considering the fact that there was no proper\n explanation offered by the Department for the delay except\n mentioning of various dates, according to us, the Department\n has miserably failed to give any acceptable and cogent\n reasons sufficient to condone such a huge delay." Eight\n years hence the judgment is still unheeded!5. A preposterous proposition is sought to be propounded that if\n there is some merit in the case, the period of delay is to be given a\n go-by. If a case is good on merits, it will succeed in any case. It is\n really a bar of limitation which can even shut out good cases. This\n does not, of course, take away the jurisdiction of the Court in an\n appropriate case to condone the delay."12. The Hon'ble Apex Court inPerumon Bhagvathy Devaswam\n vs. Bhargavi Amma, 2008 (8) SCC 321, at para 13 (iii)\n enunciated besides others the following principle qua an\n application underSection 5of the Limitation Act:"(iii) The decisive factor in condonation of delay, is not the length\n of delay, but sufficiency of a satisfactory explanation."13. A reference to a judgment of the Hon'ble Apex Court reported\n in AIR 1998 SC 2276, titled asP. K. Ramachadran v. State\n of Keralawould also be appropriate and advantageous, wherein\n at para 6 following is noticed."Law of limitation may harshly affect a particular party but it has\n to be applied with all its rigour when the statute so prescribe and\n the Courts have no power to extend the period of limitation on\n equitable grounds. The discretion exercised by the High Court was\n thus, neither proper nor judicious. The order condoning the delay\n cannot be sustained. This appeal, therefore, succeeds and the\n impugned order is set aside. Consequently, the application forCONC 61/2017 Page 5 of 6condonation of delay filed in the High Court would stand rejected\n and the Miscellaneous First Appeal shall stand dismissed as barred\n by time. No costs."14. Keeping in mind the above legal position enunciated by the\n Apex Court what emerges from the perusal of the record and\n averments of the application is that there is no plausible reason\n for condoning the delay in filing the appeal. The averments made\n by the applicant in the instant application do not constitute\n sufficient cause for condonation of delay. No plausible ground\n has been expressed in the application as would suggest that the\n delay caused in filing the appeal, was reasonable. Besides, the\n application is short of detail about the reasons that caused delay\n in filing the appeal. Merely submitting in the application that the\n delay caused in filing the appeal was neither deliberate nor\n intentional, without giving any actual details that were\n responsible for causing the delay, would not entitle the applicant\n to the relief in the application for condonation of delay.15. The application in hand seemingly is filed with the impression\n that in seeking condonation of delay, the expresses "sufficient\n cause" would receive as liberal construction in favor of the\n applicant being related to an agency of the Government. It is\n however, manifest and without any doubt that the explanation\n offered by the appellant /applicant in the application in hand\n cannot by any sense of imagination said to be sufficient,\n plausible, and cogent. The explanation per se is cryptic and\n casual.16. Risking repetition it is worth mentioning herein that the instant\n application relates to condonation of delay in filing an appeal\n underSection 173of the Motor Vehicles Act, against an award\n passed in favour of the non- applicant/respondent No. 1 who\n suffered 40% disability on account of a vehicular accident. ACONC 61/2017 Page 6 of 6claim lodged before the Tribunal and an award passed thereon in\n such cases aims at providing cheap and speedy remedy and\n justice by way of compensation to a victim. A justice-oriented\n approach thus, in such matters is possible if the courts lean\n against the casual and non-diligent approach and unbecoming\n conduct of the applicants seeking condonation of delay in filing\n the appeals against such awards, unless, a sufficient cause is\n shown in tune and line with the principles and propositionslaid\n down bythe Hon'ble Apex Court. The said principle of\n sufficient cause, however, as noticed above is missing in the\n instant case.17. Viewed in the context what has been observed, considered and\n analyzed hereinabove, the application in hand is found to be\n without any merit and is, accordingly, dismissed, as a\n consequence whereof the accompanying appeal shall also stand\n dismissed.18. Dismissed along with connected IA(s)\n\n\n (JAVED IQBAL WANI)\n JUDGE\n Srinagar\n 22-11-2021\n N Ahmad\n\n i. Whether the Order is speaking? Yes/No.\n ii. Whether the Order is reportable? Yes/ No.NISSAR A BHAT2021.11.25 13:14I attest to the accuracy andintegrity of this document |
c424d764-b89f-5184-9aec-b38099032d65 | court_cases | Orissa High CourtMilu @ Rashmi Ranjan Jena vs State Of Odisha on 31 October, 2022Author:Chittaranjan DashBench:Chittaranjan DashIN THE HIGH COURT OF ORISSA AT CUTTACK\n\n CRLA No. 23 of 2014\n\nMilu @ Rashmi Ranjan Jena .... Appellant\n\n -versus-\nState of Odisha .... Respondent\n\nAdvocates appeared in the cases:\n\nFor Appellant : Mr. Bikram Chandra Ghadei\n Advocate\n\nFor Respondent : Mrs. Saswata Patnaik\n Additional Government Advocate\n\n CORAM:\n THE CHIEF JUSTICE\n JUSTICE CHITTARANJAN DASH\n\n JUDGMENT31.10.2022\n Dr. S. Muralidhar, CJ.1. This appeal is directed against the order dated 17th December\n 2013, passed by the learned 1st Additional Sessions Judge, Puri in\n S.T. Case No.37/365 of 2013/2012, convicting the Appellant for\n the offence punishable underSection 376of Indian Penal Code\n (IPC) and sentencing him to undergo rigorous imprisonment (RI)\n for seven years with a fine of Rs.5000/- and in default to undergo\n RI for a period of six months and further convicting the Appellant\n for the offence punishable underSection 302of IPC and\n sentencing him to undergo RI for life with a fine of Rs.5000/- and\n in default to undergo RI for six months. Both the sentences were\n directed to run concurrently.CRLA No.23 of 2014 Page 1 of 172. By the impugned judgment, the trial Court found the Appellant\nguilty of raping and murdering by setting on fire an adolescent\nminor girl of 15 years.3. The case of the prosecution as spoken to by Ranjana Swain\n(PW-1), the mother of the deceased, was that the deceased was in\nfriendly terms with the Appellant which was disapproved by the\nfamily members of the deceased. They asked the deceased to\ndiscontinue her relationship with the Appellant despite which, the\ndeceased was stated to be still seeing him.4. Further the case of the prosecution as spoken to by PW-1 was\nthat in the night of 10th May, 2012 at around 2 am, when the\ndeceased was sleeping with her grandmother in a room which was\nadjacent to the room in which PW-1 was sleeping with her\nhusband, Nimai Swain (PW-4), the Appellant entered the house\nand called the deceased away. He is stated to have sexually\nassaulted her inside the mill. On her insisting that if the Appellant\nrefused to marry her she would disclose the fact before the family\nmembers, the Appellant is stated to have poured kerosene kept in\na jerry can in the mill and set the deceased on fire.5. Hearing the shouts of the deceased, Pabitra Kumar Swain (PW-5) and Rinku Swain (PW-6) rushed to the mill as they were out to\nattend nature's call at that time. According to them, the rice mill\n(huller) was about 35 cubits from where they were. By the time\nthey reached there, they noticed the Appellant who gave PW-5 a\npush blow and escaped from the spot. PWs-5 and 6 immediatelyCRLA No.23 of 2014 Page 2 of 17tried to save the life of the deceased by pouring water on her\nbody. Thereafter, they shouted for help. Hearing their hullah,\nother family members living nearby came to the spot. They took\nthe deceased first to the house when she was still in a conscious\nstate and she disclosed before PWs 5, 6 and PW-1 that she had\nbeen called by the Appellant at the dead hour of the night to the\nrice huller, where he committed rape on her and when she insisted\nthat he should marry her, the Appellant sprinkled kerosene on her\nbody and set her on fire.6. PWs 5 and 6 arranged to take the deceased first to the hospital\nat Rebena Nuagaon and thereafter to the District Headquarters\nHospital (DHH), Puri where she was attended to by Dr.\nChintamani Tripathy (PW-8) in the burns ward. PW-8 is stated to\nhave recorded the dying declaration of the deceased at around 9\npm on 11th May, 2012. The deceased finally succumbed to the\nburn injuries and died on 13th May, 2012 around noon. Thereafter,\nher post-mortem was conducted by Dr. Susanta Kumar Panda\n(PW-9) who opined that the cause of death was due to septicaemia\nfrom anti-mortem burns which was more than 95%. It was at this\nstage that the vaginal swab was collected and sent for pathological\nexamination.7. Srikanta Kumar Tripathy (PW-10) was the Sub-Inspector of\nPolice (SI) attached to the Puri Sadar Police Station (PS), before\nwhom a written report was presented on 11th May, 2012. After\nregistering the FIR underSections 376/326/307of IPC, he took up\ninvestigation and in course thereof, on 15th May, 2012 effected theCRLA No.23 of 2014 Page 3 of 17arrest of the Appellant from village Sahanikera. After the receipt\nof the information of death of the deceased on 13th May 2012, the\noffence was converted toSection 302IPC apart fromSection 376IPC. Certain exhibits were collected from the spot and sent to the\nS.F.S.L., Rasulgarh for chemical examination. He also visited the\nSahanikera School and received an extract of the Admission\nRegister which showed the age of the victim/deceased to be 15\nyears old on the date of the incident.8. On completion of investigation, a charge sheet was laid against\nthe Appellant to which he pleaded not guilty and claimed trial. As\nmany as ten witnesses were examined on behalf of prosecution\nand for the defence; Dr. Badri Narayan Mishra (DW-1), who was\non duty as Medical Officer in the OPD/Casualty of DHH, Puri\nwas examined.9. On an analysis of the evidence, the trial Court came to the\nconclusion that the prosecution had proved the charges against the\nAppellant on both counts of offences i.e., underSections 302and376of IPC, beyond all reasonable doubt and proceeded to convict\nand sentence him as noted hereinbefore.10. The findings of the trial Court were as under:(i) The evidence of PWs 5 and 6 proved that the Appellant was\nlast seen with the deceased; while he was running away from the\nspot, he gave a push to PW-5;CRLA No.23 of 2014 Page 4 of 17(ii) From the version of PWs 2, 5 and 6, it was plain that the\nAppellant and the deceased were not the strangers to the mill\nbecause they had visited it often in the past;(iii) PW 2 stated that he had kept the jerrycan of kerosene near the\nelectric motor along with a match box and this was not unknown\nto the Appellant, since he had visited the mill on many occasions;(iv) Although PW 7, the nurse on duty was declared hostile, in her\nexamination-in-chief she admitted that on 11th May 2012, the\ndeceased had been admitted in the burns ward and that on that\ndate, PW-8 had recorded her dying declaration at 9 pm. Although\nshe denied her presence at the time of recording it, the fact of\nrecording of the dying declaration by PW-8 was admitted by her;(v) PW-8 in his cross-examination did admit that the deceased had\nsuffered 95% burns and was in a critical condition but he added\nthat he had recorded the statement of the deceased when she was\nconscious, although he did not make an endorsement on the body\nof the dying declaration that she was in a fit state of mind.Further, it was also not recorded in the question-answer form. The\nmother of the victim, i.e., PW-1, who was present throughout, was\nnot made a witness to the dying declaration. Since the victim\nsurvived for more than 48 hours thereafter, it could be presumed\nsafely that she was in a fit state of mind at the time of making the\ndying declaration;CRLA No.23 of 2014 Page 5 of 17(vi) The evidence of Dr. Badri Narayan Mishra (DW-1) did not\nweaken the case of the prosecution. He admitted the fact that he\nhad not mentioned in the bed head ticket about the state of\nconsciousness of the deceased and he also maintained studied\nsilence with regard to the nature of the burn injuries;(vii) The mere failure while PW-1 to disclose at the time of\nadmission of the deceased about her being raped and burnt would\nnot throw doubts of the truth of her version "as such she might\nhave thought it prudent being scared and scarred not to disclose\nthe same before the doctor in the earliest opportunity";(viii) The vaginal swab was sent nearly four days after the\noccurrence, when the entire body of the victim was completely\nburnt and, therefore, the pathological report with regard to the\npresence of spermatozoa in the vaginal swab "cannot be safely\naccepted";(ix) PW-9, the doctor who conducted the post-mortem, admitted\nthat he had not reflected in his report that there was a smell of\nkerosene in the body but, the fact that the deceased was burnt\nalive by the Appellant was evident from the statement of PW-1;(x) Although PWs-1 to 6 were related witnesses, it was unnatural\nto expect in an offence of this nature, witnesses other than close\nfamily members to be available to narrate what happened. Their\nevidence was fully corroborated by the medical evidence;CRLA No.23 of 2014 Page 6 of 1711. This Court has heard the submissions of Mr. Bikram Chandra\nGhadei, learned counsel appearing for the Appellant and Ms.\nSaswata Patnaik, learned Additional Government Advocate\n(AGA) for the State.12. Mr. Ghadei submitted that where there was no certification by\nthe doctor on the body of the dying declaration that the victim was\nconscious and in a fit state of mind to make the declaration, the\ntrial Court ought not to have accepted the dying declaration.\nReliance is placed on the decision inSurinder Kumar v. State of\nHaryana2011 SAR (Criminal) 972. The mother did not endorse\nthe dying declaration as a witness despite her presence\nthroughout. Further, with the deceased having suffered 95%\nburns, it was very unlikely that she was in a fit state of mind to\nmake any statement whatsoever. The dying declaration, therefore,\nought to be discarded.Reliance is placed on the decision inNallapati Sivaiah v. Sub-Divisional Officer, Guntur A.P.2007\nSAR (Criminal) 941.13. Mr. Ghadei submitted that there was no evidence whatsoever\nof the Appellant having committed rape on the deceased. In Ext-\n15, it had been stated that there was no sign of any recent physical\nintercourse or presence of any spermatozoa on the vaginal swab.\nAt the spot of occurrence, there were no burn marks. Mr. Gadhei\nsubmitted that from the evidence of DW-1, it appeared that the\ninformation given by the attendants of the deceased was that the\nburn had been caused by self-immolation by pouring kerosene at\nhome. It was submitted that the trial Court ought to have held thatCRLA No.23 of 2014 Page 7 of 17she committed suicide being depressed about the decision held in\nthe meeting in the evening hours that the deceased should not\nhave any further relationship with the Appellant.14. Mr. Gadhei submitted that since all the PWs were related\nwitnesses and inimical to the Appellant, their testimonies ought\nnot to be accepted. Their evidence was also not fully corroborated\nby the medical evidence. Therefore, it was unsafe to base the\nconviction of the Appellant on such evidence. Reliance is placed\non the decisions inState of Rajasthan v. Yusuf2009 SAR\n(Criminal) 677, Arun Bhanudas Pawar v. State of Maharashtra\n(2010) 45 OCR (SC)-494,Waikhom Yaima Singh v. State of\nManipur(2011) 49 OCR (SC)-609,Gopal Singh v. State of M.P.(2010) 46 OCR (SC)-739 andState of Orissa v. Tulu Dalabehera(2009) 44 OCR-800.15. Mrs. Saswata Patnaik, learned Additional Government\nAdvocate appearing for the State on the other hand, submitted that\nthe dying declaration was correctly recorded by PW-8, who being\na government servant was the attending doctor at the DHH, Puri.\nThere was no need for PW-8 to fabricate any evidence as he was\nnowhere concerned with either the deceased or the Appellant.\nReference was made to the Constitution Bench decision of the\nSupreme Court inLaxman v. State of Maharashtra(2002) 6 SCC\n710, which clarified that even in the absence of certification by\nthe doctor as to the mental status of the deceased, the dying\ndeclaration could be relied upon. It was submitted that the other\ndecisions cited by learned counsel for the Appellant wereCRLA No.23 of 2014 Page 8 of 17distinguishable on facts. In the present case, not only is the last\nseen evidence fully proved by PWs-5 and 6 but, PW-8 has proved\nthe dying declaration of the deceased and has also withstood the\ncross-examination of the defence in that regard. The medical\nevidence also has corroborated the dying declaration.16. The above submissions have been considered. The crucial\npiece of evidence in the present case is the dying declaration,\nmade by the deceased, naming the Appellant as the person who\nraped her and then set her on fire when she insisted that he should\nmarry her. The legal position in regard to the dying declaration\nhas been explained inSham Shankar Kankaria v. State of\nMaharashtra(2006) 13 SCC 165 as under:"10. This is a case where the basis of conviction of the\n accused is the dying declaration. The situation in which\n a person is on deathbed is so solemn and serene when he\n is dying that the grave position in which he is placed, is\n the reason in law to accept veracity of his statement. It is\n for this reason the requirements of oath and cross-\n examination are dispensed with. Besides, should the\n dying declaration be excluded it will result in\n miscarriage of justice because the victim being generally\n the only eye-witness in a serious crime, the exclusion of\n the statement would leave the Court without a scrap of\n evidence.11. Though a dying declaration is entitled to great\n weight, it is worthwhile to note that the accused has no\n power of cross- examination. Such a power is essential\n for eliciting the truth as an obligation of oath could be.\n This is the reason the Court also insists that the dying\n declaration should be of such a nature as to inspire full\n confidence of the Court in its correctness. The Court has\n to be on guard that the statement of deceased was not as\n a result of either tutoring, or prompting or a product of\n imagination. The Court must be further satisfied that theCRLA No.23 of 2014 Page 9 of 17deceased was in a fit state of mind after a clear\n opportunity to observe and identify the assailant. Once\n the Court is satisfied that the declaration was true and\n voluntary, undoubtedly, it can base its conviction\n without any further corroboration. It cannot be laid\n down as an absolute rule of law that the dying\n declaration cannot form the sole basis of conviction\n unless it is corroborated. The rule requiring\n corroboration is merely a rule of prudence. This Court\n haslaid down inseveral judgments the principles\n governing dying declaration, which could be summed up\n as under as indicated inPaniben v. State of Gujarat(1992) 2 SCC 474 (SCC pp.480-8 1, para 18).(Emphasis supplied)(i) There is neither rule of law nor of prudence that\n dying declaration cannot be acted upon without\n corroboration. (SeeMunnu Raja v. State of M.P., (1976)\n 3 SCC 104)(ii) If the Court is satisfied that the dying declaration is\n true and voluntary it can base conviction on it, without\n corroboration. (SeeState of U. P. v. Ram Sagar Yadav(1985) 1 SCC 552 and Ramawati Devi v. State of Bihar\n (1983) 1 SCC 211).(iii) The Court has to scrutinize the dying declaration\n carefully and must ensure that the declaration is not the\n result of tutoring, prompting or imagination. The\n deceased had an opportunity to observe and identify the\n assailants and was in a fit state to make the declaration.\n (SeeK. Ramachandra Reddy v. Public Prosecutor(1976) 3 SCC 618).(iv) Where dying declaration is suspicious, it should not\n be acted upon without corroborative evidence. (SeeRasheed Beg v. State of M.P.(1974) 4 SCC 264).(v) Where the deceased was unconscious and could\n never make any dying declaration the evidence with\n regard to it is to be rejected. (SeeKake Singh v. State of\n M.P.1981 Supp. SCC 25).CRLA No.23 of 2014 Page 10 of 17(vi) A dying declaration which suffers from infirmity\n cannot form the basis of conviction. (SeeRam Manorath\n v. State of U.P.(1981) 2 SCC 654).(vii) Merely because a dying declaration does contain\n the details as to the occurrence, it is not to be rejected.\n (SeeState of Maharashtra v. Krishnamurti Laxmipati\n Naidu, 1980 Supp SCC 455).(viii) Equally, merely because it is a brief statement, it is\n not to be discarded. On the contrary, the shortness of the\n statement itself guarantees truth. (SeeSurajdeo Ojha v.\n State of Bihar1980 Supp SCC 769).(ix) Normally the Court in order to satisfy whether\n deceased was in a fit mental condition to make the dying\n declaration look up to the medical opinion. But where\n the eye-witness said that the deceased was in a fit and\n conscious state to make the dying declaration, the\n medical opinion cannot prevail. (SeeNanhau Ram v.\n State of M.P., 1988 Supp SCC 152).(x) Where the prosecution version differs from the\n version as given in the dying declaration, the said\n declaration cannot be acted upon. (SeeState of U.P. v.\n Madan Mohan, (1989) 3 SCC 390).(xi) Where there are more than one statement in the\n nature of dying declaration, one first in point of time\n must be preferred. Of course, if the plurality of dying\n declaration could be held to be trustworthy and reliable,\n it has to be accepted. (See Mohanlal Gangaram Gehani\n v.State of Maharashtra, (1982) 1 SCC 700)"17. The above legal position was reiterated inPuran Chand v.\nState of Haryana(2010) 6 SCC 566 and Panneerselvam v. State\nof Tamil Nadu (2008) 17 SCC 190.CRLA No.23 of 2014 Page 11 of 1718. In the present case, the dying declaration unequivocally and\nunambiguously points to the guilt of the Appellant on both counts\ni.e., for the offence underSection 376of IPC and of murder underSection 302of IPC. This is not a case where inconsistent dying\ndeclarations have been made by the deceased. The fact remains\nthat although she was burnt alive at around 2 am on 10th May,\n2012, she remained alive till the noon of 13th May, 2012, i.e., for\nwell over three days. Further, she remained alive for almost 48\nhours after the making of the dying declaration at 9 pm on 11th\nMay, 2012. Her state of mind to make the dying declaration has to\nbe assessed in the above background notwithstanding that she\nsuffered 95% burns.19. PW-8 is obviously an experienced doctor and was fully aware\nof the gravity of the situation as far as the making of the dying\ndeclaration was concerned. He clearly mentions "at the time of\nrecording the statement, though she was able to talk but was\nsuffering from severe pain". In his cross-examination, he\nmentioned inter alia as under:"4.....when I visited the patient at about 12.05 P.M. she\n was in critical condition having 95% burn injuries and\n was beyond my control. As such she was referred to\n Cuttack medical. Throughout the treatment the mother\n of the patient was present by her side and expressed her\n inability to shift the patient to Cuttack hospital and\n preferred to treat her at the Headquarters hospital, Puri.\n There was 3 degrees of consciousness namely,\n conscious, subconscious and non-conscious and usually\n unconscious and sub-conscious state it can be safely\n presumed that a person cannot speak rationally.\n However, in a conscious state though a person is capable\n of revealing her mind rationally in the event of any\n serious injury, but it cannot be discarded in some casesCRLA No.23 of 2014 Page 12 of 17even in conscious state of mind also in extreme case of\n injury, one can speak in-coherently in state of\n delirium.xxx"20. The above statement in cross-examination indicates that PW-8\nwas aware of what he was doing. There was no need for him to\nwrite up a dying declaration which was never made. Merely\nbecause he did not endorse on the bed head ticket that the victim\nwas in a conscious state would not mean that no such statement\nwas ever made by her. The same also holds good for the criticism\nthat the declaration was not in a question-answer form. These are\nnot inviolable mandatory requirements for the acceptance of a\ndying declaration. On the other hand, a Constitution Bench of the\nSupreme Court inLaxman v. State of Maharashtra(supra)\nexplained as under:"3...The court, however has always to be on guard to\n see that the statement of the deceased was not as a result\n of either tutoring or prompting or a product of\n imagination. The court also must further decide that the\n deceased was in a fit state of mind and had the\n opportunity to observe and identify the assailant.\n Normally, therefore, the court in order to satisfy whether\n the deceased was in a fit mental condition to make the\n dying declaration look up to the medical opinion. But\n where the eyewitnesses state that the deceased was in a\n fit and conscious state to make the declaration, the\n medical opinion will not prevail, nor can it be said that\n since there is no certification of the doctor as to the\n fitness of the mind of the declarant, the dying\n declaration is not acceptable. A dying declaration can be\n oral or in writing and in any adequate method of\n communication whether by words or by signs or\n otherwise will suffice provided the indication is positive\n and definite. In most cases, however, such statements\n are made orally before death ensues and is reduced to\n writing by someone like a magistrate or a doctor or a\n police officer. When it is recorded, no oath is necessaryCRLA No.23 of 2014 Page 13 of 17nor is the presence of a magistrate is absolutely\n necessary, although to assure authenticity it is usual to\n call a magistrate, if available for recording the statement\n of a man about to die. There is no requirement of law\n that a dying declaration must necessarily be made to a\n magistrate and when such statement is recorded by a\n magistrate there is no specified statutory form for such\n recording. Consequently, what evidential value or\n weight has to be attached to such statement necessarily\n depends on the facts and circumstances of each\n particular case. What is essentially required is that the\n person who records a dying declaration must be satisfied\n that the deceased was in a fit state of mind. Where it is\n proved by the testimony of the magistrate that the\n declarant was fit to make the statement even without\n examination by the doctor the declaration can be acted\n upon provided the court ultimately holds the same to be\n voluntary and truthful. A certification by the doctor is\n essentially a rule of caution and therefore the voluntary\n and truthful nature of the declaration can be established\n otherwise."21. The Court is not persuaded that in the present case the dying\ndeclaration was not voluntarily made by the deceased or not in a\nconscious state of mind and that it should be discarded.InSurinder Kumar v. State of Haryana(supra) at the relevant time\nnot only was the deceased brought to the hospital with 100%\nburns, but at the time when the Magistrate recorded her statement,\nthe treating doctor was not present. In the present case, the doctor\nwas very much present when the statement was made and in fact\nit is the doctor who recorded it. Each case, therefore, turns on its\nown facts and it cannot be laid down as inviolable general rule\nthat without certification of the state of consciousness of the\ndeceased, a dying declaration recorded without such endorsement\nshould be rejected.CRLA No.23 of 2014 Page 14 of 1722. Again inNallapati Sivaiah v. Sub-Divisional Officer, Guntur\nA.P.(supra) there was no evidence of the details of any treatment\nadministered to the victim. The doctor, who was said to have been\npresent at the time of recoding of the dying declaration, was not\nexamined. Moreover, there were two dying declarations which\nwere inconsistent. In the present case, however, there is only one\ndying declaration and it is not shown to be suffering from any\ninternal inconsistency. The second factor here is that the dying\ndeclaration is consistent with what was spoken by the deceased\nfirst, soon after the incident, in front of the family members which\nin turn has been consistently spoken to by PWs 1, 5 and 6.Therefore, the decision inNallapati Sivaiah v. Sub-Divisional\nOfficer, Guntur A.P.(supra), is also of no assistance to the\nAppellant in the present case.23. Turning now to the decision inState of Rajasthan v. Yusuf(supra), it is found that there was an inherent attempt to falsely\nimplicate a large number of family members of the accused. That\nwas what perhaps persuaded the Court to discard the dying\ndeclaration. However, in the present case, there is no attempt to\nimplicate anyone other than the Appellant himself. The dying\ndeclaration made in the present case lends assurance to its truth\nand credibility. The other decisions, cited by learned counsel for\nthe Appellant also appeared to have turned on its own facts and do\nnot persuade the Court to discard the dying declaration made by\nthe deceased.CRLA No.23 of 2014 Page 15 of 1724. As regards as the presence of the accused at the scene of\ncrime, both PWs 5 and 6 have consistently spoken about the\nAppellant running away from the spot when they reached there.\nPW 5 stated that the accused gave him a 'push blow'. This was\ncorroborated by PW 6. Therefore there could be no mistake as\nregards his identity. Both PWs 5 and 6 were subject to detailed\ncross-examination, which they withstood. Further, when the IO\n(PW 10) conducted a raid at the house of the accused the next\nmorning, he was absconding. He could be traced only on 15th May\n2012. Consequently, the presence of the accused at the scene of\ncrime soon after its commission by him, stands conclusively\nproved by the prosecution. The alternative plea that the victim\nimmolated herself stands belied by the fact that the accused ran\naway from the spot and made no attempt to save her.25. The medical evidence does show that the death was due to\nante-mortem burns which were extensive. The forensic evidence\nhas also supported the case of the prosecution regarding the\ndeceased being killed by burning.26. The dying declaration implicates the accused of both offences\nviz., of rape and murder. Although the vaginal swab did not\nindicate the presence of spermatozoa, it has to be recalled that the\nswab was itself taken three days after the deceased was admitted\nto the hospital and in a condition of 95% burns. Therefore, the\nmere absence of forensic corroboration of the dying declaration\non this aspect will not falsify the dying declaration, which has\notherwise been held to be voluntary and truthful. Consequently,CRLA No.23 of 2014 Page 16 of 17this Court concurs with the trial Court as far finding the Appellant\n guilty of the offence underSection 376IPC is concerned.27. The net result is that there is no merit in this appeal and it is\n dismissed as such.(S. Muralidhar)\n Chief Justice\n\n\n (Chittaranjan Dash)\n Judge\n\n\n\nS. Behera/ Jr. Steno.CRLA No.23 of 2014 Page 17 of 17 |
669d0461-61bb-5e9f-8762-38feb4653f58 | court_cases | Bangalore District CourtAloukik Corporation vs S & S Ventures on 4 January, 2022IN THE COURT OF XXXVIII ADDL.CHIEF METROPPOLITAN\n MAGISTRATE, BENGALULRU\n Present : Sri. P. Shivaraj,\n B.Com. LL.B.\n XXXVIII A.C.M.M Bengaluru\n Dated this the 04th day of January 2022\n C.C.NO:12198/2020\nCOMPLAINANT: : Aloukik Corporation\n Registered by SPA holder\n Sri. Ketan B. Maniar\n Having Office at : 1/1, 5th Main,\n Chamarajpet,\n Bengaluru560018.\n (Rep. By. Sri. G.S Prasanna\n Kumar and others Advocates)\n Vs/\nAccused : 1.S & S Ventures\n A partnership firm Having its\n Office at Plot: 15B/6, Part2,\n Jigani Indl. Area, Jigani560106,\n Anekal Tq, Bengaluru District\n Rep.by its Partner.\n 2. Mallanna Patil ,\n Partner, S&S Ventures,\n Plot, 15B/6, Part2,\n Jigani Indl.Area, Jigani560106,\n Anekal Taluk,\n Bengaluru District.\n 3. Sridhar Kallur,\n Partner, S&S Ventures,\n Plot, 15B/6, Part2,\n Jigani Indl.Area, Jigani560106,\n Anekal Taluk,\n Bengaluru District.\n\n (Rep. By Sri. A1,2 &3\n Shridhara Murthy and other\n Advocates)\n 2 C.C.No.12198/2020\n\n\n\nOffence : U/Sec.138of N.I. Act of 1881.\nPlea of accused : Pleaded not guilty.\nFinal Order : Accused No.2 and 3 are\n convicted.\nDate of Judgment : 04.01.2022.\n\n\n\n (P. SHIVARAJ)\n XXXVIII A.C.M.M.\n Bengaluru.\n\n : J U D G E M E N T :\n\n The Complainant is a proprietor ship concern, the SPA\nholder of the proprietrix has filed the private complaint U/s\n200 ofCr.P.C. against the accused persons alleging that, they\nhave committed the offence punishable undersection 138of\nNegotiable Instrument Act, 1881. (For short N.I.Act,1881)\n 2. Complainant case is as follows:\n The complainant is proprietor ship concern and it is\ndealing with the business of manufacture of Armour\npolythene sheets. Accuses no.1 is the partnership firm, and\nAccused no.2 and 3 are the partners of the accused no.1\nfirm. Complainant has supplied and delivered materials of\nworth Rs.6,43,151.35/ under various invoices to the\naccused persons as per their purchase order. Accused\npersons have failed to pay the aforesaid invoices amount.\nAccordingly in order to repay the aforesaid said amount,\naccused persons have issued the following cheques, in favour\n 3 C.C.No.12198/2020\n\n\n\nof the complainant, which are drawn on State Bank of India,\nJigani Brach,Bengaluru.\n\n Date Cheque no. Amount\n 14.02.2020 951351 1,66,089/-\n 14.02.2020 951352 2,24,901/-\n 14.02.2020 951353 2,52,160/-\n 3. As per the instructions of the accused persons,\ncomplainant presented the aforesaid cheques for encashment\nthrough his banker. The aforesaid cheques was returned\ndishonoured/unpaid, with an endorsement "Funds\nInsufficient" to that effect, complainant received the cheques\nreturn memo's from his banker on 18.02.2020 Complainant\nfirm informed the aforesaid fact to the accused persons and\nhe has issued legal notice to the accused persons on\n11.03.2020 with a request and demand to repay the cheques\namount with in fifteen days. The said notice was duly served\non them on 12.03.2020. Accused persons have not chosen to\ngive reply nor they paid the cheques amount. Complainant\nalleged that, accused persons have intentionally not\nmaintained the sufficient amount in their bank account to\nhonor the cheques. In as much, accused persons have\ncommitted the offence punishable undersection 138of\nN.I.Act. On the aforesaid allegations, the complainant firm\napproached this court and prays this court to punish the\naccused persons and to award the compensation on them.\n 4 C.C.No.12198/2020\n\n\n\n 4. After registering the case, cognizance taken of the\noffence punishable U/s 138 N.I.Act and sworn statement of\nthe SPA holder of the complainant is recorded. On finding\nprimafacie case process was issued to the accused persons.\n 5. After service of the summons to the accused\npersons, A2 and 3 have appeared before this court through\ntheir counsel, and they got released on bail. Papers of the\nprosecution were supplied to them. The substance of the\naccusation is readout to them, in the language known to\nthem, they pleaded not guilty and submit that, they are\nhaving defence to make.\n 6. In order to prove the guilty of the accused persons,\nthe SPA holder of the complainant, examined herself as\nPW1, produce and marked 21 documents which are at\nEx.P1 to 21 are got marked and Ex.P22 to 25 are marked by\nway of confrontation.\n 7. Statement of A2 and 03 U/s 313 ofCr.P.C. is\nrecorded. They have denied the same and submit that, they\nwill lead the evidence. Accused No.02 examined himself as\nDW1 produce and marked 01 document.\n 8. Both the parties are permitted to file their written\narguments on merits, counsel appearing for the complainant\nfiled the written arguments. I have heard the oral arguments\nfrom the counsel appearing fro accused persons. I have\nperused the written arguments along with material available\non record.\n 5 C.C.No.12198/2020\n\n\n\n Complainant counsel has relied on\na) Bir Singh Vs. Mukesh Kumar - (2019) 4 SCC 197\nb) K. N. Beena Vs. Munikyappa and Another - (2001) 8 SCC\n458\n 9. The following points that arise for my\ndetermination:\n :P O I N T S:\n 1. Whether the complainant proves beyond\n reasonable doubt that, the accused\n no.02 and 03 have committed the\n offence punishable U/s 138 of theN.I\n Act, as alleged in the Complaint?\n\n 2. What Order?\n\n 10. After carefully going through the materials\navailable on record and taking into consideration of facts\nand circumstances of the case, my finding to the above\npoints are as follows:\n Point No.1: In the Affirmative.\n Point No.2:As per final order, for the following:\n REASONS\n\n 11. Point No.1: PW1 being the SPA holder of the\ncomplainant, he reiterated the complaint averments in his\nsworn statement affidavit, which is treated as his\nexaminationinchief.\n Ex.P.1 is the special power of attorney executed by the\nproprietrix of the (complainant) proprietary concern, in\nfavour of PW1. The recitals reveals that, PW1 is authorized\n 6 C.C.No.12198/2020\n\n\n\nto depose before this court on behalf of the complainant\nproprietor ship concern .\n The accused has not disputed the issuance of cheques\nto the complainant and he has admitted his signatures on\nthe said cheques. In as much the initial statutory\npresumption attached to the cheques as perSec.118(a)and139of N.I. Act has to be raised in favour of the\ncomplainant.\n 12. Accused persons cross examined the PW1 to rebut\nthe statutory presumption attached to the cheques. In the\ncrossexamination of PW1, he categorically deposed that, he\nis having personal knowledge of the transaction transacted\nwith the accused persons and is having personal knowledge\nof the case. He denied the suggestion that, notice as per\nEx.P.17 is not served to the accused persons. He admitted\nthat, he has not stated the address of the accused persons\nas stated by them selves in their partnership deed.\n 13 Accused no.2 contended that, they have not placed\nany purchase order with the complainant and complainant\nhas fabricated the payment vouchers and invoices. They\nfurther contended that, they have stopped their business\nwith complainant in the year 2018, since they are not\nsatisfied with their service. He further contended that, the\ncheques in question were issued to the complainant long\nback as a security for their earlier transaction. The\n 7 C.C.No.12198/2020\n\n\n\ncomplainant has retained the said cheques and he has\ncome up with this false complaint.\n 14. In the crossexamination of DW1 he categorically\nadmitted his signature on the cheques in question which\nare at Ex.P5, Ex.P10 and Ex.P15. He admitted that,\npayment voucher as per Ex.P4, 9 and 14 are raised in the\nname of complainant. He admitted that, invoices/bills\nwhich are at Ex.P2, Ex.P3, Ex.P7, Ex.P8, Ex.P12 and\nEx.P13 are raised in the name of their firm name. He\ndeposed that, they have not received the items stated in the\ninvoices and he denied the inward seal affixed on the\ninvoices but he has not chosen to tender his/their firm's\ninward seal nor explained the valid reason. He admitted\nthat the earlier cheque given to complainant from (his firm)\nwas honored and encashed and further perverse to his\ndefence, he admitted that complainant was supplying good\nquality of materials to him. He contended that, he is not\nliability to pay any amount to the complainant.\n 15. On care full perusal of the oral and documentary\nevidence available on record it is evident that, the address\nof the accused persons as stated in the cause title of the\ncomplaint, corroborates with the address of the accused\npersons as stated in the payment vouchers and invoices. It\nis also true that, summons of the accused persons are\nissued to their addresses as stated in the cause title and it\nwas served on them on the aforesaid address on\n 8 C.C.No.12198/2020\n\n\n\n10.11.2020. The aforesaid facts establishes that,\ncomplainant has issued the statutory notice underSec.138(b)of the N.I. Act to the correct address of the\naccused persons. DW1 has admitted that he/they never\ncommunicated nor they have made any correspondence\nwith the complainant from their new address. It is not the\ndefence of the accused persons that the complainant has\ngiven their in correct address. Accused persons have given\ntheir firm address as stated in the complaint cause title to\nthe GST authorities and they have not disputed the same\nsuch being the case accused persons are estopped from\ndenying their address as given by the complainant in the\ncause title of the complaint.\n 16. It is also true and obvious that, it is impossible for\nthe complainant to know the address of the accused\npersons as stated by themselves in their partnership deed.\nIn the crossexamination of PW1, accused has not\nsuggested their correct address nor they have denied\ncorrectness of the address as stated by the complainant in\nthe cause title of the complaint and also in the payment\nvoucher and invoices. Such being the case, the aforesaid\nmaterial facts establishes that, complainant has issued the\nmandatory notice to the correct address of the accused\npersons.\n 17. In the crossexamination of PW1, there is not even\na suggestion regarding the contention of fabrication of\n 9 C.C.No.12198/2020\n\n\n\ninvoices and payment vouchers as contended by the\naccused persons. The aforesaid defence has to be\nspecifically pleaded and proved by placing the probable\nevidence and the accused persons have failed to comply the\nsame. Further the nature and manner of creation of\ninvoices and vouchers is neither suggested to PW1 nor it is\nproved by placing probable evidence and it can not be\naccepted. Further more there is not even an iota of\nsuggestion to the PW1 regarding the contention that,\naccused persons have issued the cheques in question to the\ncomplainant as a security for their earlier transactions. If\nat all if the aforesaid contention is true, the accused\npersons could have effortlessly suggest the details to the\nsaid cheques to PW1 and they could have initiate the lawful\naction against the complainant to take back or\nreceive/recover the cheques given to the complainant.\nAdmittedly, till this day as admitted by DW1, no effort is\nmade by the accused persons for the same. In as much the\naforesaid contention cannot be accepted as it is not\nprobable.\n 18. Furthermore in the crossexamination of PW1\nnothing is elicited to disbelieve or disprove the invoices and\npayment vouchers. On careful perusal of invoices and\npayment vouchers it is evident that, inward seal of accused\nNo.1 firm is affixed on the invoices and accused persons\nhave raised the payment voucher in favour/in the name of\n 10 C.C.No.12198/2020\n\n\n\nthe complainant and the said fact is not disputed by them.\nFurthermore it can be seen from the entries in payment\nvouchers that, the accused persons have\nmentioned/revealed the cheque number, through which\nthey are intending to make the payment of invoices amount\nto the complainant as stated in the payment voucher itself.\nNo doubt the details of payment vouchers corroborates with\ninvoices and the said documents are in conformity with the\namount stated in the cheques in question and it\ncorroborates with oral testimony of PW1 and complaint\naverments. The aforesaid facts fortifies the complainant\nversion and falsifies and crumbles the feeble contention of\nthe accused persons.\n 19. It is also true that, nothing is elicited from the\nmouth of PW1 to disbelieve the genuineness of the aforesaid\ndocuments. Considering the contention/defence of accused\npersons and the oral testimony of PW1 and the\ndocumentary evidence available on record, I am of the\nopinion that the initial presumptions attached to the\ncheques in question cannot be said to have been rebutted\nby the accused persons. Added to it no probative value can\nbe attached to the unsubstantiated contention/defence of\nthe accused persons. There is no material on record to\naccept the unsubstantiated contention of the accused\npersons. No doubt accused persons have fail to show the\nreasonable possibility of non existence of alleged debt and\n 11 C.C.No.12198/2020\n\n\n\nthe presumed facts. The materials put forth by the accused\npersons are not sufficient to revert back the burden on the\ncomplainant to prove its case beyond reasonable doubt.\n Coming to the arguments, learned counsel appearing\nfor the accused argued that PW1 has no authority under\nSPA to depose before the court.\n 20. PW1, being the agent of the complainant\nproprietary concern, he is appointed and identified by the\npropriterix and the SPA is executed before the competent\nauthority, No doubt it is the administrative\ndecision/arrangement made by the complainant and PW1\nhas diligently and bonafidely acted up on it and court has\naccepted it. The principal who executed SPA, can question\nthe act of his attorney and not the others. PW1 has pleaded\nand repeatedly deposed that he is having personal\nknowledge about the transaction transacted with the\naccused persons and he knew the facts of the case, Such\nbeing the case, aforesaid argument can't be accepted and\nthe oral testimony of PW1 can't be ignored and brush aside\nin view of the principles laid down by the Supreme Court of\nIndia in A.C.N arayanan V/s State of Maharashtra.\n 21. Further Counsel argued that the validity period of\nthe cheque in question is already elapsed and he relied on\nthe notification of the RBI to that effect I..e, RBI/2011\n12/251, dated 04.11.2011 and counsel further argued\nthat, complainant has filed this case by filling up the\n 12 C.C.No.12198/2020\n\n\n\ncheques with wrong details. It is true that, the validity of the\ncheque has to be computed from the date of the cheque\n(Date mentioned on the cheque) and in view ofSec.20of the\nN.I. Act the aforesaid argument cannot be accepted and\nlearned counsel appearing for the complainant has relied on\nBir Singh Vs. Mukesh Kumar wherein Hon'ble Supreme\nCourt of India has categorically dealt with aforesaid fact and\nit is applicable to the present case.\n\n 22. Furthermore, counsel argued that, complainant\nhas misused the earlier cheques given as security for their\nearlier transaction. Apparently, accused persons have failed\nto establish the aforesaid defence by put forthing\npreponderance of probabilities. Added to it in I.C.D.S.\nLimited Vs. Beena Shabeer, the Hon'ble Supreme Court of\nIndia has interpreted the phrase "Any cheque" inSec.138of the N.I. Act . In view of the principles laid down in the\naforesaid authority, the aforesaid arguments cannot be\naccepted.\n\n 23. Counsel further argued that, complainant has not\narrayed the proprietorship concern as a party to the\nproceedings. It is true that, proprietor and proprietorship\nconcern are one and the same and they stood on the same\nfooting as of a sole trader and sole trading concern. The\naforesaid fact is categorically discussed by the Hon'ble\nSupreme Court of India in M/s Shankar Finance and\n 13 C.C.No.12198/2020\n\n\n\nState of Andra Pradesh and others and counsel appearing\nfro the complainant has argued in accordance with the\nprinciples laid down in the aforesaid case and it has to be\naccepted. Further considering the principles laid down in\nthe aforesaid authorities I do not find any force in the\narguments canvassed by the learned counsel appearing for\naccused persons on the aforesaid discussed facts. Hence\nwith the aforesaid discussion based on the materials\navailable on record and by considering the facts, and\nattending circumstance of the case, I am answering this\npoint in the affirmative.\n\n 24. Point No.2: In view of the reasons and discussion\nmade above, I proceed to pass the following:\n ORDERExercising the power conferred U/sec\n 255(2) of Cr.p.c. accused no.2 and 3 are\n convicted for the offence punishable\n U/s.138 of theNegotiable Instrument\n Act,1881.Accused no.2 and 3 are together sentenced\n to pay a fine amount of Rs.7,23,330/to the\n complainant proprietary concern in default\n they have to under go simple imprisonment\n independently for one year.Out of the said fine amount, an amount of\n Rs.7,20,330/ is ordered to be paid to the\n complainant as compensation. The remaining\n amount of Rs.3,000/ shall be confiscated to\n the state towards litigation expenses.14 C.C.No.12198/2020The bail bond and surety bond of accused\n no.2 and 3 shall continue for next 6 months as\n per Sec.437A of Cr.P.C.Office is directed to supply the free copy\n of this judgment to the accused persons\n forthwith.(Dictated to the stenographer and transcribed and computerized by her, corrected by me and then pronounced\nby me in the open court on 4th day of January 2022.)\n\n\n\n\n (P. SHIVARAJ)\n XXXVIII A.C.M.M.\n Bengaluru.ANNEXURES:1) List of Witness Examined on be half of Complainant\nfirm:PW.1 : Ketan B Maniar S/o B.C Maniar2) List of exhibits marked on be half of Complainant firm:Ex.P.1 : Original Special Power of Attorney.\nEx.P.2 to 3 : 02 Original Tax invoice.\nEx.P.4,9,14 : Payment Vouchers.\nEx.P.5&(a) : Original cheque and signature.(Cheque bearing no. 951351 dt: 14.02.2020)\nEx.P.06,11,16 : Cheque return memo's.\nEx.P.07,8 : 02 Invoices bills.Ex.P.10&(a) : Original cheque and signature\n (Cheque bearing no. 951352 dt: 14.02.2020)\nEx.P.12,13 : 02 Invoices Bills given by complainant.\nEx.P.15&(a) : Original cheque and signature\n (Cheque bearing no. 951353 dt: 14.02.2020)\nEx.P.17 : Office copy of Legal notice sent to the\n accused.Ex.P.18 : 06 Postal receipts.15 C.C.No.12198/2020Ex.P.19 : 6 Postal Track consignments.\nEx.P.20 &21 : Form GST REG06.Ex.P.22 to 25 : Intimation of Change in Address.(Marked through confrontation.)3) List of exhibits marked on be half of the Accused No.02:\n\nDW.1 : Mallannapatil.4) List of Documents Marked on be half of the Accused no.02 :\n\nEx.D.1 : Partnership Deed.(P. SHIVARAJ)\n XXXVIII A.C.M.M.\n Bengaluru. |
e302bfdc-a98f-50ea-a2a1-a077c66ae19a | court_cases | Madhya Pradesh High CourtMahakoshal Shaheed Smarak Trust vs The State Of M.P. & Ors. on 2 March, 2023Author:Maninder S. BhattiBench:Maninder S. Bhatti1\n IN THE HIGH COURT OF MADHYA PRADESH\n AT JABALPUR\n BEFORE\n HON'BLE SHRI JUSTICE MANINDER S. BHATTI\n ON THE 2 nd OF MARCH, 2023\n WRIT PETITION No. 5385 of 1999\n\n BETWEEN:-\n MAHAKOSHAL SHAHEED SMARAK TRUST (MADHYA PRADESH)\n\n .....PETITIONER\n (BY SHRI R.P. AGRAWAL - SENIOR ADVOCATE WITH SHRI RAHUL GUPTA -\n ADVOCATE)\n\n AND\n 1. THE STATE OF M.P. & ORS. (MADHYA PRADESH)\n\n 2. MUNICIPAL CORPORATION THROUGH COMMISSIONER\n JABALPUR (MADHYA PRADESH)\n\n 3. SHRI RAMESH THETE COMMISSIONER MUNICIPAL\n CORPORATION JABALPUR (MADHYA PRADESH)\n\n .....RESPONDENTS\n (BY SHRI ARPAN PAWAR - ADVOCATE)\n\n "Reserved on: 30/01/2023"\n "Pronounced on: 02/03/2023"\n\n " T his petition having been heard and reserved for orders, coming on for\n pronouncement this day, the Court pronounced the following:\n ORDERThe petitioner has filed this petition under Article 226/227 of the Constitution of\n India while praying for the following reliefs:-" (i) So called show cause and enquiry contained in Annexure P/16 be quashed and\n the enquiry proceeding initiated pursuant thereto be quashed.(1-A) The order dated 07.12.1999/08.12.1999 Annexure P/18 issued by the 2nd\n respondent be quashed.Signature Not VerifiedSigned by: ASTHA SENSigning time: 3/4/20231:52:51 PM2(ii) The show cause notice dated 19.03.2012 contained in Annexure P/17-A be\n restrained from re-entering into the trust ground and take possession of the same.(iii) The respondent No.2 be restrained from interfering with the affairs of the trust.(iv) The Second respondent be also directed to renew lease and refrain from\n enquiring into the affairs to the trust.(v) Any other relief deemed fit be also granted."2. The facts as elaborated in the petition reflect that the petitioner' Trust was\n created on the strength of a Trust Deed dated 31.10.1947 contained in Annexure P/1 and\n the said Trust was then registered under the provisions of M.P. Public Trust Act, 1951\n vide Annexure P/2. The then Municipal Committee leased out an area of 4,52,580 Sq.ft.\n of land by Lease-Deed dated 31.10.1947 bearing Diversion Plot No.190 situated in\n Niwadganj Extension, Wright Town Jabalpur, District-Jabalpur to Trust for a period of\n\n 30 years on a nominal rental of Rs.1/- per annum. After execution of the Lease-Deed a\n building was constructed which is known as 'Shahid Smarak Bhawan'. T h e entire\n premises consist of Building, Garden, Playground, Meeting Hall, Library, Museum and\n Fine Art Gallery. The accounts of the trust are regularly audited and the accounts are in\n turn, referred to Registrar of Public Trust in accordance with the statutory provisions. As\n the term of lease was to be expired on 31.10.1997, the petitioner's Trust submitted an\n application on 26.09.1997 for renewal of the lease and the said application has been\n brought on record as Annexure P/8. Thereafter, the petitioner' Trust, persuaded the\n Authorities for renewal of lease by lot many communications which have been brought\n on record as Annexure P/10, however, the lease was not renewed. In terms of Lease-\n Deed, a swimming pool was also required to be constructed but the income of the trust\n was not adequate enough to fulfill the need of a swimming pool, therefore, a letter dated\n 23.07.1991 (Annexure P/11) was submitted to the Secretary of Ministry of Human\n Resources and Development and financial assistance was sought. Thereafter, few\n meetings were committed but no concrete decision could be taken. As, the renewal of\n Lease-Deed was not being carried out by the Municipal Committee, the same resulted inSignature Not VerifiedSigned by: ASTHA SENSigning time: 3/4/20231:52:51 PM3withholding of financial assistance for the purposes of swimming pool by the Ministry of\n Human Resource and Development. In the building, there was a Congress Office upto\n 1953-1954 but thereafter, the said office was shifted. Few portions of the Trust property\n were being let out to certain tenants which have been described in paragraph 5.22 of the\n petition and the factum of letting out was within the knowledge of the Municipal\n Authorities.3. The Authorities were well aware about the letting out of the some portion of\n the property to the offices after due sanctioned and approval by the Collector.\n Thereafter, in view of a campaign launched with an oblique motive on the basis of a\n newspaper publication, respondent No.2 issued a notice dated 18/19-11-1999 contained\n Annexure P/16 to the petitioner's trust. By a notice dated 18/19-11-1999 (Annexure P/16),\n the petitioner' Trust was called upon to explain as to why the possession of the Trust be\n not taken over in terms of Clause-10 of the Lease-Deed inasmuch as, there are violation\n of terms and conditions of the Lease-Deed.4. The show cause notice contained following allegations:-(i) The park, swimming pool and playground have not been developed.(ii) A part of the building was let out to the apartment of the Panchayat and Rural\n development without there being permission of the Municipal Corporation.5. The said notice dated 18/19-11-1999 was replied by the Trust and in the\n reply, the efforts regarding construction of swimming pool were elaborated and it was\n also informed to the authority that letting out of the part of the premises to department of\n\n Panchayat Rules development was within the knowledge of the Municipal Authorities as\n there was intimation to the Municipal Authorities accordingly, the tax assessment was\n carried out by the Municipal Corporation. The petitioner' Trust also furnished the details\n of the tenant and also the tax paid to the Municipal Corporation. The issue regarding\n construction of swimming pool was also explained in paragraph 4 of the reply.Signature Not VerifiedSigned by: ASTHA SENSigning time: 3/4/20231:52:51 PM46. Challenging the show cause notice dated 18/19-11-1999, this petition vide\n W.P.No.5385/1999 was filed and during pendency of the said petition, another show\n cause notice was issued to the petitioner's trust dated 19.03.2012 contained in Annexure\n P/17-A and the same contained allegation of violation of Clause-IX of the lease deed and\n the petitioner was again called upon to submit reply to the same. The documents were\n submitted before the Municipal Corporation along with the reply by the petitioner' Trust\n and the said reply is contained in Annexure P/17-B. The said show cause notice is also\n challenged in the present petition by way of amendment.7. The prayer in the present petition is as regards quashing of the show cause\n notice dated 18/19-11-1999 (Annexure P/16), show cause notice dated 19.03.2012\n (Annexure P/17-A) and quashing of the modified notice dated 07/08-12-1999 by which it\n was clarified by the respondent that in the show cause notice, the Clause-10 was\n incorrectly mentioned whereas the same should be read as Clause-11. The further prayer\n which has been made in the petition is for direction to the respondents to renew Lease-\n Deed and refrain from enquiring into the affairs to the trust.8. Learned Senior Advocate for the petitioner contends that a perusal of the\n show cause notice dated 18/19-11-1999 contained in Annexure P/16 and also show cause\n notice dated 19.03.2012 (Annexure P/17-A) reflect that the respondents had already made\n up their mind and the show cause notice had in fact colour of an order itself. As the\n Municipal Corporation decided to proceed against the petitioner, nothing further was to\n b e adjudicated inasmuch as, the Municipal Corporation came to a conclusion that the\n petitioner' Trust was guilty of violation of the terms and conditions. It is contended by\n the Senior counsel that the petitioner should have been called upon to explain if in the\n opinion of the Municipal Corporation, there was violation of terms and conditions at the\n behest of the petitioner' Trust. The counsel while taking this Court to the return submitted\n that the Municipal Corporation by paragraph 3 of the return made it abundantly clear thatSignature Not VerifiedSigned by: ASTHA SENSigning time: 3/4/20231:52:51 PM5the issuance of show cause notice was merely a formality inasmuch as, the respondent\n No.2 had already taken a decision to take coercive action against the petitioner and the\n Municipal Corporation without extending opportunity of hearing to the petitioner' Trust\n concluded that the petitioner was guilty of violation of the Lease-Deed.9. Further submission of the Senior Advocate that none of the conditions of\n Lease-Deed were violated. The facts regarding delay in constructions of swimming pool\n were well explained to the respondents. The facts regarding letting out the premises to\n Government Office was also well explained. The entire documents were submitted before\n the respondents but, respondents again issued a show cause notice dated 19.03.2012\n (Annexure 17-A) which was subsequently assailed in the present petition by way of\n amendment the same reflects that the Municipal Corporation had already made up a mind\n to exercise the right of re-entry over the leased property. Therefore, counsel submits that\n the issuance of the show cause notice was an exercise in futility and thus, in view of the\n law laid down by the Apex Court inK.I. Shephard and others vs. Union of India and\n othersreported in (1987) 4 SCC 431, the impugned notices deserve to be quashed as\n the notices have been issued in the garb of the orders and thus, there is no question of\n consideration of the grievance of the petitioner.It is also contended by the Senior\n Advocate that the Municipal Corporation had already pre-judged the issue and held that\n the petitioner was guilty of violation of terms and conditions of the lease-deed, therefore,\n the impugned orders deserve to be quashed in view of the lawlaid down bythe Apex\n Court in the cases ofV.C. Banaras Hindu University vs. Shrikantreported in (2006)\n 11 SCC 42, Shekhar Ghosh vs. Union of India and Another reported in (2007) 1\n SCC 331, Siemens Ltd. vs. State of Maharashtra and others reported in (2006) 12\n SCC 33, Oryx Fisheries Private Limited vs. Union of India and Othersreported in\n (2010) 13 SCC 42, Hari Krishna Mandir Trust vs. State of Maharashtra and OthersSignature Not VerifiedSigned by: ASTHA SENSigning time: 3/4/20231:52:51 PM6reported in (2020) 9 SCC 356 and Lohia Properties (P) Ltd. Tinsukia, Dibrugarh,\n Assam vs. Atmaram Kumarreported in (1993) 4 SCC 6.10. It is also contended by the Senior counsel that as the Municipal\n Corporation had already decided to proceed against the petitioner therefore, if the\n petitioner is again relegated at the hands of the Municipal Corporation, no useful purpose\n would be served and accordingly, while placing reliance on the decision of the Apex\n Court in the case of Hari Krishna Mandir Trust (supra) submits that the impugned\n notices be quashed. It is further contended by the counsel that as there is failure by the\n Municipal Corporation, Jabalpur to rebutt the specific assertions made in the body of the\n petition, averments deserve to be treated as admitted and accordingly, plea of non-\n traverse contained in Order 8 Rule 5(1)of C.P.C. is applicable in the present case\n inasmuch as, there is no specific denial of the averments made by the petitioner in the\n petition as well as rejoinder.The Senior counsel has placed reliance on the decisions of\n the Apex Court in the cases ofBadat and Company Bombay vs. East India\n Companyreported inAIR 1964 SC 538 and Lohia Properties Limited vs. Atmaram\n\n Kumarreported in (1993) 4 SCC 6.Learned Senior counsel has alsoplaced reliance\n uponthe decision of the this Court in W.P.No.2492/2019 (Kanta Yogesh Sadarang vs.\n State of M.P. and Ors.) while submitting that the petition against a show cause notice is\n maintainable.11. Per contra, learned counsel on behalf of the Municipal Corporation Shri\n Pawar submits that the present petition is liable to be dismissed inasmuch as, firstly the\n petitioner' Trust to whom the property in question was leased out way back on 30/31-10-\n 1947 for a period of 30 years, did not make any efforts to get the lease deed renewed. It\n is contended by the counsel that the petitioner was sitting tight over the matter and also\n letting out the property in flagrant violation of the terms and conditions stipulated in the\n lease-deed. It is also contended by the counsel that the lease-deed specifically providesSignature Not VerifiedSigned by: ASTHA SENSigning time: 3/4/20231:52:51 PM7that the petitioner' Trust would not sub-let or transfer the property and if there are\n violation of the terms and conditions of the lease-deed, the Municipal Committee shall\n have a right to re-entry.12. Counsel further contends that Clause-IV of the lease-deed provides that\n within a period of 5 years from the execution of lease-deed, the petitioner' Trust was\n required to construct a swimming pool. The petitioner' Trust then was under an\n obligation to adhere to the terms and conditions and should have constructed the\n swimming pool which has not been constructed by the petitioner which is evident from\n the admission made by the petitioner in the petition. It is further contended by the counsel\n that the part of the property was let out to the Government Office without there being any\n intimation to the Municipal Corporation, therefore, in order to exercise the right to re-\n entry in terms of Clause-xi, the show cause notice was issued to the petitioner. The\n further contention of the counsel for the respondent is that the present petition is only\n against a show cause notice and a writ petition against show cause notice is not\n maintainable inasmuch as, the interference at such a per-mature stage is not warranted.13. The petitioner is first required to submit its stand before the authority and\n the authority then shall take into consideration the stand of the petitioner submitted in\n response to the show cause notice, therefore, at this stage, the present writ petition filed\n underArticle 226of the Constitution of India is not maintainable. The counsel hasplaced\n reliance uponthe decision of the Apex Court in the case ofCommissioner of Central\n Excise, Haldia vs. Krishna Wax Private Limitedreported in (2020) 12 SCC 572,\n State of U.P. and Another vs. Anil Kumar Ramesh Chandra Glass Works and\n Another reported in (2005) 11 SCC 451, Special Director and Another vs. Mohd.\n Ghulam Ghouse and Anotherreported in (2004) 3 SCC 440 and Union Bank of\n India vs. Venkatesh Gopal Mahishi and Anotherreported in (2006) 12 SCC 20. It isSignature Not VerifiedSigned by: ASTHA SENSigning time: 3/4/20231:52:51 PM8also contended by the counsel that there cannot be a principle of waiver against the\n public interest. Counsel further contends that it lies ill in the mouth of the petitioner to\n allege that by the conduct, the Municipal Corporation precisely permitted the petitioner'\n Trust to carry out activities which were prohibited in view of the terms and conditions of\n the lease-deed. It is also contended by the counsel that waiver is an intentional\n relinquishment of a known right but the same does not operate against the public interest.\n Undisputedly perusal of the various clauses of the lease-deed reflect that the public\n interests are directly involved in the matter, thus, the principle of waiver had no\n applicability in the case in hand.Accordingly, the counsel for the respondents while\n placing reliance upon the decision of Supreme Court in the cases ofAll India Power\n Engineer Federation and Others vs. Sasan Power Limited and Othersreported in\n (2017) 1 SCC 487 and Krishna Bahadur vs. Purna Theatre and Othersreported in\n (2004) 8 SCC 229 submits that the present petition deserves to be dismissed.14. Heard the rival submissions of both the parties and perused the record.15. Undisputed facts in the present petition are to the effect that the petitioner\n is a Trust duly registered under the statutory provisions. The petitioner' Trust was leased\n out the property described hereinabove on the strength of a lease-deed dated 31/10/1947.\n The lease-deed was for a period of 30 years and in terms of the lease-deed, the petitioner'\n Trust was permitted to construct a building on an area measuring about 1500 sq.ft. and\n the petitioner was also required to develop park and playground as well. In Clause (iv) of\n the lease-deed, it was stipulated that the trust would make provisions for swimming pool\n as well. Clause (v) of the deed provided that the Shaheed Smarak Bhawan shall contain a\n large meeting hall, library, reading room, museum, fine art gallery and to house the\n Congress offices but shall not be used for any other purposes. Clause (ix) of the deed\n provided that the use of the building and any part of the area shall be restricted to public\n purposes. Clause (x) of the lease-deed further provided that there shall not be any sub-Signature Not VerifiedSigned by: ASTHA SENSigning time: 3/4/20231:52:51 PM9lease or transfer whatsoever. Clause (xi) conferred a right to re-entry to Municipal\n Committee in the event of breach of terms and conditions. Therefore, to deal with the\n first impugned show cause notice dated 18/19.11.1999 if the terms and conditions are\n perused, the same would reveal that the petitioner was given a show cause notice on the\n ground of violation of following conditions:1. The park, playground and swimming pool were not developed.2. without obtaining permission from the Municipal Corporation, part of the portion was let-out\n to department of Panchayat and Social Welfare Development.16. The said show cause notice was replied by the petitioner and in the reply it\n was submitted that there was no violation. The property consists of park and playground\n which is being used by the public and so far as the swimming pool is concerned, the\n petitioner explained that for the purposes of financial assistance, the matter was referred\n to Ministry of Human Resources and the same was also ensued in a meeting and also\n issuance of a Demi official letter dated 01/10/1999 (Annexure P/13) and in the said letter\n the Ministry stated that for the purposes of development of pool, the renewal of the deed\n is a condition precedent. So far as the office of Department of Panchayat and Social\n Development was concerned, it was explained by the present petitioner in paragraph 5\n that from 1953-1954 onwards, various office like Survey of India and Mahakoshal\n Congress Office were in the premises and all the occupants were disclosed in the\n property tax assessment Register and the Municipal Corporation also recovered the tax\n on the basis of the rent which was received from the tenants and the said rent was being\n paid by the petitioner's trust since last 44 years. The Municipal Corporation during period\n of 44 years, did not raise any objection. The trust also explained that to maintain such\n huge property, the colossal amount is required and therefore, the amount of rent is\n utilized to maintain the property and also to meet the ancillary expenses. The petitioner in\n paragraph 6 of the reply submitted that none of the part of the property in question wasSignature Not VerifiedSigned by: ASTHA SENSigning time: 3/4/20231:52:51 PM10let-out to the Department of Panchayat and Rural Development whereas some part of the\n property were let-out to the 5 different departments of the State Government namely\n Kshetriya Jan Sampark Karyalay, Sanyukt Sanchalak Udyog, Jabalpur, Sambhagiya\n Karmshala Panchayat and Rural Services, Jila Udyog Kendra, Jabalpur and Soochna\n evam Prakashan Kendra, Jabalpur. It was contended in paragraph 7 that in terms of\n Clause 3 (d) of the Trust-deed, the running of the Trust infact is based on the rent and\n the maintenance of the trust is only possible if the trust has income from the rent. It was\n also submitted in paragraph 7 that the lease-deed as well as Trust deed were registered\n simultaneously and at the time of registration, there was no objection by the Municipal\n Corporation. In paragraph 8 the petitioner trust enclosed the receipts pertaining to the\n dues paid to the Municipal Corporation from time to time including the rent, Safai Tax,\n Water Tax, Electricity Tax, Property Tax etc. In the reply, the petitioner also submitted\n the income and expenditure details before the respondents and it was also submitted in\n the reply that with an oblique motive, the news-paper publications were made which\n ensued in issuance of show cause notice. The trust also submitted in the reply that\n despite submission of renewal application, no decision was taken by the Municipal\n Corporation to renew the lease-deed. The second impugned show cause notice is dated\n 19/03/2012. In this show cause notice, altogether different allegations were levelled\n against the petitioner' Trust. In subsequent show cause notice dated 19/03/2012, there\n were allegations of setting of Cracker/patakha Market, Woolen Market, Marriage\n Ceremony and Exhibitions which were permitted by the petitioner' Trust within the\n premises of the property and therefore there was violation of the terms and condition.\n The said show cause notice was also replied by the petitioner and the petitioner placed\n the entire NOC's issued by Municipal Corporation, for each activity like\n Crackers/Patakha Market, Woolen Market, Marriage, Marriage Ceremony and Exhibitions\n etc. The petitioner also reminded the Municipal Corporation that the Trust neverSignature Not VerifiedSigned by: ASTHA SENSigning time: 3/4/20231:52:51 PM11permitted the holding of Marriage Ceremony but the parties concerned in past,\n approached this Court by way of WP No.1292/2000 and 5385/1999 and the Court\n permitted the Trust to temporarily allot the land for holding of Marriage Ceremony.\n Therefore, the petitioner submitted that there was no violation and the activities which\n were conducted in the premises were well within the notice of the Municipal Corporation\n and the Municipal Corporation also received rent without any protest. Thus, a\n comparative evaluation of both the show cause notices (Anneuxre P/16 and Annexure\n P/17-A) reflects that in both the notices, the allegations were different and were not even\n remotely connected with each other. At this juncture the subject which is mentioned in the\n show cause notice Annexure P/16 is important and the same is being reproduced herein:page 168 P/16\n dk;kZy; vk;qDr] uxj fuxe] tcyiqjA\n dzekad&fu0l0vk0@99@229 tcyiqj fnukad 18-11-99\n 19-11-99 izfr]\n v/;{k@esusftax VLVh]\n\n ' 'kghn Lekjd Hkou]\n IykV ua- 190] fuokMZxat ,DlVsU'ku]\n ia0 Hkokuh izlkn frokjh okMZ]\n tcyiqjA\n fo"k;%& IykV ua0&190 fuokMZxat ,DlVsUlu dh yht 'krksZ ds mYya?ku ,oa o"kZ 1997 ls uohuhdj.k u djk, tkus ds laca/k es\n dkj.k crkvks uksfVlA\n mijksDr fo"k;karxZr lwfpr gS fd uxj fuxe tcyiqj us E;q0 IykV ua0& 190 fuokMZxat ,DlVsU'ku ia0 Hkokuh izlkn\n frokjh okMZ ds vUrxZr 4]52]580 oxZQqV 10-34 ,dM+ Hkwfe fcuk izhfe;e ukehuy 1-00 okf"kZd Hkw HkkM+s ij esusftax VzLVh lsB xksfoan\n nkl th ds uke ls fnukad 31-10-47 ls 30 o"khZ; iV~Vs ij fn;k x;k Fkk ftldh vof/k 30-10-77 es lekIr gks pqdh gSA\n vkius fnukad 28-09-77 esa uohuhdj.k gsrq vkosnu izLrqr fd;k ftlesa iw.kZ tkudkjh u nsus ds dkj.k uohuhdj.k dh\n dk;Zokgh lEiUu ugh gks ldhA yht vuqca/k dh 'krksZ ds vuqlkj 'kghn Lekjd Hkou dk fuekZ.k 5 o"kZ ds vanj 15000 oxZQqV es\n ehfVax gky] iqLrdky;] v/;;u d{k] laxzkgky;] dkbZu vkVZ xSyjh ds mi;ksx djus dh 'krZ ds lkFk lkFk 'ks"k [kqys Hkw[ k.M esa\n ikdZ] [ksy dk eSnku Lohfeax iwy] dk fuekZ.k vke turk ds mi;ksx gsrq fodflr ugha fd;k x;k gSA Hkou esa dkaxzsl vkfQl\n lapkfyr ugh gS ,oa uxj fuxe dh cxSj vuqe fr izkIr fd;s fu/kkZfjr yht 'krksZ ds fo:) iapk;r ,oa lekt dY;k.k foHkkx dks\n Hkou fdjk;s ij ns fn;k gSA bl rjg vkius yht vuqca/k es nh xbZ 'krksZ dk mYy?kau fd;k gS vr% fuxe }kjk ys fy;k tkosaA VzLV\n }kjk leqfpr larks"ktud i{k 7 fnu ds vanj izLrqr u gksus ij fu;ekuqlkj oS/kkfud dk;Zokgh dh tkosxhA\n vk;qDr]\n uxj fuxe] tcyiqjASignature Not VerifiedSigned by: ASTHA SENSigning time: 3/4/20231:52:51 PM1217. A perusal of the subject reflects that the show cause notice was issued on\n two grounds.1. There was violation of terms and condition of the lease.2. non renewal of the lease-deed.18. Show cause notice dated 18-19/11/1999 (Annexure P/16) is issued in\n complete ignorance of the petitioner's application for renewal of lease-deed which was\n submitted on 26/09/1977 (Annexure P/8). The said application was submitted by the\n petitioner' Trust even before the expiry of 30 years of stipulated period of original lease.\n Thereafter, there are various letters on record which are contained in Annexure P/10 by\n which the Municipal Corporation from 1977 till 1999 on number of occasions was\n approached with a prayer to renew the lease-deed. The Municipal Corporation for a\n prolong period of 22 years, neither renewed the sale-deed nor levelled any allegations of\n violation of the terms and conditions of the lease deed. This, prolong period of 22 years,\n constrains to doubt the conduct of the Municipal Corporation inasmuch as if in the\n opinion of the corporation there were allegations of violation of terms and conditions of\n the lease-deed as to why the Municipal Corporation was sleeping over its right which\n flows from Clause xi of the lease-deed and also did not make any effort to renew the\n lease-deed. In both the show cause notices Annexure P/16 and Annexure P/17-A, the\n Municipal Corporation has nowhere expressed that the Municipal Corporation was not\n aware about the activities which were being carried out in the premises. On the contrary,\n the enclosures filed with the reply to both the show cause notices reflect that the\n Municipal Corporation was well aware and was also accepting the statutory dues towards\n rent and tax etc. without any demur or protest and therefore there was acquiescence as\n well as waiver at the behest of Municipal Corporation, Jabalpur as regards the activities\n which were being conducted by the present petitioner. Though learned counsel for the\n respondent has made an effort to substantiate that in the matter of public interest, theSignature Not VerifiedSigned by: ASTHA SENSigning time: 3/4/20231:52:51 PM13doctrine of waiver has no applicability but in the present case, in both the show cause\n notices or even in the return, this is not the stand of the respondent that the public had\n any grievance as regards activities which were conducted in the premises or as regards\n the facilities in terms of the lease-deed were not made available to the public.\n Undisputedly, all the provisions in terms of lease-deed, were provided by the petitioner'\n Trust except swimming pool and the circumstances under which the swimming pool\n could not be developed were also explained by the petitioner in their reply. The parties\n do not dispute that now there is a swimming pool which is operational.19. The petitioner' Trust came into existence upon execution of a trust-deed\n dated 31/10/1947. The Trust-deed was executed on the same day when the lease deed\n was executed i.e 31/10/1947. The Trust-deed contained a Clause that the requisite\n sanction of the provincial government for the lease of the land has been accorded and\n Clause iii (c) of the lease-deed further provided that the affairs of the trust shall be\n managed on the basis of expenses by letting out its premises on rent as well. The lease-\n deed was executed between the then officer-in-charge of Municipal Corporation, Jabalpur\n and managing trustee of the trust. It is also important that the lease-deed also refers to the\n sanction accorded by the then provincial government of CP and Barar as regards\n allotment of 4,52,580 sq.ft. or 10.34 acres of land to the petitioner' Trust. Thus, the then\n Municipal Corporation while entering into the lease-deed was well aware that the\n petitioner was a trust and was also aware that there was a Trust-deed which consists of\n Clause iii (c) as well. Though Clause iv provided for development of swimming pool and\n Clause v and xi provided that the property shall not be used for any other purpose and\n shall be restricted to public purpose.It was also mentioned in Clause x that there shall\n not be any sub-lease of transfer. Therefore, despite there being Clause xi which conferred\n a right upon the Municipal Corporation to exercise the right of re-entry for a period of\n more than 52 years, no allegations were levelled by the Municipal Corporation nor anySignature Not VerifiedSigned by: ASTHA SENSigning time: 3/4/20231:52:51 PM14show cause notice was issued to the petitioner's Trust alleging violation of the terms and\n condition of the lease-deed. The Municipal Corporation has also not explained in the\n entire return as to why no steps were taken for a prolonged period of 22 years to not to\n renew the lease-deed. The Principle of Waiver was dealt with by the Apex Court in the\n case ofP. Dasa Muni Reddy Vs. P. Appa Raoreported in 1974 (2) SCC 725. The\n Court while dealing with the principle held that the waiver precisely is an intentional\n relinquishment of advantage or benefit.The Apex Court in paragraph 13 in the case ofP.\n Dasa Muni Reddy(Supra) has held as under:"13. Abandonment of right is much more than mere waiver, acquiescence or\n laches. The decision of the High Court in the present case is that the appellant has waived the\n right to evict the respondent. Waiver is an intentional relinquishment of a known right or\n advantage, benefit, claim or privilege which except for such waiver the party would have enjoyed.\n Waiver can also be a voluntary surrender of a right. The doctrine of waiver has been applied in\n cases where landlords claimed forfeiture of lease or tenancy because of breach of some condition\n in the contract of tenancy. The doctrine which the courts of law will recognise is a rule of judicial\n policy that a person will not be allowed to take inconsistent position to gain advantage through the\n aid of courts. Waiver some times partakes of the nature of an election. Waiver is consensual in\n nature. It implies a meeting of the minds. It is a matter of mutual intention. The doctrine does not\n depend on misrepresentation. Waiver actually requires two parties, one party waiving and\n another receiving the benefit of waiver. There can be waiver so intended by one party and so\n understood by the other. The essential element of waiver is that there must be a voluntary and\n intentional relinquishment of a right. The voluntary choice is the essence of waiver. There should\n exist an opportunity for choice between the relinquishment and an enforcement of the right in\n question. It cannot be held that there has been a waiver of valuable rights where the\n circumstances show that what was done was involuntary. There can be no waiver of a non-\n existent right. Similarly, one cannot waive that which is not one's as a right at the time of waiver.\n Some mistake or misapprehension as to some facts which constitute the underlying assumption\n without which parties would not have made the contract may be sufficient to justify the court in\n saying that there was no consent."Signature Not VerifiedSigned by: ASTHA SENSigning time: 3/4/20231:52:51 PM1520. Thus, by implication a party relinquishes its right or also waives any\n advantage or benefit which under a contract is accrued to it. Therefore, the waiver has\n semblance of abandonment and the abandonment of right has wider scope. The aforesaid\n paragraph in the case ofP. Dasa Muni Reddy(Supra) reflects that the Apex Court\n observed that the abandonment of right is much more than mere waiver, acquiescence or\n laches. In the present case, the inaction on the part of the respondents for a period of 22\n years, reflects that there was unequivocal abandonment of right by the Municipal\n Corporation and there was voluntary surrender of a right by the Municipal Corporation.So far as the contention of respondent in view of the lawlaid down bythe Apex Court inSasan Power(Supra) is concerned, that if the controversy involves element of public\n interest, there is no question of applicability of doctrine of waiver. It appears that the\n respondents have taken this stand as regards non applicability of principle of waiver on\n the ground that the swimming pool was to be constructed for public and therefore, the\n principle of waiver could not have been applied in the present case.21. If this stand of respondents on the strength of lawlaid down bythe Apex\n Court in the case ofSasan Power(Supra) andKrishna Bahadur(Supra) is considered, it\n is necessary to find out what caused prejudice to public interest. Firstly, it is not the\n stand of the Municipal Corporation that there was any demand of Swimming Pool by the\n public. Secondly, the other activities like Cracker Market, Exhibition, Tibetan Cloth\n Market attract foot flow of public at large. It is not the case of respondents that any\n portion of property was used for any personal or private use. So far as wedding\n ceremonies is concerned, respondents do not dispute that this Court itself permitted use\n of the part of the premises for wedding ceremonies. Thus, judgements relied upon by the\n respondents are of no avail to the respondents in view of the facts and circumstances of\n the case.Signature Not VerifiedSigned by: ASTHA SENSigning time: 3/4/20231:52:51 PM1622. The reasons on account of which the swimming pool could not be\n developed have been explained by the petitioners in paragraph 4 of their reply and\n paragraph 4 of the reply also makes it clear that the financial assistance to the petitioner'\n Trust was not provided for the purposes of development of swimming pool inasmuch as\n the deed in question was not renewed.23. Therefore, the Municipal Corporation was first required to explain as to\n why for a prolong period of 22 years, there were no effort by the Municipal Corporation\n to renew the sale-deed and the repeated request of the petitioners which have been\n detailed in Annexure P/10 have also not been dealt with by the respondents in their return.\n The inaction on the part of the Municipal Corporation for a prolong period of 22 years,\n makes the Municipal Corporation answerable inasmuch as being a party to a lease-deed,\n why there was no consideration of an application for renewal of lease-deed, more\n particularly, when the same was submitted prior to completion of 30 years period as\n stipulated in the original lease-deed on 30/10/1947. The other judgements pertaining to\n non applicability of the doctrine of waiver relied upon by the counsel for the respondents\n in the case ofKrishna Bahadur(Supra) makes it clear that the statutory right may be\n waived by the conduct. The conduct of the Municipal Corporation for years together\n impliedly permitted the petitioner to run the activities within the premises in order to\n procure the expenditure for the maintenance of the trust property. The said activities by\n the Municipal Corporation were in consonance with Clause 3(c) of the Trust-deed dated\n 31/10/1947. The execution of trust-deed was well within the knowledge of the Municipal\n Corporation inasmuch as at no point of time it was the objection of the then Municipal\n Committee or even the present Municipal Corporation that they were not aware about the\n execution of the Trust-deed. It also goes without saying that the management of such a\n huge property requires periodical expenditure and in absence of necessary funds, it is\n virtually impossible to maintain such a public property. Undisputedly, the activities whichSignature Not VerifiedSigned by: ASTHA SENSigning time: 3/4/20231:52:51 PM17have been conducted in the premises were not permanent and were in temporary in nature\n like Cracker Market, Woolen Market, Exhibition or permitting marriage ceremony and for\n each activity, the necessary dues were paid to the Municipal Corporation by the\n petitioner. The Municipal Corporation by accepting the tax/rent or dues, were impliedly\n permitted the petitioner's trust to carry out the said activities.The Apex Court in the case\n ofKalpraj Dharamshi & Anr. Vs. Kotak Investement Advisory Limited and Anr.reported in 2021 (10) SCC 401 while dealing with the definition of waiver has provided\n in Halsbury law of England Volume 16(2) 4th Addition paragraph 907 held that to\n consider as to whether the parties have waived its right or not? It will be relevant to\n consider the conduct of the party, if there is implied or expressed conduct by a party\n which is inconsistent with the permissible condition, the waiver comes into play. It is also\n important that a party claiming waiver is not entitled to claim the benefit of waiver unless\n it has altered its position in reliance on the same. Therefore, in the present case on\n account of waiver of right to re-entry, the petitioner trust altered its position by providing\n amenities in the premises which are in-consonance with the terms and condition of the\n deed and by efflux of time has altered it is position. Here it would be apposite to referSection 9of the Indian Contract Act."9. Promises, express and implied. "In so far as the proposal or acceptance of any\n promise is made in words, the promise is said to be express. In so far as such proposal or\n acceptance is made otherwise than in words, the promise is said to be implied."24. A perusal of the aforesaid statutory provisions reflects that the proposal or\n acceptance of a promise if made in words, the same is said to be expressed but it when\n such proposal or acceptance is made otherwise then in words, the same is said to be\n implied. Therefore, in terms ofSection 9of the Indian Contract Act, there can be a\n promise expressed or implied meaning thereby the same can be in words or may be in\n written form. In the case in hand the lease-deed is in written form, but subsequently theSignature Not VerifiedSigned by: ASTHA SENSigning time: 3/4/20231:52:51 PM18implied conduct of the Municipal Corporation, attracts the application ofSection 9of the\n Contract Act. Therefore, the conduct of the parties, despite being implied has binding\n effect unless the same is in contravention of statutory provisions or goes against public\n interest. The implied conduct is not reduced into writing but the conduct of the parties\n transforms into terms and condition of a contract between the parties. The Municipal\n Corporation, Jabalpur, i.e respondent No.2 has never objected to the letting out of some\n part of the premises on rent to the Government Offices and the rent was also subjected\n to incident of imposition of tax at the instance of the Municipal Corporation. The\n Municipal Corporation also accepted the dues while recognizing the fact that the part of\n the property was sub-leased by the Municipal Corporation in terms of Clause 3(C) of the\n trust-deed. The Black's Law Dictionary which contains definition of "implied waiver", the\n said definition is reproduced here in:"A waiver evidenced by a party's decisive unequivocal conduct reasonably inferring the\n intent to waive."25. The Apex Court in the case of Motilal Palampat Sugar Mill Co. Ltd. Vs.\n State of Uttar Pradesh and Ors, reported in (1979) 2 SCC 409 in paragraphs 6 &8\n has held as under:"Waiver means abandonment of a right and it may be either express or implied from\n conduct, but its basic requirement is that it must be Âœan intentional act with knowledge". Per\n Lord Chelmsford, L.C. in Earl of Darnley v. London, Chatham and Dover Rly. Co. [(1867) LR\n 3 HL 43, 57 : 16 LT 217] There can be no waiver unless the person who is said to have waived\n is fully informed as to his right and with full knowledge of such right, he intentionally abandons it.""These two decisions might, therefore, seem to suggest that the doctrine of promissory\n estoppel is limited in its operation to cases where the parties are already contractually bound and\n one of the parties induces the other to believe that the strict rights under the contract would not be\n enforced. But we do not think any such limitation can justifiably be introduced to curtail the width\n and amplitude of this doctrine. We fail to see why it should be necessary to the applicability ofSignature Not Verifiedthis doctrine that there should be some contractual relationship between the parties. In factSigned by: ASTHA SENSigning time: 3/4/20231:52:51 PM19Donaldson, J. pointed in Dunham Fancy Goods Ltd. v. Michael Jackson (Fancy Goods) Ltd.\n [(1968) 2 All ER 987, 991] :""Lord Cairns in his enunciation of the principle assumed a pre-existing contractual relationship\n between the parties, but this does not seem to me to be essential, provided that there is a pre-\n existing legal relationship which could in certain circumstances give rise to liabilities and penalties."26. The Municipal Corporation in both the show cause notices have levelled\n allegations of violation of terms and condition. The alleged violation is precisely as\n regards inaction by the petitioner to develop the swimming pool and also as regards the\n letting out the property for Crackers Marker, Woolen Market, Marriage Ceremony and\n Exhibition which do not fall within the ambit of public purpose. So far as the swimming\n pool is concerned, undisputedly, the same has now been constructed and the allegation\n which pertains to letting out the property for Crackers Market, Woolen Market, Marriage\n Ceremony and Exhibition are also within the knowledge of the Municipal Corporation,\n Jabalpur and the Municipal Corporation having accepted the necessary rent/taxes/dues\n have impliedly permitted the said activities. It is not a case where the setting up of\n Crackers Market, Woolen Market, Marriage Ceremony and Exhibition is some hidden\n activity which came to the notice of the Municipal Corporation, suddenly. Undisputedly,\n to meet with the mammoth task of maintaining a property situated on 4,52,580 Sq.ft of\n the land in the heart of the city requires colossal expenditure and Clause 3(c) of the\n Trust-deed, takes care of the management and maintenance of the trust property. Thus, it\n is not a case where some illegal activities are being conducted by the petitioner or any\n activity which is in conflict with the object and purpose for which the Trust was created.\n As discussed above, there is deviation as regards the permitted use of the property but\n such deviation has been within the knowledge of the Municipal Corporation and the\n Municipal Corporation by its conduct has accepted the same inasmuch as it is not\n disputed by the Municipal Corporation that the rent /tax/dues were paid which wereSignature Not VerifiedSigned by: ASTHA SENSigning time: 3/4/20231:52:51 PM20leviable qua carring out such activity.27. Undisputedly, the term of the lease of 30 years was expired way back on\n 1977. The application for renewal submitted by the present petitioner/trust has remained\n pending for years together and there is no explanation by the Municipal Corporation in\n the entire return as to why for a prolonged period of 22 years, Municipal Corporation,\n Jabalpur was sitting tight over the matter and did not take any steps to deal with the\n application for renewal of lease-deed.28. Accordingly, as there is implied consent/approval by the Municipal\n Corporation as regards the letting out of part of the property intermittently for the\n purposes like Crackers Market, Woolen Market, Marriage Ceremony and Exhibition, the\n parties while taking into consideration the interest of both the sides insert such activities\n while considering the renewal of the lease-deed. Insertion of certain condition is also\n within the scope of statutory contract unless the same goes contrary of the statutory\n provisions or against the public interest.29. In view of the aforesaid, as this Court has arrived at a categorical conclusion\n that the Municipal Corporation, Jabalpur has impliedly permitted the petitioner/trust to\n carry out the activity like setting up of Crackers Market, Woolen Market, Marriage\n Ceremony and Exhibition also accepted the rent/tax/dues towards such activities, while\n quashing the impugned show cause notice dated 18/19.11.1999 (Annexure P/16 &\n P/17A), and order dared 07.12.1999/08.12.1999 (Annexure P/18) the\n respondents/Corporation is directed to take decision on the application for renewal of\n lease-deed and the Municipal Corporation is at liberty to add or insert any additional\n condition permitting intermittent use of the premises on rent for the purposes of Cracker\n Martet, Woolen Market, Marriage Ceremony and Exhibition. Such activities can also be\n specified in the renewed lease-deed.30. With the aforesaid, the petition is allowed.Signature Not VerifiedSigned by: ASTHA SENSigning time: 3/4/20231:52:51 PM2131. In view of the aforesaid, there is no need to deal with the authorities which\n have been relied upon by the counsel for respondents pertaining to maintainability of a\n petition against the show cause notices.(MANINDER S. BHATTI)\n JUDGE\n AsthaSignature Not VerifiedSigned by: ASTHA SENSigning time: 3/4/20231:52:51 PM |
66f3c111-bc5d-5f6f-a39b-cad49c53e11d | court_cases | Telangana High CourtKishan vs The State Of Telangana And 2 Others on 11 March, 2020Author:Abhinand Kumar ShaviliBench:Abhinand Kumar ShaviliHON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI\n\n WRIT PETITION No.1625 OF 2020\nORDER:This writ petition is disposed of, at the admission stage,\n\nwith the consent of both the parties.This writ petition is filed with the following prayer :"...............in not initiating the mutation\n proceedings and not recording my name in the\n revenue records by correcting the same in respect\n to the land in Sy.No.245/A admeasuring Ac.5-00\n gts situated in Burahanpur Village, Bomraspet\n Mandal, Mahbubnagar District as being illegal,\n arbitrary, violation of principles of natural justice,\n discriminatory and unconditional, fair plea and in\n violation ofArticle 14, 19and21Aof the\n Constitution of India,..................."Heard Sri C. Praveen Kumar, learned counsel for the\n\npetitioner and learned Government Pleader for Revenue.Petitioner claims to be the owner of the land admeasuring\n\nAc.5-00 gts in Sy.No.245/A of Burahanpur Village, Bomraspet\n\nMandal, Mahabubnagar District through a registered gift deed\n\nexecuted by his grandmother. The grievance of the petitioner is\n\nthat though he had submitted a representation/application on\n\n23.10.2019 to the respondents seeking correction and mutation\n\nof his name in the revenue records, the respondents have not\n\npassed any orders on the said representation so far.Therefore, learned counsel for the petitioner contends that\n\nappropriate orders be passed in the writ petition directing the\n\nrespondents to consider the representation/application\n\nsubmitted by the petitioner on 23.10.2019 for correction and2mutation of his name in the revenue records and pass\n\nappropriate orders.Learned Government Pleader appearing for the\n\nrespondents contends that since representation/application\n\nsubmitted by the petitioner on 23.10.2019 is pending with the\n\n3rd respondent, the 3rd respondent would consider the same and\n\npass appropriate orders in accordance with law.This Court, having considered the rival submissions of the\n\nlearned counsel appearing for the respective parties, is of the\n\nconsidered view that this writ petition can be disposed of\n\ndirecting the 3rd respondent to consider the\n\nrepresentation/application submitted by the petitioner on\n\n23.10.2019 and pass appropriate orders in accordance with law\n\nwithin a reasonable period, preferably within a period of eight\n\n(08) weeks from the date of receipt of a copy of this order.With the above direction, this Writ Petition is disposed of.\n\nNo order as to costs.Pending miscellaneous applications, if any, shall stand\n\nclosed.______________________________\n ABHINAND KUMAR SHAVILI, J\n11th March 2020\ndv |
34b819b6-9dfc-58c3-b734-a1b14222fdfd | court_cases | Central Information CommissionObadurahman vs Rural / Gramin Banks on 23 January, 2023Author:Suresh ChandraBench:Suresh Chandraके ीयसूचनाआयोग\n Central Information Commission\n बाबागंगनाथमाग ,मुिनरका\n Baba GangnathMarg, Munirka\n नई द ली, New Delhi - 110067\nि तीयअपीलसं या / Second Appeal No.CIC/RUGBK/A/2021/117918\nObadurahman ... अपीलकता /Appellant\n\n VERSUS\n बनाम\nCPIO: Baroda U.P. Bank,\nGandhi Nagar, Basti ... ितवादीगण/Respondents\nRelevant dates emerging from the appeal:\n\nRTI : 14.12.2020 FA : 23.02.2021 SA : 28.04.2021\n\nCPIO : 10.02.2021 FAO : 31.03.2021 Hearing : 03.11.2022\n CORAM:\n Hon'ble Commissioner\n SHRI SURESH CHANDRA\n ORDER(20.01.2023)1. The issue under consideration arising out of the second appeal dated 28.04.2021\ninclude non-receipt of the following information sought by the appellant through the RTI\napplication dated 14.12.2020 and first appeal dated 23.02.2021:-(i) ब क शाखा रामपुर ब ती से अ दुल वहीद पु अकबाल तथा राम गोपाल पु राम औतार\n\n िनवासी ाम /पो ट रामपुर िजला ब ती ारा टे पू ( ी हीलर ) ब क ऋण पर िलया गया था\n\n िजसको यह लोग बेच दए और कबाड़ म िबककर कट गयी ब क ऋण जमा कया गया है तो नो\n\n ूज का फोटो कॉपी !मािणत |(ii) ऋण धारक% ारा ऋण नह' जमा कया गया तो ऍफ़० आई० आर० (य% नह' दज) कराया जा\n\n रहा है |(iii) दोन% ऋणी धारक% के िव+, वसूली हेतु आर० सी० जारी क- गयी हो तो उसक- छाया !ित |(iv) दोन% ऋणी धारक% का लोन माफ़ कया गया है तो उसक- फोटो कॉपी |Page 1 of 42. Succinctly facts of the case are that the appellant filed an application dated\n14.12.2020 under theRight to Information Act, 2005(RTI Act) before the Central Public\nInformation Officer (CPIO), Baroda U.P. Bank, Gandhi Nagar, Basti, seeking aforesaid\ninformation. The CPIO vide letter dated 10.02.2021 replied to the appellant. Aggrievedby\nthe same, the appellant filed first appeal dated 23.02.2021. The First Appellate Authority\n(FAA) vide order dated 31.03.2021 disposed of the first appeal. Aggrieved bythat, the\nappellant filed second appeal dated 28.04.2021 before the Commission which is under\nconsideration.3. The appellant has filed the instant appeal dated 28.04.2021inter alia on the grounds\nthat reply given by the CPIO was not satisfactory. The appellant requested the Commission\nto direct the CPIO to provide the complete information and take necessary action as perSection 20 (1)of the RTI Act.4. The CPIO replied vide letter dated 10.02.2021 and the same is reproduced as under:-""बदु (i) - वांिछत सूचना एवं स बंिधत !प पर-1ि2य% से स बंिधत होने के कारण (सूचना का\n अिधकार अिधिनयम २००५ क- धारा ८ क- उप धारा ९ के अंतग)त ) दया जाना समीचीन नह' है\n |\n\n 4बदु (ii) - ऋण वसूली हेतु सामा5यतया पुिलस !ाथिमक- सूचना (FIR) ब क ारा दज) करने का\n !ावधान नह' है | अिपतु कोई आपरािधक अथवा िविधक धोखाधड़ी स ब5धी !करण% म मामला\n\n सं7ान म आने पर आव9यक वैधािनक काय)वाही क- जाती है |\n\n 4बदु (iii) व (iv) - वांिछत सूचनाएं एवं !प पर-1ि2य% से स बंिधत होने के कारण (सूचना का\n\n अिधकार अिधिनयम २००५ क- धारा ८ क- उप धारा ९ के अंतग)त ) दया जाना समीचीन नह' है\n |"The FAA vide order dated 31.03.2021 has made the following observations:-4बदु (i), (iii) व (iv) के :म म - आंिशक सूचना !दान क- है | मेरे िवचार म के 5;ीय जनसूचना\n अिधकारी बड़ोदा यू पी ब क <े ीय काया)लय ब ती कोआपके ारा वांिछत सूचना के :म म अपने\n\n प दनांक १०.०२.२०२१ के मा=यम से "वांिछत सूचना अ5य 1ि2य% ( >ी अ दुल वहीद व रामPage 2 of 4गोपाल ) से स बंिधत होने अतैव अिधिनयम क- धारा ८ (१) (j) एवं ८ (१) (e ) के तहत वै@ािसक\n\n /5यासी के अंतग)त संरि<त होने के कारण !दान नह' क- जा सकती है " क- सूचना देनी चािहए थी\n |\n\n 4बदु (ii) के :म म - समुिचत सूचना !दान क- है |\n\n अतैव मै आपके !थम अपील दनां कत २३.०२.२०२१ का अंितम ऋण से िन ताAरत करता Bँ |"5. The appellant remained absent and on behalf of the respondent Shri Dhanraj\nRaghuvanshi, Manager and Shri Bhima, CPIO, Baroda U P Bank, Basti, attended the\nhearing through video conference.5.1. The respondent while defending their case inter alia submitted that they had already\nprovided point-wise reply to the appellant vide letter dated 10.02.2021 and 31.03.2021.6. The Commission after adverting to the facts and circumstances of the case, hearing\nthe respondent and perusal of records, observed that due reply was given by the respondent\nvide letters dated 10.02.2021 and 31.03.2021. The appellant sought information regarding\nloan account of Mr. Abdul Wahid and Shri Ram Gopal. The respondent provided point-wise\nreply wherein they denied the information on the ground of third party and they claimed\nexemption undersection 8 (1) (j)of the RTI Act. The appellant in his RTI application as\nwell as in the appeal failed to establish any larger public interest warranting the disclosure of\ninformation. Moreover, the appellant neither filed any written objection nor presented\nhimself before the Commission to controvert the averments made by the respondent and\nfurther agitate the matter. Hence, the submissions of the respondent were taken on record.\nThe Commission is of the view that there is no public interest in further prolonging the\nmatter. Accordingly the appeal is dismissed.Copy of the decision be provided free of cost to the parties.Sd/-(Suresh Chandra) (सुसुरेशचं ा)\n ा\n सूचनाआयु )\n Information Commissioner (सू\n दनांक/Date: 20.01.2023Page 3 of 4Authenticated true copy\n\n आर\nR. Sitarama Murthy ( . सीताराममूत )\n उपपंजीयक\nDy. Registrar ( )\n011-26181927(०११-२६१८१९२७)\nAddresses of the parties:The CPIO\nBaroda U.P. Bank Regional\nOffice, Basti Malviya Marg,\nGandhi Nagar, Basti- 272001\n\nFirst Appellate Authority,\nBaroda U.P. Bank Buddh\nVihar Commercial Scheme,\nNew Shivpuri Colony,\nTaramandal,Gorakhpur-273016\n\nShri ObadurahmanPPage 4 of 4 |
cccfe734-fa53-5f04-ab36-6bf9e3468066 | court_cases | Allahabad High CourtLala Ram And Others vs State Of U.P. on 10 November, 2021Bench: Kaushal Jayendra Thaker, Ajai TyagiHIGH COURT OF JUDICATURE AT ALLAHABAD\n \n \n\n?Court No. - 50\n \n\n \nCase :- CRIMINAL APPEAL No. - 2321 of 2006\n \n\n \nAppellant :- Lala Ram And Others\n \nRespondent :- State of U.P.\n \nCounsel for Appellant :- Ramanand Gupta,J.S.Parihar,Jai Singh,Krishna Kant Dwivedi\n \nCounsel for Respondent :- Govt. Advocate\n \n\n \nHon'ble Dr. Kaushal Jayendra Thaker,J.Hon'ble Ajai Tyagi,J.This matter is listed before this Court by the order of Hon'ble the Chief Justice.We are conveyed that two accused who had prayed that they are juvenile had been declared juvenile by the Juvenile Justice Board. One accused out of four has passed away and one accused has already been released.It is stated by the counsel for the appellant that report has already there stating therein that no appeal against report declaring two accused as juvenile is filed.List the matter for hearing of bail for appellant nos. 3 and 4 who have been declared juvenile by the Juvenile Justice Board on 26.11.2021.Order Date :- 10.11.2021\n \nPS |
b2d649bc-e98b-5bdc-9e2c-08bbe16c82bd | court_cases | Karnataka High CourtMr. Ramamurthy. C. K vs Bosch Limited on 27 October, 2023Bench:Chief Justice,Krishna S Dixit-1-\n NC: 2023:KHC:38113-DB\n WA No. 526 of 2022\n\n\n\n IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\n DATED THIS THE 27TH DAY OF OCTOBER, 2023\n\n PRESENT\n\n THE HON'BLE MR PRASANNA B. VARALE, CHIEF JUSTICE\n\n AND\n\n THE HON'BLE MR JUSTICE KRISHNA S DIXIT\n\n WRIT APPEAL NO. 526 OF 2022 (L-RES)\n\n BETWEEN:\n\n 1. MR. RAMAMURTHY. C. K.\n E. NO. 30744455, DEPT W3810,\n AGED ABOUT 35 YEARS,\n S/O. LATE KENCHAPPA,\n NO. 157/8, PALEKAMMA NAGAR,\n CHIKKAJAL POST, JALA HOBLI,\n BANGALORE-562 157.\n PHONE NO 9880411978.\n\n 2. MR. M. NAGENDRA,\n E. NO. 30745203, DEPT W3710,\nDigitally signed AGED ABOUT 38 YEARS,\nby SHARADA S/O. MUNISONNAAPPA,\nVANI B CHEEMANGALA (V AND P),\nLocation: HIGH SHIDLAGHATTA (TALUK),\nCOURT OF\nKARNATAKA CHIKKABALLAPURA (DIST)-562 102.\n PHONE 9844192914\n\n 3. MR. ARUN KUMAR. N\n E. NO. 30740752, DEPT W3850,\n AGED ABOUT 35 YEARS,\n BEHIND URDHU SCHOOL,\n NELAMANGALA MAIN ROAD,\n PANDAVAPURA TOWN,\n MANDYA DISTRICT-571 435.\n PHONE 7411138506\n -2-\n NC: 2023:KHC:38113-DB\n WA No. 526 of 2022\n\n\n\n4. MR. KRUPENDRA KUMAR. M\n E. NO. 30753177,\n AGED ABOUT 32 YEARS,\n NO. 707, MARUTI NAGAR,\n CHIKKABALLAPURA ROAD, KERE KODI,\n VIJAYAPURA, BANGALORE RURAL-562 135.\n PHONE 8217461836\n\n5. MR. CHAKRAPANI. H. L.\n E. NO. 30747005, DEPT W7180,\n AGED ABOUT 36 YEARS,\n NO. 492, THIRUMALA LAYOUT,\n NEAR AKR MEMORIAL SCHOOL,\n HORAMAVU AGARA, HORAMAVU POST,\n BANGALORE-560 043.\n PHONE 9900523414\n\n6. MR. RAGHAVENDRA. S. A.\n E. NO. 30746943, DEPT W7180/MFP-12,\n AGED ABOUT 40 YEARS,\n S/O. ANANDAPPA. B. N.,\n SRI. HOMBALAMMA NILAYA, OLD CHURCH ROAD,\n VENKATESHWARA NAGAR,\n KADUR (P AND T),\n CHIKKAMAGALURU (DIST)-577 548.\n PHONE 9945200733.\n\n7. MR. JAGADEESH. V. G.\n E. NO. 30744222, DEPT W6530,\n AGED ABOUT 38 YEARS,\n R/O. GOVINDARAJ, VOROHALLI,\n JADIGENAHALLI POST, HOSKOTE TALUK,\n BANGALORE-562 114.\n PHONE 7899007300/9945474178.\n\n8. MR. VIJAYA KUMAR. K. B.\n E. NO. 30748219, DEPT MFP W7170,\n AGED ABOUT 37 YEARS,\n NO. 110, 2ND BLOCK, JNANABHARATHI LAYOUT,\n ULLALA MAIN ROAD,\n NEAR AMMA ASHRAMA STOP,\n BANGALORE-560 056,\n PHONE 9964591199\n -3-\n NC: 2023:KHC:38113-DB\n WA No. 526 of 2022\n\n\n\n9. MR. S. SANTHOSH\n E. NO. 30748068, DEPT W7590,\n (BARREL INSPECTION)\n AGED ABOUT 36 YEARS,\n NO. 10 B, CAUVERY STREET,\n ANJANEYA SWAMY LAYOUT,\n THINDLU, VIDYARANYAPURA,\n BANGALORE-560 097,\n PHONE 9686846755\n\n10. MR. HOSAKOTE NAGARAJA\n E. NO. 30752178, DEPT W3180/W6220/W3850,\n AGED ABOUT 36 YEARS,\n NO. 59, 2ND MAIN, 1ST CROSS,\n SINGAPORE VILLAGE, VIDYARANYAPURA POST,\n BANGALORE-560 097,\n PHONE 9964562277.\n\n11. MR. MUTTURAJU,\n E. NO. 30745196, DEPT W7180/W3180/W3850,\n AGED ABOUT 36 YEARS,\n NO. 762, 1ST MAIN, COD QUARTERS,\n OPP KTM SHOW ROOM, K.S. TOWN,\n BANGALORE-560 060.\n PHONE 9886094352\n\n12. MR. SHREENATH. J\n E. NO. 30750517, DEPT W3540,\n AGED ABOUT 40 YEARS,\n NO. 94/J, 3RD BLOCK,\n VISHWESHVARAIAH LAYOUT,\n NEAR SBI BANK, ULLAL MAIN ROAD,\n BANGALORE-560 056,\n PHONE 9741112047\n\n13. MR. VIJAY KUMAR. D\n E. NO. 30748228,\n DEPT W6810/W3810,\n AGED ABOUT 35 YEARS,\n NO. 6, HUVINAYAKANAHALLI,\n B.K. HALLI POST, JALA HOBLI,\n BANGALORE-562 149.\n PHONE 9902554892.\n -4-\n NC: 2023:KHC:38113-DB\n WA No. 526 of 2022\n\n\n\n14. MR. SHIVALINGE GOWDA. M. D.\n E. NO. 30747229, DEPT W3720,\n AGED ABOUT 35 YEARS,\n S/O. DODDALINGE GOWDA,\n MAHIMANAHALLI,\n YADAMARANAHALLI POST,\n UYYAMBALLI HOBLI, KANAKAPURA TALUK,\n RAMANAGARA DISTRICT,\n PHONE 8792741628/9113074055.\n\n15. MR. PRASHANTH H. C.\n E NO.30744302 DEPT W3850,\n AGED 36 YEARS,\n NO.996, SRI BASAVESHWARA NILAYA,\n 7TH MAIN, HAVNOOR EXTN,\n HESARAGATTA ROAD, NAGASANDRA POST,\n BANGALORE-560 073.\n PHONE 9902595666\n\n16. MR. MAHESH KUMAR. N,\n E NO.30744437, DEPT W6530/W3530/W3180,\n AGED 34 YEARS,\n NO.25, SKANDA LAYOUT,\n OPPAVALAHALLI BDA LAYOUT,\n J P NAGAR 9TH PHASE, BANGALORE-560 062.\n PHONE 9035689681\n\n17. MR. RANGANATHA. M,\n E NO.30746140 DEPT W7560,\n AGED 38 YEARS,\n S/O MARUTHI RAO,\n OLD JALINAGAR 1ST MAIN, 3RD CROSS,\n DAVANAGERE-577 001.\n PHONE 9916170274\n\n18. MR. NAVEEN KUMAR. D\n E NO.30746168, DEPT: W3520,\n AGED 35 YEARS,\n NO.144, 1ST CROSS,\n NEAR ST MARYS CONVENT, T DASARAHALLI,\n BANGALORE-560 057.\n PHONE 9743904555\n -5-\n NC: 2023:KHC:38113-DB\n WA No. 526 of 2022\n\n\n\n19. MR. PRAKASH. L. M.\n E NO.30745356 DEPT W6610,\n AGED 38 YEARS,\n NO.21 MAHALAKSHMI NILAYA, 1ST FLOOR,\n SUVARNA NAGAR, DODDABIDARAKALLU,\n NAGASANDRA POST, BANGALORE-560 073.\n PHONE-9986217001\n\n20. MR. SARPABHUSHANA. G. P.\n E NO.30747915 DEPT POWER TOOLS,\n AGED 35 YEARS,\n NO.3611, NEAR WATER TANK, SUBHASH NAGAR,\n NELAMANGALA-562 123.\n PHONE 9353204588\n\n21. MR. NARASIMHA MURTHY. G,\n E NO.307416177, DEPT W3530,\n AGED 35 YEARS,\n NO.7/1, POOJAMAMA TEMPLE ROAD,\n GORAGUNTE PALYA, BANGALORE-560 022.\n PHONE 90355566003\n\n22. MR. SANTHOSHA. S,\n E NO.30746970, DEPT W7080,\n AGED 36 YEARS,\n NO.14, ANJANADRI NEW EXTN,\n THAMMENAHALLI PALYA, ACHUTH NAGAR POST,\n BANGALORE-560 017.\n PHONE 9008872553\n\n23. MRS. DEGUL SHAILAJA,\n E NO.30744507, DEPT: POWER\n TOLLS/W3710/W3720/W1466,\n AGED 38 YEARS,\n NO.39/5, SLNS BUILDING, 5TH CROSS,\n KALYAN NAGAR, T DASARAHALLI,\n BANGALORE-560 057. PHONE 9036758281\n\n24. MR. PRADEEPA. B,\n E NO.30744375, DEPT W3850/W7170,\n AGED 35 YEARS,\n D NO.227, KGS LAYOUT, PAPAREDDY PALYA,\n BANGALORE-560 072. PHONE 9739244296\n -6-\n NC: 2023:KHC:38113-DB\n WA No. 526 of 2022\n\n\n\n25. MR. RAGHU KUMAR. H. V.\n E NO.30746079 DEPT W3200 /W7180,\n AGED 35 YEARS,\n S/O VEERAPPA R HEGGADADEVANAPURA,\n ALUR POST, DASANAPURA HOBLI,\n BANGALORE-562 162. PHONE 9739731095\n\n26. MR. PRAVEEN KUMAR. B. M.,\n E NO.30747906, DEPT: POWER TOOLS,\n AGED 34 YEARS,\n BASTIHALLI VILLAGE, AMBUGA POST,\n HASSAN TA AND DIST-573 212.\n PHONE 99026020216\n\n27. MR. SACHIN. D. G.\n E NO.30747782, DEPT W3710/POWER TOLLS,\n AGED 35 YEARS,\n NO.14 (OLD NO.83) 1ST CROSS, 1ST MAIN,\n SUDHAMANAGARA, BANGALORE-560 027.\n PHONE 7795338429\n\n28. MR. PANDURANGA. N,\n E NO.30747693, DEPT W7506,\n AGED 37 YEARS,\n NO.179, SAI ENCLAVE LAKSHMIPURA,\n MADANAYAKANAHALI MAIN ROAD,\n BANGALORE. PHONE 9980879222\n\n29. MR. SATHISH. K. S.\n E NO.30744534 DEPT W3720,\n AGED 35 YEARS,\n NO.19, 2ND FLOOR, 4TH CROSS 2ND MAIN,\n BHAIRAVA NAGARA, DUBASIPALYA,\n R V COLLEGE POST, BANGALORE-560 059.\n PHONE 9739554440\n\n30. MR. GAJENDRA. T.\n E NO.30744277 DEPT W3540,\n AGED 37 YEARS,\n S/O THIMMAPPA,\n ATTIGUNDA VILLAGE, ARALIHALLI POST,\n BHADRAVATHI TQ, SHIVAMOGGA DIST-577 233.\n PHONE 9902860628\n -7-\n NC: 2023:KHC:38113-DB\n WA No. 526 of 2022\n\n\n\n31. MR. SHARATH. M,\n E NO.30753131, DEPT W3700/W3710,\n AGED 35 YEARS,\n S/O MAHADEVAPPA,\n H B NO.257, NEAR VASAVI SHANTI DHAMA,\n RING ROAD, ALANAHALLI, MYSORE-570 028.\n PHONE 9845615198\n\n32. MR. MAHADEVASWAMY,\n E NO.30746916, DEPT W3850 / W3810,\n AGED 37 YEARS,\n S/O LATE THOTAPPA,\n ANTHARASANTHE (V AND P),H D KOTE TQ,\n MYSORE-571 114. PHONE 9980936213\n\n33. MR. CHANDRAPPA. U,\n E NO.30746104, DEPT W3200/W3180 /W3850,\n AGED 35 YEARS,\n S/O LINGAMAIAH DEVALAPURA (V AND P),\n KAMPLI (TQ), BELLARI (DIST)-583 129.\n PHONE 9740160717\n\n34. MR. THILAKESHA. K. S. S/O SHIVAPPA,\n E NO.30748013, DEPT W6840 /W3770,\n AGED 34 YEARS,\n KOLLANGI VILLAGE,\n ABBURU MACHAGOWDANA HALLI POST,\n MALLIPATTANA HOBLI, ARAKALAGUD TQ,\n HASSAN DIST. PHONE 9901108416\n\n35. MR. SANDEEPA. P\n E. NO. 30747791, DEPT W3710,\n AGED ABOUT 34 YEARS,\n NO. 302, 8TH B CROSS, 3RD MAIN, 2ND BLOCK,\n NANDINI LAYOUT, BANGALORE-560 096.\n PHONE 9632419238\n\n36. MR. RAGHUNATHA. M S/O. MUNIRAJU,\n E. NO. 30747808, DEPT W1746 (PT-QMM),\n AGED ABOUT 34 YEARS,\n NO.47, KEMBODI (V AND P),\n KOLAR TALUK AND DISTRICT-563 101,\n PHONE 9036096379/9353854828\n -8-\n NC: 2023:KHC:38113-DB\n WA No. 526 of 2022\n\n\n\n37. MR. NAVEEN. M\n E. NO. 30745178,\n DEPT W7180 (MFP)\n AGED ABOUT 36 YEARS,\n NO. 59, 1ST MAIN, NANJAPPA LAYOUT,\n ADUGODI, BANGALORE-560 030,\n PHONE 9880820140.\n\n38. MR. ARUN KUMAR. M\n E.NO.30748246, DEPT.W7180,\n AGED ABOUT 35 YEARS,\n NO.78, MUNISANJEEVAPPA LAYOUT,\n YELACHENAHALLI, KANAKAPURA MAIN ROAD,\n JP NAGAR POST, BANGALORE-560 078.\n PHONE 9900655473\n\n39. MR. PRADEEP. N,\n E.NO.30746122, DEPT W7180,\n AGED 36 YEARS,\n S/O LATE P.N.NARASIMHAIAH,\n NO.58/1, 1ST MAIN, 5TH CROSS,\n PANDURANGAPPA BUILDING,\n GORAGUNTEPALYA,\n BANGALORE 560 022.\n PHONE 9986437393/9986437388\n\n40. MR. SRIDHAR. A\n E.NO.30748941, DEPT. W7700,\n AGED 35 YEARS,\n NO.19, 19TH CROSS, 3RD MAIN,\n NEAR MUNESHWARA TEMPLE,\n PARIMALA NAGAR, NANDINI LAYOUT,\n BANGALORE-560 096.\n PHONE. 9844609828.\n\n41. MR. CHETHANA. D. K.\n E.NO.30753186, DEPT. POWER TOOLS/ W3120,\n AGED 32 YEARS,\n DODDAKONDGULA VILLAGE,\n HALE KOPPALU POST, KASABA HOBLI,\n HASSAN (TQ AND DIST)-573 201.\n PHONE. 9008396031\n -9-\n NC: 2023:KHC:38113-DB\n WA No. 526 of 2022\n\n\n\n42. MR. V. P. RAJESHA\n E.NO.30753088, DEPT. W3850/DS.ENP2,\n AGED 37 YEARS,\n NO.53, VADDARAHALLI, BELAVADI POST,\n CHIKKAMAGALORE (TQ AND DIST)-577 146.\n PHONE 8762961716\n\n43. MR. KUMAR. G\n E.NO.30753300, DEPT. POWER TOOLS,\n AGED 34 YEARS,\n GORUR, SOLUR POST, SOLUR HOBLI,\n MAGADI TQ. RAMANAGARA DISTRICT,\n PHONE 9902708453\n\n44. MR. UMESHRAJ\n E NO. 30748870 DEPT-POWER TOOLS,\n AGED ABOUT 35 YEARS,\n S/O SHANKARA MARAKALA,\n NO. 33, SHIROORU VILLAGE,\n SHIROORU MUDDUMANE POST,\n UDUPI (TQ AND DIST)-576 223.\n PHONE-9663671591\n\n45. MR. GOWTHAM. L,\n E NO.30746015 DEPT W3200/W3810,\n AGED ABOUT 33 YEARS,\n 2515, 10TH MAIN, RAJAJINAGAR 2ND STAGE,\n BANGALORE-560 010. PHONE-7899714404\n\n46. MR. HARISHA. N,\n E NO.-30747853 DEPT W3810/GLOW PLUG,\n AGED ABOUT 33 YEARS,\n 131, 3RD MAIN, BHARATHI LAYOUT,\n SG PALAYA, DRC POST, BANGALORE-560 029.\n PHONE-9902385226\n\n47. MR. VISHWANATH. M,\n E NO.30746088 DEPT W6310,\n AGED ABOUT 34 YEARS,\n 21, SRI LAKSHMI VENKATESHA NILAYA,\n 1ST CROSS, NANJAPPA LAYOUT, ADUGODI,\n BANGALORE-560 030. PHONE-9008404714\n - 10 -\n NC: 2023:KHC:38113-DB\n WA No. 526 of 2022\n\n\n\n48. MR. HARISH,\n E NO.30747899 DEPT W3810,\n AGED ABOUT 35 YEARS,\n KAJE DARKAS HOUSE MACHINA (V AND P),\n BELTHANGADI TQ,\n DAKSHINA KANNADA DIST-574 224.\n PHONE-9902594532/9480954541\n\n49. MRS. MANJULA. H. K.\n E NO.30744516 DEPT W3710,\n AGED ABOUT 39 YEARS,\n 123, 14TH CROSS, 19TH MAIN, RAJAJINAGAR,\n BANGALORE-560 010.\n PHONE-9880022574/9449124574\n\n50. MR. KIRAN. B. N.\n E NO.30745365 DEPT W7180,\n AGED ABOUT 35 YEARS,\n 51, 5TH B CROSS, KUVEMPUNAGAR,\n KATIGENAHALLI(NEAR GOVT SCHOOL),\n YELAHANKA, BANGALORE-560 064.\n PHONE-9164375058\n\n51. MR. GOVINDARAJU M,\n E.NO. 30747988, DEPT. W6200/POWER TOOLS,\n AGED 34 YEARS,\n S/O MUNIKENCHAPPA,\n SANNA AMANIKERE, DEVANAHALLI (POST AND TQ),\n BANGALORE - 562 110. PHONE. 9738283207\n\n52. MR. SHANKRAPPA ACHANUR,\n AGED 32 YEARS,\n E.NO. 30750651, DEPT. W9812/TEF,\n 315, 6TH MAIN, MEENAKSHINAGAR\n KAMAKASHIPALYA, BANGALORE - 560 079.\n PHONE. 9886505756/9742347600\n\n53. MR. SANJEEV HAMPANNANAVAR,\n E.NO. 30750660 DPT W 813\n 152, AMMA HOME, 2nd MAIN, Ist CROSS,\n GELOLOGY LAYOUT, NAGARABHAVI 2nd STAGE,\n BENGALURU 560 072.\n PH. 961141110/ 9480010552\n - 11 -\n NC: 2023:KHC:38113-DB\n WA No. 526 of 2022\n\n\n\n54. MR. MANJUNATHA M S,\n E.NO 30752150, DEPT W 3850,\n S/O M SHIVAMURTHY,\n PANDOMATHI POST, CHANNAGIRI (TQ)\n DAVANAGERE (DIST ) 577 212.\n PH.NO 8310921212/9980570623.\n\n55. MR. MOHAMMED WASEEM S.M,\n E.NO. 30744204, DEPT W 6530/ W7530,\n 342, CHIKKA BAJANE STREET,\n SARJAPURA, BENGALURU 562 125.\n PH. 9986531160\n\n56. MR. RANGE GOWDA M.C,\n E. NO. 30752052, DEPT W 7506\n 26, 2nd MAIN , 3rd CROSS,\n VINAYAKANAGAR,\n NAGASANDRA POST,\n BENGALURU 560 073.\n PHN 9741461879\n\n57. MR. HIDAYATH ULLA SHARIFF K.S\n E.NO. 30746934, DEPT W 6150,\n S/O SHARIFF MOHALLA,\n 965 MADDUR MAIN ROAD,\n KUNIGAL TQ , TUMKUR DIST 572 130.\n PHN. 991628616\n\n58. MR. NAGESH BABU,\n E.NO. 30748086 DEPT W 6820\n 38, C BLOCK, 1st MAIN 3rd CROSS,\n TIRUMALA NAGAR, ATTUR LAYOUT,\n YELAHANKA, BENGLAURU 560 064.\n PH. 8073864056 / 9900326328\n\n59. MR. M.P RAMESH,\n E.NO. 30744366, DEPT W 3850,\n S/O MUNIYAPPA\n 129/3, GOKUL BADAVANE, 2nd B CROSS,\n DEVASANDRA, K.R PURAM,\n BENGALURU 560 036.\n PH.NO. 9036918846\n - 12 -\n NC: 2023:KHC:38113-DB\n WA No. 526 of 2022\n\n\n\n60. MR. SHIVARAM P,\n E.NO. 307521312, DEPT W 3810,\n 613, SHAHI GARMENT ROAD,\n MAGADI MAIN ROAD, LAKSHMIPURA POST,\n CHIKKAGOLLARAHATTI, BENGALURU 562 123\n PH.NO 9164618682 / 8310607277\n\n61. MR. H.V. PRAVEEN,\n E.NO. 30746961, DEPT W 3850,\n HIRBELAGULLI VILLAGE,\n HOLE KOTE HOBLI,\n HOLENARASIPURA ( P AND T )\n HASSAN (DIST) 573 211. PHN. 8861508770.\n\n62. MRS. REKHA R,\n E.NO. 30744703,\n DEPT PT-BE/W 3710,\n 1803, 10th CROSS, 5th MAIN, RPC LAYOUT,\n VIJAYANAGAR, BENGALURU 560 040.\n\n63. MRS BHARATHI D.M,\n E.NO. 30744491, DEPT W 3710,\n 893, 44th CROSS, 2nd STAGE,\n KUMARASWAMY LAYOUT,\n BENGLAURU 560 078.\n PH.NO 9663266886/ 9900559600\n\n64. MR. NAVEENA M,\n E.NO. 30747210, DEPT W 3720,\n S/O MALLESHAPPA,\n BETTADASATHENAHALLI,\n BAGIVAL POST, HALEKOTE HOBLI,\n HOLENARASIPURA TQ, HASSAN DIST 573 211.\n PHN. 9900887316\n\n65. MR. REVANASIDDESHA C,\n E.NO. 30745329,\n S/O CHENNABASAVANNA GOWDA,\n 393/ C39, 1st MAIN, 1st CROSS, TEACHERS COLONY,\n NEAR MANJUNATHA HIGH SCHOOL,\n AVARAGERE POST,\n DAVANAGERE DISTRICT 577 003.\n PHONE 9916324904\n - 13 -\n NC: 2023:KHC:38113-DB\n WA No. 526 of 2022\n\n\n\n66. HALESHA M.D\n E.NO. 30745221\n S/O DUNDYAPPA M\n BASAVAPATNA V AND POST, CHANNAGIRI (T),\n DAVANAGERE DISTRICT 577 551.\n M. 9113091863.\n\n67. PRAKASHA K B,\n E.NO. 30747050,\n S/O K BASAPPA,\n A-80, RAJAJINAGAR, Ist CROSS, SL HOWKI\n NEAR BUS DEPOT QUARTERS, HOSPET (TQ)\n BALLARY DIST 583 201.\n\n68. SUBRAMANI,\n E.NO. 30747185 W MFE 3530,\n S/O MUNIAPPA,\n ANGONDANAHALLI VILLAGE AND POST,\n MILABAGAL TQ, KOLAR DISTRICT 563 131.\n PH.NO. 9741137904\n\n69. MR. DARAL SANDEEP FERNANDES\n E.NO. 30749272 DPT QMM -8\n S.O LATE DONALD FERNANDES\n KIREHALLI VILLAGE, SUNDEKERE POST,\n KASABA HOBLI, SAKLESHPUR (TQ)\n HASSAN DISTRICT 573 127\n PHONE NO. 8892171207\n\n70. MR. THYAGARAJA D.K\n E.NO. 30745999, DEPT W 3130\n AGED 37 YEARS,\n C/O ESHWARAIAH\n 06, 9th CROSS, PIPE LINE ROAD,\n T DASARAHALLI, BENGLAURU 560 057.\n PHONE NO. 9060835576\n\n71. MR. RAJESH R\n E.NO. 30748905,DEPT W 3850120,\n AGED ABOUT 35 YEARS,\n 1st MAIN ROAD, KEMPEGOWDA LAYOUT,\n LAGGERE, BENGALURU 560 058.\n PHONE NO. 9742462797 /8217515709\n - 14 -\n NC: 2023:KHC:38113-DB\n WA No. 526 of 2022\n\n\n\n72. MR. IMTIYAZ PASHA H.M S/O LATE ABDUL MUNAF ,\n E.NO:30746060,DEPT:W 3200/W 6230/W7660(QMM)\n MUSLIM STREET, HAROHALLI POST,\n KANAKAPURA (TQ),\n RAMANAGARA (DIST) 562 112\n PHONE NO. 8095687650/8217034450\n\n73. MR. PARVEEZ PASHA S/O CHAND PASHA\n E.NO. 30746006, DEPT:W 3200/ W3130/W 3140,\n 152, HUNASANAHALLI VILLAGE AND POST,\n KODIHALLI HOBLI, KANAKAPUARA (TQ)\n RAMANAGARA (DIST) 562 119.\n PHONE NO. 9916989313/ 9740153138\n\n74. DHARSHAN R S/O RANGA SWAMY\n E NO 30746113, DEPT TEF 31,\n AGED 34 YEARS,\n NO.179, RAGHAVENDRA NILAYA,\n RAJEEV GANDHI NAGAR, NANDINI LAYOUT,\n BENGLAURU-560 096. PH 9036107039.\n\n75. LOKESH A S/O ANNU\n E.NO.30747746 DEPT MFC 11-3680,\n AGED 38 YEARS,\n GULAGALALE VILLAGE, BAGE POST,\n SAKELESHPURA TQ, HASSAN DIST-573 214.\n PH 821 7353912\n\n76. MR.RAMAKRISHNA,\n E.NO.30747737, DEPT W3530,\n AGED 36 YEARS,\n 313, KAVERI STREET, 4TH CROSS,\n UDAYANAGAR, BANGALORE-560 016.\n PHONE 9916166226\n\n77. MR.CHANDRA SHEKAR V,\n E.NO.30749316, DEPT W3710,\n AGED 41 YEARS,\n NO.62, 12TH B CROSS,\n KODANDARAMAPURA, VYALIKAWAL,\n MALLESHWARAM, BANGALORE-560 003.\n PHONE 9901819459\n - 15 -\n NC: 2023:KHC:38113-DB\n WA No. 526 of 2022\n\n\n\n78. MR.RAJESH M.R.\n E.NO.30753168, DEPT W3700,\n AGED 34 YEARS,\n 1855/1, 7TH CROSS, C BLOCK,\n MAHADEVAPURA LAYOUT,\n MYSORE-570 009.\n PHONE 9900504254\n\n APPEALLANT Nos.1 TO 78 ARE PETITIONERS\n IN W.P.NO.17695/2021 C/W WP NO.12656/2021 &\n W.P No.21703/2021\n\n79. MR.IRAPPA BADGER S/O MR ANNAPPA BADIGER,\n E NO. 30744188, DEPT. W3250/6530,\n AGED ABOUT 33 YEARS,\n NO.968/1, SIDDESWARA NILAYA,\n 3RD CROSS, 3RD MAIN ROAD,\n BHEL MINI COLONY,\n MALLASANDRA PIPELINE ROAD,\n T DASARAHALLI,\n BENGALURU-560 057.\n\n80. MR MARUTHI K H S/O MR HANUMANTHE GOWDA,\n E NO. 30747862 DEPT. W3910,\n AGED ABOUT 34 YEARS,\n KUDUVANKUNTTE, KANAKUPPE POST,\n HEBBUR HOBLI,\n TUMKUR TALUK AND DISTRICT-572 120.\n\n81. MR RAJASHEKHAR JAMADAR,\n E NO. 30745187 DEPT. W3910,\n AGED ABOUT 35 YEARS,\n S/O MR CHANDRAKANTH,\n CHOWDAPURA POST, AFZALPUR TALUK,\n GULBARGA DISTRICT.\n\n82. MR YASHEANTH KUMAR V,\n E NO. 30750642 DEPT. W3850,\n AGED 36 YEARS,\n S/O MR VENKATACHELAYA,\n KARANJOKATTI 10TH CROSS,\n MANIKANTH CIRCLE, KOLAR-563 101.\n - 16 -\n NC: 2023:KHC:38113-DB\n WA No. 526 of 2022\n\n\n\n83. MR V RAGHAVENDRA,\n E NO. 30749325, DEPT. W3360,\n AGED ABOUT 34 YEARS,\n S/O MR VASUDEVA MURTHY A S,\n YELAHANKA STREET, DEVANAHALLI RURAL-562 110.\n\n84. MR NANDAPPA SANGAPPA GALAGALI,\n E NO. 30747014 DEPT. W6820,\n AGED ABOUT 35 YEARS,\n S/O MR SANGHAPPA GALAGALI,\n NO.47, SANGHAPURA (S.H),\n BABULESHWARA TALUK,\n VIJAYAPURA DISTRICT-586 125.\n\n85. MR KRISHNA A,\n E NO. 30744357 DEPT. W6530 3530,\n AGED ABOUT 34 YEARS,\n S/O MR ADHIKESHAVAN,\n NO.6, 1ST CROSS, TOWER ROAD,\n KEMPAMMA LAYOUT, BENGALURU-560 096.\n\n86. MR RAVI KUMAR\n E NO. 30747620 DEPT. W7720,\n AGED ABOUT 36 YEARS,\n S/O BASAVEGOWDA,\n KALKERE, KODIGEHALLI POST,\n KASABA HOBLI, TURUVEKERE TALUK,\n TUMKUR DISTRICT-572 227.\n\n87. MR PRASANNA T\n E NO. 30744678 DEPT. W3540/3550,\n AGED ABOUT 36 YEARS,\n S/O MR TIPPESWAMY,\n HOSADURGA, BIDGI POST, JAGALUR TALUK,\n DAVANGERE DISTRICT-577 513.\n\n88. MR RAVI R,\n E NO. 30746202 DEPT. WPF51- MONO BLOCK,\n AGED ABOUT 34 YEARS,\n S/O MR RANGASWAMY,\n NO.1, 3RD CROSS, 1ST MAIN,\n KRISHNAPPA GARDEN, TAVAREKERE,\n BENGALURU-560 029.\n - 17 -\n NC: 2023:KHC:38113-DB\n WA No. 526 of 2022\n\n\n\n89. MR LOKESHA C C S/O MR CHANDRASHETTY,\n E NO. 30746042 DEPT. W6820,\n AGED ABOUT 38 YEARS,\n WARD NO.29, SOORU NO.38,\n BEHIND NALANDHA CONVENT,\n HUNNASINAKER LAYOUT, HASSAN-573 201.\n\n90. MR RAMESH D,\n E NO. 30745267 DEPT. W6530,\n AGED ABOUT 39 YEARS,\n NO. 595, 5TH CROSS, VERABADRAPPA ROAD,\n BENGALURU-560 033.\n\n91. MR SANTHOSH B N,\n E NO. 30747096, DEPT. W3180/7720,\n AGED ABOUT 39 YEARS,\n S/O MR NARAYANA GOWDA,\n BASAVANAHALLI VILLAGE, GANJIKARE POST,\n KUNDR (H), HALLURU TALUK,\n HASSAN DISTRICT-573 128.\n\n92. MR KARUNESH K R,\n E NO. 30745310 DEPT. W3180/7720,\n AGED ABOUT 34 YEARS,\n S/O MR RAJAPPA K,\n KARANJIKATTI, 10TH CROSS,\n UJJANAHALLI S R PURA POST,\n CHANNAPATNA TALUK, RAMANAGAR DISTRICT.\n\n93. MR MANJUNATHA S/O MR HOMBALAIAH,\n E NO. 30748031 DEPT. W6530,\n AGED ABOUT 31 YEARS,\n NO.12, 2ND MAIN RAOD,\n MADURA NAGAR, NEAR MOODALAPALYA CIRCLE,\n BENGALURU-560 072.\n\n94. MR ANAND KUMAR C N,\n E NO. 30744464 DEPT. W3810,\n AGED ABOUT 34 YEARS,\n S/O MR NARAYANAPPA,\n NO.50, KEMPE GOWDA NAGAR,\n BYDRAHALLI, MAGADI MAIN ROAD,\n BENGALURU-560 091.\n - 18 -\n NC: 2023:KHC:38113-DB\n WA No. 526 of 2022\n\n\n\n95. MR SHIVAKUMAR C R,\n E NO. 30745409 DEPT. W3180/7720,\n AGED ABOUT 35 YEARS,\n S/O MR RAJE GOWDA C K,\n NO.41/93, NAGADEVANAHALLI,\n MARIYAPPANA PALYA, BENGALURU-560 056.\n\n96. MR NAVEEN E,\n E NO. 30745230 DEPT. W6610/6620,\n AGED ABOUT 36 YEARS,\n S/O MR ERANNA,\n NO.199, 4TH MAIN, VIDHYANAGAR,\n T DASARAHALLI, BENGALURU-560 051.\n\n97. MR SHIVA KUMAR K N,\n E NO. 30753113 DEPT. 3850,\n AGED 31 YEARS,\n S/O MR NARARI GOWDA,\n KUNDUR VILLAGE, K N MANGALA POST,\n KUNIGAL TALUK, TUMKUR DISTRICT-572 126.\n\n98. MR DHANRAJ,\n E NO 30745276 DEPT W3550/3510,\n AGED 33 YEARS,\n S/O MR REVANNASIDDAPPA WARIK,\n NO 8/1305/129/2/116,\n REVANNASIDDESHA COLONY, KAPOOR ROAD,\n KALABURGI 585 104.\n\n99. MR SATHISH KUMAR K,\n E NO 30752025 DEPT W3580,\n AGED ABOUT 35 YEARS,\n S/O MR KRISHNAPPA,\n KODIYALLI VILLAGE, LAKKOOR POST,\n MALUR TLAUK, KOLAR DISTRICT.\n\n100. MR RAVI KUMAR K N,\n E NO 30752123 DEPT W3810,\n AGED 30 YEARS,\n S/O MR NARASIMHAIAH,\n NETTUR KULMEPALYA HUTHRI DURGA HOBLI,\n KUNIGAL TALUK, TUMKUR DISTRICT.\n - 19 -\n NC: 2023:KHC:38113-DB\n WA No. 526 of 2022\n\n\n\n101. MR SANTOSH S S/O MR SHANMUKH SANGUNDI\n E NO 30747087 DEPT W 6530/3530,\n AGED ABOUT 33 YEARS,\n PLOT NO 20, GDA LAYOUT,\n NEAR MANIKESWARI TEMPLE BRAHMAPURA,\n KALBURGI 585 103.\n\n102. MR S MAHANTHESHI S/O MR SIDDAPPA T,\n E NO 30745392 DEPT W 3150,\n AGED ABOUT 33 YEARS,\n NO 192, SUBHRAM SHETTY ROAD,\n NETKALAPA CIRCLE, BASAVANAGUDI ,\n BENGALURU 560 004.\n\n103. MR VEERESHA L C,\n E NO 30750526 DEPT W6820/3520,\n AGED 34 YEARS,\n S/O MR CHANDRAPPA,\n NO 12, SHIVARATHNA NILAYA,\n MADANAYAKANAHALLI MADHAV POST,\n BENGALURU 562 123.\n\n104. MR RAMESHA R S/O RANGAPPA C,\n E NO 30748969 DEPT W3810,\n AGED ABOUT 36 YEARS,\n NO 16, SVT CLOLONY,\n HIJJALA GATE, BIDADI HOBLI,\n RAMANAGAR (T AND D) 562 109.\n\n105. MR LOHITH G T,\n E NO 30746097 DEPT W3200,\n AGED ABOUT 32 YEARS,\n S/O MR THOPE GOWDA,\n GUNGURUMALE POST, TIPTUR TALUK,\n TUMKUR DISTRICT.\n\n106. MR LINGARAJU K G,\n E NO 30748932, DEPT W3520,\n AGED ABOUT 34 YEARS,\n S/O MR GANGADHAR,\n K62 10TH CROSS, 4TH MAIN ROAD,\n LAKSHMINARAYANPURAM,\n BENGALURU 560 021.\n - 20 -\n NC: 2023:KHC:38113-DB\n WA No. 526 of 2022\n\n\n\n107. MR MANJACHARI T I S/O MR IYYAYANNACHAR,\n E NO 30747041, DEPT W391010 CRS,\n AGED ABOUT 35 YEARS,\n GUNDAPANAHALLI KOPPALU KANDLI POST,\n HASSAN TALUK, HASSAB 573 217.\n\n108. MR RACHANNA S H S/O MR SHIVARAYA\n E NO 30744240 DEPT W6840/3850,\n AGED ABOUT 35 YEARS,\n HONNAKIRANGAGI POST,\n KALBURGI (T AND D).\n\n109. NAGESH K N,\n NO 30753097, DET W6200/6630\n AGED 33 YEARS,\n W15, 15TH A CROSS, BASAPPA GARDEN\n PIPELINE, MALLESHWARAIM,\n BANGALORE 560 003.\n\n110. MR BASAVARAJA T S/O MR SKEMPANNA T,\n E NO 30744687DET W3130/7180,\n KURUDIKITTUPR POST,\n DAVANAGERE 577 012.\n\n111. MR GIRISH D V S/O MR D P VENKATESHAIAH,\n E NO 30744259, DEPT W3520/9718\n AGED 35 YEARS,\n NO 2/21, 11TH CROSS, BHOVIPALYA,\n MAHALAKSHMI LAYOUT,\n BANGALORE 560 086.\n\n112. MR CHINNASWAMY,\n E NO 30746952, DEPT W3810/3520,\n AGED 36 YEARS,\n S/O RJACHARY,\n JYOTHI GOWDANAAPURA POST,\n CHAMARAJANGARA T AND D 571 117.\n\n113. MR DHRAMARAYA\n E NO 30746159, DEPT W6200/7570,\n AGED 36 YEARS,\n S/O NR DATTAPALLAKALAKI, ALAND TALUK,\n KALBURGI DISTRICT 585 302.\n - 21 -\n NC: 2023:KHC:38113-DB\n WA No. 526 of 2022\n\n\n\n114. MR NAGENDRA KUMAR,\n CE NO 30746915, DEPT W6530/7570,\n AGED 36 YEARS,\n S/O CHANANBASAPPA,\n NO 39, 10TH CROSS, SANJIVINI NAGAR,\n NEAR OM SHAKTI TEMPLE, HEGGANAHALLI,\n BENGALURU 560 091.\n\n115. MR LIMBAJI RATHIOD,\n E NO 30752089, DEPT W6820/3850,\n AGED 33 YEARS,\n S/O MR LAKSHMANAN RATHOD,\n BARATAGI LT2B TALUK,\n VIJAYAPURA DIST 586 119.\n\n APPELLANT Nos.79 TO 115 ARE\n PETITIONERS IN WP NO.12656/2021\n\n116. MR. KASHINATH BILUR\n E NO.30744231, DEPT. W-6630,\n AGED ABOUT 30 YEARS,\n S/O MR. CHANNABASAPPA,\n NO.7, 8TH MAIN, BDA AVALAHALLI PARK,\n NEAR KUVEMPURANGAMANDIR,\n BSK 3RD STAGE, BENGALURU-560 085.\n\n117. AMEENAPPA BHOVI\n E NO.30744179, DEPT W-3850,\n AGED ABOUT 33 YEARS,\n S/O MR. SHIVAPPA,\n NO.250/4, LAKSHMI NIVASA, 4TH CROSS,\n NEW BAYAPPANAHALLI, INDIRANAGAR,\n BENGALURU-560 038\n\n118. MR. SHIVA KUMARA,\n E.NO.30744213, DEPT. W-6530,\n AGED ABOUT 32 YEARS,\n S/O MR. KALEGOWDA,\n NO.1050, 12TH CROSS, 1ST BLOCK,\n BDA LAYOUT, JP NAGAR, 8TH PHASE,\n SHARATHYNAGAR,\n BENGALURU-560 062.\n - 22 -\n NC: 2023:KHC:38113-DB\n WA No. 526 of 2022\n\n\n\n119. MR. MUTHU KUMARESAN.C,\n E.NO.30748790, DEPT, W-6630,\n AGED ABOUT 32 YEARS,\n S/O MR. CHIDAMBARAM,\n NO.1863, 6TH BLOCK, SMV LAYOUT,\n NEAR GANESHA TEMPLE ROAD,\n ULLALUPPANAGAR, BENGALURU-560 056.\n\n120. MR. NAGESHA B\n E.NO. 30747176, DEPT. W-7570,\n AGED 34 YEARS,\n S/O MR. BASAVARAJU,\n C/O RAJKUMAR,\n NO.23, 1ST CROSS, 1ST MAIN,\n PREETHINAGAR, LAGGERE,\n BENGALURU-560 058.\n\n121. MR.NANDISH B.R,\n E.NO.30748898, DEPT. W-6530,\n AGED ABOUT 34 YEARS,\n S/O MR. RUDRAPPA B,\n NO.203, GOVINDARAJ NAGAR,\n NAGARBHAVI MAIN ROAD,\n BENGALURU-560 079.\n\n122. MR.NAVEENA K.R,\n E.NO.30748898, DEPT. W-6530,\n AGED ABOUT 33 YEARS,\n S/O MR. RANGASWAMAIAH,\n NO.96, RANGANATHAPURA,\n KAMAKSHIPALYA, MAGADI MAIN ROAD,\n BENGALURU-560 079.\n\n123. MR. PRAKSHA K.M\n E.NO.30744419, DEPT . W-3850,\n AGED ABOUT 35 YEARS,\n S/O MR. VIJAYAKUMAR, NO.222,\n 14TH CROSS, 1ST MAIN ROAD,\n RAJIVGANDHI NAGAR, KEBBEHALLA,\n MAGADI MAIN ROAD, SUNKADAKATTE,\n BENGALURU-560 091.\n - 23 -\n NC: 2023:KHC:38113-DB\n WA No. 526 of 2022\n\n\n\n124. MR. GIREESH N,\n E.NO.30741742 OLD E.NO.164715,\n DEPT., W-7170/MFP,\n AGED ABOUT 37 YEARS,\n S/O LATE NAGARAJU C.,\n SHREE MATRU KRUPA, 3RD CROSS, SIT EXTN.,\n TUMKUR-572 103.\n\n125. MR. VENKATESH K.R.\n E NO. 30742947,\n AGED ABOUT 37 YEARS,\n NO.10, NENAPU BUILDING,\n 3RD CROSS, KANNADA KASTURI ROAD,\n T DASARAHALLI, BENGALURU-560 057.\n\n APPELLANT Nos.116 TO 125 ARE PETITIONERS\n IN WRIT PETITION No.21703/2021.\n ...APPELLANTS\n(BY SRI. G A ANTHONY CRUZE, ADVOCATE FOR\n SMT. SRIDEVI T R.,ADVOCATE)\n\nAND:\n\n1. BOSCH LIMITED.,\n HOSUR ROAD, ADUGODI,\n BENGALURU-560 030,\n BY\n\n2. MR. A. GOPI KUMAR\n VICE PRESIDENT,\n (COMMERCIAL PLANT MANAGEMENT)\n\n3. MR. RAJENDRA. B\n VICE PRESIDENT\n (TECHNICAL PLANT MANAGEMENT)\n\n4. MR. NAGARAJ. M\n SENIOR GENERAL MANAGER,\n (HUMAN RESOURCES)\n\n5. MR. H. S. RAMESH\n DEPUTY GENERAL MANAGER,\n (HUMAN RESOURCES)\n - 24 -\n NC: 2023:KHC:38113-DB\n WA No. 526 of 2022\n\n\n\n6. THE OFFICE OF THE DEPUTY\n LABOUR COMMISSIONER\n REGION NO.2, KARMIKA BHAVANA,\n BANNERGHATTA ROAD,\n NEAR DIARY CIRCLE,\n BENGALURU-560 029.\n\n7. MR. VENKATARAJA B.K,\n E.NO.30744197, DEPT W3710,\n AGED 42 YEARS,\n S/O KRISHNAMURTHY B V,\n BIDALAPURA, REDDYHALLI POST,\n DEVANAHALLI TQ., BANGALORE RURAL,\n PHONE 9980602390\n\n8. MR. BASAVARAJU.D.K,\n E.NO.30747764, DEPT W3530 (FMG),\n AGED 35 YEARS,\n DODDASOMANAHALLI VILLAGE AND POST,\n TIPPASANDRA HOBLI, MAGADI (TQ),\n RAMANAGARA (DIST) PHONE 7019312229\n\n9. MR. SRIDHARA.V\n E.NO.30747871, DEPT W3720,\n AGED 35 YEARS,\n NO.26, 1ST MAIN, 2ND BLOCK,\n KANTEERAVANAGAR, BANGALORE-560 096.\n PHONE 9611670739\n\n10. MR. S.N. MANJUNATHA\n E.NO.30750016, DEPT3850,\n AGED 36 YEARS,\n NO.31, 13TH CROSS, 1ST B MAIN,\n JC NAGAR, MAHALAKSHIPURAM,\n BANGALORE-560 086.\n PH 9886833091\n\n11. MR. NANDEESHA U B\n E.NO.30744311, DEPT W6230/POWER TOOLS,\n AGED 36 YEARS,\n NO.3, 3RD CROSS, RUSHABHAVATHINAGAR,\n KAMAKSHIPALYA, BANGALORE-560 079.\n PH 9880015186\n - 25 -\n NC: 2023:KHC:38113-DB\n WA No. 526 of 2022\n\n\n\n12. MR. RANGANATHA B G\n E.NO.30744268, DEPT: W6440,\n AGED 36 YEARS,\n BANDISHETTIHALLI,\n BOOVANAHALLI POST,\n HOLENARASIPURA TQ., HASSAN DIST.,\n PH 9483680102\n\n13. MR. ANANTHA D\n S/O DEVARANGE GOWDA,\n E.NO.30748200, DEPT W6840/W3710,\n AGED 35 YEARS,\n NO.13, PUNYAKOTI NILAYA, BINNAMANGALA,\n NEAR VISHWASHANTHI ASHRAMA,\n NELAMANGALA-562 123.\n ALSO RESIDING AT KENCHENAHALLI VILLAGE,\n HERAGU POST, DODDAHOBLI,\n HASSAN TQ AND DIST 573 201.\n PH 9606602105\n\n14. MR. VISHWANATH G,\n E.NO.30748914, DEPT W6530,\n AGED 35 YEARS,\n VINAYAKA NILAYA, DEVASANDRA MAIN ROAD,\n 1ST CROSS, NETHRAVATHI EXTN.,\n NEAR TENT ROAD, K R PURAM,\n BANGALORE-560 036.\n PH 9164630684\n\n15. MR.MOHANA KUMARA H P,\n E.NO.30748923, DEPT: W3810/CALIBRATION,\n AGED 34 YEARS,\n NO.261, 8TH B CROSS, DEFENCE COLONY,\n BAGALAGUNTE, BANGALORE-560 073.\n PH 9844207221\n\n16. MR. RAMESH K J\n E.NO.30744151, DEPT: COS(RND),\n AGED 40 YEARS,\n S/O LATE JAVARAPPA,\n KARAKUCHI (V AND P), TARIKERE TQ,\n CHIKKAMAGALURU DIST-577 144.\n PH 8660136164/9972677838\n - 26 -\n NC: 2023:KHC:38113-DB\n WA No. 526 of 2022\n\n\n\n17. MR.YOGANANDA,\n E.NO.30747023, DEPT: W7180,\n AGED 35 YEARS,\n ANTHARAHALLI (VILLAGE AND POST),\n DODDABALLAPURA (TQ),\n BANGALORE-561 203.\n PH 9986280970/9663654234\n\n18. MR. MUNIRAJU K N\n E.NO.30753104, DEPT W3130/W3140,\n AGED 37 YEARS,\n KONDASANDRA VILLAGE, TUBAGERE POST,\n DODDABALLAPURA (TQ),\n BANGALORE RURAL (DIST),\n PH 9900759390\n\n19. MR. JAYANNA K N\n E.NO.30748004, DEPT W6840,\n AGED 35 YEARS,\n S/O NAGARAJAIAH.K.M.,\n KATHINAGENAHALLI, SOMPURA POST,\n KORATAGERE TQ, TUMKUR DIST.,\n PH 9901070719\n\n20. MR. MANU K S\n E.NO.30748095 DEPT W-6820,\n AGED 35 YEARS,\n S/O SURAPPA K.C., M.HOSAKOPPALU,\n H.N.PURA ROAD, HASSAN-573 201,\n PH 9964199105\n\n RESPONDENT Nos.1 to 20 ARE\n RESPONDENTS IN WP No.17695/2021 C/W\n WP Nos.12656/2021, 21703/2021\n\n21. BOSCH LIMITED\n HOSUR ROAD, ADUGODI, ADUGODI POST,\n BENGALURU-560 030\n\n BY\n22. A GOPI KUMAR\n VICE PRESIDENT\n (COMMERCIAL PLANT MANAGEMENT)\n - 27 -\n NC: 2023:KHC:38113-DB\n WA No. 526 of 2022\n\n\n\n23. RAJENDRA B\n VICE PRESIDENT\n (TECHNICAL PLAN MANAGEMENT)\n\n24. NAGARAJ M\n SENIOR GENERAL MANAGER\n (HUMAN RESOURCES)\n\n25. H S RAMESH\n DEPUTY GENERAL MANAGER,\n (HUMAN RESOURCES)\n\n26. THE OFFICE OF THE DEPUTY\n LABOUR COMMISSIONER,\n REGION NO.2, KARMIKA BHAVANA,\n BANNERGHATTA ROAD, NEAR DAIRY CIRCLE,\n DR COLLEGE POST, BENGALURU-560 029.\n\n27. MR. RAGHAVENDRA D M S/O MR. MARIYAPPA,\n E.NO.30752114, DEPT, W6820,\n AGED ABOUT 37 YEARS,\n M.K. DEVASANDRA VILLAGE,\n HORAGADDE POST, ANEKAL TALUK,\n BENGALURU-560 105.\n\n28. MR. NAGARAJU H R\n E.NO.30752169, W3850/3130,\n AGED ABOUT 33 YEARS,\n S/O RANGASWAMY H.G.\n HUTHRI DURGA, HUTHRI POST,\n KUNIGAL TALUK,\n TUMKUR DISTRICT-572 126.\n\n RESPONDENT Nos.21 TO 28 ARE\n RESPONDENTS IN WP No.12656/2021\n\n29. BOSCH LIMITED\n HOSUR ROAD,\n ADUGODI, BENGALURU-560 030. BY\n\n30. A GOPI KUMAR\n VICE PRESIDENT\n (COMMERCIAL PLANT MANAGEMENT)\n - 28 -\n NC: 2023:KHC:38113-DB\n WA No. 526 of 2022\n\n\n\n31. RAJENDRA B\n VICE PRESIDENT\n (TECHNICAL PLANT MANAGEMENT)\n\n32. NAGARAJ M\n SENIOR GENERAL MANAGER,\n (HUMAN RESOURCES)\n\n33. H.S. RAMESH\n DEPUTY GENERAL MANAGER,\n (HUMAN RESOURCES)\n\n34. THE OFFICE OF THE DEPUTY\n LABOUR COMMISSIONER\n REGION NO.2, KARMIKARA BHAVANA,\n BANNERGHATTA ROAD,\n NEAR DAIRY CIRCLE,\n D.R. COLLEGE POST,\n BENGALURU-560 029.\n\n RESPONDENT No.29 TO 34 ARE\n RESPONDENTS IN WP NO.21703/2021.\n ...RESPONDENTS\n(BY SMT.SHWETHA KRISHNAPPA., AGA FOR 34)\n\n THIS WRIT APPEAL FILED U/S 4 OF THE KARNATAKA\nHIGH COURT ACT PRAYING TO CALL FOR RECORDS OLF WRIT\nPETITION No.17695/2021 CONNECTED WITH\nW.P.NO.12656/2021 AND W.P.NO.21703/2021 AND SET ASIDE\nTHE ORDER PASSED BY HON'BLE JUDGE DATED 30/03/2022,\nBENGALURU.\n\n THIS APPEAL, COMING ON FOR ORDERS THIS DAY,\nCHIEF JUSTICE DELIVERED THE FOLLOWING:\n\n JUDGMENTHeard the learned counsel for the appellants. The\n\norder impugned in the Appeal is rejection of an application\n\nseeking interim order by assigning the reasons. We do- 29 -NC: 2023:KHC:38113-DBWA No. 526 of 2022not see any error in the order passed by the learned single\n\njudge. Learned counsel for the Appellants submits that\n\nthe Appellants/Petitioners are workmen and they be\n\ngranted liberty to request the learned Single judge for\n\nearly hearing of the Writ Petition so that there would be a\n\nfinal decision in the said matter expeditiously.Accordingly liberty is granted to the Appellants to\n\nrequest the learned Single Judge for early hearing of the\n\nPetition; if such request is made and if there is no other\n\nimpediment and that the Petition is ready for hearing,\n\nlearned Single Judge may consider that request and hear\n\nthe Petition as expeditiously as possible.With the above observations, this appeal is disposed\n\noff.Sd/-CHIEF JUSTICE\n\n\n\n Sd/-JUDGE\nBsv |
a5239263-e36a-533d-9bf1-48f45ae7a9c1 | court_cases | Patna High Court - OrdersRaushan Jha vs The State Of Bihar on 16 March, 2020Author:Prabhat Kumar JhaBench:Prabhat Kumar JhaIN THE HIGH COURT OF JUDICATURE AT PATNA\n CRIMINAL MISCELLANEOUS No.77113 of 2019\n Arising Out of PS. Case No.-124 Year-2019 Thana- SHEOHAR District- Sheohar\n ======================================================\n RAUSHAN JHA, Male, aged about 52 years, Son of Beda Jha @ Bedanand\n Jha, Resident of Village - Sugiya Katsari, P.S.- Town, Distt - Sheohar.\n\n ... ... Petitioner/s\n Versus\n The State of Bihar.\n\n ... ... Opposite Party/s\n ======================================================\n with\n CRIMINAL MISCELLANEOUS No. 81641 of 2019\n Arising Out of PS. Case No.-124 Year-2019 Thana- SHEOHAR District- Sheohar\n ======================================================\n SATISH KUMAR JHA @ SATISH JHA, Male, aged about 52 years, S/o\n Jainath Jha @ Jagat Narayan Jha, R/o Village- Sugiya Katsari, P.S.- Town,\n District- Sheohar.\n\n ... ... Petitioner/s\n Versus\n The State of Bihar.\n\n ... ... Opposite Party/s\n ======================================================\n Appearance :\n (In CRIMINAL MISCELLANEOUS No. 77113 of 2019)\n For the Petitioner/s : Mr.Baidya Nath Thakur\n For the Opposite Party/s : Mr.Shailendra Kumar Singh\n (In CRIMINAL MISCELLANEOUS No. 81641 of 2019)\n For the Petitioner/s : Mr.Baidya Nath Thakur\n For the Opposite Party/s : Mr.Rajeev Nayan,App\n ======================================================\n CORAM: HONOURABLE MR. JUSTICE PRABHAT KUMAR JHA\n ORAL ORDER\n\n3 16-03-2020Heard Mr. Ramakant Sharma, the learned Senior\n\n counsel appearing on behalf of petitioners, namely, Raushan Jha\n\n and Satish Kumar Jha @ Satish Jha in both the cases and the\n\n learned Additional Public Prosecutor.The petitioners seek bail in Sheohar P.S. Case No.124\n\n of 2019, registered under Sections 307, 120-B and 302/34 of the\n Patna High Court CR. MISC. No.77113 of 2019(3) dt.16-03-20202/5of theIndian Penal CodeandSection 27of the Arms Act.The informant Phuldeo Sahani, the brother of the\n\n deceased and the injured, alleged that while he was returning to his\n\n house and when he reached near the house of Lalan Jha, Jagi Jha,\n\n Raushan Jha, the petitioner, Satish Jha, the petitioner, Arvind Jha,\n\n Sonu Jha and Vyas Jha, residents of village Sugiya Katsari\n\n surrounded him and the informant after seeing them started fleeing\n\n away. The informant saw that Jagi Jha, Raushan Jha and Satish Jha\n\n were indiscriminately firing from their pistols. Jagi Jha and\n\n Raushan Jha made indiscriminate firing on Indradeo Sahani and\n\n Satish Jha made firing on Sone Lal Sahni. Indradeo Sahani and\n\n Sonelal Sahani got firearm injuries and they were brought to\n\n S.K.M.C.H. for treatment where Indradeo Sahani succumbed to\n\n the injury.Mr. Ramakant Sharma, the learned Senior counsel for\n\n the petitioners submits that the informant, of course, made\n\n allegation that Raushan Jha and Jagi Jha made firing on Indradeo\n\n Sahani who succumbed to the injuries but Satish Jha, petitioner of\n\n Cr. Misc. No.81641 of 2019 is alleged to have fired on Sonelal\n\n Sahani but Sonelal Sahani has made his statement underSection\n\n 164Cr.P.C. (Annexure-2). Sonelal Sahani did not even name the\n\n petitioner as his assailant. Sonelal Sahani disclosed that Jagi Jha\n\n fired but all the accused persons surrounded him near the house of\n Patna High Court CR. MISC. No.77113 of 2019(3) dt.16-03-20203/5Paras Jha. His younger brother had already received injuries and\n\n he was shot from behind. It is submitted that from bare perusal of\n\n the statement of Sonelal Sahani, it would appear that the informant\n\n is not an eye witness of the occurrence and Sonelal Sahani, the\n\n injured, did not even name the assailant of his brother, Indradeo\n\n Sahani. Sonelal Sahani also did not name his own assailant. He\n\n simply alleged that Jagi Jha made firing but did not disclose that\n\n the firing of Jagi Jha hit any body. It is further submitted that\n\n Sonelal Sahani disclosed that he got one firearm injury on his back\n\n which came out from his front side abdomen hence, the petitioners\n\n deserve bail.Learned Additional Public Prosecutor however, opposed\n\n the prayer for bail and submitted that the informant has made very\n\n specific allegation that Jagi Jha and Raushan Jha fired which hit\n\n Indradeo Sahani and Satish Jha fired which hit on the back of\n\n Sonelal Sahani. Sonelal Sahani was fleeing away and firing was\n\n made from his backside. He was not in a position to see his\n\n assailant and the assailant of his brother. The informant and other\n\n witnesses have categorically stated that the petitioners are the\n\n assailants of the deceased and the injured. The petitioners have\n\n also got criminal antecedents.Perused the FIR and the case diary. The informant who\n\n claims himself to be an eye witness of the occurrence made\n Patna High Court CR. MISC. No.77113 of 2019(3) dt.16-03-20204/5specific allegation that six accused persons including Raushan Jha,\n\n Satish Jha and Jagi Jha chased them. Jagi Jha, Raushan Jha and\n\n Satish Jha made firing. The firing made by Jagi Jha and Raushan\n\n Jha hit Indradeo Sahani and the firing made by Satish Jha hit\n\n Sonelal Sahani, another brother of the informant. During the\n\n course of investigation, the witnesses also reiterated the facts.\n\n From perusal of injury report of Sonelal Sahani, it appears that\n\n Sonelal Sahani got two lacerated wounds caused by firearm\n\n injuries one appears to be wound of entry and another wound of\n\n exit. Of course Sonelal Sahani did not name the petitioner, Satish\n\n Jha as his assailant but in his statement underSection 164Cr.P.C.,\n\n he disclosed that somebody fired at him from behind but the\n\n informant very categorically stated that Satish Jha fired which hit\n\n Sonelal Sahani on his back. Indradeo Sahani also got many firearm\n\n injuries which are attributed to Raushan Jha, the petitioner of Cr.\n\n Misc. No.77113 of 2019.Taking into consideration the facts that the petitioner\n\n Raushan Jha is the assailant of the deceased Indradeo Sahani and\n\n the petitioner Satish Jha is the assailant of injured Sonelal Sahani\n\n and the injury on the back and abdomen of the injured is grievous\n\n in nature caused by firearm, I am not inclined to enlarge the\n\n petitioners on bail.Accordingly, the prayer for bail of the petitioners is\n Patna High Court CR. MISC. No.77113 of 2019(3) dt.16-03-20205/5rejected.The trial court is directed to hold the trial on day to day\n\n basis and conclude the same within one year from the date of\n\n receipt of this order.The Superintendent of Police, Sheohar is directed to\n\n ensure the attendance of the witnesses during the course of trial.If the trial is not concluded within one year, petitioner,\n\n Satish Jha, who is the assailant of the injured, Sonelal Sahani, may\n\n renew his prayer for bail.(Prabhat Kumar Jha, J)\nS.KUMAR/-U T |
3aeed2ae-272b-58b1-9b87-b0346b1ff119 | court_cases | Telangana High CourtThirumala College Of Nursing vs Kaloji Narayana Rao University Of ... on 17 October, 2023Author:P.Sam KoshyBench:P.Sam KoshyIN THE HIGH COURT FOR THE STATE OF TELANGANA ::\n AT HYDERABAD\n\n ***\n Writ Petition Nos.34617 of 2022, 26565, 26654, 26656, 26658,\n 26659, 26661, 26663, 26688, 26766, 26776, 26779, 26790,\n 26793, 27316, 27318, 27321, 27326, 27341, 27377, 27405,\n 27420, 27429, 27456, 27458, 27460, 27461, 27462, 27463,\n 27465, 27467, 27468, 27469, 27472 and 27475 of 2023\n\nBetween:\n\nCare College of Nursing and others.\n\n Petitioners\n VERSUS\n\nKaloji Narayana Rao University of Health Sciences,\nRep by its Registrar, and others.\n Respondents\n\n\n\n JUDGMENT PRONOUNCED ON: 17.10.2023\n\n\n THE HONOURABLE SRI JUSTICE P.SAM KOSHY\n\n AND\n\n THE HONOURABLE SRI JUSTICE LAXMI NARAYANA ALISHETTY\n\n\n1. Whether Reporters of Local newspapers\n may be allowed to see the Judgments? : Yes\n2. Whether the copies of judgment may be\n Marked to Law Reporters/Journals? : Yes\n3. Whether His Lordship wishes to\n see the fair copy of the Judgment? : Yes\n\n\n\n ____________________\n P.SAM KOSHY, J\n ::2:: PSK,J & LNA,J\n WP No.34617 of 2022 & batch\n\n\n\n\n * THE HONOURABLE SRI JUSTICE P.SAM KOSHY\n AND\n THE HONOURABLE SRI JUSTICE LAXMI NARAYANA ALISHETTY\n\n+ Writ Petition Nos.34617 of 2022, 26565, 26654, 26656, 26658,\n 26659, 26661, 26663, 26688, 26766, 26776, 26779, 26790,\n 26793, 27316, 27318, 27321, 27326, 27341, 27377, 27405,\n 27420, 27429, 27456, 27458, 27460, 27461, 27462, 27463,\n 27465, 27467, 27468, 27469, 27472 and 27475 of 2023\n\n% 17.10.2023\n\n# Between:\n\nCare College of Nursing and others.\n Petitioners\n VERSUS\n\nKaloji Narayana Rao University of Health Sciences,\nRep by its Registrar, and others.\n\n Respondents\n! Counsel for Petitioner(s) : Mr.Gaddam Srinivas\n\n^Counsel for the respondent(s) : None for 1st respondent-University;\n Mr. Dominic Fernandes, learned\n Senior Standing Counsel for\n respondent Nos.2 and 3; &\n Mr.V. Rajeshwar Rao, learned\n Government Pleader for\n Commercial Tax Department, for\n respondent Nos.4 and 5 in Writ\n Petition No.24617 of 2022.\n\n<GIST:\n\n> HEAD NOTE:\n\n\n\n? Cases referred ::\n1. W.P.No.57941 of 2018, decided on 26.07.2022\n2. W.P.No.112 of 2019, decided on 26.07.2022\n3. (1978) 1 S.C.C. 498\n4. (2011) 4 S.C.C. 527\n5. (2017) 6 S.C.C. 675\n6. (2018) 9 S.C.C. 1 (F.B.) (S.C.)\n ::3:: PSK,J & LNA,J\n WP No.34617 of 2022 & batch\n\n\n\n THE HONOURABLE SRI JUSTICE P. SAM KOSHY\n\n AND\n\n THE HONOURABLE SRI JUSTICE LAXMI NARAYANA ALISHETTY\n\n\nWrit Petition Nos.34617 of 2022, 26565, 26654, 26656, 26658, 26659,\n 26661, 26663, 26688, 26766, 26776, 26779, 26790, 26793, 27316,\n 27318, 27321, 27326, 27341, 27377, 27405, 27420, 27429, 27456,\n 27458, 27460, 27461, 27462, 27463, 27465, 27467, 27468, 27469,\n 27472 and 27475 of 2023\n\nCOMMON ORDER :Since the grounds of challenge and the petitioners and\n\nrespondents, all being the same, we proceed to decide the batch\n\nof writ petitions by this common order.2. This batch of writ petitions are filed by the educational\n\ninstitutions assailing the demand notice raised by the 1st\n\nrespondent-University so far as payment of G.S.T. on the\n\naffiliation fee and inspection fee together with arrears from July,\n\n2017 onwards.3. For proper appreciation of facts, it would be more relevant\n\nto take note of the contents of the demand notice issued by the\n\n1st respondent to each of the petitioners in all the writ petitions,\n\nwhich is extracted as under :::4:: PSK,J & LNA,J\n WP No.34617 of 2022 & batch"With reference to the subject cited and vide references\n cited, the University has been directed by GST authorities to\n collect and deposit the GST dues from July, 2017 onwards on\n affiliation and inspection fees paid by private institutions affiliated\n to K.N.R.U.H.S.\n In this regard, you are hereby directed to submit 9%\n S.G.S.T. and 9% C.G.S.T. (a total of 18% as G.S.T.) on the\n affiliation and inspection fee paid to the University from July,\n 2017 onwards in the form of Demand Draft in favour of the\n Registrar, K.N.R.U.H.S. payable at Warangal within 10 days.\n Kindly note that the D.D.s are to be submitted separately for each\n financial year and also please provide the details of affiliation fee\n and inspection fee paid in a table form year-wise for each\n Financial Year.Any further orders from the G.S.T. authorities shall be\n communicated to you for further course of action."4. For convenience, we are referring to the facts in Writ\n\nPetition No.34617 of 2022 as facts for the rest of the batch of\n\nwrit petitions as well. However, the other connected batch of\n\nmatters, which are also heard and decided together, are matters\n\nwhere the impugned demand notice have been raised in the\n\npresent year, i.e., 2023.5. Heard Mr. Gaddam Srinivas, learned counsel for the\n\npetitioners; Mr. Dominic Fernandes, learned Senior Standing\n\nCounsel, appearing on behalf of respondent Nos.2 and 3; and\n\nMr. V. Rajeshwar Rao, learned Government Pleader for\n ::5:: PSK,J & LNA,J\n WP No.34617 of 2022 & batch\n\n\n\nCommercial Tax Department, for respondent Nos.4 and 5 in Writ\n\nPetition No.24617 of 2022. None appeared for the 1st respondent- Kaloji Narayana Rao University of Health Sciences\n\n(K.N.R.U.H.S.)6. All the petitioners in the present writ petition as also in the\n\nother connected writ petitions are educational institutions /\n\ncolleges primarily imparting nursing course. All the colleges\n\nbefore this Court in the various writ petitions are all affiliated\n\nwith the 1st respondent-Kaloji Narayana Rao University of Health\n\nSciences (K.N.R.U.H.S.), (for short, 'the 1st respondent-\n\nUniversity').7. The 1st respondent is a University which has been\n\nestablished under the provisions of Act 6 of 1986. The colleges\n\nwhich intend to get affiliation the 1st respondent-University are\n\nrequired to undergo certain procedure. For the purpose of\n\ngranting affiliation, the 1st respondent-University is required to\n\nfirst conduct an inspection and for this purpose, the University\n\ncharges inspection fees as also affiliation fees from the respective\n\ncolleges. All the colleges in this batch of writ petitions have paid\n\nthe inspection fees for the inspection conducted as also the\n\naffiliation fees for the affiliation granted.::6:: PSK,J & LNA,J\n WP No.34617 of 2022 & batch8. The G.S.T. law came into force w.e.f. 01.07.2017.9. Recently, the respondent Nos.2 and 3 have raised demand\n\nof G.S.T. on the affiliation fees and inspection fees from the 1st\n\nrespondent-University. Based upon the said demand, so raised\n\nby the respondent Nos.2 and 3, the 1st respondent-University in\n\nturn demanded payment of G.S.T. on the affiliation fees and\n\ninspection fees paid by each of these petitioners before this\n\nCourt in the present batch of writ petitions. It is this demand\n\nraised by the 1st respondent-University from the petitioner-\n\neducational institutions which has led to filing of the present\n\nwrit petition.10. At the time when the G.S.T. law was enacted, "Education\n\nService" was one of the subjects which was taxable under the\n\n'Heading No.9992' as per notification dated 28.06.2017.\n\nSubsequently, there were certain categories of services provided\n\nby the educational institutions which stood exempted from levy\n\nof G.S.T. It is this exemption of levy of G.S.T. upon certain\n\ncategory of services rendered by the educational institutions as\n\nper notification No.12 of 2017, dated 28.06.2017, which has\n\nbeen heavily relied upon by the petitioners praying for allowing\n\nof the writ petitions and quashment of the impugned demand\n ::7:: PSK,J & LNA,J\n WP No.34617 of 2022 & batch\n\n\n\nnotice raised by the 1st respondent-University for payment of\n\nG.S.T.11. Learned counsel for the petitioners contended that perusal\n\nof Serial No.66 of Notification No.12 of 2017, dated 28.06.2017,\n\nwould show that the services provided by an educational\n\ninstitution stands exempted from payment of G.S.T. He further\n\ncontended that the term "educational institution" has been\n\nfurther defined in the same notification in Clause (y) ofSection 2of the G.S.T. Act. According to learned counsel for the\n\npetitioners, in terms of the said definition, an institution\n\nproviding education services as a part of curriculum for\n\nobtaining a qualification, would by itself bring within it the\n\nUniversity. In the process, the collection of fees towards\n\ninspection and affiliation also would get exempted from levy of\n\nG.S.T. In addition, he contended that the amendment brought\n\nto Serial No.66 of the Notification No.12 of 2017, dated\n\n28.06.2017, by incorporating Clause (aa) also would make it\n\nemphatically clear that conduction of entrance examination and\n\ncollection of entrance fees also has been brought within the\n\nexempted category and, thus, it would include affiliation and\n\ninspection fees as well.::8:: PSK,J & LNA,J\n WP No.34617 of 2022 & batch12.In support of his contention, learned counsel for the\n\npetitioners firstly relied upon a recent decision of a learned\n\nSingle Judge of the Karnataka High Court in M/s. Rajiv Gandhi\n\nUniversity of Health Sciences vs. Principal Additional\n\nDirector General, Directorate General of GST Intelligence\n\nand others 1 and also in M/s.BangaloreUniversity vs.\n\nPrincipal Additional Director General, Directorate General of\n\nGST Intelligence and others2, wherein the learned Single Judge\n\nallowed the said writ petitions by setting aside the show-cause\n\nnotice and also the consequent further actions as well, raised by\n\nthe University from the respective colleges.13. Additionally, learned counsel for the petitioners also placed\n\nreliance on the following decisions of the Hon'ble Apex Court inThe Principal and others vs. The Presiding Officer and\n\nothers3,Chairman, Bhartia Education Society vs. State of\n\nHimachal Pradesh4 andMaharishi Markandeshwar Medical\n\nCollege and Hospital vs. State of Himachal Pradesh5.1 W.P.No.57941 of 2018, decided on 26.07.20222 W.P.No.112 of 2019, decided on 26.07.20223 (1978) 1 S.C.C. 498\n4 (2011) 4 S.C.C. 527\n5 (2017) 6 S.C.C. 675\n ::9:: PSK,J & LNA,J\n WP No.34617 of 2022 & batch14. Learned counsel for the petitioners relied on the above\n\ndecisions to show that affiliation is intrinsically connected with\n\nthe educational institutions having affiliation from a particular\n\nUniversity. That since the object of the University also is to\n\nensure uniform curriculum and standards among the different\n\naffiliated colleges imparting education on the same course. In the\n\ninstant case, it is the nursing course which is being imparted by\n\nthe petitioners herein, therefore, the 1st respondent-University\n\nwould also fall within the purview of 'educational institution' and\n\nas such the petitioners would also be exempted from levy of\n\nG.S.T. on the inspection fees and affiliation fees.15. Learned counsel for the petitioners further contended that\n\nin the event, the said fees becomes amenable to G.S.T. and if the\n\npetitioners are made to pay G.S.T. on the inspection fees and\n\naffiliation fees, the petitioner-Colleges would be compelled to\n\npass on the burden on the students who get admitted to the\n\nrespective colleges of the petitioners. Thus, in terms of Serial\n\nNo.66 of the notification No.12 of 2007, dated 28.06.2017, since\n\nit exempts so far as the services rendered by the educational\n\ninstitutions to the students, the petitioners should not be\n\ncompelled to pay G.S.T. on the inspection fees and the affiliation\n ::10:: PSK,J & LNA,J\n WP No.34617 of 2022 & batch\n\n\n\nfees. It would also be detrimental to the interest of the students\n\nwho have meanwhile taken admission to the petitioner-Colleges.16. Per contra, Mr. Dominic Fernandes, for Commercial Tax, for\n\nrespondent Nos.2 to 4, contended that the impugned demand\n\nnotice is one which is in fact raised by the 1st respondent-\n\nUniversity and the 1st respondent-University as such has not\n\ndisputed or denied payment of G.S.T. on the inspection fees or\n\naffiliation fees.17. Learned Special Standing Counsel for respondent-\n\nDepartment further submitted that in terms of Notification No.11\n\nof 2017, dated 28.06.2017, the Government had made it\n\nexpressly clear that under the 'Heading - 9992', the educational\n\ninstitution is one which is taxable under the G.S.T. law. The\n\nterm 'Education Service' includes various components viz.,\n\naffiliation fees, inspection fees and various other fees which is\n\ncollected both by the 1st respondent-University as also by the\n\nrespective colleges affiliated to the 1st respondent-University. It\n\nwas further contended that after making education service\n\ntaxable, the Government relaxed the same to some extent vide\n\nNotification No.12 of 2017, dated 28.06.2017, and it is that\n\nwhich is reflected upon in Serial No.66 of the said notification.::11:: PSK,J & LNA,J\n WP No.34617 of 2022 & batchClause (a) of Serial No.66 under the same 'Heading - 9992'\n\nprescribing services provided by an educational institution to its\n\nstudents, faculty and staff to be one under the exempted\n\ncategory so far as the levy of tax is concerned.18. According to learned counsel for the respondent-\n\nDepartment, a plain reading of Serial No.66 (which was further\n\namended vide Notification No.2 of 2018, dated 25.01.2018)\n\nwould go to show that the collection of affiliation fees and\n\ninspection fees does not stand exempted. It was the further\n\ncontention of learned counsel for the respondent-Department\n\nthat, in the 47th G.S.T. Council Meeting held on 28/ 29.06.2022,\n\none of the topic of discussion in their agenda was in respect of\n\nthe confusion that prevailed regarding the taxability of G.S.T. on\n\nsale of application forms to the prospective students, issue of\n\nmigration, eligibility forms to graduate students, affiliation works\n\nand other educational activities. In this context, the G.S.T.\n\nCouncil had in its aforesaid meeting categorically resolved that\n\nthe services provided by the educational institutions to its\n\nstudents, faculty and staff stands exempted vide Notification\n\nNo.12 of 2017, dated 28.06.2017.::12:: PSK,J & LNA,J\n WP No.34617 of 2022 & batch19. It was further resolved in the same meeting that so far as\n\ncollection of application fees for entrance examination and also\n\ncollection of fee for issuance of eligibility certificates and for\n\nentrance examination and admission fees, etc., all would stand\n\nexempted in terms of Notification No.12 of 2017, dated\n\n28.06.2017. However, as regards issue of affiliation of\n\neducational institutions with the Universities and Boards, etc., it\n\nwas resolved that the Circular issued by the Government of\n\nIndia, Ministry of Finance, Department of Revenue, dated\n\n17.06.2021, would be governing the field. As per Clause (4)(iii) of\n\nthe said Circular, G.S.T. @ 18% applies to such services provided\n\nby the Board or University so far as accreditation to education\n\ninstitutions is concerned20. Learned counsel for the respondent-Department further\n\ncontended that the decisions rendered by learned Single Judge\n\nof the Karnataka High Court inThe Presiding Officer and\n\nothers(1 supra) andChairman, Bhartia Education Society(2 supra) (as was strongly harped upon by the learned counsel\n\nfor the petitioners) would not be applicable or come to the rescue\n\nof the petitioners as proper material papers were not brought\n\nbefore the said High Court at the time of disposal of the said writ\n ::13:: PSK,J & LNA,J\n WP No.34617 of 2022 & batch\n\n\n\npetitions. That that the learned Single Judge had primarily\n\nrelied upon Clause 66D of the Finance Act, 1994which had the\n\nnegative list of services upon which there would be no levy of tax.21. The learned counsel for the respondent-Department further\n\nbrought to the notice of this Court that Sub-Clause (l) of the\n\nClause 66D of the Finance Act, 1994already stood omitted by\n\nway ofFinance Act, 2016w.e.f. 14.05.2016. The levy of G.S.T. is\n\nunder the provisions of the G.S.T. law which does not have any\n\nsuch clause as was relied upon by the learned Single Judge of\n\nthe Karnataka High Court from the Finance Act, i.e., Clause\n\n66D. Therefore, the said decisions are distinguishable both on\n\nfacts and also on law.22. Having heard the contentions of learned counsel on either\n\nside and on perusal of the records, what needs to be taken into\n\nconsideration for deciding the issue raised by the learned\n\ncounsel for the petitioners is the first notification that was issued\n\nby the Government, i.e., Notification No.11 of 2017, dated\n\n28.06.2017 which first reflected the description of the services\n\nwhich would be taxable and also reflected the headings and the\n\nrate of charges of G.S.T. upon each of the services notified\n\ntherein.::14:: PSK,J & LNA,J\n WP No.34617 of 2022 & batch\n\n\n\n23. Serial No.30 of Notification No.11 of 2017, dated28.06.2017 is the head subject which is relevant for the decision\n\nof this Court, which for ready reference is extracted hereunder :Notification No.11/2017-Central Tax (Rate)\n\n New Delhi, the 28th June, 2017\n\n G.S.R.... (E) - In exercise of the powers conferred by sub-\n section (1) ofSection 9, sub-section (1) ofSection 11, sub-section\n (5) ofsection 15and sub-section (1) ofSection 16of the Central\n Goods and Services Tax Act, 2017 (12 of 2017), the Central\n Government, on the recommendations of the Council, and on being\n satisfied that it is necessary in the public interest so to do, hereby\n notifies that the central tax, on the intra-State supply of services of\n description as specified in column (3) of the Table below, falling\n under Chapter, Section or Heading of scheme of classification of\n services as specified in column (2), shall be levied at the rate as\n specified in the corresponding entry in Column (4), subject to the\n conditions as specified in the corresponding entry in Column (5) of\n the said Table :-Sl. Chapter, Description of Service Rate Condition\n No. Section or (per cent)\n Heading\n ... .. ... .... ... ...30 Heading 9992 Education services 9 -24. From a plain reading of the above notification, it is\n\nevidently clear that educational services have been particularly\n\nheld to be taxable.25. It is now relevant to take note of the notification issued by\n\nthe Government of India granting exemption to certain services,\n\nvide Notification No.12 of 2017-Central Tax (Rate), dated\n\n28.06.2017, at Serial No.66, which again for ready reference is\n\nreproduced hereunder, viz.,\n ::15:: PSK,J & LNA,J\n WP No.34617 of 2022 & batch\n\n\n Notification No.12/2017-Central Tax (Rate)\n\n New Delhi, the 28th June, 2017\n\n G.S.R.... (E) - In exercise of the powers conferred by sub-section\n (1) ofSection 11of the Central Goods and Services Tax Act, 2017 (12 of\n 2017), the Central Government, on being satisfied that it is necessary in\n the public interest so to do, on the recommendations of the Council,\n hereby exempts the intra-State supply of services of description as\n specified in column (3) of the Table below from so much of the central tax\n leviable thereon under sub-section (1) ofSection 9of the said Act, as is in\n excess of the said tax calculated at the rate as specified in the\n corresponding entry in Column (4) of the said Table, unless specified\n otherwise, subject to the relevant conditions as specified in the\n corresponding entry in Column (5) of the said Table, viz.:-Sl. Chapter, Description of Service Rate Condition\nNo. Section or (per cent)\n Heading\n... .. ... .... ... ...66 Heading 9992 Services provided - 9 -(a) by an educational\n institution to its students,\n faculty and staff;(b) to an educational\n institution, by way of -(i) transportation of\n students, faculty and\n staff;(ii) catering, including any\n mid-day meals scheme\n sponsored by the Central\n Government, State\n Government or Union\n territory;\n (iii) security or cleaning or\n house-keeping services\n performed in such\n educational institution;\n (iv) services relating to\n admission to, or conduct\n of examination by, such\n institution; upto higher\n secondary;\n Provided that\n nothing contained in entry\n (b) shall apply to an\n educational institution\n other than an institution\n providing services by way\n of pre-school education\n and education up to\n higher secondary school or\n equivalent.\n ::16:: PSK,J & LNA,J\n WP No.34617 of 2022 & batch26. The above notification stood amended vide Notification\n\nNo.2 of 2018, dated 25.01.2018, wherein Clause (aa) was also\n\ninserted after Clause (a) under Serial No.66, which reads as\n\nunder :"(o) against serial number 66, in the entry in column (3) -(i) after item (a), the following item shall be inserted, viz.,\n\n "(aa) by an educational institution by way of conduct of\n entrance examination against consideration in the form of\n entrance fee."27. The aforesaid amendment was brought by virtue of a\n\ndecision that was taken on the recommendations of the Council,\n\nand the 25th meeting of G.S.T. Council held on 18.01.2018,\n\nwherein certain exemptions / changes in the G.S.T. rates was\n\ndecided and one such item was in respect of the service relating\n\nadmission and conduction of examination. The decision of the\n\nsaid Council is reproduced hereunder, viz.,\n\n\n "(20) To exempt services relating to admission to, or\n conduct of examination provided to all educational institutions, as\n defined in the notification.To exempt services by educational institution by way of\n conduct of entrance examination against consideration in the form\n of entrance fee."::17:: PSK,J & LNA,J\n WP No.34617 of 2022 & batch28. If we read the provisions of G.S.T. law, the notification\n\nNo.11 of 2017, dated 28.06.2017, emphatically holds education\n\nservice to be one which is liable to tax. The relaxations granted\n\nvide Notification No.12 of 2017 is confined to the services\n\nrendered by the educational institutions to the students, faculty\n\nand staff. It also grants exemption in respect of collection of fees\n\nrelating to entrance examination and other fees chargeable from\n\nthe students for admission or any such purpose. Nowhere has\n\nthe respondents declared or notified that charging of inspection\n\nfees and the affiliation fees by the 1st respondent-University also\n\nwould fall within the exempted category. Under the taxing law,\n\nunless there is a specific exemption granted specifically on\n\ninspection fees and affiliation fees, the petitioners cannot be\n\npermitted to claim exemption drawing an inference of the\n\naffiliation and inspection fees both being part of the Notification\n\nNo.12 of 2017, dated 28.06.2017, and also being inter-linked to\n\nthe curriculum which is undertaken by the educational\n\ninstitutions and the admissions derived therefrom.29. The fact that the Notification No.11 of 2017, dated\n\n28.06.2017, has a broader subject when it prescribes education\n\nservice and Notification No.12 of 2017, dated 28.06.2017,\n ::18:: PSK,J & LNA,J\n WP No.34617 of 2022 & batch\n\n\n\nspecifically enumerates specific services which stand exempted\n\nand inspection and affiliation fees not reflected in the\n\nNotification No.12 of 2017, dated 28.06.2017, the relief sought\n\nfor by the petitioners or the issue raised by the petitioners would\n\nnot be sustainable. Since there were certain handicaps and\n\nconfusions prevailing, the G.S.T. Council itself in its 47th G.S.T.\n\nCouncil Meeting held on 28/29.06.2022 very categorically held\n\nthat as regards the question of granting exemption to the\n\naffiliation and other fees collected by the 1st respondent-\n\nUniversity, it is the Circular dated 17.06.2021 issued by the\n\nGovernment of India which would govern the field and clause (4)\n\nthereof reads as under :"4. Taking into account the above, the G.S.T. Council has\n recommended, to clarify as below :(i) G.S.T. is exempt on services provided by Central or State\n Boards (including the boards such as NBE) by way of conduct of\n examination for the students, including conduct of entrance\n examination for admission to educational institution [under\n S.No.66(aa) of Notif.No.12/2017-CT(R)]. Therefore, G.S.T. shall\n not apply to any fee or any amount charged by such Boards for\n conduct of such examinations including entrance examinations.(ii) G.S.T. is also exempt on input services relating to\n admission to, or conduct of examination, such as online testing\n service, result publication, printing of notification for examination,\n ::19:: PSK,J & LNA,J\n WP No.34617 of 2022 & batch\n\n\n\n admit card and question papers, etc., when provided to such\n Boards [under S.No.66(b)(iv) of Notif.No.12/2017-CT(R)].(iii) G.S.T. at the rate of 18% applies to other services provided\n by such Boards, namely of providing accreditation to an institution\n or to a professional (accreditation fee or registration fee such as\n fee for FMGE screening test) so as to authorize them to provide\n their respective services."30. A plain reading of the said Clause (4) would give a clear\n\nindication that, except for the exemption that has been\n\nspecifically enumerated in Notification No.12 of 2017, dated\n\n28.06.2017, all other services rendered by educational\n\ninstitutions and universities are taxable under the G.S.T. law.\n\nAnother fact which needs to be considered is that under the\n\nNotification No.11 of 2017, dated 28.06.2017, (as has been\n\ndiscussed earlier), the entire 'education service' itself is held to\n\nbe taxable under G.S.T. law, and if the Government intended to\n\nexempt the educational institutions and universities from the\n\nambit of G.S.T. law, they would have simply, as in Notification\n\nNo.11 of 2017, incorporated 'education service' and would have\n\nexempted the petitioners and the universities as well. However,\n\nthat is not the case.31. Notification No.12 of 2017, dated 28.06.2017, which stood\n\namended further vide Notification No.2 of 2018, dated\n ::20:: PSK,J & LNA,J\n WP No.34617 of 2022 & batch\n\n\n\n25.01.2018, specifically enumerates the specific nature of service\n\nrendered by the educational institutions which would stand\n\nexempted. Inspection and affiliation fees however is not\n\npart of the said notification granting exemption. Yet another\n\naspect which needs to be considered is that Notification No.12 of\n\n2017, dated 28.06.2017, provides for exemption of services\n\nrendered by the educational institutions to three different\n\ncategories, i.e., students, faculty and staff. It does not deal with\n\nthe services rendered by the university to the educational\n\ninstitutions. 'Affiliation' and 'inspection' is a service rendered by\n\nthe university to the educational institutions for which the\n\nuniversity had charged the respective educational institutions.32. Surprisingly, in the instant case, as of now, the 1st\n\nrespondent-University does not seem to be aggrieved of the\n\ndemand raised by the respondent-Department so far as payment\n\nof G.S.T. on the inspection and affiliation fees is concerned.\n\nWhat is further necessary to be reflected at this juncture is that\n\nthe nature of service rendered by the 1st respondent-University\n\nto the respective educational institutions is at a stage where the\n\nadmissions to the students have not commenced. It is at the\n\ninception stage of the educational institutions that the\n ::21:: PSK,J & LNA,J\n WP No.34617 of 2022 & batch\n\n\n\ninspection is conducted and the affiliation is thereafter granted.\n\nThe admission and the services rendered by the educational\n\ninstitutions to the students, the faculty and the staff are all\n\nservices rendered subsequent to the affiliation. Therefore, the\n\ncontention that the petitioners have canvassed is hard to accept.33. The Constitution Bench decision of the Hon'ble Apex Court\n\nrendered in the case of Commissioner of Customs (Import),\n\nMumbai vs. M/s. Dilip Kumar and Company 6, dealing with the\n\nsituation where there is any doubt or confusion so far as\n\nclaiming of exemption is concerned (though there is none in the\n\npresent writ petition so far as this Bench is concerned) the\n\nHon'ble apex Court held at para Nos.48 to 51 as under :"48. The next authority, which needs to be referred is\n Mangalore Chemicals [Mangalore Chemicals and Fertilisers Ltd. v.\n CCT, 1992 Supp (1) SCC 21] . As we have already made reference to\n the same earlier, repetition of the same is not necessary. From the above\n decisions, the following position of law would, therefore, be clear.\n Exemptions from taxation have a tendency to increase the burden on the\n other unexempted class of taxpayers. A person claiming exemption,\n therefore, has to establish that his case squarely falls within the\n exemption notification, and while doing so, a notification should be\n construed against the subject in case of ambiguity.6 (2018) 9 S.C.C. 1 (F.B.) (S.C.)\n ::22:: PSK,J & LNA,J\n WP No.34617 of 2022 & batch49. The ratio in Mangalore Chemicals case [Mangalore\nChemicals and Fertilisers Ltd. v. CCT, 1992 Supp (1) SCC 21] was\napproved by a three-Judge Bench in Novopan India Ltd. v. CCE\n[Novopan India Ltd. v. CCE, 1994 Supp (3) SCC 606] . In this case,\nprobably for the first time, the question was posed as to whether the\nbenefit of an exemption notification should go to the subject/assessee\nwhen there is ambiguity. The three-Judge Bench, in the background of\nEnglish and Indian cases, in para 16, unanimously held as follows :(SCC p. 614)\n\n "16. We are, however, of the opinion that, on principle,\n the decision of this Court in Mangalore Chemicals [Mangalore\n Chemicals and Fertilisers Ltd. v. CCT, 1992 Supp (1) SCC 21]-- and inUnion of India v. Wood Papers Ltd. [Union of Indiav. Wood Papers Ltd., (1990) 4 SCC 256 : 1990 SCC (Tax) 422]\n , referred to therein -- represents the correct view of law. The\n principle that in case of ambiguity, a taxing statute should be\n construed in favour of the assessee -- assuming that the said\n principle is good and sound -- does not apply to the\n construction of an exception or an exempting provision, they\n have to be construed strictly. A person invoking an exception\n or an exemption provision to relieve him of the tax liability\n must establish clearly that he is covered by the said provision.In case of doubt or ambiguity, benefit of it must go to the\n State."50. In TISCO Ltd. v. State of Jharkhand [TISCO Ltd. v. State of\nJharkhand, (2005) 4 SCC 272] , which is another two-Judge Bench\ndecision, this Court laid down that eligibility clause in relation to\nexemption notification must be given strict meaning and in para 44, it\nwas further held : (SCC pp. 289-290)\n ::23:: PSK,J & LNA,J\n WP No.34617 of 2022 & batch\n\n\n\n "44. The principle that in the event a provision of fiscal\n statute is obscure such construction which favours the assessee\n may be adopted, would have no application to construction of\n an exemption notification, as in such a case it is for the\n assessee to show that he comes within the purview of\n exemption (see Novopan India Ltd. v. CCE [Novopan India\n Ltd. v. CCE, 1994 Supp (3) SCC 606] )."51.In Hari Chand case [CCE v. Hari Chand Shri Gopal,\n (2011) 1 SCC 236] , as already discussed, the question was whether a\n person claiming exemption is required to comply with the procedure\n strictly to avail the benefit. The question posed and decided was indeed\n different. The said decision, which we have already discussed supra,\n however, indicates that while construing an exemption notification, the\n Court has to distinguish the conditions which require strict compliance,\n the non-compliance of which would render the assessee ineligible to\n claim exemption and those which require substantial compliance to be\n entitled for exemption. We are pointing out this aspect to dispel any\n doubt about the legal position as explored in this decision. As already\n concluded in para 50 above, we may reiterate that we are only\n concerned in this case with a situation where there is ambiguity in an\n exemption notification or exemption clause, in which event the benefit of\n such ambiguity cannot be extended to the subject/assessee by applying\n the principle that an obscure and/or ambiguity or doubtful fiscal statute\n must receive a construction favouring the assessee. Both the situations\n are different and while considering an exemption notification, the\n distinction cannot be ignored."34. Relying upon the constitutional decision of the Hon'ble\n\nApex Court also, we are of the firm view that firstly, the\n\nNotification No.12 of 2017, dated 28.06.2017, cannot be made\n ::24:: PSK,J & LNA,J\n WP No.34617 of 2022 & batch\n\n\n\napplicable upon inspection and affiliation fees charged by the 1st\n\nrespondent-University from the educational institutions.\n\nSecondly, since so far as inspection and affiliation fees charged\n\nby the 1st respondent-University from the educational\n\ninstitutions has not been specifically exempted in terms of the\n\nConstitution Bench judgment in M/s. Dilip Kumar and\n\nCompany (6 supra), the said benefit cannot be extended to the\n\npetitioners. As regards the two decisions rendered by the\n\nKarnataka High Court in M/s. Rajiv Gandhi University of\n\nHealth Sciences (1 supra) and in M/s.Bangalore University\n\n(2 supra), which was heavily relied upon by the learned counsel\n\nfor the petitioners, we are in complete agreement to the\n\ncontentions raised by the learned counsel for the respondent-\n\nDepartment that the learned Single Judge of the Karnataka High\n\nCourt while passing orders in the aforesaid two decisions, has\n\nrelied upon the provisions ofFinance Act, 1994(Clause 66D).\n\nSub-Clause (l) of Clause 66D of the Finance Act, 1994which in\n\nfact, first of all, stood omitted by theFinance Act, 2016w.e.f.\n\n14.05.2016. Secondly, what also needs to be mentioned is that\n\nunder the G.S.T. law there is no such provision as Sub-Clause\n\n(11) of Clause 66D of the Finance Act. Therefore, we are inclined\n ::25:: PSK,J & LNA,J\n WP No.34617 of 2022 & batch\n\n\n\nto respectfully disagree with the view taken by the Karnataka\n\nHigh Court in the aforesaid two decisions. Therefore, the said\n\ndecisions are distinguishable in facts and law.35. For all the aforesaid reasons, we do not find any substance\n\nin the contentions raised by the learned counsel for the\n\npetitioners. Accordingly, the Writ Petition No.34617 of 2022\n\nstands dismissed. Consequently, all the connected writ petitions\n\nalso stand dismissed. No costs.36. As a sequel, miscellaneous petitions pending if any in these\n\nwrit petitions, shall stand closed._____________________________\n P. SAM KOSHY, J\n\n\n ____________________________________\n LAXMI NARAYANA ALISHETTY, J\n\n\nDate : 17.10.2023\n\nNote : LR copy to be marked\nB/o.Ndr/kkm |
cdc0eff5-d704-562b-8d6e-288707d5786b | court_cases | Manipur High CourtMs Ema Ebama Langol Lairembi ... vs The State Of Manipur & 2 Ors on 15 December, 2020Author:Ahanthem Bimol SinghBench:Ahanthem Bimol SinghItem No. 2\n (Through video conferencing)\n\n\n IN THE HIGH COURT OF MANIPUR\n AT IMPHAL\n\n WP(C) No. 648 of 2020\n\nMS Ema Ebama Langol Lairembi Construction\n .... Petitioner/s\n - Versus -\n\nThe State of Manipur & 2 Ors.\n .... Respondent/sBEFORE\n HON'BLE MR. JUSTICE AHANTHEM BIMOL SINGH\n15.12.2020\n\n Heard Mr. RK. Deepak Singh, learned counsel appearing for the\n\npetitioner and Mr. N. Kumarjit, learned Advocate General (AG), Manipur\n\nappearing for the respondents.The learned AG prayed for giving him some time to get instructions\n\nfrom the authorities in connection with the present case.Prayer is allowed.List this case again on 21.12.2020 in the motion column.\n\n It has been submitted by the learned counsel appearing for the\n\npetitioner that subsequent to the filing of this writ petition, he has come to\n\nlearn that fresh tender has been issued by the authorities in connection with\n\nthe contract works involved in the present case and the said tender process is\n\ngoing to be opened on 17.12.2020 and therefore, he prays for passing any\n\nappropriate interim order.In view of the submissions made by the learned counsel appearing for\n\nthe petitioner, it is directed that the fresh tender process in respect of the\n contract work involved in the present case should not be finalised till\n\n21.12.2020 without leave of this Court.A copy of this order be furnished to both the counsel appearing for the\n\nparties through their respective whatsapp/e-mail.JUDGE\n\n Lhaineichong\n\n\n Yumkh Digitally signed\n by Yumkham\n\n am Rother\n Date:\n 2020.12.17\n Rother 14:09:37 +05'30' |
4fc03e8d-3dbe-55ab-b56f-ee5ebcc4319a | court_cases | Allahabad High CourtArun Singh And Others vs State Of U.P. Thru. Addl. Chief ... on 28 June, 2022Bench: Shamim AhmedHIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH\n \n \n\n?Court No. - 12\n \n\n \nCase :- APPLICATION U/S 482 No. - 4028 of 2022\n \nApplicant :- Arun Singh And Others\n \nOpposite Party :- State Of U.P. Thru. Addl. Chief Secy. And Another\n \nCounsel for Applicant :- Pradeep Tiwari,Kailash Nath Tewari\n \nCounsel for Opposite Party :- G.A.\n \n\n \nHon'ble Shamim Ahmed,J.Heard learned counsel for the applicants as well as Sri Rao Naredra Singh, learned A.G.A.-I for the State and perused the record.The instant application under Section 482 Cr.P.C. has been filed by the applicants with a prayer to quash set aside the charge sheet dated 05.06.2019 arising out of NCR bearing No. 15 of 2017, under Section 323/504 I.P.C. Police Station Cantt, District Lucknow and summoning order dated 16.03.2020 pending in the Court of Judicial Magistrate-II.The contention of the learned counsel for the applicants is that no offence against the applicants is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment.Per contra, the learned AGA has contended that from the allegations made in the FIR prima facie offence is made out against the applicants. The innocence of the applicant cannot be adjudged at the pre trial stage. Therefore, the applicants do not deserve any indulgence.From the perusal of the materials on record and looking into the facts of the case and after considering the arguments made at the bar, it does not appear that no offence has been made out against the applicants.At the stage of issuing process the court below is not expected to examine and assess in detail the material placed on record, only this has to be seen whether prima facie cognizable offence is disclosed or not. The Apex Court has also laid down the guidelines where the criminal proceedings could be interfered and quashed in exercise of its power by the High Court in the following cases:-(i) R.P. Kapoor Vs. State of Punjab, AIR 1960 S.C. 866, (ii) State of Haryana Vs. Bhajanlal, 1992 SCC (Crl.)426, (iii) State of Bihar Vs. P.P. Sharma, 1992 SCC (Crl.)192 and (iv) Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another, (Para-10) 2005 SCC (Cri.)283.From the aforesaid decisions the Apex Court has settled the legal position for quashing of the proceedings at the initial stage. The test to be applied by the court is to whether uncontroverted allegation as made prima facie establishes the offence and the chances of ultimate conviction is bleak and no useful purpose is likely to be served by allowing criminal proceedings to be continue. In S.W. Palankattkar & others Vs. State of Bihar, 2002 (44) ACC 168, it has been held by the Hon'ble Apex Court that quashing of the criminal proceedings is an exception than a rule. The inherent powers of the High Court underSection 482Cr.P.C itself envisages three circumstances under which the inherent jurisdiction may be exercised:-(i) to give effect an order underthe Code, (ii) to prevent abuse of the process of the court ; (iii) to otherwise secure the ends of justice. The power of High Court is very wide but should be exercised very cautiously to do real and substantial justice for which the court alone exists.The High Court would not embark upon an inquiry as it is the function of the Trial Judge/Court. The interference at the threshold of quashing of the charge sheet/criminal proceedings in case in hand cannot be said to be exceptional as it discloses prima facie commission of an offence. In the result, the prayer made for quashing is refused. The applicants have ample opportunity to raise all the objections at the appropriate stage.The Hon'ble Supreme Court in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and others : (2021) 10 SCC 773 was pleased to observe as under:-"3. We are inclined to accept the guidelines and make them a part of the order of the Court for the benefit of the Courts below. The guidelines are as under:"Categories/Types of Offences\n \nA) Offences punishable with imprisonment of 7 years or less not falling in category B & D.B) Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years.C) Offences punishable underSpecial Acts containing stringent provisions for bail likeNDPS (S.37), PMLA (S.45), UAPA (S.43D(5),Companies Act, 212(6), etc.\n \nD) Economic offences not covered bySpecial Acts.Requisite Conditions1) Not arrested during investigation.2) Cooperated throughout in the investigation including appearing before Investigating Officer whenever called.(No need to forward such an accused along with the chargesheet (Siddharth v. State of UP, 2021 SCC OnLine SC 615)\n \nCATEGORY A\n \nAfter filing of chargesheet/complaint taking of cognizancea) Ordinary summons at the 1st instance/including permitting appearance through Lawyer.b) If such an accused does not appear despite service of summons, then Bailable Warrant for physical appearance may be issued.c) NBW on failure to failure to appear despite issuance of Bailable Warrant.d) NBW may be cancelled or converted into a Bailable Warrant/Summons without insisting physical appearance of accused, if such an application is moved on behalf of the accused before execution of the NBW on an undertaking of the accused to appear physically on the next date/s of hearing.e) Bail applications of such accused on appearance may be decided w/o the accused being taken in physical custody or by granting interim bail till the bail application is decided.CATEGORY B/D\n \nOn appearance of the accused in Court pursuant to process issued bail application to be decided on merits."CATEGORY C\n \nSame as Category B & D with the additional condition of compliance of the provisions of Bail under NDPSS. 37,45PMLA, 212(6)Companies Act43 d(5) of UAPA, POSCO etc.4. Needless to say that the category A deals with both police cases and complaint cases.5. The trial Courts and the High Courts will keep in mind the aforesaid guidelines while considering bail applications. The caveat which has been put by learned ASG is that where the accused have not cooperated in the investigation nor appeared before the Investigating Officers, nor answered summons when the Court feels that judicial custody of the accused is necessary for the completion of the trial, where further investigation including a possible recovery is needed, the aforesaid approach cannot give them benefit, something we agree with.6. We may also notice an aspect submitted by Mr. Luthra that while issuing notice to consider bail, the trial Court is not precluded from granting interim bail taking into consideration the conduct of the accused during the investigation which has not warranted arrest. On this aspect also we would give our imprimatur and naturally the bail application to be ultimately considered, would be guided by the statutory provisions."Thus, without commenting anything on the merits of the case the present application moved on behalf of the applicants is finally disposed of in terms that the applicants may move an appropriate regular bail application underSection 439Cr.P.C. before the trial court within 30 days from today and if such an application is moved within the period stipulated herein-before, the trial court shall be under an obligation to dispose of the same strictly, in accordance with the law as laid down by Hon'ble Supreme Court in Satender Kumar Antil (supra) after hearing the Public Prosecutor.Order Date :- 28.6.2022\n \nArvind |
dd61eaf2-d4fa-5ed7-85e1-4227ac6709e5 | court_cases | Delhi High Court - OrdersSmt Poonam Bangia vs Harbhagwan Dass Chandiramani on 22 July, 2021Author:Najmi WaziriBench:Najmi Waziri$~15 (1)\n * IN THE HIGH COURT OF DELHI AT NEW DELHI\n + RC.REV. 16/2021 & CM APPL. 2959/2021\n SMT POONAM BANGIA ..... Petitioner\n Through: Mr. Namit Bangia, Adv.\n\n versus\n\n HARBHAGWAN DASS CHANDIRAMANI ..... Respondent\n Through: Mr. S.N. Choudhri, Adv.\n\n CORAM:\n HON'BLE MR. JUSTICE NAJMI WAZIRI\n ORDER% 22.07.2021\n The hearing has been conducted through video conferencing.1. On 28.01.2021, it was recorded inter alia as under:"....1. The possession of the erstwhile tenanted premises is\n stated to have been taken over by the landlord through\n execution proceedings. The learned counsel for the\n respondent submits that nothing remains in this petition\n as it has become infructuous....."2. The impugned eviction order of the learned Rent Controller passed on\n 01.02.2020 ended a six-decade old tenancy. Through execution\n proceedings, possession of the tenanted premises was handed over to the\n respondent-landlord a year later, on 28th January 2021.3. The learned counsel for the respondent submits that nothing survives in\n this petition therefore it may be dismissed. He relies upon the decision\n of the Supreme Court inN.C. Daga v. Inder Mohan Singh Rana, AIRSignature Not VerifiedDigitally signed By:KAMLESHKUMARSigning Date:23.08.202118:39:352003 Supreme Court 587, which in similar circumstances had held, inter\n alia, as under:"..."....... Leave granted.Challenge in this appeal is to judgment of the Delhi High\n Court upholding decision of the Additional Rent Controller,\n Delhi (in short 'the Rent Controller') declining leave to the\n present appellant to contest in a proceeding under theDelhi\n Rent Control Act, 1958(hereinafter referred to as 'the Act').\n Brief reference to the factual aspects would suffice. The\n respondent-landlord filed a petition for eviction on several\n grounds; primarily on the ground of personal requirements.\n Before the Rent Controller an application was moved\n underSection 25-Bof the Act by the appellant-tenant for\n grant of leave to defend said eviction petition filed\n underSection 14(1), proviso (e) of the Act, by the present\n respondent-landlord. On 10.9.1999 landlord had filed the\n eviction petition alleging that he wanted the premises for his\n personal use, since the accommodation available to him was\n not suitable and he does not own any other property in Delhi.\n Tenant resisted the eviction petition on many grounds. It was\n contended that there was no relationship of landlord and\n tenant between the parties, and in any event the premises\n were let out for residential/commercial purposes as\n mentioned in the Lease Agreement executed between the\n parties on 1st September, 1971, and, therefore, he is entitled\n to grant of leave to defend. Additionally, it was stated that the\n petition was mala fide and an abuse of process of law, barred\n by res judicata as earlier petitions filed by one Smt. Tejinder\n Kaur Rana on the ground of bona fide requirement, and\n another petition filed by the mother of the landlord were\n dismissed. Reply to the application for grant of leave to\n defend was filed by the landlord, where he denied the\n allegations made, though he admitted that earlier petitions\n had been filed. It was, however, contended that the principles\n of res judicata were not applicable, and there was no bar on\n filing fresh petition for eviction on the ground of bona fideSignature Not VerifiedDigitally signed By:KAMLESHKUMARSigning Date:23.08.202118:39:35requirement in the changed circumstances. Rejoinder was\n filed by the tenant. The Rent Controller held that there was\n prima facie material to show that the applicant was the\n landlord and the owner of the premises. Coming to the plea\n taken that the premises were let out for commercial purposes\n it was noticed that the paragraph 7 of the lease-deed on which\n reliance was placed did not indicate that the premises were let\n out for residential cum commercial purposes. On the\n contrary, what the said paragraph indicated was availability\n of option to use the premises for commercial purposes after\n requisite formalities were observed. It was held that before\n leave to defend is granted, the respondent must show that\n some triable issues which disentitled the applicant from\n getting the order of eviction against the respondent and at the\n same time entitled the respondent to leave to defend existed.\n The onus is prima facie on the respondent and if he fails, the\n eviction follows. The respondent has failed to make out a case\n for grant of leave to defend. Accordingly, eviction order was\n passed underSection 14(1)(e)of the Act, but it was directed\n that the applicant will not be entitled to execute eviction order\n before the expiry of six months in terms ofSection 14(7)of the\n Act. The revision before the High Court of Delhi was also\n dismissed. It was, inter alia, observed that the tenant had not\n filed any document to support the plea in regard to the\n commercial use of the premises. It was further held that no\n prima facie case was made out by the tenant.In support of the appeal Mr. Jaspal Singh, learned senior\n counsel submitted that a bare reading ofSection 7of the\n Lease Agreement made the position clear that the premises\n were let out for residential and commercial purposes, and,\n therefore, the courts below were not justified in refusing leave\n to contest. The jurisdiction to grant leave or refuse the same is\n to be exercised on the basis of the affidavit filed by the tenant.\n Even if it is conceded for the sake of argument that clause (7)\n did not make out a case for commercial user, yet the fact that\n for more than two decades the tenant was carrying on\n commercial activities in the tenanted premises clearly made\n out a case of consent.Signature Not VerifiedDigitally signed By:KAMLESHKUMARSigning Date:23.08.202118:39:35In response, counsel for the respondent-landlord submitted\n that the whole case built up by the tenant centered round\n clause (7) and the plea of implied consent has been raised for\n the first time before this court. Such plea was even not raised\n before the High Court. In any event, according to him, the\n matter has become infructuous because the possession has\n been taken pursuant to execution of the order passed by the\n Rent Controller.In view of the admitted position that pursuant to the order\n passed by the Rent Controller, possession has been taken on\n execution of the order permitting eviction, and absence of\n specific stand regarding implied consent it is, however, not\n necessary to go into the finer details and to examine the rival\n stand in the background of legal position as it would amount\n to rendering decision on a purely academic question. The\n appeal is, therefore, dismissed, without any order as to\n costs..." .(emphasis supplied)4. The facts narrated in the afore-cited case are akin to the present\n case. A joint tenancy was created in 1958 in favour of one Pyare\n Lal and his son for a shop, two rooms, a toilet and a verandah in\n the rear side, on the ground floor of property bearing no. F-30\n Central Market, Kirti Nagar, New Delhi - 15. After the demise of\n Pyare Lal, his daughter Champa Rani inherited the tenancy. The\n petitioner is her widowed daughter-in-law. The latter has been\n residing in the premises since 1984. At some stage, her\n predecessors-in-interest had constructed a bathroom and a kitchen\n in the rear side of the building.5. The landlord claims ownership on the basis of his deceased\n father's Will dated 29.5.1994. He was about 75 years old and his\n wife of 71 years, when the eviction petition was filed. The latterSignature Not VerifiedDigitally signed By:KAMLESHKUMARSigning Date:23.08.202118:39:35suffers from cardiological ailments - three stents have been put in\n her heart. The landlord too has age-related knee problems.\n Supporting medical documents have been filed. They live on third\n floor (top floor) of building no.12/11 East Patel Nagar, New Delhi.\n It does not have a lift facility. They have difficulty in climbing the\n stairs, nor is it medically advisable for them to do so. They need to\n shift to a ground floor residence. Their unmarried daughter needs\n space to start a business enterprise. She is dependent on her father\n for such space. The landlord owns the tenanted premises including\n the first floor of the building. It has no second floor. His son\n carries-out his business from the first floor of the building. The\n son, the daughter in-law, their two children, the daughter are\n dependent upon him for accommodation. It has two bed rooms, a\n drawing room, a dining room, a toilet and a kitchen. The said\n accommodation is neither suitable nor sufficient for his and the\n needs of this dependents.6. The other shop on the ground floor of the said property no. F-30\n Central Market, Kirti Nagar, New Delhi - 15, was long rented-out,\n to one Dr. Jagan Nath Khurana who has since passed away, his\n legal heirs continue to occupy that shop. It is not available for the\n petitioner's occupation and use. In any case it is not suitable for\n either the landlord, his wife and their daughter because this other\n shop does not have residential rooms, dining room, kitchen,\n washrooms, etc. for their needs.Signature Not VerifiedDigitally signed By:KAMLESHKUMARSigning Date:23.08.202118:39:357. The tenant's contentions in the application for leave to defend\n were found untenable; they did not raise any triable issue,\n therefore it was dismissed and the eviction order ensued. The\n learned Rent Controller found that: i) the landlord had his father's\n Will to maintain the eviction petition (Bharat Bhushan Vij vs Aarti\n Tekchandani 153 (2008) DLT 247); ii) the tenant has not denied\n that she was residing in the premises as a tenant, she is obliged to\n disclose as to who was the landlord, if not the eviction-petitioner\n himself (Rajender Kumar vs Leela Wati155 (2008 DLT 383); iii)\n the landlord's daughter did not require proof of experience to start\n a new business (Ram Babu Agarwal vs Jay Kishan Das2010 AIR\n SC 721); iv) the tenant's bald statement doubting the correctness\n site plan of the premises filed by the landlord, is not sufficient to\n disregard it, the tenant should have filed his own site-plan (Mukesh\n Kimar vs Rishi Prakash RCR34/09, date of decision 6.10.2009)v); to determine the sufficiency and suitability of the required\n premises for his bonafide need, is the prerogative of the landlord\n and the tenant cannot dictate terms in this regard (Yashpal Juneja\n vs Satish Kumar Civil Revision No.3248/2008 date of decision\n 30.50.2008)8. The learned Rent Controller, found that the landlord had proven\n his bona fide requirement and that he had no alternate\n accommodation. The tenancy lasted for six decades. The landlord\n has received possession of the tenanted premises though execution\n proceedings.InN C Daga(supra) the Supreme Court has held thatSignature Not VerifiedDigitally signed By:KAMLESHKUMARSigning Date:23.08.202118:39:35where possession had been taken on execution of the order\n permitting eviction, the issues raised by the tenant remained purely\n academic and it was not necessary to go into the finer details.\n Same is the position in the present case as well. Therefore, in view\n of the N C Daga principle, the petition is dismissed.9. The order be uploaded on the website forthwith.NAJMI WAZIRI, J\n JULY 22, 2021\n ABSignature Not VerifiedDigitally signed By:KAMLESHKUMARSigning Date:23.08.202118:39:35 |
ad2b33e9-da00-5869-b2d5-d12162f44f97 | court_cases | Himachal Pradesh High CourtDipesh Chauhan vs State Of Himachal Pradesh on 6 March, 2020Bench: Anoop Chitkara1IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA\n Cr.MP(M) No. 306 of 2020\n\n\n\n\n .Reserved on : March 05, 2020\n\n\n\n\n\n Date of Decision : March 6 , 2020\n\n\n\n\n\nDipesh Chauhan ...Petitioner.\n\n Versus\n\nState of Himachal Pradesh ...Respondent.\n\n\n\n\n\nCoram:The Hon'ble Mr. Justice Anoop Chitkara, Judge.Whether approved for reporting?1 No.\n\nFor the petitioner : Mr. Rajesh Kumar and Mr. Rakesh Chauhan,\n\n Advocates, for the petitioner.For the respondent : Mr. Nand Lal Thakur, Addl. A.G. with Mr. Rajat\n Chauhan, Law Officer, for the respondent/State.Anoop Chitkara, Judge.For possessing 37.77 grams of heroin, the petitioner, who is under arrest,\non being arraigned as accused in FIR Number 22 of 2020, dated Feb 15, 2020,\n\n\n\n\n\nregistered underSections 21&29of the Narcotic Drugs andPsychotropic\nSubstances Act, 1985 (after now called "NDPS Act"), in the file of Police Station\n\n\n\n\n\nSadar Solan, District Solan, HP, disclosing non-bailable offences, has come up\nbefore this Court underSection 439CrPC, seeking regular bail.2. Status report stands filed and taken on record. I have seen the status\nreport(s) as well as the Police file, to the extent it was necessary for deciding the\npresent petition, and heard learned Counsel for the parties.\nFACTS3. The gist of the First Information Report and the investigation is that on\nFeb 15, 2020, Police party was conducting patrolling duty in plain clothes to1Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 06/03/2020 20:27:07 :::HCHP2detect crime within the jurisdiction of Police Station Sadar Solan, Distt. Solan. At\n3.00 p.m. when the police party reached at a place near Mohan Park in\nChambaghat then they received a secret information that Dipesh Chauhan who\n\n\n\n\n .has taken premises on rent on the ground floor of a building known as Kapoor\nVilla, near the Bharat Petrol Pump, is present in his house and five - six boys\n\n\n\n\n\nand girls are consuming drugs. The informant further told the police that even\nnow they have huge quantity of Heroin with them. On this the police officials\ncomplied with the provisions ofSection 42(2)of the NDPS Act and proceeded\n\n\n\n\n\ntowards the rented premises of aforesaid Dipesh Chauhan. After associating\nindependent witnesses the police party knocked at the door of the said rented\npremises on which one person opened the door who on inquiry revealed his\n\nname as Dipesh Chauhan, the petitioner herein. Within the room three more\n\nboys and two girls were also present and all these boys and girls were almost of\nthe same age group. Police also noticed foil paper which had carbon on it and a\nfolded ten rupees currency note. All these were tell tale signs of consumption of\n\n\n\ndrugs. The police also recovered a pouch which was kept below the clipboard\nand recovered dark brown coloured substance from the same. When the police\n\n\n\n\nofficials weighed the recovered substance on a digital weighing machine it\n\n\n\n\n\nmeasured 37.77 grams. Prima facie, the recovered contraband was identified as\nHeroin. Subsequently, the Police party also complied with the procedural\n\n\n\n\n\nrequirements under theNDPS Actand theCrPCand arrested all these six\npersons including the bail petitioner.ANALYSIS AND REASONING:4. Pre-trial incarceration needs to be justified depending upon the heinous\nnature of the offence, terms of the sentence prescribed in the Statute for such a\ncrime, accused fleeing from justice, hampering the investigation, and doing\naway with witnesses. The Court is under the Constitutional obligation to\nsafeguard the interests of the victim, the accused, the society, and the State.::: Downloaded on - 06/03/2020 20:27:07 :::HCHP35.Section 2(vii-a) of theNDPS Actdefines commercial quantity as the\nquantity greater than the quantity specified in the schedule, andS. 2(xxiii-a),\ndefines a small quantity as the quantity lesser than the quantity specified in the\n\n\n\n\n .schedule ofNDPS Act. The remaining quantity falls in an undefined category,\nwhich is now generally called as intermediate quantity. All Sections in theNDPS\n\n\n\n\n\nAct, which specify an offense, also mention that minimum and maximum\nsentence, depending upon the quantity of the substance. Commercial quantity\nmandates minimum sentence of ten years of imprisonment and a minimum fine\n\n\n\n\n\nof Rupees One hundred thousand, and bail is subject to the riders mandated in\nS. 37 ofNDPS Act.6. The substance recovered from the petitioner and the other co-accused is\n\njust 37.77 grams and close to small quantity. In the status report, there is no\n\nmention of any previous criminal history of the bail petitioner who is just 23\nyears of age. This Court is inclined to afford last opportunity to the petitioner,\nmaking it very clear that in case, the petitioner repeats the offence, then this\n\n\n\nbail is liable to be cancelled.7. Given the above reasoning, in my considered opinion, the judicial\n\n\n\n\ncustody of the petitioner/accused is not going to serve any purpose whatsoever,\n\n\n\n\n\nand I am inclined to grant bail on the following grounds, but subject to stringent\nconditions:a) As per the FIR, the substance involved is Heroin, mentioned at Sr.\n No. 56 of the Notification, issued under Section 2(viia) and (xxiiia) ofNDPS Act, specifying small and commercial quantities of drugs and\n psychotropic substances.b) The quantity of drug involved is less than Commercial Quantity but\n greater than Small Quantity. As such the rigors ofSection 37of NDPS\n Act shall not apply in the present case. Resultantly, the present case\n has to be treated like any other case of grant of bail in a penal\n offence.::: Downloaded on - 06/03/2020 20:27:07 :::HCHP4c) The petitioner is in judicial custody since Feb 15, 2020.d) The investigation in the case is almost complete.e) The petitioner is a permanent resident of address mentioned in\n\n\n\n\n .the memo of parties; therefore, his presence can always be secured.f) In the status report, there is no mention of previous criminal\n\n\n\n\n\n history of the bail petitioner.8. In the result, the present petition is allowed. The petitioner shall be\nreleased on bail in the present case, in connection with the FIR mentioned\n\n\n\n\n\nabove, on his furnishing personal bond in the sum of Rs.10,000/- with two\nsureties in the like amount to the satisfaction of the Trial Court or the Court\nexercising jurisdiction over the concerned Police Station where FIR is registered.9. The Court executing the personal and surety bonds shall ascertain the\n\nidentity of the bail-petitioner, his family members, and of sureties, through\nAADHAR Card, Pan Card, Ration Card, etc. The petitioner shall mention phone\nnumbers and other details, on the reverse page of the bonds.10. The Counsel for the accused and the attesting official shall explain all\nconditions of this bail to the petitioner.11. The petitioner undertakes to comply with all directions given in this order\n\n\n\n\n\nand the furnishing of bail bonds by the petitioner is acceptance of all such\nconditions:a) The petitioner shall join the investigation as and when called by\n the Investigating Officer. However, whenever the investigation takes\n place within the boundaries of the Police Station or the Police Post,\n then the accused shall not be called before 9 AM and shall be let off\n before 5 PM.b) The petitioner shall appear before the Court which issues the\n summons or warrants, and shall furnish fresh bail bonds to the\n satisfaction of such Court, if such Court directs to do so.c) The petitioner shall not hamper the investigation.::: Downloaded on - 06/03/2020 20:27:07 :::HCHP5d) The petitioner undertakes not to contact the complainant and\n witnesses, to threaten or browbeat them or to use any pressure\n tactics..e) The petitioner undertakes not to make any inducement threat or\n promise, directly or indirectly, to the investigating officer or any\n\n\n\n\n\n person acquainted with the facts of the case to dissuade him from\n disclosing such facts to the Court or any police officer or tamper with\n the evidence.f) The petitioner shall neither influence nor try to control the\n investigating officer in any manner whatsoever.g) In case, the petitioner is arraigned as an accused of the\n\n commission of any offence, prescribing the sentence of\n\n imprisonment of more than seven years and in case the bail\n petitioner is arraigned as an accused in any case, under the\n provisions of theNDPS Act, irrespective of the quantity, be it a small\n\n\n\n quantity, then within thirty days of knowledge of such FIR, the\n petitioner shall intimate the SHO of the present police station, with\n\n\n\n\n all the details of the present FIR as well as the new FIR. It shall be\n\n\n\n\n\n open for the State to apply to this Court or to the Trial Court for\n cancellation of this bail, if it deems fit and proper. It is made clear\n\n\n\n\n\n that in such case the Court who would be considering such bail\n application(s) shall take into account that despite warning the\n accused has repeated the offence.h) Within 30 days from today, the petitioner shall sell, or surrender,\n all firearms along with ammunition, and arms licenses, if any, to the\n authority which had given such permission.i) Apart from above, in case the Petitioner does not turn up before\n the Trial Court, then the trial Court may issue Non-Bailable warrants\n and send the petitioner to the Judicial Custody for the period for::: Downloaded on - 06/03/2020 20:27:07 :::HCHP6which the presence of the petitioner cannot be dispensed with. If the\n petitioner violates any other condition(s) as stipulated in this bail\n order, then the Trial Court may direct the Public Prosecutor to file a\n\n\n\n\n .cancellation application before it and it shall be lawful and\n permissible for the Trial Court to cancel the bail.12. This order of bail does not in any manner limit or restrict the rights or\nduties of the police or investigating agency, to investigate into the charges\nagainst the petitioner.13. In case the petitioner finds the bail condition(s) as violating fundamental\nor other right, or any human right, or faces any other difficulty due to any\n\ncondition, then, the petitioner may file a reasoned application for modification\n\nof such term(s).14. It is clarified that the present bail order is only with respect to the above-\nmentioned FIR. It shall not be construed to be a blanket order of bail in all other\n\n\n\ncases, if any, registered against the Petitioner.15. Any observation made herein above shall not be taken as an expression\n\n\n\n\nof opinion on the merits of the case, and the trial Court shall decide the matter\n\n\n\n\n\nuninfluenced by any observation made herein above.16. The petition stands allowed in the aforesaid terms.Copy dasti.(Anoop Chitkara),\n Judge.March 6 , 2020 (PK)::: Downloaded on - 06/03/2020 20:27:07 :::HCHP |
fe3a5ee7-4dca-5283-9622-bdf2bbbc6662 | court_cases | Bombay High CourtKotak Mahindra Bank Limited vs Krishnakant P Soneji on 17 February, 2020Bench: G. S. Kulkarni2-9, 13-21, 24, 32-48, 51-58, 60, 62-69, 71-78, 81-84, 88-95, 99-112, 119.doc\n\nTauseef\n IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n ORDINARY ORIGINAL CIVIL JURISDICTION\n EXECUTION APPLICATION NO.614 OF 2016\n\n Kotak Mahindra Bank Ltd. ...Applicant\n V/S.\n Chandrahas Jitendra Mehta ...RespondentEXECUTION APPLICATION NO.615 OF 2016\n\n Kotak Mahindra Bank Ltd. ...Applicant\n V/S.Aashu Bharti ...Respondent\n\n EXECUTION APPLICATION NO.616 OF 2016\n\n HDFC Bank Ltd. ...Applicant\n V/S.Kelvin S. ...Respondent\n\n EXECUTION APPLICATION NO.617 OF 2016\n\n Kotak Mahindra Bank Ltd. ...Applicant\n V/S.Parag Satish Sanghvi ...Respondent\n\n EXECUTION APPLICATION NO.618 OF 2016\n\n Kotak Mahindra Bank Ltd. ...Applicant\n V/S.Krishnakant P. Soneji ...Respondent\n\n EXECUTION APPLICATION NO.619 OF 2016\n\n Kotak Mahindra Bank Ltd. ...Applicant\n V/S.Sunil Kumar Yadav ...Respondent\n\n\n\n\n Pg 1 of 13::: Uploaded on - 18/02/2020 ::: Downloaded on - 19/02/2020 06:47:17 :::2-9, 13-21, 24, 32-48, 51-58, 60, 62-69, 71-78, 81-84, 88-95, 99-112, 119.doc\n\n EXECUTION APPLICATION NO.621 OF 2016\n\nKotak Mahindra Bank Ltd. ...Applicant\n V/S.Sujata Anil Chavda ...Respondent\n\n EXECUTION APPLICATION NO.622 OF 2016\n\nKotak Mahindra Bank Ltd. ...Applicant\n V/S.Kapil H. Jagasia ...Respondent\n\n EXECUTION APPLICATION NO.627 OF 2016\n\nAu Financiers (India) Ltd. ...Applicant\n V/S.Shafiq Vazir Khan Travels & Anr. ...Respondents\n\n EXECUTION APPLICATION NO.628 OF 2016\n\nAu Financiers (India) Ltd. ...Applicant\n V/S.Jyotirling Tours & Travels & Laxman Tukaram Yadav...Respondents\n\n EXECUTION APPLICATION NO.629 OF 2016\n\nAu Financiers (India) Ltd. ...Applicant\n V/S.Laxmi Travels & Anr. ...Respondents\n\n EXECUTION APPLICATION NO.633 OF 2016\n\nAu Financiers (India) Ltd. ...Applicant\n V/S.Utkarsh Tour & Travels & Anr. ...Respondents\n\n EXECUTION APPLICATION NO.634 OF 2016\n\nAu Financiers (India) Ltd. ...Applicant\n V/S.Sunil Tours & Travels & Ors. ...Respondents\n\n\n\n Pg 2 of 13::: Uploaded on - 18/02/2020 ::: Downloaded on - 19/02/2020 06:47:17 :::2-9, 13-21, 24, 32-48, 51-58, 60, 62-69, 71-78, 81-84, 88-95, 99-112, 119.doc\n\n EXECUTION APPLICATION NO.635 OF 2016\n\nAu Financiers (India) Ltd. ...Applicant\n V/S.Sai Datta Tours & Travels & Ors. ...Respondents\n\n EXECUTION APPLICATION NO.636 OF 2016\n\nAu Financiers (India) Ltd. ...Applicant\n V/S.Laxmiraj Tours Travels & Ors. ...Respondents\n\n EXECUTION APPLICATION NO.637 OF 2016\n\nAu Financiers (India) Ltd. ...Applicant\n V/S.Singh Tours & Travels & Anr. ...Respondents\n\n EXECUTION APPLICATION NO.638 OF 2016\n\nMitsu Chem Pvt. Ltd. & Anr. ...Applicant\n V/S.Lotus Refineries Pvt. Ltd. ...Respondent\n\n EXECUTION APPLICATION NO.643 OF 2016\n\nM/s. Bajaj Finance Ltd. ...Applicant\n V/S.Yashodanandan Ashok Kumar & Ors. ...Respondents\n\n EXECUTION APPLICATION NO.651 OF 2016\n\nM/s. HDFC Bank Ltd. ...Applicant\n V/S.Nilesh B. Panchal ...Respondents\n\n EXECUTION APPLICATION NO.652 OF 2016\n\nShriram Chits (Mah) Ltd. ...Applicant\n V/S.Chavali Ramchandra Readdy ...Respondent\n\n\n\n Pg 3 of 13::: Uploaded on - 18/02/2020 ::: Downloaded on - 19/02/2020 06:47:17 :::2-9, 13-21, 24, 32-48, 51-58, 60, 62-69, 71-78, 81-84, 88-95, 99-112, 119.doc\n\n EXECUTION APPLICATION NO.653 OF 2016\n\nShriram Chits (Mah) Ltd. ...Applicant\n V/S.K.V. Ramana Reddy & Ors. ...Respondents\n\n EXECUTION APPLICATION NO.655 OF 2016\n\nShriram Chits (Mah) Ltd. ...Applicant\n V/S.Kanti K. Tank & Ors. ...Respondents\n\n EXECUTION APPLICATION NO.656 OF 2016\n\nShriram Chits (Mah) Ltd. ...Applicant\n V/S.Kanaiya Lal Bhagvandas Patel & Ors. ...Respondents\n\n EXECUTION APPLICATION NO.658 OF 2016\n\nKotak Mahindra Prime Ltd. ...Applicant\n V/S.Varun Industries Ltd. & Ors. ...Respondents\n\n EXECUTION APPLICATION NO.659 OF 2016\n\nKotak Mahindra Prime Ltd. ...Applicant\n V/S.M/s. Varun Industries Ltd. & Ors. ...Respondents\n\n EXECUTION APPLICATION NO.660 OF 2016\n\nKotak Mahindra Prime Ltd. ...Applicant\n V/S.M/s. Varun Industries Ltd. & Ors. ...Respondents\n\n EXECUTION APPLICATION NO.661 OF 2016\n\nKotak Mahindra Prime Ltd. ...Applicant\n V/S.M/s. Varun Industries Ltd. & Ors. ...Respondents\n\n\n\n Pg 4 of 13::: Uploaded on - 18/02/2020 ::: Downloaded on - 19/02/2020 06:47:17 :::2-9, 13-21, 24, 32-48, 51-58, 60, 62-69, 71-78, 81-84, 88-95, 99-112, 119.doc\n\n EXECUTION APPLICATION NO.662 OF 2016\n\nKotak Mahindra Prime Ltd. ...Applicant\n V/S.M/s. Varun Industries Ltd. & Ors. ...Respondents\n\n EXECUTION APPLICATION NO.663 OF 2016\n\nKotak Mahindra Prime Ltd. ...Applicant\n V/S.M/s. Varun Industries Ltd. & Ors. ...Respondents\n\n EXECUTION APPLICATION NO.664 OF 2016\n\nKotak Mahindra Prime Ltd. ...Applicant\n V/S.M/s. Varun Industries Ltd. & Ors. ...Respondents\n\n EXECUTION APPLICATION NO.665 OF 2016\n\nKotak Mahindra Prime Ltd. ...Applicant\n V/S.M/s. Varun Industries Ltd. & Ors. ...Respondents\n\n EXECUTION APPLICATION NO.666 OF 2016\n\nKotak Mahindra Prime Ltd. ...Applicant\n V/S.M/s. Varun Industries Ltd. & Ors. ...Respondents\n\n EXECUTION APPLICATION NO.667 OF 2016\n\nKotak Mahindra Prime Ltd. ...Applicant\n V/S.M/s. Varun Industries Ltd. & Ors. ...Respondents\n\n EXECUTION APPLICATION NO.668 OF 2016\n\nKotak Mahindra Prime Ltd. ...Applicant\n V/S.M/s. Varun Industries Ltd. & Ors. ...Respondents\n\n\n\n Pg 5 of 13::: Uploaded on - 18/02/2020 ::: Downloaded on - 19/02/2020 06:47:17 :::2-9, 13-21, 24, 32-48, 51-58, 60, 62-69, 71-78, 81-84, 88-95, 99-112, 119.doc\n\n EXECUTION APPLICATION NO.669 OF 2016\n\nKotak Mahindra Prime Ltd. ...Applicant\n V/S.M/s. Varun Industries Ltd. & Ors. ...Respondents\n\n EXECUTION APPLICATION NO.673 OF 2016\n\nKotak Mahindra Prime Ltd. ...Applicant\n V/S.Viren Shah ...Respondents\n\n EXECUTION APPLICATION NO.675 OF 2016\n\nThe Punjab & Maharashtra Co-op. Bank Ltd. ...Applicant\n V/S.Ms. Nivedhana Michael Nadar & Anr. ...Respondents\n\n EXECUTION APPLICATION NO.676 OF 2016\n\nThe Punjab & Maharashtra Co-op. Bank Ltd. ...Applicant\n V/S.Mahadev Ratan Sane & Ors. ...Respondents\n\n EXECUTION APPLICATION NO.677 OF 2016\n\nThe Punjab & Maharashtra Co-op. Bank Ltd. ...Applicant\n V/S.Ratan Ganpat Pote & Shobha Rajan Pote ...Respondents\n\n EXECUTION APPLICATION NO.685 OF 2016\n\nM/s. Kotak Mahindra Bank Ltd. ...Applicant\n V/S.Abhishek Mohan Nerurkar & Anr. ...Respondents\n\n EXECUTION APPLICATION NO.686 OF 2016\n\nM/s. India Infoline Finance Ltd. ...Applicant\n V/S.Ekrar Ahmed (Borrower) & Anr. ...Respondents\n\n\n\n Pg 6 of 13::: Uploaded on - 18/02/2020 ::: Downloaded on - 19/02/2020 06:47:17 :::2-9, 13-21, 24, 32-48, 51-58, 60, 62-69, 71-78, 81-84, 88-95, 99-112, 119.doc\n\n EXECUTION APPLICATION NO.687 OF 2016\n\nM/s. India Infoline Finance Ltd. ...Applicant\n V/S.Ibrahim Shaikh (Borrower) & Anr. ...Respondents\n\n EXECUTION APPLICATION NO.689 OF 2016\n\nAu Financiers (India) Ltd. ...Applicant\n V/S.Pandurang Sahdev Shinde & Ors. ...Respondents\n\n EXECUTION APPLICATION NO.691 OF 2016\n\nKotak Mahindra Prime Ltd. ...Applicant\n V/S.Varun Industries Ltd. & Ors. ...Respondents\n\n EXECUTION APPLICATION NO.692 OF 2016\n\nTata Capital Financial Services Ltd. ...Applicant\n V/S.Nagesh Shivraj Itkar & Anr. ...Respondents\n\n EXECUTION APPLICATION NO.693 OF 2016\n\nTata Capital Financial Services Ltd. ...Applicant\n V/S.Nagesh Shivraj Itkar & Anr. ...Respondents\n\n EXECUTION APPLICATION NO.694 OF 2016\n\nM/s. HDFC Bank Ltd. ...Applicant\n V/S.Shahid M. Rafi ...Respondents\n\n EXECUTION APPLICATION NO.695 OF 2016\n\nM/s. Reliance Capital Ltd. ...Applicant\n V/S.Khalilahmed Fazal Shaikh & Anr. ...Respondents\n\n\n\n Pg 7 of 13::: Uploaded on - 18/02/2020 ::: Downloaded on - 19/02/2020 06:47:17 :::2-9, 13-21, 24, 32-48, 51-58, 60, 62-69, 71-78, 81-84, 88-95, 99-112, 119.doc\n\n EXECUTION APPLICATION NO.696 OF 2016\n\nKotak Mahindra Prime Ltd. ...Applicant\n V/S.M/s. Varun Industries Ltd. & Ors. ...Respondents\n\n EXECUTION APPLICATION NO.697 OF 2016\n\nM/s. Religare Finvest Ltd. ...Applicant\n V/S.M/s. Option Oxides Pvt. Ltd. & Ors. ...Respondents\n\n EXECUTION APPLICATION NO.699 OF 2016\n\nM/s. HDFC Bank Ltd. ...Applicant\n V/S.Bharat Dahyalal Makhecha ...Respondent\n\n EXECUTION APPLICATION NO.701 OF 2016\n\nKotak Mahindra Prime Ltd. ...Applicant\n V/S.Varun Industries Ltd. & Ors. ...Respondents\n\n EXECUTION APPLICATION NO.702 OF 2016\n\nKotak Mahindra Prime Ltd. ...Applicant\n V/S.Varun Industries Ltd. & Ors. ...Respondents\n\n EXECUTION APPLICATION NO.703 OF 2016\n\nKotak Mahindra Prime Ltd. ...Applicant\n V/S.Varun Industries Ltd. & Ors. ...Respondents\n\n EXECUTION APPLICATION NO.704 OF 2016\n\nKotak Mahindra Prime Ltd. ...Applicant\n V/S.Satish Ganesh Kadam & Anr. ...Respondents\n\n\n\n Pg 8 of 13::: Uploaded on - 18/02/2020 ::: Downloaded on - 19/02/2020 06:47:17 :::2-9, 13-21, 24, 32-48, 51-58, 60, 62-69, 71-78, 81-84, 88-95, 99-112, 119.doc\n\n EXECUTION APPLICATION NO.705 OF 2016\n\nM/s. Reliance Capital Ltd. ...Applicant\n V/S.Aries Car Rental & Sushma Aabhaypratap Chube ...Respondents\n\n EXECUTION APPLICATION NO.706 OF 2016\n\nReliance Capital Ltd. ...Applicant\n V/S.Maharaja Tours & Travels & Ors. & Anr. ...Respondents\n\n EXECUTION APPLICATION NO.707 OF 2016\n\nM/s. Religare Finvest Ltd. ...Applicant\n V/S.Saicare Logistics Ltd. & Anr. ...Respondents\n\n EXECUTION APPLICATION NO.708 OF 2016\n\nM/s. Religare Finvest Ltd. ...Applicant\n V/S.Saicare Logistics Ltd. & Anr. ...Respondents\n\n EXECUTION APPLICATION NO.711 OF 2016\n\nM/s. Religare Finvest Ltd. ...Applicant\n V/S.M/s. New Paras Optics & Ors. ...Respondents\n\n EXECUTION APPLICATION NO.712 OF 2016\n\nM/s. Religare Finvest Ltd. ...Applicant\n V/S.Sai Tours & Travels & Anr. & Amit Nivrutti Zade ...Respondents\n\n EXECUTION APPLICATION NO.713 OF 2016\n\nM/s. Janalakshmi Financial Services Pvt. Ltd. ...Applicant\n V/S.M/s. Shreya Enterprises & Anr. ...Respondents\n\n\n\n Pg 9 of 13::: Uploaded on - 18/02/2020 ::: Downloaded on - 19/02/2020 06:47:17 :::2-9, 13-21, 24, 32-48, 51-58, 60, 62-69, 71-78, 81-84, 88-95, 99-112, 119.doc\n\n EXECUTION APPLICATION NO.716 OF 2016\n\nM/s. Shriram Transport Finance Co. Ltd. ...Applicant\n V/S.Shailendra Kumar & Anr. ...Respondents\n\n EXECUTION APPLICATION NO.723 OF 2016\n\nM/s. India Infoline Finance Ltd. ...Applicant\n V/S.Suresh Maruti Mote (Borrower) & Ors. ...Respondents\n\n EXECUTION APPLICATION NO.724 OF 2016\n\nM/s. India Infoline Finance Ltd. ...Applicant\n V/S.Mohan Kashi Giri (Borrower) & Anr. ...Respondents\n\n EXECUTION APPLICATION NO.725 OF 2016\n\nM/s. Shriram Transport Finance Co. Ltd. ...Applicant\n V/S.Sunil H. Gangwani & Anr. ...Respondents\n\n EXECUTION APPLICATION NO.727 OF 2016\n\nM/s. Videocon Industries Ltd. ...Applicant\n V/S.Naresh Mishrimal Kakriya ...Respondent\n\n EXECUTION APPLICATION NO.728 OF 2016\n\nM/s. Janalakshmi Financial Services Pvt. Ltd. ...Applicant\n V/S.M/s. Shree Balaji Foods & Catering Services & Ors. ...Respondents\n\n EXECUTION APPLICATION NO.729 OF 2016\n\nM/s. Reliance Capital Ltd. ...Applicant\n V/S.Aries Car Rental & Anr. ...Respondents\n\n EXECUTION APPLICATION NO.730 OF 2016\n\n Pg 10 of 13::: Uploaded on - 18/02/2020 ::: Downloaded on - 19/02/2020 06:47:17 :::2-9, 13-21, 24, 32-48, 51-58, 60, 62-69, 71-78, 81-84, 88-95, 99-112, 119.doc\n\n\n\nM/s. Kail Ltd. ...Applicant\n V/S.Arora Electrovision Pvt. Ltd. ...Respondents\n\n EXECUTION APPLICATION NO.731 OF 2016\n\nMarudhar Poly-cot (India) Pvt. Ltd. ...Applicant\n V/S.R. Mahipal Textiles ...Respondents\n\n EXECUTION APPLICATION NO.745 OF 2016\n\nM/s. Shriram Transport Finance Co. Ltd. ...Applicant\n V/S.Dhamodar Wamraodar Shinde & Anr. ...Respondents\n\n EXECUTION APPLICATION NO.746 OF 2016\n\nM/s. Shriram Transport Finance Co. Ltd. ...Applicant\n V/S.Hamid Majid Siddhiqi & Anr. ...Respondents\n\n EXECUTION APPLICATION NO.747 OF 2016\n\nM/s. Shriram Transport Finance Co. Ltd. ...Applicant\n V/S.Ramesh Bhandarkar & Anr. ...Respondents\n\n EXECUTION APPLICATION NO.748 OF 2016\n\nM/s. Shriram Transport Finance Co. Ltd. ...Applicant\n V/S.Manishbhai Bhikubhai Shah & Anr. ...Respondents\n\n EXECUTION APPLICATION NO.749 OF 2016\n\nM/s. Shriram Transport Finance Co. Ltd. ...Applicant\n V/S.Rajendra Ramchandra Pawar & Krishna Pawar ...Respondents\n\n EXECUTION APPLICATION NO.750 OF 2016\n\n\n Pg 11 of 13::: Uploaded on - 18/02/2020 ::: Downloaded on - 19/02/2020 06:47:17 :::2-9, 13-21, 24, 32-48, 51-58, 60, 62-69, 71-78, 81-84, 88-95, 99-112, 119.doc\n\n\n\nM/s. Shriram Transport Finance Co. Ltd. ...Applicant\n V/S.Asif Sayyed Mohd Shabbir & Anr. ...Respondents\n\n EXECUTION APPLICATION NO.758 OF 2016\n\nM/s. India Infoline Finance Ltd. ...Applicant\n V/S.Mohd. Tavir Alam (Borrower) &\nMohammad Galib Mohammad Vasim Asahekh\n(Co-borrower) ...Respondents\n\n EXECUTION APPLICATION NO.759 OF 2016\n\nM/s. Magma Fincorp Ltd. ...Applicant\n V/S.Road Runner ...Respondents\n\n EXECUTION APPLICATION NO.761 OF 2016\n\nM/s. India Infoline Finance Ltd. ...Applicant\n V/S.Ramasmujh S. Yadav & Anr. ...Respondents\n\n EXECUTION APPLICATION NO.766 OF 2016\n\nM/s. Janalakshmi Financial Services Pvt. Ltd. ...Applicant\n V/S.M/s. Only Parathas & Ors. ...Respondents\n\n EXECUTION APPLICATION NO.770 OF 2016\n\nPhoenix Arc Pvt. Ltd. ...Applicant\n V/S.Vinay G. Mishra ...Respondents\n\n EXECUTION APPLICATION NO.771 OF 2016\n\nPhoenix Arc Pvt. Ltd. ...Applicant\n V/S.Yatin Thakorbhai Patel ...Respondent\n\n\n Pg 12 of 13::: Uploaded on - 18/02/2020 ::: Downloaded on - 19/02/2020 06:47:17 :::2-9, 13-21, 24, 32-48, 51-58, 60, 62-69, 71-78, 81-84, 88-95, 99-112, 119.doc\n\n\n\n EXECUTION APPLICATION NO.772 OF 2016\n\nPhoenix Arc Pvt. Ltd. ...Applicant\n V/S.Asha Jinesh Shah ...Respondents\n\n EXECUTION APPLICATION NO.773 OF 2016\n\nPhoenix Arc Pvt. Ltd. ...Applicant\n V/S.Girish Ramesh Aurangabadkar ...Respondents\n\n EXECUTION APPLICATION NO.810 OF 2016\n\nM/s. India Infoline Finance Ltd. ...Applicant\n V/S.Irfan Khan (Borrower) & Ors. ...Respondents\n\nNone for Applicants.None for Respondents.Sr. No.33-36 - No R&P.CORAM : G.S. KULKARNI, J.\n DATED : 17th FEBRUARY 2020.\n\nP.C. :These Execution Applications have not been proceeded with for\na period of over 12 months from the date of filing of the applications.\nAccordingly, these applications have been placed by the Prothonotary and\nSenior Master under Rule 329 of the Bombay High Court Original Side\nRules before the Court, for dismissal, for want of prosecution. As none\nappears for the Applicants, these Execution Applications are dismissed. No\norder as to costs.(G.S. KULKARNI, J.)\n\n\n\n Pg 13 of 13::: Uploaded on - 18/02/2020 ::: Downloaded on - 19/02/2020 06:47:17 ::: |
2b3b53a8-82ad-53e4-b640-2e558b072501 | court_cases | Andhra Pradesh High Court - AmravatiAll Saints Christian Law College vs The State Of Andhra Pradesh on 1 December, 2023Bench: V.SujathaHONOURABLE SMT. JUSTICE V.SUJATHA\n\n WRIT PETITION No.31128 of 2023\n\nORDER:The present Writ Petition came to be filed underArticle 226of the Constitution of India seeking the\n\nfollowing relief:-"...to issue an appropriate writ more in the nature of\n Writ of Mandamus declaring the action on the part of\n Respondents more specially Respondent Nos. 2 and 3\n in not permitting the Petitioner-Institution to fill the\n seats to the tune of 50% of the allotted seats by the 3rd\n Respondent Bar Council of India, with the candidates\n belonging to minority community despite the fact that\n the Petitioner-Institution has been granted Minority\n Status Certificate by the Department of Social Welfare\n Government of Andhra Pradesh as being arbitrary,\n illegal, unwarranted and violative of Articles 14 and 19\n of the Constitution of India and in utter disregard to the\n catena of Judgments of the Honourable Apex Court on\n the subject and consequently direct the Respondents to\n allow the Petitioner-Institution to make admissions on\n its own to the tune to 50% of the seats allotted by the\n 3rd Respondent Council for LAWCET-2023..."2. Heard learned counsel for the petitioner, learned\n\nGovernment Pleader for Higher Education and\n\nMr.T.Dhanunjaya Reddy, learned counsel appearing for\n\nthe respondent No.3.3. Brief facts of the case are that the petitioner-\n\nInstitution is affiliated to the respondent No.3-\n\nUniversity vide orders dated 10.10.2023 and got\n\napproval from the Bar Council of India to run Law2courses for the academic Year 2023-2024 and on\n\n25.02.12000, the Government Of Andhra Pradesh\n\nthrough the Social Welfare Department issued Minority\n\nStatus Certificate to the petitioner-institution. While the\n\nmatter being so, the respondent No.3 Council has\n\nallotted LL.B. 3 years - 144, LL.B. 5 years-72, LL.M.- 18\n\nand LL.M. (Constitutional Law)-20 Seats for the\n\nacademic year 2023-24 to the petitioner-institution. It\n\nis further submitted that, as per the observations of the\n\nHon'ble Apex Court in catena of decisions and the\n\nexisting law and also as per the G.O.Ms.No.135, dated\n\n19.04.1994, the petitioner institution is free to fill only\n\n50% of seats on its own and the remaining 50% of seats\n\nhave to be filled by the 2nd respondent-Convener.4. Learned counsel for the petitioner submits that\n\nfor the academic year 2023-2024, the respondent\n\nNos.1, 2 & 3 have allowed the petitioner-institution to\n\nfill only 30% of seats instead of 50% which were\n\ngranted by the respondent No.4 Council and the\n\nrespondent No.3 University and when the petitioner-\n\ninstitution approached the respondent Nos.1 & 2\n\nrequesting them to reconsider the allotment and permit3the petitioner to fill seats as per quota, no action was\n\ntaken by the respondents. Aggrieved by the same, the\n\npresent Writ Petition is filed.5. Today, when the matter is taken up for hearing,\n\nlearned Government Pleader for Higher Education\n\nsubmitted a copy of written instructions dated\n\n30.11.2023, received from the respondent No.2\n\nAPSCHE, wherein it is specifically stated as follows:".......1. For all these years the institutions didn't\n approach the Competitive Authority for granting Minority\n Status.2. Even though Minority Status granted by the State\n Government, the same needs to be approved by\n Regulatory Authority i.e., (BCI).3. While granting the affiliation the respective affiliating\n University did not consider the petitioner institution as\n Minority Institutions. Moreover even till today the\n Competent Authority did not received any communication\n from either University/Petitioner Institution with regard\n to Minority Status.4. As on the 1st phase of LAWCET admission the\n Petitioner institutions was placed as Non-Minority\n Institution and accordingly 80 percent of the sanctioned\n intake is considered as convener intake. Whereas, if the\n Institution is considered as any Minority Institution, 50\n percent of the sanctioned intake shall be for the convener\n quota and remaining 50 percent is considered as\n Management quota."6. As seen from the material on record, the\n\nrespondent Nos.2 & 3 are not permitting the petitioner-\n\ninstitution to fill the seats to the tune of 50% of the4allotted seats by the respondent No.3, on the ground\n\nthat till today the Competent Authority did not received\n\nany communication from either the University or the\n\npetitioner-institution with regard to the Minority Status\n\nand on the other hand it is case of the petitioner that\n\nthe petitioner is already having the Minority Status\n\nCertificate dated 25.02.2000, issued by the Government\n\nOf Andhra Pradesh through the Social Welfare\n\nDepartment for the academic year 2023-2024. In terms\n\nof the said status granted by the authorities, the\n\npetitioner-Institution is entitled to fill 50% of the total\n\nseats allotted by the 3rd respondent Council with\n\ncandidates belonging to the minorities on its own while\n\nthe 50% has to be filed in Convener quota. However,\n\nthe petitioner-institution was not permitted to do so.7. The Hon'ble Apex Court in T.M.A Pai Foundation\n\n& Ors. Vs State of Karnataka & Ors.,1 dated\n\n31.10.2002, has categorically stated that Minority\n\nInstitutions fall underArticle 30(1)and the said\n\nMinority Institutions are entitled to fill 50% of seats of1(2002) 8 SCC 4815their own community. The relevant portion of the said\n\norder is extracted hereunder:"....10. Several States have totally disagreed with the\n arguments advanced by the learned Solicitor General with\n regard to the applicability ofArticle 29(2)and30(1).The\n States of Madhya Pradesh, Chattisgarh and Rajasthan have\n submitted that the words "their choice" inArticle 30(1)enabled the minority institutions to admit members of the\n minority community, and that the inability of the minority\n institutions to admit others as a result of the exercise of\n "their choice" would not amount to a denial as contemplated\n underArticle 29(2).The State of Andhra Pradesh has not\n expressly referred to the inter-play betweenArticle 29(2)andArticle 30(1), but has stated that "as the minority\n educational institutions are intended to benefit the\n minorities, a restriction that at least 50 per cent of the\n students admitted should come from the particular\n minority, which has established the institution should\n be stipulated as a working rule", and that an institution\n which fulfilled the following conditions should be regarded\n as minority educational institutions:1. All the office bearers, members of the executive committee\n of the society must necessarily belong to the concerned\n religious/linguistic minority without exception.2. The institution should admit only the concerned minority\n candidates to the extent of sanctioned intake permitted to be\n filed by the respective managements and that the Court\n "ought to permit the State to regulate the intake in minority\n educational institutions with due regard to the need of the\n community in the area which the institution is intended to\n serve. In no case should such intake exceed 50% of the total\n admissions every year."611. The State of Kerala has submitted, again without\n express reference toArticle 29(2), "that the constitutional\n right of the minorities should be extended to professional\n education also, but while limiting the right of the minorities\n to admit students belonging to their community to 50% of\n the total intake of each minority institution".8. As per the observations of the Hon'ble Apex Court\n\nin the said Judgment and also as per the\n\nG.O.Ms.No.135, dated 19.04.1994, the petitioner\n\ninstitution is eligible to fill only 50% of seats on its own\n\nand the remaining 50% of seats have to be filled by the\n\n2nd respondent-Convener. In view of the petitioner-\n\ninstitution obtaining the Minority Status Certificate\n\ndated 25.02.2000, for the academic year 2023-2024 the\n\nrespondent Nos.2 & 3 cannot deny the permission to\n\nthe petitioner-institution to fill 50% of the seats allotted\n\nby the respondent No.3-University.9. Learned counsel for the petitioner has informed\n\nthis Court that though he has submitted a\n\nrepresentation on 14-11-2023, the same was not\n\nconsidered by the respondents. However, learned\n\ncounsel for the petitioner has stated that the petitioner\n\nis ready to submit a fresh representation today itself i.e.7on 01.12.2023, before completion of the office timings,\n\nduly enclosing the Minority Status Certificate.9. Accordingly, the Writ Petition is disposed of\n\ndirecting the petitioner-institution to communicate the\n\nMinority Status Certificate to the respondent No.2 today\n\nitself i.e. on 01.12.2023, before completion of the office\n\ntimings and on such communication the respondent\n\nNo.2 shall consider the petitioner-institution as a\n\nMinority Institution and thereafter shall allow the\n\npetitioner-institution to make admissions on its own to\n\nthe tune of 50% of the seats allotted by the respondent\n\nNo.3 Council for LAWCET-2023. Learned Standing\n\nCounsel appearing for respondent No.3 is directed to\n\ncommunicate the said order to the respondent No.2\n\nforthwith. There shall be no order as to costs.Miscellaneous petitions pending, if any, in this Writ\n\nPetition shall stand closed._______________________\n JUSTICE V.SUJATHA\n\nDate : 01.12.2023\nSRT8HONOURABLE SMT. JUSTICE V.SUJATHA\n\n\n\n\n WRIT PETITION No.31128 of 2023\n\n Date : 01.12.2023\n\n\n\n\nSRT |
0d36fa0f-fc97-586c-8940-80e30c31f8b4 | court_cases | Securities Appellate TribunalKamdhenu Ltd. vs Sebi on 27 July, 2023BEFORE THE SECURITIES APPELLATE TRIBUNAL\n MUMBAI\n\n\n Date : 27.07.2023\n\n\n Misc. Application No. 859 of 2023\n And\n Misc. Application No. 860 of 2023\n And\n Appeal No. 639 of 2023\n\n\n Kamdhenu Ltd. ...Appellant\n\n Versus\n\n National Stock Exchange of India Ltd. & Anr. ...Respondents\n\n\n\n Mr. Somasekhar Sundaresan, Advocate with Mr. Sumit Garg,\n Ms. Yugandhara Khanwilkar and Mr. Prateek Jain, Advocates\n for the Appellant.\n\n Mr. Rudra Deosthali, Advocate i/b Parinam Law Associates for\n Respondent No. 1 NSE.\n\n Mr. Sagar Divekar, Advocate for Respondent No. 2 BSE.\n\n\n\n ORDER:1. Let a reply be filed by the respondent within three weeks.Rejoinder may be filed within three weeks thereafter. The\n\n matter would be listed for admission and for final disposal on\n\n September 25, 2023.22. This order will be digitally signed by the Private Secretary\n\non behalf of the bench and all concerned parties are directed to\n\nact on the digitally signed copy of this order. Certified copy of\n\nthis order is also available from the Registry on payment of\n\nusual charges.Justice Tarun Agarwala\n Presiding Officer\n\n\n\n\n Ms. Meera Swarup\n Technical Member\n27.07.2023 MADHUKAR Digitally signed by\n MADHUKAR\n SHAMRAO\n SHAMRAO BHALBAR\nmsb BHALBAR Date: 2023.07.28\n 11:10:39 +05'30' |
3788ad70-e018-5a89-a5fc-e0c67410e299 | court_cases | Madras High CourtK.Sakthivel vs The State Of Tamil Nadu on 17 October, 2023Author:G.R.SwaminathanBench:G.R.Swaminathan1 W.P.(MD)NO.22724 OF 2022\n\n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\n DATED: 17.10.2023\n\n CORAM\n\n THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN\n\n AND\n\n THE HON'BLE MR.JUSTICE B.PUGALENDHI\n\n W.P.(MD)No.22724 of 2022 AND\n W.M.P.(MD)No.16872 of 2022\n\n\n 1. K.Sakthivel\n\n 2. V.Kanthasamy\n\n 3. U.Murugesan\n\n 4. C.Govindha Raj\n\n 5. V.Murugesan\n\n 6. A.Arumugam\n\n 7. V.Muthuirulan ... Petitioners\n Vs.\n\n 1. The State of Tamil Nadu,\n Rep. by its Secretary to Government,\n Environment & Forest Department,\n Secretariat, St. George Fort,\n Chennai.\n\n 2. The District Collector,\n O/o.District Collectorate,\n Ramanathapuram,\n Ramanathapuram District.\n\nhttps://www.mhc.tn.gov.in/judis\n 1/12\n 2 W.P.(MD)NO.22724 OF 2022\n\n\n 3. The District Environmental Engineer,\n O/o.The District Environmental Engineer,\n Tamil Nadu Pollution Control Board,\n Ramanathapuram,\n Ramanathapuram District.\n\n 4. The Shrimathi Salt Private Ltd.,\n Rep. by its Director Mr.Nagarajan,\n Door No.1/14, Perumalpuram,\n New Colony, Tuticorin. ... Respondents\n\n Prayer: Writ petition is filed underArticle 226of the\n Constitution of India, to issue a Writ of Mandamus, to direct\n the respondents to take appropriate action against the fourth\n respondent viz., Shrimathi Salt Private Ltd., from discharging\n the salt wastage to the Aanaikudi Kanmai situated at\n Aanaikudi Village, Tiruppullani Block, Ramanathapuram\n District and consequentially to direct the respondents to\n remove the encroachment in the Aanaikudi Kanmai and\n restore the same to its original position and by considering the\n petitioner's representation dated 07.07.2022 within the time\n that may be stipulated by this Court.\n\n\n For Petitioner : Mr.H.Mohammed Imran\n For R-1 & R-2 : Mr.K.Balasubramani,\n Special Government Pleader.\n\n For R-3 : Ms.Vijayakumari Natarajan\n\n For R-4 : Mr.Isaac Mohanlal,\n Senior Counsel,\n for Ms.V.Sujatha\n\n ***\n\nhttps://www.mhc.tn.gov.in/judis\n 2/12\n 3 W.P.(MD)NO.22724 OF 2022\n\n\n\n ORDERHeard the learned counsel appearing for the writ\n\n petitioner and the learned Special Government Pleader\n\n appearing for the official respondents and the learned\n\n Standing counsel appearing for the third respondent and the\n\n learned Senioir counsel assisted by the learned counsel\n\n appearing for the fourth respondent.2. The writ petitioners are villagers of Aanaikudi in\n\n Thirupullani Post, Keelakarai Taluk, Ramanathapuram District.\n\n This writ petition has been filed for directing the official\n\n respondents to take action against the fourth respondent for\n\n discharging the salt wastage into Aanaikudi Kanmoi. It is\n\n further alleged that the encroachment has been committed in\n\n the said water body. After hearing the learned counsel\n\n appearing for the writ petitioner, the following order was\n\n passed on 20.01.2023:-“ The petitioners have come forward with this writ\n\n petition, praying for issuance of a Writ of Mandamus,\n\n directing the respondents to take appropriate action\n\nhttps://www.mhc.tn.gov.in/judis3/124 W.P.(MD)NO.22724 OF 2022against the 4th respondent viz., Shrimathi Salt Private\n\n Limited, Tuticorin, for discharging the salt wastage to\n\n Aanaikudi Kanmai situated at Aanaikudi Village,\n\n Tiruppullani Block, Ramanathapuram District and\n\n consequently, for a direction to the respondents to\n\n remove the encroachment in the Anaikudi Kanmai and\n\n to restore the same in its original position, by\n\n considering the petitioner's representation dated\n\n 07.07.2022, within a time frame.2. On 09.12.2022, we passed the following order:-''The learned counsel appearing for the\n\n Petitioners submitted that the fourth\n\n respondent/company is running the business\n\n without obtaining any consent from the third\n\n respondent and also discharged the salt\n\n wastages into the Aanaikudi Kanmai situated at\n\n Aanaikudi Village, Thirupullani Block,\n\n Ramanathapuram District.2.The learned counsel for the third\n\n respondent/Pollution Control Board submitted\n\n that the fourth respondent/company has not\n\n\nhttps://www.mhc.tn.gov.in/judis4/125 W.P.(MD)NO.22724 OF 2022obtained any consent from the third\n\n respondent/Board.3.This Court, by order, dated 28.09.2022,\n\n granted an interim order directing the fourth\n\n respondent/company not to discharge any salt\n\n wastage into the Aanaikudi Kanmai, as claimed\n\n by the Writ Petitioners.4.According to the fourth\n\n respondent/Company, they have not disputed\n\n the said fact and further submitted that they are\n\n not running the business in question, as of now,\n\n in the aforesaid plant, as alleged by the\n\n Petitioners.5.In view of the above, the third\n\n respondent/Tamil Nadu Pollution Control Board\n\n is directed to visit and inspect the fourth\n\n respondent/ company situated in S.No.317 of\n\n Aanaikudi Village, Thirupullani Block,\n\n Ramanathapuram District, to ascertain as to\n\n whether the said fourth respondent/company\n\n had discharged the salt wastage into the\n\n\nhttps://www.mhc.tn.gov.in/judis5/126 W.P.(MD)NO.22724 OF 2022Aanaikudi Kanmoi or deposit of salt in the said\n\n property, on or before 12.12.2022 and file a\n\n report before this Court on or before\n\n 14.12.2022.6.Post the matter on 14.12.2022, for filing\n\n such report by the third respondent/Pollution\n\n Control Board, along with W.P(MD)No.23301 of\n\n 2022.''3. Pursuant to the aforesaid order, the 3 rd\n\n respondent has filed a counter affidavit. The relevant\n\n portions of the same are as follows:-''3(f) Petitioners were contacted during\n\n inspection. It was reported that the runoff from\n\n the unit during rainy season could pollute the\n\n adjacent Anaikudi kanmai and agricultural\n\n lands. The villagers had apprehension that due\n\n to discharge of the runoff outside the Salt Pans\n\n during heavy rain could pollute the adjacent\n\n Anaikudi kanmai and agricultural lands.(i) During inspection it was confirmed that\n\n the salt pan area is completely inside the\n\n\nhttps://www.mhc.tn.gov.in/judis6/127 W.P.(MD)NO.22724 OF 2022Kanmai. In view of the above a letter has been\n\n addressed to the unit instructing to stop\n\n establishing / operations till adequate measures\n\n are made to avoid the run-off from salt pans to\n\n nearby lands/kanmai.6. As per the process the saline water will\n\n get concentrated from Solar heat, and the unit\n\n will keep pumping saline water from bore wells\n\n till the concentration of the saline water\n\n reaches to high level and then the salt\n\n formation occur. Then they will remove the salt\n\n as product, then the reject water from salt pans\n\n called bittern will be sent outside the premises\n\n normally through backwater channels. There is\n\n no backwater channel available adjacent to the\n\n unit, if this bittern water or even high saline\n\n water reaches the kanmai, the kanmai water\n\n become unusable for domestic consumption\n\n including bathing and agricultural purpose.''4. The relevant portion of the order dated\n\n 12.12.2022 of the Tamilnadu Pollution Control Board\n\n\nhttps://www.mhc.tn.gov.in/judis7/128 W.P.(MD)NO.22724 OF 2022directing the 4th respondent to stop further\n\n developments/operations is as follows:-''... Based on the complaint made by the people\n\n of Anaikudi Village, Keelakarai Taluk,\n\n Ramanathapuram District against the unit of\n\n M/s.Shri Mathi Salt Private Limited, Kalari\n\n Village, Keelakarai Taluk, Ramanathapuram\n\n District, inspection was carried out on\n\n 14.09.2022 and 14.10.2022. During inspection\n\n it was ascertained that the salt pan development\n\n work is being carried out. The unit had started\n\n its operation and pumped saline water in\n\n developed salt pan without providing proper\n\n backwater channel for drainage of run-off in\n\n case of heavy rain which could in turn lead to\n\n the pollution of the adjacent Anaikudi kanmai\n\n and agricultural land.In view of the above you are instructed to\n\n stop further developments/operations until\n\n adequate measures is made to avoid the run-off\n\n from the Salt Pans to nearby lands/kanmai and\n\n\nhttps://www.mhc.tn.gov.in/judis8/129 W.P.(MD)NO.22724 OF 2022outcome of the court case.The action taken in this regard shall be\n\n intimated to this office with in a week. ...''5. Thus, it is clear that the 4 th respondent's salt\n\n manufacturing unit has not obtained any permission\n\n from the Tamilnadu Pollution Control Board. Therefore,\n\n we are inclined to grant interim injunction.\n\n Accordingly, there shall be an order of interim\n\n injunction restraining the 4 th respondent from\n\n running the salt manufacturing unit and discharging\n\n salt wastage from Shrimathi Salt Private Limited in\n\n Survey No.317 of Aanikudi Village, Tiruppullani Block,\n\n Ramanathapuram District, pending disposal of this writ\n\n petition.6. Learned counsel for the petitioner submitted\n\n that the though the Tamilnadu Pollution Control Board\n\n has passed an order directing the 4 th respondent to\n\n stop running of the salt manufacturing unit pointing\n\n out certain defects as found in the inspection, despite\n\n the same, the 4 th respondent is running the unit.\n\n However, the said fact is disputed by the learned\n\n\nhttps://www.mhc.tn.gov.in/judis9/1210 W.P.(MD)NO.22724 OF 2022counsel for the 4 th respondent.7. Therefore, we appoint Mr.Vasanth, 99 Law\n\n Chambers, Cell No.96292 53077, as Advocate\n\n Commissioner. After serving notice to both the parties,\n\n the Advocate Commissioner is directed to inspect the\n\n 4th respondent's salt manufacturing unit and find out\n\n whether as on date, the said salt manufacturing unit is\n\n running and whether there is any discharge of salt\n\n wastage water from the said unit into Anaikudi kanmai\n\n and file a report before this Court on or before\n\n 31.01.2023. Initial remuneration of the advocate\n\n commissioner is fixed at Rs.30,000/- which shall be\n\n paid by the petitioner to the advocate commissioner\n\n forthwith. Registry is directed to issue a warrant to the\n\n Advocate Commissioner forthwith.8. Post the writ petition on 31.01.2023.”3. Shri.Vasanth, Advocate was appointed as Advocate\n\n Commissioner. The Advocate Commissioner has filed report.\n\n He categorically states that the industrial unit of the fourth\n\n respondent is not functioning.https://www.mhc.tn.gov.in/judis10/1211 W.P.(MD)NO.22724 OF 20224. The learned Senior counsel appearing for the fourth\n\n respondent states that without getting proper clearance and\n\n approval from the concerned authorities including the third\n\n respondent Board, the industrial unit will not be re-started.\n\n Even though the fourth respondent is having salt pans spread\n\n over 140 acres out of 560 acres, salt harvesting will not be\n\n done without getting clearance for their industrial unit. As and\n\n when the Pollution Control Unit and other authorities consider\n\n the request of the fourth respondent for restarting their unit,\n\n appropriate measures will be put in place to ensure that the\n\n water bodies located in the village are not in any way affected\n\n or injured by the salt pan activities.5. It is open to the fourth respondent to carry out\n\n renovation works in the meanwhile. Since the salt pan is\n\n spread over the very large extent of land, the fourth\n\n respondent is bound to ensure that there is no seepage from\n\n the salt pan or discharge from the industrial unit and that the\n\n water bodies in the locality are not affected by their activities.\n\n This writ petition stands disposed of accordingly. No costs.\n\n Consequently, connected miscellaneous petition is closed.\n\n\nhttps://www.mhc.tn.gov.in/judis11/1212 W.P.(MD)NO.22724 OF 2022(G.R.SWAMINATHAN, J.) & (B.PUGALENDHI, J.)\n\n 17th October 2023\n\n NCC : Yes / No\n Index : Yes / No\n Internet : Yes / No\n PMU\n G.R.SWAMINATHAN, J.AND\n\n B.PUGALENDHI, J.PMU\n\n To:1. The Secretary to Government,\n Environment & Forest Department,\n Secretariat, St. George Fort,\n Chennai.2. The District Collector,\n O/o.District Collectorate,\n Ramanathapuram,\n Ramanathapuram District.W.P.(MD)No.22724 of 2022https://www.mhc.tn.gov.in/judis12/1213 W.P.(MD)NO.22724 OF 202217.10.2023\n\n\n\n\nhttps://www.mhc.tn.gov.in/judis13/12 |
dc31ee3b-3a26-5325-8339-463834b14753 | court_cases | Delhi High CourtUmesh vs State Nct Of Delhi on 18 February, 2020Equivalent citations: AIRONLINE 2020 DEL 557Author:ManmohanBench:Manmohan,Sangita Dhingra Sehgal$~\n* IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n+ CRL.A. 1132/2018\n\n UMESH ..... Appellant\n Through Mr. K. Singhal, Advocate\n\n versus\n\n STATE NCT OF DELHI ..... Respondent\n Through Ms. Aashaa Tiwari, APP for State\n with Insp. Karan Singh Rana,\n SHO/Mukherjee Nagar\n\n% Reserved on: 11th February, 2020\n Date of Decision: 18th February, 2020\nCORAM:\nHON'BLE MR. JUSTICE MANMOHAN\nHON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL\n\n JUDGMENTMANMOHAN, J:1. Present appeal has been filed by appellant-convict challenging the\njudgment dated 15th September, 2018 and the order on sentence dated 18th\nSeptember, 2018 passed by Additional Sessions Judge/Pilot Court, North\nDistrict, Rohini, Delhi in Sessions Case No. 473/2017 arising out of FIR No.\n629/2016 registered with Police Station Mukherjee Nagar, whereby he had\nbeen convicted underSections 302/34of the Indian Penal Code (hereinafter\nreferred to as „IPC‟) and sentenced to rigorous life imprisonment with a fine\nof Rs. 10,000/- for the offence punishable underSection 302read withSection 34of IPC.CRL. A. No.1132/2018 Page 1 of 14CASE OF THE PROSECUTION2. The case of prosecution, as noted by the Trial Court, is reproduced\nhereinbelow:-"1. On 26.07.16 at about 8.45 PM Anil Kumar was standing\n outside the shop situated in house no.138 Munshi Ram Colony. He\n noticed his brother-in-law Amit coming towards his shop from the\n side of Indira Vikas Colony. In the mean while two boys came to the\n corner of the street and fired on Amit. He ran towards Amit to save\n him. Those two boys fled away after firing on Amit. Amit fell down\n on the ground. He was bleeding from his back and became\n unconscious. He removed Amit to the hospital with the help of\n neighbor, where Amit was declared dead. Anil told to the police\n that he suspect that Umesh and Sombir, both sons of Kalu killed\n Amit. He can identify those persons. FIR was registered.\n Investigation was carried out. Initially Bhupender, Sanjay and\n Sameer were arrested. Bhupender was charged for the offence\n punishable underSec.302IPC. Sanjay and Sameer were\n discharged. Trial continued against accused Bhupender only. The\n other accused Umesh and Sombir could not be arrested. Bhupender\n was held guilty and convicted vide order dt.22.08.2017 and has\n been sentenced vide order dt.29.08.2017. Accused Umesh and\n Sombir were later on arrested. After completion of investigation\n charge sheet against them was filed before the court of Ld.MM.\n Ld.MM after complying with the provisions ofSec.208Cr.PC\n committed the case to the Sessions court as the offence punishable\n underSec.302IPC is exclusively triable by the Sessions Court. Both\n the accused were charged for the offence punishable underSec.302read withSec.34IPC and also underSec.174AIPC. Both the\n accused persons pleaded not guilty and claimed trial."FINDING OF THE TRIAL COURT3. The conclusion of the Trial Court is reproduced hereinbelow:-"118. After hearing the arguments and going through the record I\n found that there are only two eye witnesses in this case namely Anil\n PW-9 and Anita PW-3. PW-3 deposed that she along with AmitCRL. A. No.1132/2018 Page 2 of 14(deceased) had gone to the market for making purchases. While\n they were returning Amit was moving ahead of her. Accused Umesh\n and Sombir @ Cheli along with their co-accused came from the\n side street and fired upon Amit. It was Umesh and Bhupender who\n fired upon Amit and the other two accused kicked Amit to find out if\n he is alive or not. PW-9 also corroborated the testimony of PW-3\n that when Amit entered the gate two accused persons fired upon\n Amit. He stated that he can identify them and he identified Umesh\n as the person who fired upon Amit. Sombir @ Cheli kicked Amit to\n find out if he is alive or not. No doubt blood stained clothes of Anil\n were not seized and even the location of PW-3 and PW-9 is not\n shown by the IO in site plan. But as both the witnesses are reliable\n and trustworthy merely due to this lapse on the part of the IO no\n benefit can be given to the accused persons. Ld. Defence counsel\n has also raised the plea that PW-9 was not there but I found that\n PCR form itself shows that Amit was removed firstly to New Life\n Hospital by Anil as also deposed by Manoj PW-25 also and both\n Ct. Pawan PW32 and SI Manoj PW25 also deposed that Anil met\n them in the hospital which supports the contention that it was he\n who removed the injured to the hospital. No other person was there\n in the street at that time as deposed by PW-9. Therefore, non\n examination of any other witness does not impact the case even\n otherwise it is the quality of evidence and not the quantity which is\n material. When those two witnesses are fully supporting the\n prosecution case examination of more witnesses does not mean\n anything and on this ground no benefit can be given to accused. Ld\n . Counsel has also raised the plea that Mahesh who made the call at\n 100 number has not been examined. But in my opinion that also\n does not make any difference as there are two other eye witnesses\n who have been examined who have fully supported and\n corroborated each other. The testimony of PW3 and PW9 also\n founds corroboration from the medical evidence i.e. the post\n mortem report Ex.PW4/A wherein the doctor also found two\n penetrating wounds on the back of the deceased and thus the\n scientific evidence corroborates the ocular evidence.119. So far as the presence of PW-3 is concerned. She stated that\n she was at a distance of 7 - 8 steps following the deceased. The\n defence taken was that she had not sustained any pallet injury but itCRL. A. No.1132/2018 Page 3 of 14is to be noticed that Amit was going ahead of PW3 and the firing\n was done on the back of Amit. It is not the case that Amit was\n coming towards her. Under the circumstances there was no chance\n of her suffering any pallet injury when the firing is done at the back\n of Amit as the fire arms were not pointed in the direction in which\n PW-3 was present.120. It is also important to note that one HC Sukhleshwar was\n examined as PW33 and he stated that he came to know on the spot\n that Bhabhi of the deceased became unconscious on the spot. PW3\n has also name the accused Umesh in her statement and it is quite\n natural she being residing in village Dubbal Dhan and Umesh was\n residing just opposite there house & there were also family\n relations between two families. So far as the non mentioning of\n name in the FIR is concerned it is clear that the accused persons\n were not known to PW-9 and hence, his not naming the accused\n persons and that does not make a difference when he has\n specifically stated that he can identify them. Keeping in view this\n evidence and the testimonies of the witnesses, I found that both the\n witnesses are reliable and trustworthy with minor variations and\n contradictions which are natural. So far as PW3 not seeking any\n medical help is concerned, I do not find any reason to discard the\n testimony of PW-3 merely on this ground because when she had\n seen her brother-in-law (Devar) being fired it is quite natural that\n she got a shock and then it is quite natural and probable that she\n lost her consciousness. She had deposed that she regained\n consciousness only on the following morning which is also quite\n natural and probable and it does not detract her from truth of her\n version. There were no upper external injuries suffered by her. She\n had lost her consciousness and the failure to call a doctor at that\n point in time cannot be said to unusual. Keeping in view the\n testimony of PW-3 and PW-9 it is apparent that they are reliable\n trustworthy and credible witnesses. PW9 is also a natural witness,\n as his shop is situated only two feet away from the spot & this fact\n is not disputed. They have with stand the cross-examination. The IO\n did not find it necessary to corroborate and investigate and record\n the statements of further witnesses as he found that both the\n witnesses are reliable and in fact those both witnesses have stood\n firm through the intensive cross examination.CRL. A. No.1132/2018 Page 4 of 14121. So far as the testimony of PW-3 and PW-9 with respect to\n Sombir @ Cheli is concerned record shows that Anil in his\n statement Ex.PW9/A stated that two boys came at the corner of the\n street and fired on Amit. He ran to save Amit and both those boys\n ran away in two different streets. He also stated that murder of\n Amit has been committed by sons of Kalu i.e. Umesh and Sameer\n however he had not seen them earlier but can identify them. Here it\n is important to note that Anita PW-3 told the names of boys as\n Bhupender and Umesh who fired on Amit. Bhupender had already\n been held guilty and convicted vide Judgment dt. 22.08.2017 and\n sentenced vide order dt. 29.08.2017. Umesh is son of Surajmal and\n is identified by Anita and Anil as the same person who fired on Amit\n along with his co-accused. Anil in his statement does not say that\n there were four persons. He was confronted with his statement\n when he stated that there were four persons and that Sombir @\n Cheli was also among them. He also deposed that after Amit fell\n down Sombir @ Cheli kicked Amit to find out if he is alive or dead\n and thereafter ran away. Anil was also confronted with his\n statement with respect to this fact as it was not mentioned in his\n first statement Ex.PW9/A on the basis of which FIR was registered.\n In my opinion if there would have been four persons Anil would\n have certainly noticed them and also mentioned this fact in his\n statement Ex.PW9/A. Non mentioning of this fact in exhibit PW9/A\n clearly shows that it is an after thought and has been introduced\n later on only to make out a case against accused Sombir @ Cheli.\n In my opinion this is a material improvement and no reliance on the\n same can be placed.122. Similarly, so far as Anita PW-3 is concerned, she has not\n assigned any role to any other person except that Bhupender and\n Umesh fired on Amit though he stated that Sombir Cheli was also\n present but according to her Sombir Cheli fled away immediately\n when firing started. Merely because Sombir Cheli had fled away\n from the spot when firing started does not mean that he was\n involved in the commission of crime or having common intention to\n kill with the other accused persons. A new fact has been introduced\n by Anita that Sombir Cheli kicked Amit while he was lying on the\n ground in order to find out whether he is alive or dead. She was\n confronted with her statement where this fact was not foundCRL. A. No.1132/2018 Page 5 of 14mentioned. This is a material improvement and hence cannot be\n relied upon. In my opinion PW-3 and PW-9 do not inspire\n confidence so far as role of accused Sombir @ Cheli is concerned.123. As discussed above PW-3 and PW-6 are reliable, trust worthy\n and inspires confidence so far as accused Umesh is concerned. The\n defence has failed to breach the veracity of both these witnesses\n during intensive cross-examination. Both the witnesses have\n testified that the accused Umesh along with his co-accused\n Bhupender @ Joker (already convict) fired on Amit resulting into\n his death. Keeping in view the testimony of these eye witnesses I am\n of the opinion that prosecution has proved and established the guilt\n of accused Umesh beyond doubt. He is therefore held guilty and\n convictedu/s 302IPC."ARGUMENTS ON BEHALF OF THE APPELLANT-CONVICT4. Mr. K. Singhal, learned counsel for the appellant-convict contended\nthat none of the eyewitnesses i.e. Smt. Anita (PW-3) and Shri Anil Kumar\n(PW-9) were present at the scene of crime. He pointed out that the site plan\nprepared by the police did not precisely show the position of the two\neyewitnesses in relation to the position of the assailant. He emphasised that\nSmt. Anita (PW-3) did not mention about the presence of the other\neyewitness Shri Anil Kumar (PW-9) in her deposition. He stated that the\nInvestigating Officer ought to have investigated as to whether Smt. Anita\n(PW-3) was unconscious for nine hours and should have collected the CDR\nand mobile phones used by Smt. Anita (PW-3) and Shri Anil Kumar (PW-9). He also contended that the aforesaid witnesses were not independent as\nthey were related to the deceased. He lastly stated that the blood stained\nclothes of neither Shri Anil Kumar (PW-9) nor the neighbour who had\nhelped him taking the deceased to the hospital, had been examined.CRL. A. No.1132/2018 Page 6 of 14COURT'S REASONING\nSIMILAR ARGUMENTS ADVANCED BY CO-ACCUSED BHUPENDER @\nJOKHAR IN THE PRESENT FIR BEARING NO. 629/2016 REGISTERED\nWITH POLICE STATION MUKHERJEE NAGAR, HAVE ALREADY BEEN\nREJECTED BY A COORDINATE BENCH OF THIS COURT AFTER\nRELYING UPON THE DEPOSITIONS OF SHRI ANIL KUMAR (PW-9)\nAND SMT. ANITA (PW-3) WHO WERE ARRAYED AS PW-14 AND PW-15\nRESPECTIVELY IN THE PREVIOUS APPEAL BEING CRL.A.NO.\n895/2017. FURTHER, IT CANNOT BE SAID THAT SMT. ANITA (PW-3)\nAND SHRI ANIL KUMAR (PW-9) WERE EYEWITNESSES TO THE\nMURDER OF DECEASED-AMIT IN THE CASE OF CO-ACCUSED\nBHUPENDER @ JOKHAR AND NOT TO THE SAME MURDER IN THE\nCASE OF APPELLANT-CONVICT UMESH.5. This Court finds that similar arguments advanced by co-accused\nBhupender @ Jokhar in the present FIR bearing No. 629/2016 registered\nwith Police Station Mukherjee Nagar, have already been rejected by a\ncoordinate Bench of this Court after relying upon the depositions of Shri\nAnil Kumar (PW-9) and Smt. Anita (PW-3) who were arrayed as PW-14\nand PW-15 respectively in the previous appeal being Crl. A. No. 895/2017.\nThe relevant portion of the judgment passed by earlier Division Bench in\nCrl. A. No. 895/2017 filed by Bhupender @ Jokhar is reproduced\nhereinbelow:-"4. There were two eye-witnesses to the incident. The first was Anil\n Kumar (PW-14), brother-in-law of the deceased who was running a\n grocery shop at House No. 138, Munshi Ram Colony, Mukherjee\n Nagar, Delhi. His wife belonged to village Dubbaldhan Majra, PS\n Beri, District Jhajjar, Haryana. She had three brothers viz., Sandeep,\n Satyawan and Amit (the deceased). PW-14 disclosed that there was a\n previous dispute between Satyawan and his cousin brother Chand.\n Chand was murdered and of the three persons who were convicted,\n one was Satyawan. As a result, the relation between in-laws of PW-14\n and family of Chand was strained (ranjish chal rahi thi). According toCRL. A. No.1132/2018 Page 7 of 14PW-14, Kallu @ Surajmal, elder brother of Chand and his sons,\n Umesh and Sameer, had threatened the family of the in-laws of PW-14\n that they would be killed. As a result, Amit had begun residing with\n PW-14 and his wife in Delhi about two and half years prior to the\n incident.xxxx xxxx xxxx xxxx10. The other eye witness to the occurrence was Anita (PW-15), the\n sister-in-law of the deceased. Anita was also a resident of village\n Dubbaldhan. Her husband, Satyawan was arrested and convicted for\n the murder of Chand and was lodged in Jhajjar Jail. She confirmed\n that as a result of the above incident, the elder brother of Surajmal @\n Kallu and other family members including Sameer and Umesh were\n inimical to them and threatened to take revenge.11. PW-15 stated that about one and half months prior to the\n occurrence she had noticed Sameer roaming near the house of PW-\n 14, her nandoi. She too confirmed that Amit went to Kolhapur on or\n about 17th June 2016 for wrestling and returned to Delhi on 9th July\n 2016. She stated that on 26th July 2016 on or about 8 pm she had\n gone with Amit to the Indira Vikas Colony Market for purchasing\n household articles/vegetables. While returning home at about 8.45\n pm, the deceased was walking ahead of her. When they reached the\n iron gate of Munshi Ram Colony, she was only 10/12 steps behind\n him. As soon as the deceased entered the gate, the two accused, the\n Appellant herein and co-accused Umesh, standing there armed with\n the weapons fired on the deceased. She correctly identified the\n Appellant. While the two armed accused fired on the deceased - one\n other Somvir @ Chally and one more person came to the spot where\n the deceased was lying in an injured condition. They gave him kick\n blows to check whether he was alive or dead. Thereafter, the armed\n accused (including the Appellant herein) ran towards Indira Vikas\n Colony while the Somvir and the other person ran towards Mandir\n wali gali. PW-15 noticed PW14 standing in front of his shop. He\n along with few neighbours rushed to the place where the deceased\n was lying. PW-15 lost consciousness at that point in time.12. PW15 stated that she regained consciousness in the early hours of\n the following day in her house. At around 6.30 am on 27th July, 2010\n she received a phone call from Sumit, a cousin of the deceased, whoCRL. A. No.1132/2018 Page 8 of 14informed her that the Appellant herein and along with Umesh and\n Somvir and one other person had reached their village Dubbaldhan.\n He further disclosed to her that they had caused a gunshot injury to\n Sudhir, her brother-in-law, between 5 and 5.30 am on 27th July, 2016.\n The police then recorded the statement of PW15 at her house on 27th\n July, 2016.13. PW15 also confirmed that on 22nd September, 2016, she along\n with PW14 had gone to PS Mukherjee Nagar and identified the\n Appellant as the person who had caused gunshot injury to the\n deceased. She also gave a statement to that effect to the police.14. In her cross-examination, PW-15 confirmed that she and her\n family members had lodged 3/4 complaints to the police at village\n Dubbaldhan in the face of threats from the family members of Chand.\n The copies of those complaints were marked as Ex. PW15/D1 to D3.\n Importantly in her cross-examination, PW-15 volunteered that she\n had seen the Appellant "many a times in my native village and on one\n occasion accused Bhupinder had abused me while I was going to drop\n my children at their school."15. No doubt both the eye-witnesses i.e. PW14 and PW15 are related\n to the deceased, one being his brother-in-law and the other his sister-\n in-law. However, if on a careful scrutiny their evidence inspires\n confidence, it can certainly form the basis of a conviction. The caution\n that the Court has to exercise while examining the evidence of an\n interested witness is to look for inconsistencies and improvements, if\n any, that might affect the credibility of such witness. A greater degree\n of caution has to be exercised than the Court would while examining a\n non-interested witness.xxxx xxxx xxxx xxxx17. In the considered view of the Court, if the evidence of an eye\n witness inspires confidence, the mere fact that the prosecution had not\n examined other witnesses who may have corroborated the statement\n of such witness will not by itself weaken the evidence of such witness.\n PW-14 by all counts is a natural witness. A perusal of the PCR form\n clearly shows that the fact of the deceased having been brought to the\n New Life Hospital and Dr. Harish stating that he had been taken to\n the Hindu Rao Hospital are clearly set out. What is stated therein isCRL. A. No.1132/2018 Page 9 of 14consistent with the version of PW14 who was certainly present\n throughout. The mere fact that the bloodstained clothes of PW-14\n were not seized does not throw doubts on the veracity of his version.xxxx xxxx xxxx xxxx22. Once the evidence of two eye witnesses is clear and cogent, the\n failure to clearly state in the site plan as to where they were standing\n and in relation to the positions of the respective accused, is not of\n much consequence. While certainly such a site plan might have\n clearly shown the relative positions of the eye witnesses. However, the\n absence of such a site plan does not detract from the veracity of their\n evidence.23. It was submitted that it was unusual that PW15 did not seek any\n medical help and even after regaining consciousness did not inform\n anyone about what she saw till she spoke to the police the next\n morning. As far as this submission is concerned, the Court finds it\n wholly probable that PW15 who was walking just ten steps behind the\n deceased was deeply disturbed on seeing the deceased being gunned\n down in front of her eyes. Her losing consciousness appears totally\n natural and probable. Likewise her explanation that she regained\n consciousness only the following morning also appears entirely\n probable. The fact that she herself may not have been injured in any\n significant way, does not detract her from the truth of her version.\n Since also, there are no external injuries suffered by her and she only\n lost her consciousness, the failure to call a doctor at that point in time\n cannot be said to be unusual. What is significant is that even in her\n first statement to the police underSection 161Cr PC, PW15 named\n the Appellant and this was but natural since she had known him from\n before at her village where he had abused her while she was going to\n drop her children to the school.24. Nothing much has been elicited from PW15 in her cross\n examination which could be said to assist the defence. The minor\n inconsistencies in the statement made by her to the police in the first\n instance underSection 161Cr PC were confronted to her but were not\n material enough to cast any grave doubts on the truth of her version.\n The failure by the police to note whether there were any articles like\n vegetables etc strewn at the place of occurrence, does not per se\n falsify the versions of PWs 14 and 15.CRL. A. No.1132/2018 Page 10 of 1425. This Court has also carefully examined the evidence of the IO,\n PW23. Learned counsel for the Appellant sought to suggest that the\n IO ought to have investigated into PW15 becoming unconscious and\n ought to have collected the CDRs of the mobile phones used by PWs\n 14 and 15. It was for the IO to make an assessment of the strength of\n the evidence of PWs 14 and 15. If he felt that they were trustworthy\n and credible witnesses and could withstand cross-examination, he\n might not have further probed any alternative explanation to the\n events. The IO's assessment in the present case was found to be\n correct as both eye witnesses stood firm in their respective versions\n despite intensive cross-examination."(emphasis supplied)6. This Court emphasises that it can rely upon the findings of the earlier\nDivision Bench judgment in Crl. A. No. 895/2017 as it was a case of a co-\naccused out of the same FIR and not a cross case. Further, it cannot be said\nthat Smt. Anita (PW-3) and Shri Anil Kumar (PW-9) were eyewitnesses to\nthe murder of deceased-Amit in the case of co-accused Bhupender @ Jokhar\nand not to the same murder in the case of appellant-convict Umesh.MERELY BECAUSE THE WITNESSES ARE RELATED TO THE\nDECEASED, THEIR EVIDENCE CANNOT BE THROWN OUT. IN OTHER\nWORDS, THE RELATIONSHIP IS NOT A FACTOR TO AFFECT THE\nCREDIBILITY OF A WITNESS.7. This Court is also of the opinion that the contention of the appellant-\nconvict that the eyewitnesses in the present case were not independent on\naccount of them being related to the deceased is untenable in law. The\nSupreme Court inWaman vs. State of Maharashtra(2011) 7 SCC 295\nwhile discussing how the testimony of a related witness has to be examined,\nhas held as under:-CRL. A. No.1132/2018 Page 11 of 14"16. The fact of being a relative cannot by itself discredit the\n evidence. In the said case, the witness relied on by the\n prosecution was the brother of the wife of the deceased and was\n living with the deceased for quite a few years. This Court held\n that: (Sarwan Singh case [(1976) 4 SCC 369 : 1976 SCC (Cri)\n 646] , SCC p. 379, para 16)\n "16. ... But that by itself is not a ground to discredit the\n testimony of this witness, if it is otherwise found to be\n consistent and true."17.InBalraje v. State of Maharashtra, this Court held that the\n mere fact that the witnesses were related to the deceased cannot\n be a ground to discard their evidence. It was further held that\n when the eyewitnesses are stated to be interested and inimically\n disposed towards the accused, it has to be noted that it would not\n be proper to conclude that they would shield the real culprit and\n rope in innocent persons. The truth or otherwise of the evidence\n has to be weighed pragmatically and the court would be required\n to analyse the evidence of related witnesses and those witnesses\n who are inimically disposed towards the accused. After saying\n so, this Court held that: (SCC p. 679, para 30)\n "30. ... if after careful analysis and scrutiny of their evidence,\n the version given by the witnesses appears to be clear, cogent\n and credible, there is no reason to discard the same."18. The same principles have been reiterated inPrahalad\n Patel v. State of M.P.[(2011) 4 SCC 262 : (2011) 2 SCC (Cri)\n 205] In para 15, this Court held that: (SCC p. 265)\n "15. ... Though PWs 2 and 7 are brothers of the deceased,\n relationship is not a factor to affect credibility of a witness.In\n a series of decisions this Court has accepted the above\n principle (videIsrar v. State of U.P.[(2005) 9 SCC 616 : 2005\n SCC (Cri) 1260] and S. Sudershan Reddy v. State of\n A.P. [(2006) 10 SCC 163 : (2006) 3 SCC (Cri) 503] )."xxx xxx xxx20. It is clear that merely because the witnesses are related to the\n complainant or the deceased, their evidence cannot be thrown\n out. If their evidence is found to be consistent and true, the fact ofCRL. A. No.1132/2018 Page 12 of 14being a relative cannot by itself discredit their evidence. In other\n words, the relationship is not a factor to affect the credibility of a\n witness and the courts have to scrutinise their evidence\n meticulously with a little care."(emphasis supplied)8. The Supreme Court inGanapathi & Anr. Vs. State of Tamil Nadu,\n(2018) 5 SCC 549 has reiterated that "related" is not equivalent to\n"interested". The relevant portion ofthe said judgmentis reproduced\nhereinbelow:-"13. The evidence of ocular witnesses, PWs 1 and 2, father\n and brother of the deceased, clearly exhibits the way in which\n the accused took away the life of deceased Murugan. Their\n evidence narrates the guilt of the accused beyond reasonable\n doubt and corroborates with that of the medical evidence. Dr\n Danraj (PW 12) who conducted the post-mortem on the body\n of deceased Murugan, had pointed out as many as 10 cut\n injuries out of which Injuries 1, 2, 5, 6, 7, 8, 9 and 10 are fatal\n which were possible by sickle and capable of causing death\n whereas Injuries 7 and 9 were possible by knife. It appears\n that there were two independent witnesses (PWs 5 and 6)\n projected by the prosecution, but they have turned hostile. In\n several cases, only the family members are present at the time\n of incident, then the case of the prosecution will be based only\n on their evidence. When their evidence is the only evidence\n available, the courts should be cautious and meticulously\n evaluate the evidence in the process of trial and we are not\n able to appreciate the contention on behalf of the accused that\n the non-examination of independent witnesses and conviction\n based on the evidence of family members is fatal to the case of\n the prosecution.14. "Related" is not equivalent to "interested". A witness may\n be called "interested" only when he or she derives some\n benefit from the result of a litigation; in the decree in a civil\n case, or in seeing an accused person punished. A witness whoCRL. A. No.1132/2018 Page 13 of 14is a natural one and is the only possible eyewitness in the\n circumstances of a case cannot be said to be "interested".15. Merely because the eyewitnesses are family members their\n evidence cannot per se be discarded. When there is allegation\n of interestedness, the same has to be established. Mere\n statement that being relatives of the deceased they are likely to\n falsely implicate the accused cannot be a ground to discard the\n evidence which is otherwise cogent and credible. Relationship\n is not a factor to affect credibility of a witness. It is more often\n than not that a relation would not conceal actual culprit and\n make allegations against an innocent person. Foundation has\n to be laid if plea of false implication is made.(emphasis supplied)\n\n CONCLUSION9. Keeping in view the aforesaid mandate of law, conclusions of the\ncoordinate Bench in Cr. A. 895/2017 as well as the testimonies of Smt.\nAnita (PW-3) and Shri Anil Kumar (PW-9) which are clear, cogent,\nconsistent, credible and trustworthy, this Court is of the opinion that the\npresent appeal is bereft of merit. Consequently, the present appeal is\ndismissed.10. Trial court record be sent back. Copy of the judgment be supplied to\nthe appellant-convict through the concerned Jail Superintendent.MANMOHAN, J\n\n\n\n SANGITA DHINGRA SEHGAL, J\nFEBRUARY 18, 2020\nrnCRL. A. No.1132/2018 Page 14 of 14 |
15e36ea6-d94b-5e9d-a4a7-8ed59ef6e5b8 | court_cases | Manipur High CourtLainingthou Pakhangba Transport ... vs State Of Manipur And 4 Ors on 17 March, 2023Author:M.V.MuralidaranBench:M.V.MuralidaranABUJAM Digitally signed by ABUJAM SURJIT SINGH\n DN: c=IN, o=High court of manipur,\n ou=HIGH COURT OF MANIPUR,\n Item No. 133-134\n\nSURJIT\n pseudonym=0e1b0ee3b6ffbed0d836a65b3\n c7514b4d7f927b15a538b5057a961df2de21\n ab9, postalCode=795002, st=MANIPUR, IN THE HIGH COURT OF MANIPUR\n serialNumber=1e700e5572d1584e2ef9ded9\n 40fdfcda461fb9f5fb09afe579b80bd60dcc58\n AT IMPHAL\nSINGH\n 8f, cn=ABUJAM SURJIT SINGH\n Date: 2023.03.20 06:18:45 +05'30'\n\n WP(C) No.41 of 2023\n With\n MC(WP(C)) No.55 of 2023\n\n Lainingthou Pakhangba transport Association\n\n ...Petitioner/s\n - Versus -\n\n State of Manipur and 4 Ors.\n ...Respondent/s\n BEFORE\n HON'BLE THE ACTING CHIEF JUSTICE M.V.MURALIDARAN\n ORDER17.03.2023.[1] Heard Mr. M. Rendy, learned counsel for the petitioner and Mrs.\n\n Ch. Sundari, learned Government Advocate for the State respondents.\n\n [2] Mrs. Ch. Sundari, learned Government Advocate for the\n\n applicant represented that she has filed an application being\n\n MC(WP(C)) No.55 of 2023 seeking for vacating interim order in which\n\n Mr. M. Rendy, learned counsel for the respondents seeks time to file\n\n counter affidavit.[3] Therefore, post these matters on 14.04.2023.\n\n [4] Earlier interim order passed by this Court is extended till then.Ab.Surjit ACTING CHIEF JUSTICE\n\n [[ |
6310c1bc-1547-5fb4-ab68-b2d5c46a2f65 | court_cases | Kerala High CourtSuresh Serve V vs State Of Kerala Represented By on 19 May, 2020Equivalent citations: AIRONLINE 2020 KER 1034Author:A.HariprasadBench:A.HariprasadC.R.\n IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\n PRESENT\n\n THE HONOURABLE MR. JUSTICE A.HARIPRASAD\n\n &\n\n THE HONOURABLE MR.JUSTICE N.ANIL KUMAR\n\n TUESDAY,19TH DAY OF MAY, 2020 / 29TH VAISAKHA, 1942\n\n Crl.MC.No.6554 OF 2019(H)\n\n AGAINST THE ORDER DATED 02-08-2019 IN Crl.MP NO.3898/2019 OF\n CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA\n\n CRIME NO.1880/2019 OF PATHANAMTHITTA POLICE STATION\n\n\nPETITIONER/PETITIONER:\n\n SURESH SERVE V.,AGED 47 YEARS\n S/O. VITHOBA SERVE P., KRISHNA NIVAS,\n THAIKKAVU PETTA, PATHANAMTHITTA DISTRICT.\n\n BY ADVS.\n SRI.M.T.SURESHKUMAR\n SRI.R.RANJITH\n\nRESPONDENT/STATE:\n\n STATE OF KERALA REPRESENTED BY\n THE PUBLIC PROSECUTOR,\n HIGH COURT OF KERALA,\n ERNAKULAM, 682 031.\n\n BY SRI.S.U.NAZAR, SENIOR PUBLIC PROSECUTOR\n\n\n THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON\n19.02.2020, THE COURT ON 19.05.2020 PASSED THE FOLLOWING:\n Crl.MC No.6554 of 2019 2\n\n\n\n\n C.R.\n\n\n\n\n A.HARIPRASAD & N.ANIL KUMAR, JJ.\n --------------------------------------\n Crl.M.C.No.6554 of 2019\n --------------------------------------\n Dated this the 19th day of May, 2020\n\n ORDERHariprasad, J.Specific question begging for an answer in this order of\n\nreference is whether or not gold ornaments and money could be released in\n\ninterim custody underSection 451of the Code of Criminal Procedure, 1973\n\n(in short, "Cr.P.C.") to a person claiming to be the owner of jewellery/money\n\nwithout incorporating a condition that the said articles should be produced\n\nbefore the court, as and when directed, exactly in the same condition as they\n\nwere at the time of entrustment?2. Aggrieved by conditions 2 and 4 in Annexure-A3 order passed\n\nby the Chief Judicial Magistrate, Pathanamthitta on Crl.M.P.No.3898 of 2019\n\nin Crime No.1880 of 2019 of Pathanamthitta Police Station, the\n\npetitioner/claimant has approached this Court seeking modification of the\n\nconditions. A learned single Judge, vide reference order dated 09.10.2019,Crl.MC No.6554 of 2019 3raised the above mentioned question and as ordered by the Hon'ble the\n\nChief Justice, the matter has been placed before us.3. Short facts relevant for the decision are as follows:Pathanamthitta police registered Crime No.1880 of 2019 for an offence\n\npunishable underSection 392of the Indian Penal Code, 1860 (in short,\n\n"IPC"). Annexure-A1 takes in both the first information statement (FIS) and\n\nthe first information report (FIR). Sales Manager, Krishna Jewellery,\n\nPathanamthitta has lodged FIS on the allegation that the accused 1 to 4 on\n\n28.07.2019 at 16.30 hours trespassed into the jewellery store, tied up the\n\ndefacto complainant, physically assaulted him and thereafter they robbed\n\n3.5 kgs. of gold ornaments kept in a locker and also `13 lakhs in cash. Total\n\nloss estimated is `1,25,70,000/-. With these allegations, the case was\n\nregistered.4. Annexure-A2 is copy of the petition filed by the defacto\n\ncomplainant underSection 451Cr.P.C seeking an order for release of cash\n\nand gold ornaments produced before the court by the investigating officer.5. After considering all the contentions of the petitioner, Annexure-A3 order was passed by the Court. Placing reliance on the Supreme Court's\n\ndecision in Sunderbhai Ambalal Desai v. State of Gujarat ((2002) 10 SCC283) and another decision by this Court inThomas Koshy v. State of\n\nKerala(2010 KHC 617), the trial court issued the following directions:"1. The petitioner shall execute bond for\n Rs.1,50,00,000/- (One Crore fifty lakhs only) with 2 solventCrl.MC No.6554 of 2019 4sureties, each for the like sum for production of the articles\n before the court.2. The petitioner shall furnish security of bank\n guarantee for Rs.1,50,00,000/- before this Court.3. The petitioner shall not use the above articles\n for committing any crimes.4. The petitioner shall produce the above articles\n before the court in the same condition as and when\n required.5. The petitioner shall produce attested\n photographs of the above articles counter signed by the\n Sub Inspector of Police, Pathanamthitta.6. Detailed Mahazar of all the above articles shall\n be prepared before giving its interim custody to the\n petitioner."6. Conditions 2 and 4 above are under challenge.7. Heard the learned counsel for petitioner and learned Public\n\nProsecutor.8. We shall start by referring to the facts in Sunderbhai Ambalal\n\nDesai's case. The petitioners, who were certain police inspectors, along with\n\nother police personnel, were allegedly involved in offences punishable underSections 429,420,465,468,477Aand114of the Indian Penal Code (in\n\nshort, "IPC"). Prosecution case was that when they worked at various police\n\nstations they committed offences during certain period by replacement of\n\nmudammal articles including gold ornaments by other spurious articles,\n\nmisappropriation of amounts kept in the police station, unauthorised auctionCrl.MC No.6554 of 2019 5of property seized and kept in police custody pending trial and tampering\n\nwith records in the police station.9. In the above case, questions relating to interpretation ofSection\n\n451Cr.P.C. have been raised before the apex Court. In paragraphs 10 to 14\n\nfollowing observations are made:"10. To avoid such a situation, in our view, powers\n underSection 451, Cr. P.C. should be exercised promptly\n and at the earliest.Valuable Articles and Currency Notes11. With regard to valuable articles, such as, golden or silver\n ornaments or articles studded with precious stones, it is\n submitted that it is of no use to keep such articles in police\n custody for years till the trial is over. In our view, this\n submission requires to be accepted. In such cases,\n Magistrate should pass appropriate orders as contemplated\n underSection 451, Cr. P.C. at the earliest.12. For this purpose, if material on record indicates that such\n articles belong to the complainant at whose house theft,\n robbery or dacoity has taken place, then seized articles be\n handed over to the complainant after :-(1) preparing detailed proper panchnama of sucharticles;\n (2)taking photographs of such articles and a bond that such\n articles would be produced if required at the time of trial; and\n (3) after taking proper security.13. For this purpose, the Court may follow the procedure of\n recording such evidence, as it thinks necessary, as provided\n underS. 451, Cr. P.C. The bond and security should be taken\n so as to prevent the evidence being lost, altered orCrl.MC No.6554 of 2019 6destroyed. The Court should see that photographs of such\n articles are attested or countersigned by the complainant,\n accused as well as by the person to whom the custody is\n handed over. Still however, it would be the function of the\n Court underSection 451, Cr. P.C. to impose any other\n appropriate condition.14. In case, where such articles are not handed over either to\n the complainant or to the person from whom such articles are\n seized or to its claimants, then the Court may direct that such\n articles be kept in bank lockers. Similarly, if articles are\n required to be kept in police custody, it would be open to the\n SHO after preparing proper panchnama to keep such articles\n in a bank locker. In any case, such articles should be\n produced before the Magistrate within a week of their\n seizure. If required, the Court may direct that such articles be\n handed over back to the Investigating Officer for further\n investigation and identification. However, in no set of\n circumstances, the Investigating Officer should keep such\n articles in custody for a longer period for the purpose of\n investigation and identification. For currency notes, similar\n procedure can be followed."10. Learned single Judge mentioned in the reference order that in\n\nSunderbhai Ambalal Desai's case the Court did not consider the rights of\n\na claimant who seeks release of gold ornaments in interim custody for\n\nutilising the same for his routine business. In other words, in the above\n\ndecision there was no occasion for the court to pronounce on a situation\n\nwhere the jewellery could be given to the claimant unconditionally allowingCrl.MC No.6554 of 2019 7him to sell them out to prospective customers pending trial. In our view,\n\nthere is no limitation either explicitly or implicitly imposed in Sunderbhai\n\nAmbalal Desai's case by the apex Court on the powers of a criminal court,\n\nexercisable underSection 451Cr.P.C, to meet the ends of justice having\n\nregard to the peculiar facts and circumstances established in each case.11. Yet another decision relied on by the court below isThomas\n\nKoshy's case (supra).In that case, a learned single Judge, relying on\n\nSunderbhai Ambalal Desai's case, interfered with an order passed by the\n\nMagistrate declining to issue an order underSection 451Cr.P.C. for\n\nreleasing gold ornaments involved in a theft case. We find no specific legal\n\nprinciple laid down in this decision.12. It may be apposite to note the scheme for disposal of property\n\nset out in Chapter XXXIVCr.P.C..Section 451Cr.P.C. is quoted hereunder\n\nfor clarity:"451. Order for custody and disposal of property\n pending trial in certain cases.- When any property is\n produced before any Criminal Court during an inquiry or\n trial, the Court may make such order as it thinks fit for the\n proper custody of such property pending the conclusion of\n the inquiry or trial, and, if the property is subject to speedy\n and natural decay, or if it is otherwise expedient so to do,\n the Court may, after recording such evidence as it thinks\n necessary, order it to be sold or otherwise disposed of.Explanation.- For the purposes of this section,\n "property" includes -Crl.MC No.6554 of 2019 8(a) property of any kind or document which is produced\n before the Court or which is in its custody.(b) any property regarding which an offence appears to\n have been committed or which appears to have been used\n for the commission of any offence."13. This Section enables the courts to pass orders for custody or\n\ndisposal of property during or trial.Section 452Cr.P.C. deals with orders for\n\ndisposal of property at the conclusion of trial. By virtue of the Explanation\n\nadded toSection 451, the word "property" has been given a wider meaning\n\nthan it ordinarily has. The only precaution to be taken by a trial court is to\n\nensure that while disposing an application for return of property, all the\n\nconcerned persons are duly informed.14. Another provision relevant in this context isSection 457Cr.P.C.\n\nwhich speaks about the procedure for disposal of property seized by the\n\npolice, but which is not produced before a criminal court during inquiry or\n\ntrial. Orders passed both underSections 451and457are during inquiry or\n\npendency of trial.15. Learned counsel for the petitioner relied on a decision by a\n\nlearned single Judge of the High Court of Delhi inManjit Singh v. State(2014 0 Supreme (Del) 2080). On a perusal of the facts involvedin that\n\ncase, it can be seen that the subject matter of dispute was a Ford\n\nEndeavour car, which was allegedly stolen by somebody.Learned single\n\nJudge issued various guidelines regarding disposal of property underCrl.MC No.6554 of 2019 9Section 451Cr.P.C. Since parameters about release of vehicles have been\n\nspecifically dealt with in Sunderbhai Ambalal Desai's case, we find the\n\nobservations in Manjit Singh are only reiteration of the same. Moreover, the\n\nfacts in that case are dissimilar to that in this case.16. Another decision relevant to be mentioned in this regard isGeneral Insurance Council and others v. State of Andhra Pradesh and\n\nothers((2010) 6 SCC 768). Following in footsteps Sunderbhai Ambalal\n\nDesai, this decision was rendered.InGeneral Insurance Council's case,\n\nthey contended that despite the directions passed in Sunderbhai Ambalal\n\nDesai, there was no full and complete compliance of the same. They,\n\ntherefore, approached the Supreme Court for issuing further directions, so\n\nthat national waste, with regard to seized vehicles involved in commission of\n\nvarious offences, should not be allowed to occur and they should not be\n\nallowed to become junk and unworthy of plying on road. In that context, the\n\nSupreme Court reiterated that the mandate ofSection 451read withSection\n\n457Cr.P.C. should be followed with regard to seized vehicles. Since the\n\nquestions raised in this case and the case on hand are different, we cannot\n\napply the principles stated therein to release the jewellery involved.17. Our attention has been drawn to a decision, by a learned single\n\nJudge inV.Parakashan v. K.P.Pankajakshan(1985 Cri.L.J. 951) dealing\n\nwith object, nature and effect of passing an order underSection 451Cr.P.C.\n\nfor interim custody. It reads thus:"S.451enables the Magistrate to provide for interimCrl.MC No.6554 of 2019 10custody of property pending conclusion of inquiry or trial. It\n is only a temporary arrangement and what is contemplated\n is only an interim provision to provide custody with a proper\n person as the Court thinks fit with liability to produce the\n property back as and when directed by the Court. The\n maximum duration of the arrangement is only till conclusion\n of the inquiry or trial. It follows that the arrangement is only\n temporary and the main object is to protect or preserve the\n property pending trial. Even if the person entrusted with\n interim custody is the owner his possession or custody\n during the period of entrustment is only as representative of\n the Court and not in his independent right."It is to be noticed that in this decision, the learned single Judge has not\n\nconsidered the decision inBasavva Kom Dyamogouda Patil v. State of\n\nMysore(AIR 1977 SC 1749).18. On a plain reading ofSection 451Cr.P.C., it can be seen that\n\nthe power to order for custody and disposal of property pending trial has to\n\nbe exercised by the court by applying judicial discretion and the\n\narrangement once made thereunder is not even final till the conclusion of\n\ninquiry or trial. The court is having a right to terminate the entrustment, get\n\nback the property from the person to whom it was given and entrust it to\n\nsomebody else whom the court deems fit. In cases of rival claims for interim\n\ncustody, preference of one person over the other does not settle any right to\n\nownership or possession.19. Recently, a learned single Judge of this Court inNagarajan v.Crl.MC No.6554 of 2019 11State of Kerala(2019 (5) KHC 666) considered the scope ofSection 451Cr.P.C. in the context of jewellery looted from a shop.Learned single Judge\n\nhas made a reference to a passage inBasavva Kom Dyamogouda Patil(supra) wherein it has been held thus:"The object and scheme of the various provisions of\n the Code appear to be that where the property which has\n been the subject-matter of an offence is seized by the police\n it ought not to be retained in the custody of the Court or of\n the police for any time longer than what is absolutely\n necessary. As the seizure of the property by the police\n amounts to a clear entrustment of the property to a\n Government servant, the idea is that the property should be\n restored to the original owner after the necessity to retain it\n ceases. It is manifest that there may be two stages when the\n property may be returned to the owner. In the first place it\n may be returned during any inquiry or trial. This may\n particularly be necessary where the property concerned is\n subject to speedy or natural decay. There may be other\n compelling reasons also which may justify the disposal of\n the property to the owner or otherwise in the interest of\n justice. The High Court and the Sessions Judge proceeded\n on the footing that one of the essential requirements of the\n Code is that the articles concerned must be produced before\n the Court or should be in its custody. The object of the Code\n seems to be that any property which is in the control of the\n Court either directly or indirectly should be disposed of by\n the Court and a just and proper order should be passed by\n the Court regarding its disposal."(underline supplied)Crl.MC No.6554 of 2019 12Considering the precedents on the point, the learned single Judge took a\n\nview that the expression "if it is otherwise expedient so to do" occurring inSection 451Cr.P.C confers a discretion upon the court to order sale of\n\nproperty other than a property which is subject to speedy and natural decay.\n\nOn a careful reading ofSection 451Cr.P.C., we agree with the view\n\nexpressed by the learned single Judge.20. When a criminal court exercises its jurisdiction underSection\n\n451Cr.P.C., the following aspects become germane for consideration:(I) Any property must have been produced before the court during\n\ninquiry or trial\n\n (II) The court must have been called upon to make such order as it\n\nthinks fit for the proper custody of such property pending conclusion of the\n\ninquiry or trial.(III) Nature of property should be such that it is subject to speedy\n\nand natural decay or the court considers it is otherwise expedient to order\n\nproper custody, pending conclusion of the inquiry or trial\n\n (IV) The court should consider about the necessity of recording such\n\nevidence as it thinks fit depending on the facts in each case.(V) Property can be disposed of either by sale or otherwise.21. Learned Prosecutor relied onState of Maharashtra v.\n\nDr.Praful B.Desai((2003) 4 SCC 601). It is observed by the Supreme Court\n\nthatCr.P.C. is an ongoing statute. Taking note of the observations by a\n\nleading jurist Francis Bennion in his Commentaries on "StatutoryCrl.MC No.6554 of 2019 13Interpretation" that it is presumed the Parliament intends the courts to\n\napply, to an ongoing Act, a construction that continuously updates its\n\nwordings to allow for changes since the Act was initially framed, the\n\nSupreme Court, in approval of said principle, held that in a number of\n\ndecisions the above said principle had been applied.22. We are cognizant of the fact that it may be humanly impossible\n\nto visualise all probable situations under which the power vested in a\n\ncriminal court underSection 451Cr.P.C. could be sought to be invoked. For\n\nthe same reason, we think that there cannot be any enumeration of straight-\n\njacket formulae suiting all the situations. We, therefore, respectfully following\n\nthe guidelines inSunderbhai Ambalal Desai's case frame additional points\n\nin respect of disposal of money and jewellery by invokingSection 451Cr.P.C. We explicitly clarify that the additional points shown below are\n\nintended to supplement the guidelines inSunderbhai Ambalal Desai's case\n\nand not to supplant them.(i) Normally, currency notes can be returned to a claimant, if, after\n\ntaking such evidence as the court deems fit in the facts and circumstances\n\nin each case, he could establish a prima facie right to get the money\n\nreleased. The court shall, in that event, take adequate measures to prevent\n\nthe evidence being lost, altered or destroyed.(ii) If, in a given case, currency note/notes happen to be a material\n\npiece of evidence, for eg., a blood stained currency note involved in a\n\nmurder case, its release underSection 451Cr.P.C. may result in destructionCrl.MC No.6554 of 2019 14of evidence. In such cases, courts should be cautious to see whether return\n\nof the currency note/notes would prejudicially affect trial of the case and it\n\nmay decline the request, if it is so.(iii) In the case of jewellery, apart from the preparation of a proper\n\npanchanama of the articles, taking photographs, etc., mandated inSunderbhai Ambalal Desai's case, following aspects also may be\n\nconsidered depending on the facts in each case:(a) If, in a case, the allegation is that one or two gold\n\nornaments have been stolen or snatched away from the defacto\n\ncomplainant, a criminal court invokingSection 451Cr.P.C. after taking\n\nnecessary evidence and following the directions inSunderbhai Ambalal\n\nDesai's case, may release the article underSection 451Cr.P.C. with the\n\nsafeguards mentioned inthe above decisionand also with a direction to\n\nproduce the same in the same condition as and when directed, especially\n\nwhen there is a rival claimant for the ornaments. If there is no rival claimant\n\nand no dispute is raised by the accused regarding the nature, shape, weight,\n\netc. of the ornaments in question, in appropriate cases, the court may even\n\nreturn the same without a condition to produce them in the same condition\n\non a later date.(b) In a case involving theft of huge quantity of gold\n\nornaments from a jewellery store or from a jewellery manufacturing unit, the\n\ncourt should take extra precautions to see whether the claimant has\n\nestablished, by cogent evidence, a strong prima facie case to show hisCrl.MC No.6554 of 2019 15entitlement for staking the claim. In such cases, there ought to be records to\n\nsupport his claim. If there are sufficient documentary evidence showing his\n\nunquestionable entitlement to the articles, especially in a case where there\n\nis no rival claimant for the jewellery, we find no reason for imposing a\n\ncondition that the entire jewellery shall be produced in the same condition,\n\nas and when directed. If it is established by evidence that the ornaments\n\nclaimed by him are stock in trade in the jewellery store, no earthly purpose\n\nwill be served by returning them to the claimant by imposing such\n\nrestrictions. Hence, such a condition need not be imposed in all cases,\n\ndisregarding the factual situation in each case.We answer the reference accordingly.23. Coming to the facts in this case, we find the challenge is against\n\nconditions 2 and 4 imposed by the trial Judge. Condition 2 is relating to\n\nfurnishing security in the form of bank guarantee for the value assessed by\n\nthe court below. We find no reason to interfere with that condition as the\n\njewellery items involved are of a considerable worth. Insofar as condition 4 is\n\nconcerned, the court below shall allow the claimant to adduce evidence to\n\nestablish a strong prima facie entitlement to the property. It may also\n\nascertain whether there is any rival claimant for the gold ornaments involved\n\nin the case. After considering the entire evidence on record, the trial court\n\nshall take a decision as to whether the petitioner should be directed to\n\nproduce the articles before the court in the same condition as and when\n\nrequired by the court. For arriving at a proper conclusion, the court belowCrl.MC No.6554 of 2019 16shall consider whether the ornaments were the stock in trade in the jewellery\n\nstore belonging to the petitioner. The matter shall be disposed by the court\n\nbelow as expeditiously as possible, at any rate within a period of one month\n\nfrom the date of receipt of a copy of this order.A.HARIPRASAD,\n JUDGE.N.ANIL KUMAR,\n JUDGE.cksCrl.MC No.6554 of 2019 17APPENDIX\nPETITIONER'S/S EXHIBITS:ANNEXURE A1 TRUE COPY OF THE FIR AND FIS DATED\n 28.7.2019 IN CRIME NO. 1880 OF 2019 OF\n PATHANAMTHITTA POLICE STATION.\n\nANNEXURE A2 TRUE COPY OF THE PETITION AND AFFIDAVIT\n FILED UNDER SECTION 451 OF THE CODE OF\n CRIMINAL PROCEDURE.\n\nANNEXURE A3 TRUE COPY OF THE ORDER DATED 2.8.2019 IN\n CRL.M P NO. 3898 OF 2019 ON THE FILE OF\n THE CJM PATHANAMTHITTA. |
5dd45fc1-d063-5ef0-bc52-2a8ce15f27be | court_cases | Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member services -- Free for one month.\n\nRajasthan High Court - Jodhpur\nTejpal Singh Nunia And Anr vs State And Anr on 14 December, 2020Bench: Sandeep Mehta\n HIGH COURT OF JUDICATURE FOR RAJASTHAN AT\n JODHPUR\n S.B. Criminal Misc(Pet.) No. 2612/2017\n\n1. Tejpal Singh Nunia\n2. Surendra Singh Nunia, Both Sons Of Shri Prahalad Ram,\n R/o Nunia Gothda, Tehsil Baggad, District Jhunjhunu. At\n Present Lodged In Central Jail, Bikaner.\n ----Petitioners\n Versus\n1. The State Of Rajasthan\n2. Shri Charan Singh S/o Shri Harchand Singh Jhorad, Ward\n No.25, Jhoradpura Bas, Bhadra, District Hanumangarh.\n ----Respondents\n Connected With\n S.B. Criminal Misc(Pet.) No. 2662/2018\n1. Tejpal Singh Nunia S/o Lt. Sh. Prahalad Ram, Aged About\n 58 Years, R/o Vill. Nunia Gothra Baggad, Dist. Jhunjhunu\n2. Surendra Singh Nunia S/o Lt. Sh. Prahalad Ram, Aged\n About 51 Years, R/o Vill. Nunia Gothra Baggad, Dist.\n Jhunjhunu\n3. Mahesh Kumar S/o Sh. Suresh Kumar, Aged About 40\n Years, R/o Vill. Nunia Gothra Baggad,\n ----Petitioners\n Versus\nState, Through PP\n ----Respondent\n\n\nFor Petitioner(s) : Mr. Rajesh Punia (through V.C.)\nFor Respondent(s) : Mr. A.R. Choudhary, PP\n\n\n\n HON'BLE MR. JUSTICE SANDEEP MEHTA\n\n Judgment / Order\n\n14/12/2020\n\n These two criminal misc. petitions have been preferred on\n\nbehalf of the accused petitioners herein seeking quashing of FIR\n\n\n (Downloaded on 15/12/2020 at 08:54:01 PM)\n (2 of 2) [CRLMP-2612/2017]\n\n\n\n No.455/2014 PS Bhadra & 420/2013 PS Sangaria, District\n\n Hanumangarh.\n\n Learned counsel Shri Rajesh Punia has pleaded no\n\n instructions. No other counsel has filed power on behalf of the\n\n accused petitioners till date.\n\n As per the factual report placed on record by learned Public\n\n Prosecutor, the accused petitioner Tejpal Singh Nunia has passed\n\n away. The Investigating Officer has found the offences proved\n\n against the petitioners.\n\n In view of the fact that the offences have been found proved\n\n against the accused petitioners and as no one is appearing to\n\n plead these matters, the misc. petitions are dismissed for want of\n\n prosecution to the extent of accused petitioner Surendra Singh\n\n Nunia and Mahesh Kumar.\n\n (SANDEEP MEHTA),J\n 63-Sudhir Asopa/-\n\n (Downloaded on 15/12/2020 at 08:54:01 PM)\nPowered by TCPDF (www.tcpdf.org) |
ae814f50-bbd4-5007-936c-74cd23bf3dad | court_cases | Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member services -- Free for one month.\n\nCustom, Excise & Service Tax Tribunal\nAurobindo Pharma Limited vs -Designated Authority Directorate ... on 20 February, 2023\nAuthor: Dilip Gupta\nBench: Dilip Gupta\n CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL\n NEW DELHI\n\n PRINCIPAL BENCH\n\n ANTI-DUMPING APPEAL NO. 52404 OF 2022\n\n (Arising out of Customs Notification No. 13/2022 dated 11.05.2022 and Final\n Finding F.No. 7/29/2021-DGTR dated 15.02.2022)\n\n\n Aurobindo Pharma Limited ......Appellant\n Plot no. 2, Maitrivihar, Ameerpet,\n Hyderabad-500038, Telengana, India\n\n\n\n VERSUS\n\n\n1. The Union of India\n Through the Secretary,\n Ministry of Finance,\n Department of Revenue,\n North Block, New Delhi-110001\n\n2. Designated Authority, Directorate\n General of Trade Remedies\n Department of Commerce & Industry\n Parliament Street, Jeevan Tara\n Building, 4th Floor, New Delhi-110001\n\n3. China Embassy\n 50-D, Shantipath, Chanakyapuri\n New Delhi - 110 021\n\n4. M/s Inner Mongolia Changsheng Co. Ltd.\n Tuoketuo Industry Zone Hohhot,\n 010206 China\n\n5. M/s Sinobright Pharmaceutical\n Industries Limited\n 503 Zhongguan Building, Liuxian Road,\n Nanshan District, Shenzhen, China\n Shenzhen, Guangdong, China\n\n6. Centrient Pharmaceuticals India\n Private Limited\n Sir Winston Churchilllan 299\n 2288 DC Rijswijk\n The Netherlands\n\n7. Penam Laboratories Limited ......Respondents\n F-223, Block-5, Old Rajinder Nagar,\n New Rajinder Nagar, New Delhi,\n Delhi 110060\n 2\n AD/52404/2022\n\n APPEARANCE:\n\n Ms. Reena Asthana Khair, Shri Rajesh Sharma, Ms. Shreya Dahiya, Shri\n Subham Jaiswal, Shri Nikhil Sharma, Ms Vrinda Bagaria, Advocates for the\n Appellant\n Shri Ameet Singh and Ms. Bhavana Varsha, Advocates for Designated\n Authority\n Shri Rakesh Kumar, Authorized Representative for the Central Government\n\n\n CORAM: HON'BLE MR. JUSTICE DILIP GUPTA, PRESIDENT\n HON'BLE MR. P.V. SUBBA RAO, MEMBER (TECHNICAL)\n HON'BLE MS. BINU TAMTA, MEMBER (JUDICIAL)\n\n\n Date of Hearing/Decision: 20.02.2023\n\n\n Final Order No. _50203/2023__\n\n\n JUSTICE DILIP GUPTA:\n\n\n The grievance raised by Aurobindo Pharma Limited 1, is that\n\n despite a recommendation having being made by the designated\n\n authority in the final findings notified on 15.02.2022 for imposition of\n\n anti-dumping duty under section 9A of the Customs Tariff Act 19752,\n\n the Central Government did not issue the Notification for imposition\n\n of anti-dumping duty within three months from the date the final\n\n findings were notified by the designated authority. The relief,\n\n therefore, that has been claimed in this appeal is that the Notification\n\n dated 11.05.2022 issued by the Central Government rescinding the\n\n Notification dated 16.05.2017 imposing anti-dumping duty be set\n\n aside and a direction be issued to the Central Government to issue a\n\n Notification for imposition of anti-dumping duty, based on the\n\n recommendation made by the designated authority.\n\n 2. During the pendency of the appeal, Miscellaneous Application No.\n\n 50738 of 2022 was filed by the appellant with a prayer that two\n\n1. the appellant\n2. the Tariff Act\n 3\n AD/52404/2022\n\nadditional grounds and one additional prayer may be added. The\n\napplication was allowed by order dated 17.01.2023. The two\n\nadditional grounds that have been added are:\n\n "FF. The Appellant submits that the impugned order of the\n\n Respondent no. 1 is non-speaking and deserves to be\n\n aside side. This Hon'ble Tribunal under Rule 41 also has\n\n the inherent powers to pass such orders so as to secure\n\n the ends of justice. The Rule 41 of the CESTAT\n\n (Procedure) Rules, 1982, are extracted below for ease\n\n of reference:\n\n "RULE 41. Orders and directions in certain cases-\n The Tribunal may make such orders or give such\n directions as may be necessary or expedient to\n give effect or in relation to its orders or to prevent\n abuse of its process or to secure the ends of\n justice."\n\n\n The Appellant submits that the Rules 41 of the CESTAT\n\n (Procedure) Rules have been made applicable to\n\n proceedings under Anti-dumping Rules through Rule 7\n\n of CEGAT (Countervailing Duty and Anti-Dumping Duty)\n\n Procedure Rule, 1996, and therefore, apply to the\n\n present case.\n\n GG. This Hon'ble Tribunal had earlier in similar cases,\n\n notably in Jubilant Ingrevia Limited vs. Designated\n\n Authority dated 27th October 2021 and Apcotex\n\n Industries Ltd. & Others vs. Union of India dated\n\n 30th August, 2022, remanded the matter to the\n\n Respondent No. 1 to reconsider the recommendations\n\n issued by the Respondent No. 2 in those cases. In\n\n Apcotex case, the Hon'ble Tribunal had additionally\n 4\n AD/52404/2022\n\n directed the Respondent no. 1, that if it is of the prima-\n\n facie opinion that the recommendations of the\n\n Respondent No. 2 are not required to be accepted,\n\n tentative reasons for the same must be recorded and\n\n conveyed to the domestic industry therein, so as to\n\n give them an opportunity to file their submissions on\n\n the said grounds. The appellant understands that the\n\n Respondent No. 1 has however, till date, not\n\n implemented the said orders of the Hon'ble Tribunal,\n\n despite them not being stayed or set-aside. The Hon'ble\n\n High Court has not granted any interim relief to the\n\n Central Government in writ petition filed by the Central\n\n Government. Further, the Hon'ble High Court was\n\n pleased to pass an interim relief order in favor of the\n\n domestic industry concerned in all those writ petitions,\n\n vide order dated 05.09.2022. The appellant submits\n\n that pending final decision by Respondent No. 1, the\n\n Hon'ble Tribunal may kindly direct that the imports of\n\n the article under investigation pursuant to Final Finding\n\n Notification No. 7/29/2021-DGTR dated 15th February\n\n 2022 shall be cleared on provisional assessment basis."\n\n\n3. The prayer that has been added is:\n\n "(b-1). Pending final decision by Respondent No. 1,\n\n direct that imports of the article under investigation\n\n pursuant to Final Finding Notification No. 7/29/2021-\n\n DGTR dated 15th February 2022 shall be cleared on\n\n provisional assessment basis."\n 5\n AD/52404/2022\n\n 4. It transpires from the records that earlier, based on\n\n recommendation made by the designated authority in the final\n\n findings dated 03.04.2017 for imposition of the definitive anti-\n\n dumping duty on the imports of Amoxycillin Trihydrate3, the Central\n\n Government issued a Notification dated 16.05.2017 imposing anti-\n\n dumping duty for a period of five years. A sunset review investigation\n\n was carried out by the designated authority and a recommendation\n\n was made in the final findings dated 15.02.2022 for imposing of anti-\n\n dumping duty for a period 5 years. After the final findings were\n\n submitted by the designated authority on 15.02.2022, the Central\n\n Government issued a Notification dated 11.05.2022 revoking the\n\n anti-dumping duty imposed on the subject goods originating in or\n\n exported from China PR4 and rescinded the Notification dated\n\n 16.05.2017 but did not issue any Notification for imposing anti-\n\n dumping duty on the basis of the final findings submitted by the\n\n designated authority. It is, therefore, clear that by issuance of the\n\n Notification dated 16.05.2017 the Central Government decided not to\n\n impose anti-dumping duty on the basis of final findings dated\n\n 15.02.2022 submitted by the designated authority.\n\n 5. As the contention of the appellant is based on the\n\n recommendation made by the designated authority in the final\n\n findings dated 15.02.2022, it would be appropriate to reproduce the\n\n relevant portions of the conclusion and the recommendations made in\n\n the said final findings and they are as follows:\n\n\n\n\n3. subject goods\n4. subject country\n 6\n AD/52404/2022\n\n"N. CONCLUSION\n\n109. Having regard to the contentions raised, information\nprovided and submissions made and facts available before\nthe Authority as recorded in the above findings and on the\nbasis of the above analysis of the likelihood of\ncontinuation of dumping and recurrence of injury to the\ndomestic industry, the Authority concludes that:\n\na. There is continued dumping of the subject goods\n from the subject country.\n\nb. There is high export orientation of the Chinese\n producers.\n\nc. The Chinese producers of the subject goods hold\n huge idle capacities with them, which account for\n more than double of total Indian demand.\n\nd. Almost entirety of Chinese exports to third countries,\n accounting for more than twice the Indian demand of\n subject goods, are at dumped prices.\n\ne. Significant proportion of Chinese exports to third\n countries are at injurious prices.\n\nf. More than 90% of Chinese exports to third countries\n are at prices below export prices to India.\n\ng. All these factors of third country dumping huge idle\n capacitates, price attractiveness of the Indian\n exports and significant exports despite prevailing\n existence of anti-dumping duty clearly demonstrate\n likelihood of continuation of dumping and\n aggravation of injury to the domestic industry in\n case of withdrawal of the anti-dumping duty.\n\nh. Factors such as no demand-supply gap, no\n participation of users, minimal impact of anti-\n dumping duty on end products and inter-se\n competition among Indian producers establish that\n there may not be any adverse effect of duties on the\n consumers or downstream industry.\n\n\nO. RECOMMENDATION\n\n\n110. The Authority notes that the investigation was\ninitiated and notified to all the interested parties and\nadequate opportunity was given to the applicant,\nexporters and other interested parties to provide\n 7\n AD/52404/2022\n\n information on the aspects of dumping, injury and the\n causal link. Having concluded that there is likelihood of\n continuation/recurrence of dumping and injury to the\n domestic industry in the event of cessation of existing\n anti-dumping duty on imports of subject goods from China\n PR, the Authority is of the view that continuation of anti-\n dumping duty is required on the imports of subject goods\n from China PR.\n\n\n 111. Under these circumstances, the Authority considers\n it appropriate to recommend continuation of anti-dumping\n duty on the imports of subject goods from China PR. Anti-\n dumping equal to the amount indicated in Col. 7 of the\n duty table below is recommended to be extended from the\n date of notification to be issued in this regard by the\n Central Government for a period of five (5) years on all\n imports of the subject goods mentioned in Column 3 of\n the duty table from China PR."\n\n\n6. It would be seen from the aforesaid final findings that it was on\n\nthe basis of a detailed analysis carried out by the designated\n\nauthority on the aspect of likelihood of continuation of dumping and\n\nconsequent injury to the domestic industry that the designated\n\nauthority found as fact that there was continued dumping of the\n\nsubject goods from the subject country and more than 90% of the\n\nChinese exports to third countries were at prices below export prices\n\nto India which would clearly demonstrate likelihood of continuation of\n\ndumping and aggravation injury to the domestic industry in case of\n\nwithdrawal of anti-dumping duty.\n\n7. The main contention that has been advanced by the Ms Reena\n\nAsthana Khair, learned counsel appearing for the appellant assisted\n\nby Shri Rajesh Sharma, Ms. Shreya Dahiya, Shri Subham Jaiswal,\n\nShri Nikhil Sharma and Ms. Vrinda Bagaria is that despite the\n\nrecommendation having been made by the designated authority in\n 8\n AD/52404/2022\n\n the final findings to impose anti-dumping duty, the Central\n\n Government kept quiet and did not issue the consequential\n\n notification for imposition of anti-dumping duty. The submission is\n\n that under rule 18 of the 1995 Rules5, the Central Government has to\n\n take a decision within three months of the publication of final\n\n findings, and as the Notification was not issued for a long period of\n\n time it should be presumed, particularly when the Central\n\n Government issued the Notification dated 11.05.2022 revoking the\n\n imposition of duty that the Central Government had decided not to\n\n impose anti-dumping duty on the subject goods from the subject\n\n country. Learned counsel also submitted that in case the Central\n\n Government had decided not to impose anti-dumping duty, a\n\n reasoned order should have been passed but in the present case such\n\n an order has not been passed by the Central Government. The\n\n contention of the learned counsel for the appellant, therefore, is that\n\n a direction should be issued to the Central Government to issue a\n\n Notification for imposition of anti-dumping duty on the basis of the\n\n recommendation made by the designated authority in the final\n\n findings dated 15.02.2022. Learned counsel for the appellant further\n\n submitted that till such time as the Central Government takes a\n\n decision, the Tribunal should issue a direction for provisional\n\n assessment, as was done by the Delhi High Court on 05.09.2022 in\n\n WP (C ) 5185/2022 filed by the Union of India against the decision\n\n of the Tribunal in Jubilant Ingrevia Limited vs. Union of India\n\n and 5 others6, in which also a direction had been issued by the\n\n Tribunal to the Central Government to take a reasoned decision\n\n5. 1995 Anti Dumping Rules\n6. Anti-Dumping Appeal No. 50461 of 2021 decided on 27.10.2021\n 9\n AD/52404/2022\n\nbecause despite the recommendation of the designated authority for\n\nimposition of anti-dumping duty, the Central Government had not\n\nissued a Notification for imposition of anti-dumping duty.\n\n8. Shri Rakesh Kumar, learned authorized representative appearing\n\nfor the Central Government submitted that appeal itself is not\n\nmaintainable under section 9(C) of the Tariff Act and the exercise of\n\npower by the Central Government under section 9A of the Tariff Act\n\nread with rule 18 of the 1995 Rules is legislative in nature and so\n\nneither the principles of natural justice are required to be complied\n\nwith nor a reasoned order is required to be passed.\n\n9. In order to examine these submissions it would be useful to first\n\nexamine the relevant provisions of the Tariff Act and the 1995 Rules.\n\n10. Anti-dumping duty is imposed by the Central Government under\n\nsection 9A of the Tariff Act. It provides that where any article is\n\nexported by an exporter or producer from any country to India at less\n\nthan its normal value, then, upon the importation of such article into\n\nIndia, the Central Government may, by Notification in the Official\n\nGazette, impose an anti-dumping duty not exceeding the margin of\n\ndumping in relation to such article. The margin of dumping, the\n\nexport price and the normal price have all been defined in section\n\n9A(1) of the Tariff Act.\n\n11. Sub-section (5) of section 9A provides that anti-dumping duty\n\nimposed shall, unless revoked earlier, cease to have effect on the\n\nexpiry of five years from the date of such imposition.\n\n12. Sub-section (6) of the section 9A of the Tariff Act provides that\n\nthe margin of dumping has to be ascertained and determined by the\n\nCentral Government, after such enquiry as may be considered\n 10\n AD/52404/2022\n\nnecessary and the Central Government may, by Notification in the\n\nOfficial Gazette, make rules for the purpose of this section.\n\n13. In exercise of the powers conferred by sub-section (6) of section\n\n9A and sub-section (2) of the section 9B of the Tariff Act, the Central\n\nGovernment framed the 1995 Rules.\n\n14. The duties of the designated authority are contained in rule 4\n\nand the relevant portion is reproduced below:\n\n "4. Duties of the designated authority.-\n\n xxxxxxxxxxx\n\n (d) to recommend to the Central Government-\n\n\n (i) the amount of anti-dumping duty equal to the\n margin of dumping or less, which if levied,\n would remove the injury to the domestic\n industry, after considering the principles laid\n down in the Annexure III to these rules; and\n\n (ii) the date of commencement of such duty;"\n\n\n\n15. Rule 5 deals with initiation of investigation to determine the\n\nexistence, degree and effect of any alleged dumping.\n\n16. Rule 6 deals with the principles governing investigation and it is\n\nreproduced below:\n\n "6. Principles governing investigations.-\n\n (1) The designated authority shall, after it has decided\n to initiate investigation to determine the existence,\n degree and effect of any alleged dumping of any article,\n issue a public notice notifying its decision and such public\n notice shall, inter alia, contain adequate information on\n the following:-\n\n (i) the name of the exporting country or countries\n and the article involved;\n\n (ii) the date of initiation of the investigation;\n\n (iii) the basis on which dumping is alleged in the\n application;\n 11\n AD/52404/2022\n\n(iv) a summary of the factors on which the\n allegation of injury is based;\n\n(v) the address to which representations by\n interested parties should be directed; and\n\n(vi) the time-limits allowed to interested parties for\n making their views known.\n\n\n(2) A copy of the public notice shall be forwarded by the\ndesignated authority to the known exporters of the article\nalleged to have been dumped, the Governments of the\nexporting countries concerned and other interested\nparties.\n\n\n(3) The designated authority shall also provide a copy of\nthe application referred to in sub-rule (1) of Rule 5 to-\n\n(i) the known exporters or to the concerned trade\n association where the number of exporters is large,\n and\n\n(ii) the governments of the exporting countries:\n Provided that the designated authority shall also\n make available a copy of the application to any other\n interested party who makes a request therefor in\n writing.\n\n\n(4) The designated authority may issue a notice calling\nfor any information, in such form as may be specified by\nit, from the exporters, foreign producers and other\ninterested parties and such information shall be furnished\nby such persons in writing within thirty days from the\ndate of receipt of the notice or within such extended\nperiod as the designated authority may allow on sufficient\ncause being shown.\n\nExplanation: For the purpose of this sub-rule, the notice\ncalling for information and other documents shall be\ndeemed to have been received one week from the date on\nwhich it was sent by the designated authority or\ntransmitted to the appropriate diplomatic representative\nof the exporting country.\n\n(5) The designated authority shall also provide\nopportunity to the industrial users of the article\nunder investigation, and to representative consumer\norganizations in cases where the article is commonly sold\nat the retail level, to furnish information which is relevant\n 12\n AD/52404/2022\n\n to the investigation regarding dumping, injury where\n applicable, and causality.\n\n (6) The designated authority may allow an interested\n party or its representative to present the information\n relevant to the investigation orally but such oral\n information shall be taken into consideration by the\n designated authority only when it is subsequently\n reproduced in writing.\n\n (7) The designated authority shall make available the\n evidence presented to it by one interested party to the\n other interested parties, participating in the investigation.\n\n (8) In a case where an interested party refuses access\n to, or otherwise does not provide necessary information\n within a reasonable period, or significantly impedesthe\n investigation, the designated authority may record its\n findings on the basis of the facts available to it and make\n such recommendations to the Central Government as it\n deems fit under such circumstances."\n\n\n17. Rule 10 deals with determination or normal value, export price\n\nand margin of dumping and it is reproduced below:\n\n "10. Determination of normal value, export price\n and margin of dumping-\n\n An article shall be considered as being dumped if it is\n exported from a country or territory to India at a price less\n than its normal value and in such circumstances the\n designated authority shall determine the normal value,\n export price and the margin of dumping taking into\n account, inter alia, the principles laid down in Annexure I\n to these rules."\n\n\n18. Rule 11 deals with determination of injury and it is reproduced\n\nbelow:\n\n "11. Determination of injury. -\n\n (1) In the case of imports from specified countries, the\n designated authority shall record a further finding that\n import of such article into India causes or threatens\n material injury to any established industry in India or\n 13\n AD/52404/2022\n\n materially retards the establishment of any industry in\n India.\n\n (2) The designated authority shall determine the injury to\n domestic industry, threat of injury to domestic industry,\n material retardation to establishment of domestic industry\n and a causal link between dumped imports and injury,\n taking into account all relevant facts, including the\n volume of dumped imports, their effect on price in the\n domestic market for like articles and the consequent\n effect of such imports on domestic producers of such\n articles and in accordance with the principles set out in\n Annexure II to these rules.\n\n (3) The designated authority may, in exceptional cases,\n give a finding as to the existence of injury even where a\n substantial portion of the domestic industry is not injured,\n if-\n\n (i) there is a concentration of dumped imports into\n an isolated market, and\n\n (ii) the dumped articles are causing injury to the\n producers of all or almost all of the production within\n such market."\n\n\n19. Rule 17 deals with final findings. It is reproduced below:\n\n "Final findings.-\n\n (1) The designated authority shall, within one year from\n the date of initiation of an investigation, determine as to\n whether or not the article under investigation is being\n dumped in India and submit to the Central Government its\n final finding-\n\n (a) as to, -\n\n\n (i) the export price, normal value and the margin of\n dumping of the said article;\n\n\n (ii) whether import of the said article into India, in the\n case of imports from specified countries, causes or\n threatens material injury to any industry established in\n India or materially retards the establishment of any\n industry in India;\n 14\n AD/52404/2022\n\n (iii) a casual link, where applicable, between the\n dumped imports and injury;\n\n\n (iv) whether a retrospective levy is called for and if so,\n the reasons therefor and date of commencement of\n such retrospective levy:\n\n xxxxxxx\n\n (b) Recommending the amount of duty which, if levied,\n would remove the injury where applicable, to the domestic\n industry after considering the principles laid down in the\n Annexure III to rules."\n\n\n20. Rule 18 deals with levy of duty and the relevant portion is\n\nreproduced below:\n\n "18. Levy of duty.-\n\n (1) The Central Government may, within three months of\n the date of publication of final findings by the designated\n authority under rule 17, impose by notification in the\n Official Gazette, upon importation into India of the article\n covered by the final finding, anti-dumping duty not\n exceeding the margin of dumping as determined under\n rule 17."\n\n\n21. Annexure-I to the 1995 Anti-Dumping Rules deals with the\n\nprinciples governing the determination of normal value, export price\n\nand margin of dumping. It provides that the designated authority\n\nwhile determining the normal value, export price and margin of\n\ndumping shall take into account the principles contained in clauses\n\n(1) to (8) of the Annexure.\n\n22. Annexure-II to the 1995 Anti-Dumping Rules deals with the\n\nprinciples for determination of injury. It provides that the designated\n\nauthority while determining the injury or threat of material injury to\n\ndomestic industry or material retardation of the establishment of such\n\nan industry, and causal link between dumped imports and such\n 15\n AD/52404/2022\n\ninjury, shall inter alia, take the principles enumerated from (i) to (vii)\n\nof Annexure II under consideration.\n\n23. Annexure-III to the 1995 Anti-Dumping Rules deals with the\n\nprinciples for determination of non-injurious price.\n\n24. It is keeping in mind the aforesaid legal provisions that the\n\nsubmissions advanced by the learned counsel for the appellant and\n\nthe learned authorized representatives appearing for the respondent\n\nUnion of India have to be considered.\n\n Whether Central Government has taken a decision not to\n\n impose anti-dumping duty\n\n\n25. Section 9A of the Tariff Act provides that where any article is\n\nexported by an exporter or producer from any country or territory to\n\nIndia at less than its normal value, then, upon the importation of\n\nsuch article into India, the Central Government may, by notification\n\nin the Official Gazette, impose anti-dumping duty not exceeding the\n\nmargin of dumping in relation to such article. It is under rule 17 of\n\nthe 1995, Anti-Dumping Rules that the designated authority is\n\nrequired to, within one year from the date of initiation of an\n\ninvestigation, determine as to whether or not the article under\n\ninvestigation is being dumped in India and submit its final findings to\n\nthe Central Government. Under rule 18, the Central Government\n\nmay, within three months of the date of publication of the final\n\nfindings by the designated authority under rule 17, impose by a\n\nnotification in the Official Gazette, upon importation into India of\n\nthe article covered by the final findings, anti-dumping duty not\n\nexceeding the margin of dumping as determined under rule 17.\n 16\n AD/52404/2022\n\n 26. In the present case, it is not in dispute that the final findings of\n\n the designed authority were published on 11.01.2021. In the\n\n appeal, the appellant has stated that an office memorandum was not\n\n issued by the Central Government. Learned counsel appearing for the\n\n Central Government has also not stated or placed such an office\n\n memorandum.\n\n 27. The issue that arises for consideration is whether a presumption\n\n can be drawn that the Central Government has taken a decision not\n\n to impose anti-dumping duty as a decision was not taken within\n\n three months by the Central Government from the date of\n\n publication of the final findings by the designated authority and\n\n infact the notification dated 11.05.2022 was issued rescinding the\n\n notification dated 16.05.2017. On a consideration of the provisions\n\n of the Tariff Act and the 1995 Anti-Dumping Rules, it is clear that\n\n a presumption can safely to be drawn that the Central Government,\n\n by keeping silent for a long period of time, shall be deemed to have\n\n taken a decision not to impose anti-dumping duty and such a case\n\n would also fall in the category of cases where an office\n\n memorandum has actually been issued conveying the decision of the\n\n Central Government not to impose anti-dumping duty. This is what\n\n was held by the Tribunal in Apcotex Industries. The same view has\n\n been taken by this Bench in Chemical and Petrochemicals\n\n Manufactures Association vs. Union of India and 55 others7.\n\n 28. The inevitable conclusion, therefore, that follows from the\n\n aforesaid discussion is that it has to be presumed that the Central\n\n Government has taken a decision not to impose anti-dumping\n\n\n7. Anti-Dumping Appeal No. 51668 of 2022 decided on 19.12.2022\n 17\n AD/52404/2022\n\n duty despite a recommendation having been made by the\n\n designated authority for imposition of anti-dumping duty. This\n\n presumption also finds support from the fact that the Central\n\n Government issued a notification dated 11.05.2022, after the final\n\n findings were submitted by the designated authority on\n\n 15.02.2022, rescinding the notification dated 16.05.2017 earlier\n\n issued by the Central Government imposing anti-dumping duty for\n\n a period of five years. The matter has, therefore, to be remitted\n\n to the Central Government for taking a decision on the\n\n recommendation made by the designated authority.\n\n\n Maintainability of appeal under section 9C\n\n 29. The maintainability of the appeal under section 9C of the Tariff\n\n Act was examined at length by this very Bench in M/s. Apcotex\n\n Industries Limited vs. Union of India and 38 others8 and it was\n\n held that the appeal would be maintainable against the decision of\n\n the Central Government contained in the office memorandum not to\n\n impose anti-dumping duty.\n\n 30. In Balaji Amines Ltd. vs. The Union of India9, the Bench also\n\n held that an appeal under section 9C of the Tariff Act would be\n\n maintainable even if the Central Government does not issue a\n\n notification for imposition of anti-dumping duty for a long period of\n\n time after the designated authority has made a recommendation for\n\n imposition of anti-dumping duty and the observations are as follows:\n\n "30. Learned counsel for the appellant, however,\n contended that non issuance of the notification by the\n Central Government pursuant to the recommendations\n made by the designated authority, in view of the\n\n8. Anti-dumping Appeal No. 51491 of 2021 decided on 30.08.2022\n9. Anti-dumping Appeal No. 51151 of 2022 decided on 20.12.2022\n 18\n AD/52404/2022\n\n provisions of rule 18 of the 1995 Rules, would mean that\n the Central Government has taken a decision not to\n impose any anti-dumping duty. It has been held in\n Apcotex Industries that the appeal would be\n maintainable. The present appeal would, therefore, clearly\n be maintainable."\n\n Whether the Central Government exercises legislative power\n\n 31. The Bench in Apcotex Industries also examined whether the\n\n determination by the Central Government was legislative in character\n\n or quasi-judicial in nature and after examining the relevant provisions\n\n of the Tariff Act, the 1995 Anti-Dumping Rules and the decisions of\n\n the Supreme Court and the High Courts observed that the function\n\n performed by the Central Government would be quasi-judicial in\n\n nature. The Bench also, in the alternative, held that even if the\n\n function performed by the Central Government was legislative, then\n\n too the principles of natural justice and the requirement of a\n\n reasoned order have to be compiled with since the Central\n\n Government would be performing the third category of conditional\n\n legislation contemplated in the judgment of the Supreme Court in\n\n State of Tamil Nadu vs. K. Sabanayagam and another10. The\n\n relevant observation of the Bench in Apcotex Industries Limited\n\n are as follows:\n\n "75. Thus, even if it is assumed that the Central\n Government exercises legislative powers when it imposes\n anti-dumping duty or has taken a decision not to impose\n anti-dumping under section 9A of the Tariff Act, it would\n still be a piece of conditional legislation falling under the\n third category of conditional legislations pointed out by the\n Supreme Court in K. Sabanayagam. This is for the\n reason that in the scheme of the Tariff Act and the 1995\n Anti-Dumping Rules, the Central Government has\n necessarily to examine all the relevant factors prescribed\n\n10. (1998) 1 SCC 318\n 19\n AD/52404/2022\n\nin the Tariff Act and the Rules for coming to a conclusion\nwhether anti-dumping duty has to be levied or not. It\ncannot be that it is only the designated authority that is\nrequired to follow the procedure prescribed under the\nTariff Act and the Rules framed thereunder for making a\nrecommendation to the Central Government, for while\ntaking a decision on the recommendation made by the\ndesignated authority in the final findings the Central\nGovernment would have to examine whether the\ndesignated authority has objectively considered all the\nrelevant factors on the basis of the evidence led by the\nparties. This would be more clear from the provisions of\nsection 9A(6) of the Tariff Act which provide that the\nmargin of dumping, which is a relevant factor, has to be\nascertained and determined by the Central Government,\nafter such inquiry as it may consider necessary. Rules may\nhave been framed by the Central Government under which\nthe designated authority has to carry out a meticulous\nexamination, but nonetheless when the Central\nGovernment has to take a decision on the\nrecommendation made by the designated authority in the\nfinal findings such factual aspects cannot be ignored.\nThere is a clear lis between the domestic industry on the\none hand and the foreign exporter and importers on the\nother hand since the domestic industry desires anti-\ndumping duty to be imposed for which purpose\ninvestigation is carried out by the designated authority,\nbut the foreign exporters and importers resist the\nimposition of anti-dumping duty. For exercise of such\npower, a detail procedure has been provided in the Tariff\nAct, the 1995 Anti- Dumping Rules or the 1997 Safeguard\nRules.\n\n*****\n\n78. It will be evident from the aforesaid judgments that\nthe Central Government, while acting as a delegated\nlegislative body, performs two distinct and separate\nfunctions in the context of the levy of antidumping and\nsafeguard duty. The first is the function of framing Rules\nsuch as the Anti-Dumping Rules 1995 or the 1997\nSafeguard Rules, which function is clearly legislative. The\nsecond function is the making of a determination under\nrule 18 of the Anti-Dumping Rules 1995 or rule 12 of the\n 20\n AD/52404/2022\n\n 1997 Safeguard Rules, which function is quasi judicial in\n nature. While the exercise of the legislative function of\n framing Rules is not appealable before the Tribunal, the\n second function of making a determination is expressly\n made appealable under section 9C of the Tariff Act. The\n function of making a determination in individual cases by\n applying the broad legislative framework and policy\n already set out in the Statute is not at all legislative in\n character, but clearly a quasi- judicial function requiring\n the Central Government to follow the principles of natural\n justice by affording an opportunity to the party likely to be\n adversely.\n\n *****\n\n 82. In view of the judgments of the Supreme Court in K.\n Sabanayagam, Cynamide India Ltd. and Godawat\n Pan Masala, and the decision of the Tribunal in Jubilant\n Ingrevia Limited, it has to be held that reasons have to\n be recorded by the Central Government when it proceeds\n to form an opinion not to impose any anti-dumping duty\n despite a positive recommendation made by the\n designated authority in the final findings for imposition of\n anti-dumping duty."\n (emphasis supplied)\n\n\n Principles of natural justice and reasoned order\n\n32. The Bench also examined the requirements of compliance of the\n\nprinciples of natural justice and a reasoned order and held as\n\nfollowed:\n\n "82. In view of the judgments of the Supreme Court in K.\n Sabanayagam, Cynamide India Ltd. and Godawat\n Pan Masala, and the decision of the Tribunal in Jubilant\n Ingrevia Limited, it has to be held that reasons have to\n be recorded by the Central Government when it proceeds\n to form an opinion not to impose any anti-dumping duty\n despite a positive recommendation made by the\n designated authority in the final findings for imposition of\n anti-dumping duty."\n (emphasis supplied)\n\n\n33. The Bench thereafter observed:\n 21\n AD/52404/2022\n\n "84. In view of the aforesaid decision of the Supreme\n Court in Punjab National Bank, the submission\n advanced by learned counsel for the appellant deserves to\n be accepted. Thus, if the Central Government forms a\n prima facie opinion that the final findings of the\n designated authority recommending imposition of anti-\n dumping duty are not required to be accepted then\n tentative reasons have to be recorded and conveyed to\n the domestic industry so as to give an opportunity to the\n domestic industry to submit a representation. Though the\n Tariff Act and the 1995 Anti-Dumping Rules or the 1997\n Safeguard Rules do not provide for such an opportunity to\n be provided to the domestic industry, but the principles of\n natural justice would require such an opportunity to be\n provided."\n (emphasis supplied)\n\n\n 34. Learned counsel for the appellant has also placed a decision of\n\n the Gujarat High Court in Realstripes Limited & 1 other(s) vs.\n\n Union of India & 1 other(s)11. The High Court repelled the\n\n contention advanced on behalf of the Central Government that the\n\n issuance of the notification was legislative in character and the\n\n relevant observations are as follows:\n\n "6.5 It was another submission in vain on behalf of\n respondents seeking to assert that notification rescinding\n the countervailing duty is of legislative character and\n amounts of exercise of legislative power by the Central\n Government and therefore, not amenable to judicial\n review. 6.5.1 The submission is devoid of substance, if we\n examine the decisions on this score.*****"\n\n 35. After considering the decisions of the Supreme Court in PTC\n\n India Ltd. vs. Central Electricity Regulatory Commission12,\n\n National Thermal Power Corp. vs. Madhya Pradesh State\n11. R/Special Civil Application No. 4495 of 2022 decided on 02.09.2022\n12. (2010) 4 SCC 603\n 22\n AD/52404/2022\n\n Electricity Board13 and Reliance Industries vs. Designated\n\n Authorities14 , the Gujarat High Court also observed:\n\n "6.5.4 Under Section 9-C of the Customs Tariff Act, appeal\n lies against the order of determination or review of the\n countervailing duty before the Customs, Excise and\n Service Tax Appellate Tribunal, constitution under Section\n 129 of the Customs Act, 1962. In view of this, the\n Notification necessarily takes a quasi-judicial colour."\n\n 36. The Gujarat High Court also examined whether quasi-judicial\n\n process was involved in issuance of the notification by the Central\n\n Government and after analyzing the decision of the Supreme Court in\n\n Indian National Congress vs. Institute of Social Welfare1115,\n\n the Gujarat High Court held that the notification issued by the Central\n\n Government would be quasi-judicial in nature.\n 37. The inevitable conclusion, therefore, that follows from the\n\n aforesaid discussion is that reasons have to be recorded by the\n\n Central Government when it proceeds to form an opinion not to\n\n impose any anti-dumping duty despite a positive recommendation\n\n made by the designated authority in the final findings for imposition\n\n of anti-dumping duty. The matter, therefore, would have to be\n\n remitted to the Central Government for taking a decision on the\n\n recommendation made by the designated authority for imposition of\n\n anti-dumping duty on the import of the subject goods from the\n\n subject countries.\n\n Provisional Assessment\n\n 38. In the end, learned counsel for the appellant also urged that the\n\n Tribunal may protect the interest of the appellant in the same manner\n\n13. (2011) 15 SCC 580\n14. (2006) 10 SCC 368\n15. (2002) 5SCC 658\n 23\n AD/52404/2022\n\nas was protected by the Delhi High Court in the writ petition filed by\n\nthe Union of India against the decision of the Tribunal in Jubilant\n\nIngrevia.\n\n39. The Tribunal had set aside the office memorandum issued by the\n\nUnder Secretary conveying the decision of the Central Government\n\nnot to impose anti-dumping duty despite a recommendation made by\n\nthe designated authority for imposition of anti-dumping duty. The\n\norder passed by the Delhi High Court on 05.09.2022 in\n\nW.P(C)5185/2022 filed by the Union of India against the decision of\n\nthe Tribunal in Jubilant Ingrevia, is reproduced below:\n\n "W.P.(C) 5185/2022& CM No.15389/2022 [Application\n filed on behalf of the petitioner seeking interim relief]\n\n 5. The respondent before us is the domestic industry. It is\n not in dispute that the Designated Authority [in short\n "DA"] via notification dated 25.08.2020 has recommended\n the imposition of anti-dumping duty [in short "ADD"].\n\n 6. It is also not in dispute that the Government of India\n has disagreed with the recommendation made by the DA.\n 7. This decision forms part of the Office Memorandum\n (OM) dated 14.12.2020.\n\n 8. Given this position, we are of the view that as an\n adinterim measure, the following direction would suffice,\n as the need to impose ADD would arise only if the\n respondent were to succeed in the instant writ petition.\n\n (i) The provisional assessment of imports concerning\n the product in issue will be made for the time being.\n The importers would, thus, be put to notice of the\n possibility of ADD being imposed, albeit as per law,\n if, as noticed above, the respondent were to succeed\n in the instant writ petition.\n (ii) It is, however, made clear that the aforesaid\n direction will not create any equities in favour of the\n respondent.\n (iii) Furthermore, this direction will not have an\n impact on the merits of the writ petition.\n 24\n AD/52404/2022\n\n 9. CM No.15389/2022 is disposed of in the aforesaid\n terms.\n\n 10. List the matter on 02.03.2023."\n\n\n 40. A similar interim order was passed by the Delhi High Court in\n\n W.P(C) No. 6758/2022 on 05.09.2022 in the writ petition filed by the\n\n Union of India to assail the decision of the Tribunal rendered in\n\n Association of Synthetic Fibre Industry vs. Union of India and\n\n 4 others16 in which the office memorandum was set aside.\n 41. Though the present appeal is being disposed of but a decision\n\n has yet to be taken by the Central Government in the light of the\n\n observations made in the order. It is, therefore, considered\n\n appropriate to pass a similar order, as was passed by the High Court,\n\n which will remain operative till a decision is taken by the Central\n\n Government on the recommendation made by the designated\n\n authority for imposition of anti-dumping duty. The directions are as\n\n follows:\n\n (i) The provisional assessment of imports concerning the subject\n\n goods from the subject countries will be made for the time\n\n being;\n\n (ii) It is, however, made clear that the aforesaid direction will not\n\n create any equities in favour of the domestic industry; and\n\n (iii) This direction will not have any impact on the decision to be\n\n taken by the Central Government pursuant to the directions\n\n issued for reconsideration of the recommendation made by\n\n the designated authority.\n\n16. Anti-Dumping Appeal No. 51049 of 2021 decided on 01.11.2021\n 25\n AD/52404/2022\n\n Conclusion\n\n42. Thus, for all the reasons stated above, the matter is remitted to the\n\n Central Government to consider the recommendation made by the\n\n designated authority in the final findings dated 15.02.2022 in the light\n\n of the observations made above. The directions contained in paragraph\n\n 41 of this order shall continue to operate till such time as a decision is\n\n taken by the Central Government. The appeal is allowed to the extent\n\n indicated above. The learned authorized representative appearing for\n\n the Department shall send a copy of this order to all the concerned\n\n zones where the imports of the subject goods are likely to be made\n\n and also ensure that necessary and effective steps are taken by all\n\n concerned for due compliance of this order.\n\n\n\n\n (JUSTICE DILIP GUPTA)\n PRESIDENT\n\n\n\n\n (P.V. SUBBA RAO)\n MEMBER (TECHNICAL\n\n\n\n\n (BINU TAMTA)\n MEMBER (JUDICIAL)\n\n Shreya |
6728d61a-9258-56c7-89f4-87bb5f0fb4c7 | court_cases | Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member services -- Free for one month.\n\nCalcutta High Court\nM/S. Spoxy Constructions Pvt. Ltd vs Aruna Asopa And Ors on 16 December, 2020 IA No.GA/10/2020\n (Old No.GA/468/2020)\n in CS/197/2014\n\n IN THE HIGH COURT AT CALCUTTA\n Ordinary Original Civil Jurisdiction\n ORIGINAL SIDE\n\n\n\n M/S. SPOXY CONSTRUCTIONS PVT. LTD.\n\n -Versus-\n\n ARUNA ASOPA AND ORS.\n BEFORE:\n The Hon'ble JUSTICE DEBANGSU BASAK\n Date : 16th December, 2020.\n\n (Via Video Conference)\n\n Appearance:\n Mr. Sakya Sen, Adv.\n Mr. Arik Banerjee, Adv.\n ...for the petitioner.\n\n Mr. Amritam Mondal, Adv.\n Mr. Aditya Mondal, Adv.\n ...for the respondent no.3.\n The Court : Affidavit-in-opposition filed in Court be\n\ntaken on record.\n\n The time to file affidavit-in-reply is extended till\n\nJanuary 8, 2021.\n\n List the application under the same heading on January\n\n11, 2021 along with GA No.3799 of 2015.\n\n\n\n\n (DEBANGSU BASAK, J.)\n\nA/s. |
3a08a607-2ea8-57d4-ba05-c86900586546 | court_cases | Rajasthan High CourtManaging Committee vs State Of Rajasthan on 21 October, 2022Author:Ashok Kumar GaurBench:Ashok Kumar GaurHIGH COURT OF JUDICATURE FOR RAJASTHAN\n BENCH AT JAIPUR\n\n S.B. Civil Writ Petition No. 3903/2019\n\nThe Managing Committee\n ----Petitioner\n Versus\nState Of Rajasthan\n ----RespondentConnected With\n S.B. Civil Contempt Petition No. 1358/2016\nPragya College , Beawar Road Bijaynagar----Petitioner\n Versus\nShri O P Meena And Ors----Respondent\n S.B. Civil Writ Petition No. 4978/2019\nVedic Kanya Post Graduate College----Petitioner\n Versus\nThe State Of Rajasthan----Respondent\n S.B. Civil Writ Petition No. 6249/2019\nManaging Committee----Petitioner\n Versus\nState Of Rajasthan----Respondent\n S.B. Civil Writ Petition No. 6271/2019\nManaging Committee----Petitioner\n Versus\nState Of Rajasthan----Respondent\n S.B. Civil Writ Petition No. 6274/2019\nManaging Committee----Petitioner\n Versus\nState Of Rajasthan----Respondent\n S.B. Civil Writ Petition No. 7367/2019\nManaging Committee(Downloaded on 21/10/2022 at 10:21:41 PM)(2 of 4) [CW-3903/2019]----Petitioner\n Versus\nState Of Rajasthan----Respondent\n S.B. Civil Writ Petition No. 7368/2019\nManaging Committee----Petitioner\n Versus\nState Of Rajasthan----Respondent\n S.B. Civil Writ Petition No. 7858/2019\nManaging Committee----Petitioner\n Versus\nState Of Rajasthan----Respondent\n S.B. Civil Writ Petition No. 7861/2019\nManaging Committee----Petitioner\n Versus\nState Of Rajasthan----Respondent\n S.B. Civil Writ Petition No. 9683/2019\nManaging Committee, Shri Pragya Mahavidyalaya----Petitioner\n Versus\nState Of Rajasthan----Respondent\n S.B. Civil Writ Petition No. 12571/2019\nManaging Committee----Petitioner\n Versus\nState Of Rajasthan----Respondent\n S.B. Civil Writ Petition No. 12949/2019\nManaging Committee, M.k. Saboo P.g. College Of Commerce,\nPilani, Jhunjhunu,----Petitioner\n Versus\nState Of Rajasthan----Respondent\n S.B. Civil Writ Petition No. 13042/2019(Downloaded on 21/10/2022 at 10:21:41 PM)(3 of 4) [CW-3903/2019]\n\n\nThe Managing Committee----Petitioner\n Versus\nState Of Rajasthan----Respondent\n S.B. Civil Writ Petition No. 13063/2019\nThe Managing Committee, Vinodini Pg College----Petitioner\n Versus\nState Of Rajasthan----Respondent\n S.B. Civil Writ Petition No. 14807/2019\nManaging Committee----Petitioner\n Versus\nState Of Rajasthan----Respondent\n S.B. Civil Writ Petition No. 15325/2019\nManaging Committee----Petitioner\n Versus\nState Of Rajasthan----Respondent\n S.B. Civil Writ Petition No. 19465/2019\nManaging Committee----Petitioner\n Versus\nState Of Rajasthan----Respondent\n S.B. Civil Writ Petition No. 1296/2020\nManaging Committee, Smt. Sona Devi Sethia (Girls) P.g. College----Petitioner\n Versus\nState Of Rajasthan----Respondent\n S.B. Civil Writ Petition No. 13835/2020\nDav College----Petitioner\n Versus\nState Of Rajasthan----Respondent(Downloaded on 21/10/2022 at 10:21:41 PM)(4 of 4) [CW-3903/2019]\n\n\n S.B. Civil Writ Petition No. 2924/2021\n Managing Committee, Mohta College----Petitioner\n Versus\n State Of Rajasthan----Respondent\n S.B. Civil Writ Petition No. 3295/2022\n The Managing Committee----Petitioner\n Versus\n State Of Rajasthan----Respondent\n\n\n For Petitioner(s) : Mr.Hitesh Jatawat, Adv.Mr.Vivek Dangi, Adv.\n Mr.T.C.Sharma, Adv. for Mr.S.S.Hora,\n Adv.For Respondent(s) : Mr.Ankit Rathore, Adv. for\n Dr.V.B.Sharma, AAG\n\n\n\n HON'BLE MR. JUSTICE ASHOK KUMAR GAUR\n\n Order\n\n 21/10/2022\n\n List these matters on 01.12.2022 along-with S.B.Civil Writ\n\n Petition No.5195/2021.Interim order to continue, till then.(ASHOK KUMAR GAUR),J\n\n Monika/81-103(Downloaded on 21/10/2022 at 10:21:41 PM)Powered by TCPDF (www.tcpdf.org) |
4eaa861c-ce6e-5f32-858e-4b9087ed35e8 | court_cases | Supreme Court of IndiaUnion Of India Through Ncb vs Md. Nawaz Khan on 22 September, 2021Author: Hon'Ble Dr. ChandrachudBench: Hon'Ble Dr. Chandrachud, Vikram Nath, B.V. NagarathnaReportable\n\n IN THE SUPREME COURT OF INDIA\n CRIMINAL APPELLATE JURISDICTION\n\n\n Criminal Appeal No. 1043 of 2021\n (Arising out of SLP (Crl) No.1771 of 2021)\n\n\n\n\n Union of India through Narcotics Control Bureau, ....Appellant\n Lucknow\n\n\n Versus\n\n\n Md. Nawaz Khan ....Respondent\n\n\n\n\n JUDGMENTDr Dhananjaya Y Chandrachud, J.1 This appeal arises from a judgment of a Single Judge at the Lucknow Bench\n\n of the High Court of Judicature at Allahabad dated 1 October 2020. NCB Case\n\n Crime No 14 of 2019 registered at Police Station, NCB, Lucknow for alleged\n\n offences underSections 8,21,27A,29of the Narcotic Drugs andPsychotropic\n\n Substances Act1985 1. The High Court has allowed an application for bail.\nSignature Not Verified\n\nDigitally signed by\nChetan Kumar\nDate: 2021.09.22\n15:44:11 IST\nReason:1“NDPS Act”12 The complaint was filed on 16 September 2019 through the Intelligence\n\nOfficer at the Lucknow Zonal Unit of the Narcotics Control Bureau 2. The allegation is\n\nthat the NCB, Zonal Unit received information at 1400 hours that three persons\n\nnamely Md. Arif Khan, Rafiuddin and Md. Nawaz Khan (the respondent), who are\n\nresidents of Manipur were proceeding with heroin/morphine in a Maruti Ritz vehicle\n\nbearing registration No. UK 06 AA 25823 from Dimapur in Nagaland to Rampur in\n\nUttar Pradesh and that the vehicle would be passing through Banarasi Das College,\n\nLucknow. The information was reduced into writing and was produced before the\n\nZonal Director, NCB Lucknow. A team of NCB officers was formed and it was\n\ndirected to liaise with the team of the Uttar Pradesh Special Task Force, Lucknow 3.\n\nA surveillance was conducted in the area around Babu Banarasi Das College and at\n\n1600 hours, the car in which the respondent was travelling with the other two co-\n\naccused was intercepted. A search was conducted in the presence of a gazetted\n\nofficer in view of the provisions ofSection 50of the NDPS Act but nothing\n\nobjectionable was recovered in the course of the personal search. However, a\n\nsearch of the car revealed two polythene packets hidden under the place where the\n\nwiper is connected to the front bonnet of the car. The first packet weighed 1.740 kg,\n\nwhile the second packet weighed 1.750 kg. Samples were taken and upon testing\n\nwith the drug detection kit, the samples tested positive for heroin.2“NCB”3“UP-STF”23 Since the occupants of the car were not well- versed with Hindi or English, an\n\nofficial belonging to the Shasastra Seema Bal 4 was summoned at the spot for the\n\npurpose of translation as he hailed from Manipur and was conversant with the\n\nManipuri language. The statements of the three accused persons were recorded in\n\nEnglish and were translated in Manipuri by the official from the SSB and the\n\naccused were placed under arrest. However, while certifying the statement of the\n\nrespondent, the official of the SSB mentioned the name of Mohd. Arif Khan in place\n\nof the respondent (Md. Nawaz Khan).4 The sample packets marked as P1S1 and P2S1 were sent to the Chief\n\nExaminer, Central Revenues Control Laboratory, New Delhi 5 on 27 March 2019. A\n\nchemical examination report dated 25 April 2019 was prepared by CRCL which\n\nstated that the samples did not test positive for diacetylmorphine that is heroin,\n\nhowever, it tested positive for morphine.5 Letters dated 10 July 2019 were sent to Airtel Private Limited, Lucknow;\n\nVodafone Idea Limited, Lucknow; and Reliance JIO Info Communication Limited\n\nLucknow, to obtain certified copies of call detail records 6 and customer application\n\nforms 7 relating to certain mobile numbers. The CDR analysis of the said mobile\n\nnumbers indicates that the respondent was regularly corresponding with the co-\n\naccused and one Anish @ Abbas, who is a resident of Dimapur and is also\n\nsuspected to be involved in drug trafficking.4“SSB”5“CRCL”6“CDR”7“CAF”36 The application for bail moved by the respondent was rejected by the Seventh\n\nAdditional District and Sessions Judge, Lucknow on 27 June 2019, observing that a\n\nhuge quantity of heroin weighing 3.300 kg was recovered and that having regard to\n\nthe seriousness and gravity of the crime, no case for the grant of bail was\n\nestablished. The respondent moved the High Court and by the impugned order\n\ndated 1 October 2020, the application for bail was allowed.\n\n\n7 The submission of the respondent before the High Court was that he was only\n\na companion in the vehicle which was driven by co-accused Rafiuddin and was not\n\nin conscious possession of the contraband since it had been recovered from the\n\nwiper fitted on the front bonnet of the vehicle, of which he had no knowledge.\n\nMoreover, it was urged that the provisions ofSections 42and50of the NDPS Act\n\nwere not complied with. According to the respondent, the statement underSection\n\n67had not been duly explained to him, which was evident from the fact that the\n\nofficial of the SSB who signed it had certified that the translation had been explained\n\nin Manipuri to Mohd. Arif Khan (co-accused). The name of the respondent as noted\n\nearlier is Md. Nawaz Khan. The High Court allowed the application for bail and\n\nobserved thus:“Considering the rival submissions of learned counsel for\n parties, going through the recovery memo, alleged statement\n of the applicant recorded underSection 67of the NDPS Act\n and the certification of Shri L.H. Kapin, it is evident that\n indisputably the alleged contraband was recovered from the\n wiper fitted on the front bonnet of the vehicle, which was\n being driven by Rafiuddin and the applicant was sitting in the\n said vehicle along with Arif Khan. Admittedly, nothing was\n recovered from the possession of the applicant. Further, in\n the search memo prepared by the officials, they categorically4mentioned that, since the persons were not well conversed\n with the Hindi or English language, Shri LH. Kapin, personnel\n of SSB IV Battalion, Lucknow was requested to arrive on the\n spot for explaining the contents. A perusal of Annexure No. 3\n of the counter affidavit goes to show that the name of the\n applicant is mentioned on the statement, but it also reveals\n that while certifying this statement, Shri LH. Kapin mentioned\n in his certification that "Translated the statement as stated by\n Md. Arif Khan and after recording of stated read over the\n statement and made understand in Manipuri Language."Thus, since the statement was explained to Mohd. Arif Khan\n and not to the applicant as also that this statement was filed\n along with the complaint before the court below, oral\n argument of the learned counsel for the respondent at this\n juncture, cannot be accepted that due to mistake, the name of\n Mohd. Arif Khan is mentioned in place of Mohd. Nawaz\n (applicant). It is also undisputed that the applicant does not\n have any criminal antecedent.”\n\n8 Mr SV Raju, Additional Solicitor General 8 appearing on behalf of the appellant\n\nsubmitted that in view of the decision inTofan Singh v. State of Tamil Nadu9,\n\nwhere it was held that a confessional statement made underSection 67of the\n\nNDPS Act will not be admissible in evidence, he does not seek to place reliance on\n\nthe statement of the respondent. At the same time, it was urged that the High Court\n\nwhile granting bail has lost sight of three crucial circumstances namely:(i) A huge contraband of morphine weighing 3.300 kg has been recovered\n\n from the vehicle;(ii) The respondent was admittedly travelling in the vehicle all the way from\n\n Dimapur in Nagaland to Rampur in Uttar Pradesh; and(iii) The complaint tabulates the call data records of the cell phones used\n\n by the accused. The accused persons were found to have been in8“ASG”9(2021) 4 SCC 1.5touch with each other and a flow chart has been set out in the\n\n complaint.9 In addition, it was urged that:\n\n\n (i) The decisions of this Court have held that compliance with theprovisions ofSection 42of the NDPS Act is warranted where a private\n\n vehicle is sought to be searched in a public place;(ii) As a matter of fact the contents of the complaint would indicate that\n\n there was compliance with the provisions ofSection 42of the NDPS\n\n Act;(iii) Several decisions of this Court indicate that whether the provisions of\n\n Section 42 of the NDPS Act have been complied with is a matter of\n\n trial; and(iv) A presumption underSection 54of the NDPS Act would arise in\n\n respect of the possession of a narcotic drug which is found to be in the\n\n conscious possession of the accused.On the above grounds, the learned ASG submitted that no case for the grant\n\n of bail exists, particularly, having regard to the provisions ofSection\n\n 37(1)(b)(ii)of the NDPS Act.10 Apart from the above circumstances, it has been submitted that the\n\nrespondent, after having been released on bail, has consistently avoided appearing\n\nbefore the Sessions Judge at Lucknow as a result of which charges could not be6framed and eventually a non-bailable warrant has been issued against the\n\nrespondent.11 On the other hand, Mr Rakesh Dahiya, learned Counsel appearing on behalf\n\nof the respondent submitted that the contraband in the present case was found\n\nconcealed in the vehicle in which the respondent was travelling. Thus, it cannot be\n\nstated that it was the respondent who was in conscious possession of the\n\ncontraband. Learned counsel submitted that the respondent is neither the driver nor\n\nthe owner of the vehicle and in this backdrop, the order of the High Court enlarging\n\nhim on bail cannot be faulted.12 At the present stage, it is material to note that:(i) The vehicle which was intercepted at Lucknow was proceeding from\n\n Dimapur (Nagaland) towards Rampur (Uttar Pradesh);(ii) The quantity of 3.300 kg of a narcotic substance which is a commercial\n\n quantity was found concealed in the vehicle;(iii) The respondent is not an unknown passenger but a person who,\n\n according to the prosecution, was closely in contact with the co-accused.13 The principles that guide this Court while assessing an order of the High\n\nCourt granting bail have been succinctly laid down inPrasanta Kumar Sarkar v.\n\nAshis Chatterjee10 . In Prasanta Kumar (supra), while the trial court dismissed\n\nseveral bail applications that were filed by the accused who was charged for the10(2010) 14 SCC 4967commission of an offence punishable underSection 302of the Indian Penal Code\n\n1860 11, the High Court allowed the bail application. Justice DK Jain, speaking for the\n\ntwo-judge Bench, observed:“9. … this Court does not, normally, interfere with an order\n passed by the High Court granting or rejecting bail to the\n accused. However, it is equally incumbent upon the High\n Court to exercise its discretion judiciously, cautiously and\n strictly in compliance with the basic principles laid down in a\n plethora of decisions of this Court on the point. It is well\n settled that, among other circumstances, the factors to be\n borne in mind while considering an application for bail are:(i) whether there is any prima facie or reasonable ground to\n believe that the accused had committed the offence;(ii) nature and gravity of the accusation;(iii) severity of the punishment in the event of conviction;(iv) danger of the accused absconding or fleeing, if released\n on bail;(v) character, behaviour, means, position and standing of the\n accused;(vi) likelihood of the offence being repeated;(vii) reasonable apprehension of the witnesses being\n influenced; and(viii) danger, of course, of justice being thwarted by grant of\n bail.”\n\n14 The decision in Prasanta Kumar (supra) was referred to in a judgment of this\n\nCourt inMahipal v. Rajesh Kumar @ Polla & Anr. 12, where the High Court had\n\ngranted bail to an accused who was charged with the commission of an offence\n\npunishable underSection 302of the IPC. One of us (Justice DY Chandrachud),\n\nspeaking for the Court held and laid down the standard for adjudicating a plea for\n\nthe cancellation of bail :“14. The provision for an accused to be released on bail\n touches upon the liberty of an individual. It is for this reason11“IPC”12(2020) 2 SCC 1188that this Court does not ordinarily interfere with an order of\n the High Court granting bail. However, where the discretion of\n the High Court to grant bail has been exercised without the\n due application of mind or in contravention of the directions of\n this Court, such an order granting bail is liable to be set aside.\n The Court is required to factor, amongst other things, a prima\n facie view that the accused had committed the offence, the\n nature and gravity of the offence and the likelihood of the\n accused obstructing the proceedings of the trial in any\n manner or evading the course of justice. The provision for\n being released on bail draws an appropriate balance between\n public interest in the administration of justice and the\n protection of individual liberty pending adjudication of the\n case. However, the grant of bail is to be secured within the\n bounds of the law and in compliance with the conditions laid\n down by this Court. It is for this reason that a court must\n balance numerous factors that guide the exercise of the\n discretionary power to grant bail on a case-by-case basis.\n Inherent in this determination is whether, on an analysis of\n the record, it appears that there is a prima facie or reasonable\n cause to believe that the accused had committed the crime. It\n is not relevant at this stage for the court to examine in detail\n the evidence on record to come to a conclusive finding.[…]16. Where a court considering an application for bail fails to\n consider relevant factors, an appellate court may justifiably\n set aside the order granting bail. An appellate court is thus\n required to consider whether the order granting bail\n suffers from a non-application of mind or is not borne out\n from a prima facie view of the evidence on record. It is\n thus necessary for this Court to assess whether, on the basis\n of the evidentiary record, there existed a prima facie or\n reasonable ground to believe that the accused had committed\n the crime, also taking into account the seriousness of the\n crime and the severity of the punishment.”\n (emphasis supplied)\n\n15 The dual test propounded in Mahipal (supra) was subsequently followed by\n\nthis Court inPrabhakar Tewari v. State of Uttar Pradesh13.13(2020) 11 SCC 648916 With regard to the grant of bail for offences under theNDPS Act, inUnion of\n\nIndia v. Shiv Shanker Kesari14 this Court observed that bail may be cancelled if it\n\nhas been granted without adhering to the parameters underSection 37of the NDPS\n\nAct. Further, inUnion of India v. Prateek Shukla15 , one of us (Justice DY\n\nChandrachud), speaking for a two-judge Bench, noted that non-application of mind\n\nto the rival submissions and the seriousness of the allegations involving an offence\n\nunder theNDPS Actby the High Court are grounds for cancellation of bail.\n\n\n17Section 37of the NDPS Act regulates the grant of bail in cases involving\n\noffences under theNDPS Act.Section 37reads as follows:“(1) Notwithstanding anything contained inthe Codeof Criminal\n Procedure, 1973 (2 of 1974),—(a) every offence punishable under this Act shall be cognizable;(b) no person accused of an offence punishable for\n [offences undersection 19orsection 24orsection 27Aand\n also for offences involving commercial quantity] shall be\n released on bail or on his own bond unless—(i) the Public Prosecutor has been given an opportunity to\n oppose the application for such release, and(ii) where the Public Prosecutor opposes the application,\n the court is satisfied that there are reasonable grounds\n for believing that he is not guilty of such offence and that\n he is not likely to commit any offence while on bail.\n (2) The limitations on granting of bail specified in clause (b) of\n sub-section (1) are in addition to the limitations underthe Codeof\n Criminal Procedure, 1973 (2 of 1974) or any other law for the\n time being in force on granting of bail.(emphasis supplied)14(2007) 7 SCC 79815(2021) 5 SCC 4301018 UnderSection 37(1)(b)(ii), the limitations on the grant of bail for offences\n\npunishable underSections 19,24or 27A and also for offences involving a\n\ncommercial quantity are :(i) The Prosecutor must be given an opportunity to oppose the application\n\n for bail; and(ii) There must exist ‘reasonable grounds to believe’ that (a) the person is\n\n not guilty of such an offence; and (b) he is not likely to commit any\n\n offence while on bail.19 The standard prescribed for the grant of bail is ‘reasonable ground to believe’\n\nthat the person is not guilty of the offence. Interpreting the standard of ‘reasonable\n\ngrounds to believe’, a two-judge Bench of this Court in Shiv Shanker Kesari\n\n(supra), held that:“7. The expression used inSection 37(1)(b)(ii)is “reasonable\n grounds”. The expression means something more than\n prima facie grounds. It connotes substantial probable\n causes for believing that the accused is not guilty of the\n offence charged and this reasonable belief contemplated in\n turn points to existence of such facts and circumstances as\n are sufficient in themselves to justify recording of\n satisfaction that the accused is not guilty of the offence\n charged.8. The word “reasonable” has in law the prima facie meaning of\n reasonable in regard to those circumstances of which the actor,\n called on to act reasonably, knows or ought to know. It is difficult\n to give an exact definition of the word “reasonable”.“7. … In Stroud's Judicial Dictionary, 4th Edn., p. 2258 states\n that it would be unreasonable to expect an exact definition of\n the word ‘reasonable’. Reason varies in its conclusions\n according to the idiosyncrasy of the individual, and the times11and circumstances in which he thinks. The reasoning which\n built up the old scholastic logic sounds now like the jingling of\n a child's toy.”\n (See Municipal Corpn. of Delhi v. Jagan Nath Ashok\n Kumar[(1987) 4 SCC 497] (SCC p. 504, para 7) andGujarat\n Water Supply and Sewerage Board v. Unique Erectors (Gujarat)\n (P) Ltd. [(1989) 1 SCC 532]\n\n […]10. The word “reasonable” signifies “in accordance with reason”.\n In the ultimate analysis it is a question of fact, whether a\n particular act is reasonable or not depends on the circumstances\n in a given situation. (See Municipal Corpn. of Greater\n Mumbai v. Kamla Mills Ltd. [(2003) 6 SCC 315]11. The court while considering the application for bail with\n reference toSection 37of the Act is not called upon to record a\n finding of not guilty. It is for the limited purpose essentially\n confined to the question of releasing the accused on bail that the\n court is called upon to see if there are reasonable grounds for\n believing that the accused is not guilty and records its satisfaction\n about the existence of such grounds. But the court has not to\n consider the matter as if it is pronouncing a judgment of acquittal\n and recording a finding of not guilty.”\n (emphasis supplied)\n\n20 Based on the above precedent, the test which the High Court and this Court\n\nare required to apply while granting bail is whether there are reasonable grounds to\n\nbelieve that the accused has not committed an offence and whether he is likely to\n\ncommit any offence while on bail. Given the seriousness of offences punishable\n\nunder theNDPS Actand in order to curb the menace of drug-trafficking in the\n\ncountry, stringent parameters for the grant of bail under theNDPS Acthave been\n\nprescribed.21 In the present case, the High Court while granting bail to the respondent\n\nadverted to two circumstances, namely (i) absence of recovery of the contraband12from the possession of the respondent and (ii) the wrong name in the endorsement\n\nof translation of the statement underSection 67of the NDPS Act.\n\n\n22 We shall deal with each of these circumstances in turn. The respondent has\n\nbeen accused of an offence underSection 8of the NDPS Act, which is punishable\n\nunderSections 21,27A,29,60(3)of the said Act.Section 8of the Act prohibits a\n\nperson from possessing any narcotic drug or psychotropic substance. The concept\n\nof possession recurs inSections 20to22, which provide for punishment for offences\n\nunder the Act.In Madan Lal and Another v. State of Himachal Pradesh16 this\n\nCourt held that\n\n “19. Whether there was conscious possession has to be\n determined with reference to the factual backdrop. The facts\n which can be culled out from the evidence on record are that all\n the accused persons were travelling in a vehicle and as noted by\n the trial court they were known to each other and it has not been\n explained or shown as to how they travelled together from the\n same destination in a vehicle which was not a public vehicle.20.Section 20(b)makes possession of contraband articles an\n offence.Section 20appears in Chapter IV of the Act which\n relates to offences for possession of such articles. It is submitted\n that in order to make the possession illicit, there must be a\n conscious possession.21. It is highlighted that unless the possession was coupled with\n the requisite mental element i.e. conscious possession and not\n mere custody without awareness of the nature of such\n possession,Section 20is not attracted.22. The expression “possession” is a polymorphous term which\n assumes different colours in different contexts. It may carry\n different meanings in contextually different backgrounds. It is\n impossible, as was observed in Supdt. & Remembrancer of Legal16(2003) 7 SCC 46513Affairs, W.B. v. Anil Kumar Bhunja[(1979) 4 SCC 274 : 1979\n SCC (Cri) 1038 : AIR 1980 SC 52] to work out a completely\n logical and precise definition of “possession” uniform[ly]\n applicable to all situations in the context of all statutes.23. The word “conscious” means awareness about a particular\n fact. It is a state of mind which is deliberate or intended.\n\n […]26. Once possession is established, the person who claims that it\n was not a conscious possession has to establish it, because how\n he came to be in possession is within his special knowledge.Section 35of the Act gives a statutory recognition of this position\n because of the presumption available in law. Similar is the\n position in terms ofSection 54where also presumption is\n available to be drawn from possession of illicit articles.”\n\n\nWhat amounts to “conscious possession” was also considered inDharampal Singh\n\nv. State of Punjab17 , where it was held that the knowledge of possession of\n\ncontraband has to be gleaned from the facts and circumstances of a case. The\n\nstandard of conscious possession would be different in case of a public transport\n\nvehicle with several persons as opposed to a private vehicle with a few persons\n\nknown to one another.In Mohan Lal v. State of Rajasthan18 , this Court also\n\nobserved that the term “possession” could mean physical possession with animus;\n\ncustody over the prohibited substances with animus; exercise of dominion and\n\ncontrol as a result of concealment; or personal knowledge as to the existence of the\n\ncontraband and the intention based on this knowledge.17(2010) 9 SCC 60818(2015) 6 SCC 2221423 We have referred to the above precedents to reiterate the governing\n\nprinciples. At this stage of the proceedings, it needs only to be clarified that the trial\n\nis to take place this Court where evidence will be adduced.\n\n\n24 As regards the finding of the High Court regarding absence of recovery of the\n\ncontraband from the possession of the respondent, we note that inUnion of India v.\n\nRattan Mallik19, a two-judge Bench of this Court cancelled the bail of an accused\n\nand reversed the finding of the High Court, which had held that as the contraband\n\n(heroin) was recovered from a specially made cavity above the cabin of a truck, no\n\ncontraband was found in the ‘possession’ of the accused. The Court observed that\n\nmerely making a finding on the possession of the contraband did not fulfil the\n\nparameters ofSection 37(1)(b)and there was non-application of mind by the High\n\nCourt.25 In line with the decision of this Court in Rattan Mallik (supra), we are of the\n\nview that a finding of the absence of possession of the contraband on the person of\n\nthe respondent by the High Court in the impugned order does not absolve it of the\n\nlevel of scrutiny required underSection 37(1)(b)(ii)of the NDPS Act.\n\n\n26 With regard to the statement underSection 67of the NDPS Act, the High\n\nCourt has placed abundant reliance on the inclusion of Mohd. Arif Khan’s name in\n\nplace of the respondent’s name in the endorsement of translation on the statement\n\nof the respondent. In Tofan Singh (supra), a three judge Bench of this Court held\n\nthat a statement underSection 67of the NDPS Act is inadmissible. The ASG19(2009) 2 SCC 62415submitted that independent of the statement, there are valid reasons to deny bail on\n\nthe basis of the material which has emerged at this stage.\n\n\n27 Another submission that has been raised by the counsel for the respondent\n\nboth before the High Court and this Court is that due to non-compliance of the\n\nprocedural requirement underSection 42of the NDPS Act 20, the respondent should\n\nbe granted bail.Section 42provides that on the receipt of information of the\n\ncommission of an offence under the statute, the officer will have to write down the\n\ninformation and send it to a superior officer with 72 hours. It has been submitted by\n\nthe respondent that though the information was received by the Zonal Director, the\n\ninformation was put down in writing by an officer who was a part of the team\n\nconstituted on the receipt of the information. The written information was then sent\n\nto the Zonal Director. This CourtKarnail Singh v. State of Haryana21 held that\n\nthough the writing down of information on the receipt of it should normally precede\n\nthe search and seizure by the officer, in exceptional circumstances that warrant\n\nimmediate and expedient action, the information shall be written down later along\n\nwith the reason for the delay:20“42. Power of entry, search, seizure and arrest without warrant or authorisation: (1) Any such officer (being an\nofficer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs,\nrevenue intelligence or any other department of the Central Government including para-military forces or armed\nforces as is empowered in this behalf by general or special order by the Central Government, or any such officer\n(being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any\nother department of a State Government as is empowered in this behalf by general or special order of the State\nGovernment, if he has reason to believe from persons knowledge or information given by any person and taken down\nin writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence\npunishable under this Act [..];(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief\nunder the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.”21(2009) 8 SCC 53916“35. […](c) In other words, the compliance with the\n requirements ofSections 42(1)and42(2)in regard to writing\n down the information received and sending a copy thereof to\n the superior officer, should normally precede the entry,\n search and seizure by the officer. But in special\n circumstances involving emergent situations, the recording of\n the information in writing and sending a copy thereof to the\n official superior may get postponed by a reasonable period,\n that is, after the search, entry and seizure. The question is\n one of urgency and expediency.(d) While total non-compliance with requirements of\n subsections (1) and (2) ofSection 42is impermissible,\n delayed compliance with satisfactory explanation about the\n delay will be acceptable compliance withSection 42. To\n illustrate, if any delay may result in the accused escaping or\n the goods or evidence being destroyed or removed, not\n recording in writing the information received, before initiating\n action, or non-sending of a copy of such information to the\n official superior forthwith, may not be treated as violation ofSection 42. But if the information was received when the\n police officer was in the police station with sufficient time to\n take action, and if the police officer fails to record in writing\n the information received, or fails to send a copy thereof, to the\n official superior, then it will be a suspicious circumstance\n being a clear violation ofSection 42of the Act. Similarly,\n where the police officer does not record the information at all,\n and does not inform the official superior at all, then also it will\n be a clear violation ofSection 42of the Act. Whether there is\n adequate or substantial compliance withSection 42or not is\n a question of fact to be decided in each case. The above\n position got strengthened with the amendment toSection 42by Act 9 of 2001.”\n\n\n\n28 Further, it was held that the issue of whether there was compliance of the\n\nprocedure laid down underSection 42of the NDPS Act is a question of fact. The\n\ndecision in Karnail Singh (supra) was recently followed by this Court inBoota\n\nSingh v. State of Haryana22.222021 SCC OnLine SC 3241729 In the complaint that was filed on 16 October 2019 it is alleged that at about\n\n1400 hours on 26 March 2019, information was received that between 1500-1700\n\nhours on the same day, the three accused persons would be reaching Uttar\n\nPradesh. The complaint states that the information was immediately reduced to\n\nwriting. Therefore, the contention thatSection 42of the NDPS Act was not complied\n\nwith is prima facie misplaced. The question is one that should be raised in the\n\ncourse of the trial.30 The following circumstances are crucial to assessing whether the High Court\n\nhas correctly evaluated the application for bail, having regard to the provisions ofSection 37:(i) The respondent was travelling in the vehicle all the way from Dimapur in\n\n Nagaland to Rampur in Uttar Pradesh with the co-accused;(ii) The complaint notes that the CDR analysis of the mobile number used by\n\n the respondent indicates that the respondent was in regular touch with the\n\n other accused persons who were known to him;(iii) The quantity of contraband found in the vehicle is of a commercial\n\n quantity; and(iv) The contraband was concealed in the vehicle in which the respondent was\n\n travelling with the co-accused.1831 The impugned order of the High Court, apart from observing that no\n\ncontraband was found from the personal search of the respondent has ignored the\n\nabove circumstances. The High Court has merely observed that\n\n “[…]\n In view of the above, the twin conditions contained underSection\n 37(1)(b)of the NDPS Act stand satisfied. This Court is of the\n view that if there is reasonable ground, the applicant is entitled to\n be released on bail.”\n\n\n32 The High Court has clearly overlooked crucial requirements and glossed over\n\nthe circumstances which were material to the issue as to whether a case for the\n\ngrant of bail was established. In failing to do so, the order of the High Court\n\nbecomes unsustainable. Moreover, it has emerged, during the course of the hearing\n\nthat after the respondent was enlarged on bail he has consistently remained away\n\nfrom the criminal trial resulting in the issuance of a non-bailable warrant against him.\n\nThe High Court ought to have given due weight to the seriousness and gravity of the\n\ncrime which it has failed to do.33 For the above reasons, we allow the appeal and set aside the impugned\n\njudgment and order of the High Court dated 1 October 2020 in Bail No. 7379 of\n\n2019.1934 The application for bail filed by the respondent shall stand dismissed. The\n\nrespondent shall accordingly surrender forthwith.\n\n\n35 Pending application (s), if any, stand disposed of.………..………………………………………J\n [Dr Dhananjaya Y Chandrachud]\n\n\n\n\n ……..…..…………………………………………J\n [B V Nagarathna]\n\n\n\n\nNew Delhi;September 22, 202120 |
b9cc1867-f3b0-5666-bcba-d837729c4b4b | court_cases | Gujarat High CourtSharukh @ Baba Anishbhai Kureshi vs The Commissioner Of Police on 10 June, 2020Author:Ilesh J. VoraBench:Ilesh J. VoraC/SCA/70/2020 ORDER\n\n\n\n\n IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n\n R/SPECIAL CIVIL APPLICATION NO. 70 of 2020\n\n==========================================================\n SHARUKH @ BABA ANISHBHAI KURESHI\n Versus\n THE COMMISSIONER OF POLICE\n==========================================================\nAppearance:\nMR HEMANT B RAVAL(3491) for the Petitioner(s) No. 1\nfor the Respondent(s) No. 2\nMR DHAWAN JAISWAL, AGP for the Respondent(s) No. 1,2,3\n==========================================================\n CORAM: HONOURABLE MR. JUSTICE ILESH J. VORA\n\n Date : 10/06/2020\n\n ORAL ORDER1. By way of this petition underArticle 226of the Constitution of\nIndia, the petitioner through his wife Shabana Shakhrukh Kureshi\nhas challenged the legality of the order of detention of her husband\nviz. Shahrukh @ Baba Anisbhai Kureshi, dated 03.12.2019 passed\nby respondent no.1 - Commissioner of Police, Ahmedabad, under\nsub-section 2 ofSection 3of the Gujarat Prevention of Anti- Social\nActivities Act, 1985 ("P.A.S.A Act" for short) by detaining the\ndetenue as a dangerous person as defined underSection 2 (c)of\nthe PASA Act with a view to prevent the detenue from acting in\nany manner prejudicial to the maintenance of public order in the\narea of Ahmedabad City. In pursuance of the said order dated\n03.12.2019, the detenue has been detained in jail at Surat.2. The detenue came to be detained as a dangerous person on\nhis involvement in two offences i.e. FIR being C.R.No.I-51/2018\nregistered at Shaherkotda Police Station, Ahmedabad, underSection 392of IPC and the second FIR being C.R. No.I-57/2019 isPage 1 of 12Downloaded on : Wed Jun 10 22:06:15 IST 2020C/SCA/70/2020 ORDERregistered at Kalupur Police Station, Ahmedabad, underSection\n324of IPC and Section 135(1) of G.P.Act. .3. Learned counsel for the petitioner has raised the following\ncontentions:(I) That the detaining authority has not properly\n considered the distinction between the law and order\n situation and public peace and passed the order of\n detention against the detenue without application of\n mind, therefore, the order is illegal and null and void;(II)The detenue has been falsely involved in the cases\n mentioned in the grounds of detention and there is no\n material to indicate that, the alleged activities created\n strong fear in public, prejudicial to the maintenance of\n the public order and the society as a whole is ever\n disturbed;(III) The detenue would not fall within the definition of\n dangerous person as defined underSection 2 (c)of the\n PASA Act;(IV) The detenue has been detained in two alleged\n offences and therefore, the authority concerned by\n abusing their powers and process of legal machinery,\n passed the order of detention, which is nothing, but\n arbitrary and illegal.4. On the other hand, Mr. Dhawan Jaiswal, learned AGP has\nsupported the impugned order of detention passed by respondent\nno.1 and submitted that the detenue is a ''dangerous person'' and\nsufficient material and evidence was found during the course ofPage 2 of 12Downloaded on : Wed Jun 10 22:06:15 IST 2020C/SCA/70/2020 ORDERinvestigation, indicating that the detenue is in habit of indulging\nhimself into activities as defined underSection 2 (c)of the PASA\nAct and therefore, considering the facts of the case, the detaining\nauthority has rightly passed the order of detention, which deserves\nto be upheld by this Court.5. Learned AGP further contended that there are two offences\nregistered against the detenue and he has been arrested in\nconnection with the same. The detenue is strong person and has\nindulged into anti-social activities, which are prejudicial to the\nmaintenance of public order. In view of this, there is sufficient\nmaterial to arrive to the satisfaction that the detenue is a\ndangerous person and is involved into anti-social activities, which\nare prejudicial to the maintenance of public order. He also\ncontended that the order of detention is passed based on material\nsubjective satisfaction and therefore, he prays this Court to dismiss\nthis petition.6. Having heard learned counsel for the parties and having\ngone through the material on record, the only question arises for\nconsideration in this petition is, whether the order of detention\ndeserves to be quashed ?7. It is settled by the catena of decisions of the Apex Court that,\na person shall be deemed to be "acting in any manner prejudicial\nto maintenance of public order", when such person is engaged or\nhe is making preparation for engaging in any activity which affect\nadversely or are likely to affect adversely to maintenance of public\norder. The public order shall be deemed to have been affectedPage 3 of 12Downloaded on : Wed Jun 10 22:06:15 IST 2020C/SCA/70/2020 ORDERadversely or shall be deemed likely to be affected inter alia, if any\nof the activities of any person referred to in sub-section (4) ofSection 3of PASA Act directly or indirectly, is causing or is likely to\ncause any harm, danger or alarm or feeling of insecurity among\nthe general public or any section thereof or a grave or widespread\ndanger to life, property or public health.8. In the instant case, the impugned order having been passed\nafter considering two criminal cases registered against the\ndetenue. The factual aspects of the said cases show that, on\n14.05.2018, the detenue had looted cash money from the\npassenger of his rickshaw and accordingly, case was registered\nagainst him. The second case was registered on the basis of the\ndispute on money matter with one Mujib Ansari - rickshaw driver.\nThe case papers collected by the Investigating officer shows that,\nit is an issue of law and order and there is no any public\ndisturbance which will affect the public order. The acts of the\ndetenue constituting the offences cannot have affected the tempo\nof the life of community.9. At this juncture, it would be appropriate to refer to the case ofPiyush Kantilal Mehta Vs. Commissioner of Police, reported in\nAIR 1981 SC 419, wherein, it was observed that, " a person may\nbe very fierce by nature, but so long as the public generally are not\naffected by his activities on conduct, the question of maintenance\nof public order may not arise. In order that, an activity may be said\naffect adversely the maintenance of public order, there must be a\nmaterial to show that, there has been feeling of insecurity among\nthe general public. If any act of a person creates panic or fear inPage 4 of 12Downloaded on : Wed Jun 10 22:06:15 IST 2020C/SCA/70/2020 ORDERthe minds of the member of a public upsetting the tempo of life of\nthe community, such acts must have a direct bearing on the\nquestion of maintenance of public order. The commission of\noffence will not necessarily come within the purview of public\norder.10. It is apt to refer to the case ofMustakmiya Jabbarmiya\nShaikh Vs. M.M. Mehta, Commissioner, reported in 1995 (3)\nSCC 237, wherein the Apex Court observed thus:6. With a view to deal with the aforementioned submissions\n advanced by the learned counsel for the petitioner and to\n examine the legality/validity of the impugned order of detention\n it would be appropriate to look into the relevant provisions of the\n Act in question under which the detention order has been\n passed. It may be pointed out that the Act provides for\n preventive detention of bootleggers, dangerous persons, drug\n offenders, immoral traffic offenders and property grabbers for\n preventing their anti-social and dangerous activities prejudicial\n to the maintenance of public order. In the present case having\n regard to the grounds of detection the detaining authority on\n being satisfied that the detenu - petitioner was a 'dangerous\n person' within the meaning of clause (C) ofSection 2of the Act\n and passed the order of detention.Section 2(C)of the Act reads\n as under:"Dangerous person" means a person, and either by himself or\n as a member or leader of a gang habitually commits or attempts\n to commit or abetes the commission of any of the offences\n punishable under Chapter XVI or Chapter XVII of theIndian\n Penal Codeor any of the offences punishable underChapter V\n of the Arms Act, 1959".Here it would also be appropriate to reproduce the relevant part\n ofSection 3of the Act as under:-"3(l)-The State Government may if satisfied with respect to any\n person that with a view to preventing him from acting in any\n manner prejudicial to the maintenance of public order, it is\n neces-sary so to do, make an order directing that such person\n be detained.", (2) If having regard to the circumstances\n prevailing or likely to prevail in any area within the local limits of\n the jurisdiction of a District Magistrate or a Commissioner of\n Police, the State Govern-ment is satisfied that it is necessary so\n to do, it may, by order in writing, direct that the District\n Magistrate or the Commissioner of Police, may also, if satisfiedPage 5 of 12Downloaded on : Wed Jun 10 22:06:15 IST 2020C/SCA/70/2020 ORDERas provided in sub-section (1) exercise the powers conferred by\nthe said sub-section".(3)..............(4) For the purpose of this section, a person shall be deemed to\nbe 'acting in any manner prejudicial to the maintenance of public\norder when such person is engaged in or is making preparation\nfor engaging in any activities whether as a bootlegger or\ndangerous person or drug offender or immoral traffic offender or\nproperty grabber, which affect adversely or are likely to affect\nadversely the maintenance of public order,"Explanation. - For the purpose of this sub-section, public order\nshall be deemed to have been affected adversely or shall be\ndeemed likely to be affected adversely inter alia if any of the\nactivities of any person referred to in this sub-section directly or\nindirectly, is causing or is likely to cause any harm, danger or\nalarm or feeling of insecurity among the general public or any\nsection thereof or a grave or widespread danger to life, property\nor public health.7. A reading of the preamble of the Act will make it clear that the\nobject of provisions contained in the Act including those\nreproduced above is to prevent the crime and to protect the\nsociety from anti-social elements and dangerous characters\nagainst perpetration of crime by placing them under detention\nfor such a duration as would disable them from resorting to\nundesirable criminal activities The provisions of the Act are\nintended to deal with habitual criminal dangerous and desperate\noutlaws who are so hardened and incorrigible that the ordinary\nprovisions of the penal laws and the moral fear of punishment\nfor crime are not sufficient deterrents for them.Section 3of the\nAct is, therefore, intended to deal with such criminals who\ncannot readily be apprehended to be booked under the ordinary\nlaw and who for special reasons, cannot be convicted under the\npenal laws in respect of the offences alleged to have been\nperpetrated by them, But this power under the Act to detain a\nperson should be exercised with restraint and great caution. In\norder to pass an order of detention under the Act against any\nperson the detaining authority must be satisfied that he is a\n'dangerous person' within the meaning ofSection 2(C)of the\nAct who habitually commits, or attempts to commit or abetes the\ncommis-sion of any of the offences punishable under Chapter\nXVI or XVII of the Penal Code or any of the offences punishable\nunderChapter V of the Arms Actas according to sub-section (4)\nofSection 3of the Act it is such 'dangerous person' who for the\npurpose ofSection 3shall be deemed to be a person 'acting in\nany manner prejudicial to the maintenance of public order'\nagainst whom an order of detention may lawfully be made.8.The Acthas defined 'dangerous person' in clause (C)\nofSection 2to mean a person who either by himself or as aPage 6 of 12Downloaded on : Wed Jun 10 22:06:15 IST 2020C/SCA/70/2020 ORDERmember or leader of a gang habitually commits or attempts to\ncommit or abetes the commis-sion of any of the offences\npunishable under the chapters XVI or XVII of the Penal Code or\nany of the offences punishable underChapter V of the Arms\nAct. The expression 'habit' or 'habitual' has however, not been\ndefined under the Act, According to the Law Lexicon by P.\nRamanatha Iyyar, Reprint Edition 1987 page 499 'habitually'\nmeans constant, cus-tomary & addicted to specified habit and\nthe term habitual criminal may be applied to any one who has\nbeen previously convicted of a crime to the sentences and\ncommitted Jo prison more than twice. The word 'habitually'\nmeans 'usually' and 'generally'. Almost similar meaning is\nassigned to the words 'habit' in Aiyar's Judicial Dictionary, 10th\nEdition page 485. It does not refer to the frequency of the\noccasions but to the invariability of practice and the habit has to\nbe proved by totality of facts. It, therefore, follows that the\ncomplicity of a person in an isolated offence is neither evidence\nnor a material of any help to conclude that a particular person is\na 'dangerous person' unless there is material suggesting his\ncomplicity in. such cases which lead to a reasonable conclusion\nthat the person is a habitual criminal.InGopalan Chari v. State\nof Kerala, AIR (1981) SC 674 this Court had an occasion to deal\nwith expressions like 'bad habit', 'habitual', 'desperate',\n'dangerous', and 'hazardous'. This Court observed that the word\nhabit implies frequent and usual practice.Again inVijay Narain\nSingh v. State of Bihar, [1984] 3 SCC 14, this Court construed\nthe expression 'habitually' to mean repeatedly or persistently\nand observed that it implies a thread of continuity stringing\ntogether similar repetitive acts but not isolated, individual and\ndissimilar acts and that repeated, persistent and similar acts are\nnecessary to justify an inference of habit. It, therefore,\nnecessarily follows that in order to bring a person within the\nexpression 'dangerous person' as defined in clause (C)\nofSection 2of the act, there should be positive material to\nindicate that such person is habitually committing or attempting\nto commit or abeting the commission of offences which are\npunishable under Chapter XVI or XVII of theI.P.C. or underChapter V of the Arms Actand that a single or isolated act\nfalling under Chapters XVI or XVII ofI.P.C, orChapter V of\nArms Actcannot be characterised as a habitual act referred to\ninSection 2(C)of the Act.9. Further, sub-section (1) ofSection 3of the Act confers power\non the State Government and a District Magistrate or a\nCommissioner of Police under the direction of the State\nGovernment to detain a person on being satisfied that it is\nnecessary to do so with a view to preventing him from acting in\nany manner prejudicial to the maintenance of 'public order'. The\nexplanation attached to sub-section (4) ofSection 3reproduced\nabove in the foregoing para contemplates that 'public order'\nshall be deemed to have been affected adversely or shall bePage 7 of 12Downloaded on : Wed Jun 10 22:06:15 IST 2020C/SCA/70/2020 ORDERdeemed likely to be affected adversely inter-alia if any of the\nactivities of any person referred to in sub- section (4) directly or\nindirectly, are causing or is likely to cause any harm, danger or\nalarm or feeling of insecurity among the general public or any\nsection thereof or a grave or widespread danger to life, property\nor public health. Sub-section (4) ofSection 3also provides that\nfor the purpose ofSection 3, a person shall be deemed to be\n'acting in any manner prejudicial to the maintenance of public\norder' when such person is a 'dangerous person' and engaged\nin activities which affect adversely or more likely to affect\nadversely the maintenance of public order. It, therefore,\nbecomes necessary to determine whether besides the person\nbeing a 'dangerous person' his alleged activities fall within the\nambit of the expres-sion 'public order'. A distinction has to be\ndrawn between law and order and maintenance of public order\nbecause most often the two expressions are confused and\ndetention orders are passed by the authorities concerned in\nrespect of the activities of a person which exclusively fall within\nthe domain of law and order and which have nothing to do with\nthe main-tenance of public order. In this connection it may be\nstated that in order to bring the activities of a person within the\nexpression of 'acting in any manner prejudicial to the\nmaintenance of public order", the fall out and the extent and\nreach of the alleged activities must be for such a nature that\nthey travel beyond the capacity of the ordinary law to deal with\nhim or to prevent his subversive activities affecting the\ncommunity at large or a large section of society. It is the degree\nof disturbance and its impact upon the even tempo of life of the\nsociety or the people of a locality which deter-mines whether the\ndisturbance caused by such activity amounts only to a 'breach\nof law and order' or it amounts to 'public order.' It the activity\nfalls within the category of disturbance of 'public order' then it\nbecomes essen-tial to treat such a criminal and deal with him\ndifferently than an ordinary criminal under the law as his\nactivities would fall beyond the frontiers of law and order,\ndisturbing the even tempo of life of the community of the\nspecified locality.In the case ofArun Ghose v. State of West\nBengal, [1970] 1 SCC 98 this Court had an occasion to deal\nwith the distinction between law and order and public order.\nHidayatullah, C.J. (as he then was), speaking for the Court\nobserved that public order would embrace more of the\ncommunity than law and order. Public order is the even tempo\nof the life of the community taking the country as a whole or\neves a specified locality. Disturbance of public order is to be\ndistinguished from acts directed against individuals which do not\ndisturb the society to the extent of causing a general\ndisturbance of public transquillity. It is the degree of disturbance\nand its affect upon the life of the community in a locality which\ndetermines whether the disturbance amounts only to breach of\nlaw and order. It has been further observed that the implicationsPage 8 of 12Downloaded on : Wed Jun 10 22:06:15 IST 2020C/SCA/70/2020 ORDERof public order are deeper and it affects the even tempo of life\nand public order is jeopardized because the repercussions of\nthe act embrace large sections of the community and incite\nthem to make further breaches of the law and order and to\nsubvert the public order. An act by itself is not determinant of its\nown gravity.In its quality it may not differ from another but in its\npotentiality it may be very different, Again in the case ofPiyush\nKantilal Mehta v. Commissioner of Police, [1989] Supple.\n1SCC322, this Court took the view that b order that an activity\nmay be said to affect adversely the maintenance of public order,\nthere must be material to show that there has been a feeling of\ninsecurity among the general public. If any act of a person\ncreates panic or fear in the minds of the members of the public\nupsetting the even tempo of life of the community, such act\nmust be said to have a direct bearing on the question of\nmaintenance of public order. The com-mission of an offence will\nnot necessarily come within the purview of public order which\ncan be dealt with under ordinary general law of the land.\n10, Now reverting to the grounds of detention and the summary\nof incidents alleged against the petitioner as mentioned in the\nbeginning of this judgment, it may be stated that the first\nincident is said to have taken place on 24.4.1993 at about 6.45\nPM in which the detenu - petitioner alongwith some of his\nassociates is alleged to have dragged out the complainant, one\nMohd. Hussain from inside the Hair Cutting Saloon of Shahpur\nand associates of the petitioner fired four rounds from the\nrevolver injuring the complainant and one another customer.\nThe report lodged by the complainant Mohd. Hussain himself on\n24.4.1993, a copy of which has been placed on record, goes to\nshow that a day earlier, that is on 23.4.1993 at about 9.30 PM\nthere was a quarrel between Amjad Khan, the younger brother\nof the complainant Mohd. Hussain and the petitioner upon\nsounding the scooter horn in the gali of the house of the\npetitioner and it was in that connection that next day i.e. on\n24.4.1993 the alleged incident of assault by the petitioner and\nhis associates to the complainant Mohd. Hussain took place.\nFrom the narration of facts in the said complaint it is abundantly\nclear that the criminal activity was directed against an individual\nand from the nature of the incident it is difficult to assume that it\ngave rise to public order disturbing the tranquillity of the locality.\nAt the most it was a criminal act directed only against an\nindividual which has nothing to do with the question of public\norder It appears that it was on account of the earlier day\nincident that the petitioner made a plan alongwith his associates\nto teach a lesson to the complainant by assaulting him when he\nwas seen in the Hair Cutting Saloon on 24.4.1993, This apart\nthe incident had occurred on 24,4.1993 while the detention\norder was passed on 19.8.1994 after the lapse of more than 16\nmonths. This long lapse of time between the alleged prejudicial\nactivity and the detention order loses its significance becausePage 9 of 12Downloaded on : Wed Jun 10 22:06:15 IST 2020C/SCA/70/2020 ORDERthe said prejudicial conduct was not approximate in point of time\nand had no rational connection with the conclusion that the\ndetention was necessary for maintenance of public order. Such\na stale incident can not be construed as justifiable ground for\npassing an order of detention. The second incident dated11.4.1994 was that the detenu - petitioner was harbouring\noffender which is an offence underSections 212/214of the\nI.P.C, An offence underSection 212/214of the I.P.C. cannot be\nmade a basis for passing an order of detention against the\npetitioner as the said offence does not fall either under Chapters\nXVI or XVII of theI.P.C. In order to bring a person within the\ndefinition ofSection 2(C)of the Act it is essential to show that\nsuch person either by himself or as a member of or a leader of a\ngang habitually commits or attempts to commit or abets the\ncommission of offences punishable under Chapter XVI or XVII\nof theIndian Penal Codeor any of the offences punishable\nunderChapter V of the Arms Act. But as pointed out earlier the\noffence registered against petitioner under F.I.R. of C.R.No.\n7/94 of DCB dated 11,4. 1994 is one underSections 212/214of\nthe I.P.C. which falls under Chapter XI of theI.P.C. and not\nunder any of the chapters XVI or XVII which is the requirement\nofSection 2(C)of the Act. This incident, therefore, can not be\nmade a basis for satisfaction of the detaining authority that\npetitioner is a habitual offender, so as to sustain the order of\ndetention.11. This brings us to criminal activities of the detenu - petitioner\nwhich are said to have taken place on 10.8.1994 at 4.00 PM\nand on 12.8.1994 at 7.00 PM. I the incident dated 10.8.1994 the\npetitioner is alleged to have purchased goods worth Rs. 5(K)\nfrom a businessman and on the demand of the price of the\ngoods, the petitioner is alleged to have dragged him out on the\npublic road and not only gave a beating to him but also aimed\nhis revolver towards the people gathered over there. Similarly it\nis alleged that on 12.8.1994 at about 7.00 PM the detenu -\npetitioner stopped the witness on the road near eastern side of\nSardar Garden and beat him as the petitioner doubted that he\nwas informing the police about the anti-social activities of the\npetitioner and his associates. The petitioner is also alleged to\nhave rushed towards the people gathered there with the\nrevolver. Taking the aforesaid two incidents and the allegations\non their face value as they are, it is difficult to comprehend that\nthey were the incidents involving public order. They were\nincidents directed against single individuals having no adverse\naffect prejudicial to the maintenance of public order disturbing\nthe even tempo of life or the peace and tran- quillity of the\nlocality. Such casual and isolated incidents can hardly have any\nimplications which may affect the even tempo of life or\njeopardize the public order an incite people to make further\nbreaches of the law and order which may result in subversion of\nthe public order. As said earlier the Act by itself is notPage 10 of 12Downloaded on : Wed Jun 10 22:06:15 IST 2020C/SCA/70/2020 ORDERdeterminant of its own gravity but it is the potentiality of the act\n which matters.12. The alleged incident dated 12.8.1994 relating to the beating\n of some person on suspicion that he was informing the police\n about criminal activities of the petitioner, the allegation is\n sweeping without any material to support it. Neither any timely\n report appears to have been made about it to the police nor any\n offence appears to have been registered against the detenu -\n petitioner concerning the said incident. There remains the\n solitary incident dated 10.8.1994 pertaining to the alleged\n beating of a businessman which as said earlier directed was\n against an individual having no adverse impact on public at\n large. Besides, the solitary incident dated 10.8.1994 alone\n would not provide a justification to hold that the petitioner was\n habitually committing or attempting to commit or abetting the\n commission of offences as contemplated inSection 2(C)of the\n Act because the expression 'habitually' postulates a thread of\n continuity in the commission of offence repeatedly and\n persistently. However, in our considered opinion hone of the\n aforementioned two incidents can be said to be incidents\n affecting public order nor from these stray and casual acts the\n petitioner can be branded as a dangerous person within the\n meaning ofSection 2(C)of the Act, who was habitually engaged\n in activities adversely affecting or likely to affect adversely the\n maintenance of public order. Similar is the position with regard\n to the recovery of .32 bore country made revolver from the\n possession of the petitioner without any permit or licence which\n is an offence underSection 25of the Arms Act. The said\n revolver was found to be rusty and had a broken barrel. Mere\n possession of a firearm without anything more cannot bring a\n case within the ambit of an act affecting public order as\n contemplated inSection 3of the Act unless ingredients\n ofSection 2(C)of the Act are also made out. From the facts\n discussed above it turns out that there was no material which\n may lead to a reasonable and definite conclusion that the\n detenu - petitioner was habitually engaged in criminal activities\n and, therefore, a dangerous person. The detaining authority\n thus passed the impugned order of detention against the\n petitioner without application of mind on the aforesaid aspects\n of the case and, therefore, the detention order could not be\n sustained."11. In the instant case, the detaining authority has failed to\nsubstantiate that the alleged anti-social activities of the detenue,\nadversely affect or are likely to affect adversely the maintenance of\npublic order. Therefore, in the absence of sufficient material toPage 11 of 12Downloaded on : Wed Jun 10 22:06:15 IST 2020C/SCA/70/2020 ORDERarrive at a subjective satisfaction that, the detenue is a dangerous\nperson and he is indulged into the activities which are prejudicial to\nthe maintenance of public order would not sustain in the eyes of\nlaw and the order impugned having been passed without\napplication of mind and it is against the settled proposition of law.12. In the result, present petition is allowed. The impugned order\nof detention dated 03.12.2019 passed by respondent no.1 -\nCommissioner of Police, Ahmedabad, is hereby quashed and set\naside. The detenue is ordered to be set at liberty forthwith, if not\nrequired in connection with any other case.13. Registry is directed to communicate this order to the\nconcerned jail authority by fax/e-mail forthwith.(ILESH J. VORA,J)\n\n\nPallaviPage 12 of 12Downloaded on : Wed Jun 10 22:06:15 IST 2020 |
77a19c63-c42d-5210-9c4a-d079bbe35388 | court_cases | Central Information CommissionAshutosh Bhardwaj vs State Bank Of India on 12 July, 2021Author:Suresh ChandraBench:Suresh Chandraके ीय सूचना आयोग\n Central Information Commission\n बाबा गंगनाथ माग ,मुिनरका\n Baba Gangnath Marg, Munirka\n नई द ली, New Delhi - 110067\n\n\nि तीय अपील सं या / Second Appeal No.CIC/SBIND/A/2018/170529\nAshutosh Bhardwaj ... अपीलकता /Appellant\n\n VERSUS\n बनाम\nCPIO: State Bank of India,\nGarhwal. ... ितवादीगण/Respondents\n\nRelevant dates emerging from the appeal:\n\nRTI : 02.06.2018 FA : 30.07.2018 SA : 30.11.2018\n\nCPIO : 15.06.2018 FAO : 14.08.2018 Hearing : 27.05.2021\n\n\n CORAM:\n Hon'ble Commissioner\n SHRI SURESH CHANDRA\n ORDER(12.07.2021)1. The issues under consideration arising out of the second appeal dated 30.11.2018\ninclude non-receipt of the following information raised by the appellant through his RTI\napplication dated 02.06.2018 and first appeal dated 30.07.2018:-(i) िदनां क ०५.०३.२०१६ को Term Loan, Cash Credit व FITL खातों म' कुल िकतनी\n\n रािश की दे नदारी शे ष थी ?(ii) िदनां क ०५.०३.२०१६ से िदनां क ३१.०३.२०१६ तक Loan, Cash Credit व FITL खातों म'\n\n िकतने 2पये जमा 6ए ह9 ?(iii) उपरो; ऋण खाते के स>भ@ म' सरफेसी एB, २००२ के अंतग@त Eी सुय@िजत िसंह Fारा\n\n हGाHIरत धारा १३(२) व १३(४) के नोिटस की सMािपत Nितिलिप द' IPage 1 of 5(iv) Eी सुय@िजत िसंह Fारा हGाHIरत सरफेसी एB २००२ के धारा १३(२) व १३(४) के\n\n नोिटस (उपरो; ऋण खाते के स>भ@ म') ऋण को कब व िकस माQम से भेजे गए\n\n कृपया सूचना द' I2. Succinctly facts of the case are that the appellant filed an application dated\n02.06.2018 under theRight to Information Act, 2005(RTI Act) before the Central Public\nInformation Officer (CPIO), State Bank of India, Garhwal, seeking aforesaid information.\nThe CPIO vide letter dated 15.06.2018 replied to the appellant. Dissatisfied with this, the\nappellant filed first appeal dated 30.07.2018. The First Appellate Authority vide order\ndated 14.08.2018 disposed of the first appeal. Aggrieved by this, the appellant filed a\nsecond appeal dated 30.11.2018 before this Commission which is under consideration.3. The appellant has filed the instant appeal dated 30.11.2018 inter alia on the\ngrounds that the respondent deliberately did not furnish the notices issued by Shri\nSuryajit Singh under provisions ofSARFAESI Act. The appellant requested the\nCommission to direct the CPIO to provide the complete information and take necessary\naction as perSection 20 (1)of the RTI Act.4. The CPIO replied vide letter dated 15.06.2018 replied that the A/c xxxx8620 was\ntransferred to Stress Assets Resolution Branch (SARB), New Delhi. The FAA advised\nthe CPIO to transfer the application to concerned underSection 3. Finally, the concerned\nCPIO furnished the information vide their letter dated 8.10.2018.Hearing on 10.12.2020:4.1. The appellant and on behalf of the respondent Ms Vandana Gusain, Manager, State\nBank of India, Haridwar, attended the hearing through video conference.\n\n4.2. The Commission paused the following directions on 7. 01. 2021:"6. The Commission after adverting to the facts and circumstances of the case,\n hearing both the parties and perusal of records, observes that the reply given is\n incomplete, evasive and ambiguous. The appellant asked for the details of the cash\n limit, amount deposited, copies of notices issued under provisions of SARFAESIPage 2 of 5Act including the one issued by Shri Suryajit Singh. A period of over 2 years has\n elapsed and the requisite information/point-wise reply has not been provided to the\n appellant. In view of this, Shri Gagan Kumar Shrivastav, present CPIO, as well as\n CPIO as on 15.06.2018, are directed to show cause as to why penalty under\n provisions ofRTI Actmay not be imposed upon each of them for not furnishing the\n information. Shri Gagan Shrivastav is given the responsibility to serve a copy of\n this order upon the then CPIO and secure his written explanations. All written\n explanations/submissions must be uploaded on the Commission's web portal\n within 21 days."Hearing on 27.05.20215. The appellant and on behalf of the respondent Shri Rajinder Singh, CPIO and Ms\nVandana Gusain, Manager, State Bank of India, Haridwar, attended the hearing through\naudio conference.5.1. The appellant inter alia submitted that the respondent did not provide the requisite\ninformation. The appellant alleged that the procedure laid down under provisions ofSARFAESI Actwere not duly followed by the respondent and that he had been\nprosecuted in violation of principles of natural justice. The relevant documents including\ncopies of notices were not issued to him under provisions ofSARFAESI Actas well asRTI Act.5.2. The respondent while defending their case inter alia submitted that they had\nprovided point-wise information pertaining to the cash credit account, FITL account, term\nloan, copies of notices issued on 01.04.2015 and notices dated 04.07.2015 and\n30.04.2016 issued undersection 13 (4)of SARFAESI Act to the appellant vide letter\ndated 20.01.2021. The proof of dispatch of the notices were also furnished to the\nappellant and the same were uploaded on the Commission's web portal. The respondent\nfurther submitted that the matter was earlier transferred to Stress Assets Resolution\nBranch(SARB), New Delhi. Therefore, the delay caused in furnishing the information\nwas inadvertent on their part.Page 3 of 56. The Commission after adverting to the facts and circumstances of the case, hearing\nboth the parties and perusal of records, observed that the respondent duly complied with\nthe directions of the Commission and provided point-wise information vide letter dated\n20.01.2021. Perusal of records revealed that that the respondent uploaded the documents\non the Commission's web portal. However, they had not furnished a copy of the same to\nthe appellant. In view of the above, the respondent is directed to provide copy of the\nreply to the appellant again within two weeks from the date of receipt of this order. The\nwritten explanations submitted by the respondent are reasonable and satisfactory.\nTherefore, in absence of any mala fide on the part of the CPIO it may not be appropriate\nto initiate penal action undersection 20 (1)of the RTI Act against them. The show cause\nnotices issued to Shri Gagan Kumar Shrivastav, present CPIO, as well as CPIO are\nhereby dropped. Accordingly, the appeal is disposed of.Copy of the decision be provided free of cost to the parties.Sd/-(Suresh Chandra) (सुरेश चं ा)\n ा)\n Information Commissioner (सूचना आयु )\n दनांक/Date: 12.07.2021\nAuthenticated true copy\n\n\nR. Sitarama Murthy (आर. सीताराम मूत )\nDy. Registrar (उप पंजीयक)\n011-26181927(०११-२६१८१९२७)\nAddresses of the parties:CPIO :1. Sh. RAJENDRA SINGH (C.P.I.O)\nSTATE BANK OF INDIA, DEHRADUN\nADMINISTRATIVE OFFICE,\nREGION- 3, 1, NEW CANTT.ROAD, DEHRADUN, UTTARAKHAND2. Sh. RAJENDRA SINGH (C.P.I.O)\nSTATE BANK OF INDIA, DEHRADUN\nADMINISTRATIVE OFFICE,\nREGION- 3, 1, NEW CANTT.ROAD, DEHRADUN,\nUTTARAKHAND (for forwarding\nto the then C.P.I.O as on\n25-07-2018, Sh. GAGAN KUMAR\nSRIVASTAV and the then C.P.I.OPage 4 of 5of HARIDWAR BRANCH )\n\nAshutosh BhardwajPage 5 of 5 |
96f7d512-7145-51f8-84ed-8c339407af25 | court_cases | Bombay High CourtAfroj S/O Maheboob Sayyad@ Altaf ... vs The State Of Maharashtra on 10 August, 2020Bench: V. V. Kankanwadi(1)\n\n\n IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n BENCH AT AURANGABAD\n\n ANTICIPATORY BAIL APPLICATION NO.566 OF 2020\n\n 1. Afroj s/o Maheboob Sayyad @ Altaf\n Maheboobsaab Sayyad & Anr. = APPLICANT/S\n\n VERSUS\n\n The State of Maharashtra & Anr. = RESPONDENT/S\n -----\n Mr.CC Deshpande,Advocate for Applicant/s\n Mr.NT Bhagat,APP for Respondent-State.\n -----\n\n CORAM : SMT.VIBHA KANKANWADI,J.\n DATE : 10th August, 2020.\n PER COURT:-\n\n 1. Present applicants are apprehending their\n\n arrest in connection with CR No.284/2020 registered\n\n with Vivekanand Chowk Police Station, District\n\n Latur for the offence punishable under Sections\n\n 306, 504, 506 read with 34 ofIPC.\n\n\n\n 2. Heard learned Advocate Shri CC Deshpande\n\n for applicants and learned APP Shri NT Bhagat for\n\n State.\n\n\n\n 3. In order to cut short, it can be said\n\n that both of them have argued in support of their\n\n respective contentions. Learned APP has strongly\n\n\n\n\n::: Uploaded on - 11/08/2020 ::: Downloaded on - 12/08/2020 02:42:24 :::\n (2)\n\n opposed the application, stating that there is\n\n evidence collected up till now by the Investigating\n\n agency to show that present applicants had abetted\n\n commission of suicide by deceased- Sameer.\n\n\n\n 4. The information has been lodged by father\n\n of the deceased. It has been stated that on\n\n 14.6.2020, the deceased was at home around 12.00\n\n pm. Applicant No.2 went to his house and called\n\n him that they are required to attend marriage\n\n ceremony. The deceased went along with applicant\n\n No.2. Applicant Nos. 1 and 2 are the friends of\n\n deceased. While returning, applicant No.2 and\n\n deceased consumed liquor. Thereafter when they were\n\n near the Yeshwant school, at that time, applicant\n\n No.1 and one Aakash Pulpule came on motorcycle and\n\n started disputing with the deceased, by saying that\n\n applicant No.2 has started drinking liquor because\n\n of the deceased. Applicant No.1 started assaulting\n\n the deceased with a scythe and threatened to kill\n\n was given to him. Thereafter, when the deceased\n\n was proceeding to give report about the incident to\n\n police, at that time, he was stopped by the\n\n applicants and then he was taken to hospital at\n\n\n\n\n::: Uploaded on - 11/08/2020 ::: Downloaded on - 12/08/2020 02:42:24 :::\n (3)\n\n Latur and treatment was given to him. The deceased\n\n was left at the house around 8.00 pm under the\n\n influence of liquor. The informant asked him as to\n\n why it took late for him to come to the home and\n\n why he has come in a drunken condition; the\n\n deceased gave all the information to the informant.\n\n The informant had seen the blood-stains and injury\n\n on the person of the deceased. The informant gave\n\n advice to his son that he should not indulge in any\n\n dispute. But then the informant says that he was\n\n under pressure and was not properly talking with\n\n anybody. He was at home; but under the pretext to\n\n go out, he left the house around 2.00 pm on\n\n 20.6.2020. He then returned around 4.00 pm and\n\n told that the present applicants had met him and\n\n given threats that if he discloses the incident to\n\n anybody, then he as well as his family members\n\n would be killed. After conveying this fact to the\n\n family members, the deceased went in his room\n\n around 6.00 pm. When it was found by the family\n\n members that he was not opening the door, they\n\n forcibly opened the door and found that the\n\n deceased has committed suicide and thereby the FIR\n\n came to be lodged on 26.6.2020 by the father.\n\n\n\n\n::: Uploaded on - 11/08/2020 ::: Downloaded on - 12/08/2020 02:42:24 :::\n (4)\n\n 5. At the outset,it can be seen that, there\n\n is delay of about six days in lodging the FIR.\n\n Further, when the fact about his suicide would\n\n have been informed by the informant to the police\n\n on the same day, AD would have been registered\n\n underSection 174of Cr.P.C. Therefore, question\n\n arises as to why father had not disclosed the\n\n entire story, which he has now given as FIR to the\n\n police.\n\n\n\n 6. Even if we consider the contents of the\n\n FIR as it is, it does not require physical custody\n\n of the applicants for the purpose of investigation\n\n as nothing is required to be seized at their\n\n instance. Under such circumstance, the application\n\n deserves to be allowed. Hence, following order, -\n\n ORDERi. The application is hereby allowed;\n\n ii. In the event of arrest of the\n\n applicants - 1) Afroj s/o Maheboob Sayyad @\n\n Altaf Maheboobsaab Sayyad and 2) Baba s/o\n\n Maheboob Sayyad, in connection with CR\n\n No.284/2020 registered with Vivekanand Chowk\n\n Police Station, District Latur for the offence::: Uploaded on - 11/08/2020 ::: Downloaded on - 12/08/2020 02:42:24 :::(5)punishable underSections 306,504,506read\n\n with 34 ofIPC, they be released on PR of Rs.\n\n 30,000/- with two sureties of Rs. 15,000/-\n\n each.iii. The applicants shall not indulge in\n\n any criminal activity nor shall they tamper\n\n with the evidence of prosecution in any\n\n manner.iv. They shall remain present before the\n\n Investigating Officer on every Monday and\n\n Thursday between 10.00 am to 12.00 pm till\n\n filing of charge sheet.(SMT. VIBHA KANKANWADI,J.)\n\n\n\n BDV::: Uploaded on - 11/08/2020 ::: Downloaded on - 12/08/2020 02:42:24 ::: |
fa2e9e99-2f7f-5ddd-a17f-78152758c70a | court_cases | Gauhati High CourtPage No.# 1/5 vs The State Of Assam And 13 Ors on 24 August, 2022Page No.# 1/5\n\nGAHC010158152022\n\n\n\n\n THE GAUHATI HIGH COURT\n (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)\n\n Case No. : WP(C)/5213/2022\n\n MD. ADAM ALI AND 2 ORS.\n S/O LT. PAYAJ UDDIN, VILL-KOKILA UTTARPARA, P.O.-KOKILA, P.S.-\n ABHAYAPURI, DIST-BONGAIGAON, ASSAM\n\n 2: MD. TOMEZ UDDIN\n S/O LATE ABDUL MOZID\n VILL-KOKILA UTTARPARA\n P.O.-CHAKLA\n P.S.-ABHAYAPURI\n DIST-BONGAIGAON, ASSAM\n\n 3: MD. ABDUR ROHIM\n S/O LATE MANNAS ALI\n VILL-KOKILA UTTARPARA\n P.O.-CHAKLA\n P.S.-ABHAYAPURI\n DIST-BONGAIGAON, ASSAM\n\n VERSUS\n\n THE STATE OF ASSAM AND 13 ORS.\n TO BE REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE\n GOVERNMENT OF ASSAM, EDUCATION SECONDARY DEPARTMENT,\n DISPUR, GHY-6\n\n 2:THE DIRECTOR SECONDARY EDUCATION\n ASSAM, KAHILIPARA, GHY-19\n\n 3:THE DISTRICT LEVEL SCRUTINY COMMITTEE\n BONGAIGAON, ASSAM\n TO BE REPRESENTED BY ITS CHAIRMAN -CUM- DEPUTY\n COMMISSIONER\n BONGAIGAON\n DIST-BONGAIGAON\n ASSAM\n Page No.# 2/5\n\n\n4:THE INSPECTORS OF SCHOOLS\n BONGAIGAON DISTRICT CIRCLE\n DIST-BONGAIGAON\nASSAM\n\n5:THE EUNUS ALI HIGH SCHOOL\n KOKILA\n CHAKLA\n DIST-BONGAIGAON\nASSAM\nTO BE REPRESENTED BY ITS HEAD MASTER NAMELY MD. JOWAHAR ALI\nVILL-KOKILA UTTARPARA\n P.O.-CHAKLA\n P.S.-ABHAYAPURI\n DIST-BONGAIGAON\nASSAM\n\n6:THE MANAGING COMMITTEE OF EUNUS ALI HIGH SCHOOL\n KOKILA\n CHAKLA\n DIST-BONGAIGAON\nASSAM\nTO BE REPRESENTED BY ITS PRESIDENT NAMELY MD. JOYNAL ABEDIN\nVILL-KOKILA UTTARPARA\n P.O.-CHAKLA\n P.S.-ABHAYAPURI\n DIST-BONGAIGAON\nASSAM\n\n7:JOWAHAR ALI\n HEADMASTER\n\n8:RAKIBUL ISLAM\nASSISTANT TEACHER (SCIENCE)\n\n9:SANIARA KHATUN\nASSISTANT TEACHER (ARTS)\n\n10:ABDUR RAZZAQUE\nASSISTANT TEACHER (ARTS)\n\n11:MD. AZMAT ALI\nASSISTANT TEACHER (ARTS)\n\n12:MD. ABDUR RAHMAN KHAN\nARABIC TEACHER\n Page No.# 3/5\n\n 13:MD. ROMEZ UDDIN\n JUNIOR ASSISTANT\n\n 14:JAYEN UDDIN\n GRADE IV\n\n PRIVATE RESPONDENT NOS. 7 TO 14 ARE TEACHING AND NON-TEACHING\n STAFF OF EUNUS ALI HIGH SCHOOL.\n\n C/O HEADMASTER\n EUNUS ALI HIGH SCHOOL\n VILL-KOKILA UTTARPARA\n P.O.-CHAKLA\n P.S.-ABHAYAPURI\n DIST-BONGAIGAON\n ASSA\n\nAdvocate for the Petitioner : MR. A R BHUYAN\nAdvocate for the Respondent : SC, SEC. EDU.\n\n BEFORE\n HONOURABLE MR. JUSTICE LANUSUNGKUM JAMIR\n\n ORDER24th August, 2022\n\n\n Heard Mr. A.R. Bhuyan, learned counsel for the petitioners. Also heard Mr.\nR. Mazumdar, learned standing counsel, Secondary Education Department, for\nrespondent Nos. 1, 2, 4 and 5 as well as Mr. P. Saikia, learned Government\nAdvocate, appearing on behalf of the respondent No. 3.The present writ petition has been filed with the following prayers:"(A) set aside/quash the impugned order of provincialisation dated\n 22/10/2021 issued by the respondent No. 2 (Annexure-10) as regards\n provincialisation of services of teaching and non-teaching staff of Eunus Ali High\n School in the District of Bongaigaon, Assam;(B) direct/command the Respondents more particularly Respondent Nos.1 and 2 to dispose of the representations/appeals dated 17-12-2021 and 04-12-\n 2021 (Annexure-11 and 12) submitted by the petitioners;(C) direct/command the Respondents more particularly Respondent Nos.Page No.# 4/5\n\n 1 to cause an enquiry as regards the corruption as well as to initiate a criminal\n proceeding under Section 16, 17 and 18 of the 2017 Act against the erring\n officials involved in the process of provincialisation of the Respondent's\n Institution."The same set of petitioners had earlier approached this Court by filing\nWP(C) No. 392/2021 with the following prayer:"In the premises of aforesaid it is prayed that your Lordship may\n graciously be pleased to admit this writ petition, call for the records and issue\n Rule, calling upon the Respondents to show cause as to why a writ in the\n nature of Certiorari, Mandamus and/ or any other writ should be issued to: a)\n set aside/ quash the process for provincialisation initiated by the State\n Respondents in the Education Department, for the purpose of provincialisation\n of services of employees of Eunus Ali High School; b) direct/ command the\n State Respondents to take into account the Representations dated 26/08/2020\n submitted by the Petitioners before the Respondents. c) direct/ command the\n Respondents more particularly the Respondent no. 1 to cause an administrative\n inquiry for the aforesaid corruption conducted by the State Respondents to take\n over the land of the Petitioner for the purpose of provincialisation of services of\n the employees of Eunus Ali High School in the district of Bongaigaon in violation\n of provision of Section 3 of The Assam Education (Provincialisation of Services\n of The Teacher and Re-Organization of Educational Institutions) Act, 2017;AND\n Upon cause/ causes being shown by the respondents and on perusal of\n records and hearing the parties be pleased to make the Rule absolute."This Court, after hearing the parties and considering the materials\navailable on record disposed of the WP(C) No. 392/2021 by judgment and order\ndated 25-08-2021. The relevant portion of the order reads as under:"13. Accordingly we do not find any merit in this writ petition and the writ\n petition would require a dismissal.14. But however, as regards the claim of the petitioners for right, title and\n interest over the land in question, the parties would be governed by any\n decision that may be arrived at by the Civil Court in Title Suit No. 44/2019 or\n Page No.# 5/5\n\n any further proceeding that may be related thereto.15. We also make it clear that the dismissal of this writ petition or to that effect\n any order of provincialisation if made by the Elementary Education Department,\n Assam shall not be an additional ground in favour of the respondent no. 5\n Eunus Ali High School in the civil suit between the parties for claiming their\n respective right, title and interest over the land in question and such right, title\n and interest would be confined to the respective claims of the parties in the civil\n suit. Any decision by the Civil Court on the question of right, title and interest of\n the parties would also be binding on the successors-in-interest of the\n respondent no. 5 Eunus Ali High School, and the provincialisation if made would\n have an effect on such decision by the Civil Court.16. Writ petition stands dismissed in the above terms.17. Interim order dated 28.01.2021 accordingly stands vacated."After hearing the parties in the present writ petition, this Court is of the\nconsidered opinion that the direction given in WP(C) No. 392/2021 by the\njudgment and order dated 25-08-2021, particularly, at paragraph 15, which has\nalready been extracted hereinabove, has already settled the issue demanded by\nthe petitioners in the present writ petition. No appeal or review has been filed\nagainst the judgment and order dated 25-08-2021.In that view of the matter, no relief can be granted to the petitioner and\nthe writ petition is accordingly dismissed.No cost.JUDGE\n\n\n\nComparing Assistant |
afc47132-2c37-5312-85d7-20d010042c45 | court_cases | Gujarat High CourtPraful Anubhai Shah vs State Of Gujarat on 14 September, 2023NEUTRAL CITATION\n\n\n\n\n R/SCR.A/2392/2014 ORDER DATED: 14/09/2023\n\n undefined\n\n\n\n\n IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n\n R/SPECIAL CRIMINAL APPLICATION NO. 2392 of 2014\n With\n R/SPECIAL CRIMINAL APPLICATION NO. 7037 of 2018\n With\n R/SPECIAL CRIMINAL APPLICATION NO. 2393 of 2014\n With\n R/SPECIAL CRIMINAL APPLICATION NO. 8321 of 2018\n With\n R/SPECIAL CRIMINAL APPLICATION NO. 2396 of 2014\n With\n R/SPECIAL CRIMINAL APPLICATION NO. 8318 of 2018\n With\n R/SPECIAL CRIMINAL APPLICATION NO. 2397 of 2014\n With\n R/SPECIAL CRIMINAL APPLICATION NO. 8316 of 2018\n With\n R/SPECIAL CRIMINAL APPLICATION NO. 2398 of 2014\n With\n R/SPECIAL CRIMINAL APPLICATION NO. 8322 of 2018\n With\n R/SPECIAL CRIMINAL APPLICATION NO. 2395 of 2014\n With\n R/SPECIAL CRIMINAL APPLICATION NO. 7025 of 2018\n With\n R/SPECIAL CRIMINAL APPLICATION NO. 2394 of 2014\n With\n R/SPECIAL CRIMINAL APPLICATION NO. 8319 of 2018\n\n==========================================================\n PRAFUL ANUBHAI SHAH\n Versus\n STATE OF GUJARAT & 1 other(s)\n==========================================================\nAppearance:\nMR ISA HAKIM FOR GANDHI LAW ASSOCIATES(12275) for the\nApplicant(s) No. 1\nMR DHAWAN JAYSWAL, APP for the Respondent(s) No. 1\nRULE SERVED BY DS for the Respondent(s) No. 2\n==========================================================\n\n CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT\n\n Date : 14/09/2023\n\n COMMON ORAL ORDERPage 1 of 15Downloaded on : Mon Sep 18 20:38:57 IST 2023NEUTRAL CITATION\n\n\n\n\n R/SCR.A/2392/2014 ORDER DATED: 14/09/2023\n\n undefined1. Leave to amend is granted. Amendment to be\n\ncarried out forthwith.2. All these petitions are filed under Articles 226/227\n\nof the Constitution of India read withSection 482of the\n\nCode of Criminal Procedure, 1973 (`the Code' for short) for\n\nquashing and setting aside the complaints being Criminal\n\nCase Nos.19316 of 2013, 19317 of 2018, 19320 of 2018, 19321\n\nof 2018, 19322 of 2018, 19319 of 2018, 19318 of 2018\n\nrespectively pending before the Labour Court, Ahmedabad for\n\nthe offences punishable underSection 9of the Payment of\n\nGratuity Act, 1972 (`the said Act' for short) for failure to\n\ncomply with Rule 7(3) and 7(4) of the said Act, along with\n\nthe consequential proceedings, if any.3. As the common question of facts and law are\n\ninvolved in all these petitions, at the request of learned\n\nadvocates for the parties, they are heard together and\n\ndisposed of by this common oral order.4. The impugned complaints are filed by the\n\ncomplainant-controlling authority under the said Act for not\n\ncomplying with the order passed in Gratuity Cases of the\n\nconcerned employees.Page 2 of 15Downloaded on : Mon Sep 18 20:38:57 IST 2023NEUTRAL CITATION\n\n\n\n\n R/SCR.A/2392/2014 ORDER DATED: 14/09/2023\n\n undefined5. Heard learned advocate Mr.Isa Hakim for the\n\npetitioners and learned APP Mr.Jayswal for respondent no.1-\n\nstate. Though served, none appears for respondent no.2.\n\n\n\n5.1 Learned advocate Mr.Hakim submits that during\n\nthe pendency of these petitions, the settlement is arrived at\n\nbetween the employer i.e. the present petitioners and the\n\nemployees and the entire amount towards gratuity is now\n\npaid. He pointed out to the compromise deed arrived between\n\nthe parties and also the details of payment like receipt\n\nissued of such amount paid by the present petitioners and\n\nsubmitted that even otherwise the offences which are alleged\n\nin the complaint can be considered as technical breach and\n\nin view of subsequent development, as now the entire\n\npayment is made by the petitioners and nothing remains\n\noutstanding towards the amount of gratuity, no fruitful\n\npurpose will be served to continue the present proceedings in\n\nview of the judgment in the case of Gian Singh V/s State of\n\nPunjab & Anr. Reported in (2012) 10 SCC 303, Nikhil\nMerchant V/s Central Bureau of Investigation & Anr.\nReported in 2009(1) GLH 31 and State of Haryana V/s\nBhajanlal & Ors. Reported in AIR 1992 SC 604. He,\n\ntherefore, prays to allow these petitions and quash the\n\nimpugned complaints.Page 3 of 15Downloaded on : Mon Sep 18 20:38:57 IST 2023NEUTRAL CITATION\n\n\n\n\n R/SCR.A/2392/2014 ORDER DATED: 14/09/2023\n\n undefined6. Learned APP Mr.Jayswal for respondent no.1\n\nsubmits that prima facie the complaints are filed by the\n\ncontrolling authority which disclose necessary material\n\nconstituting the offences under the said Act. As the said Act\n\nis a benevolent legislation, the commission of such breach by\n\nthe petitioners is required to be viewed seriously and\n\ntherefore considering the willful default made by the\n\npetitioners in non-payment of such amount, these petitions\n\nare not required to be considered sympathetically.\n\n\n\n6.1 He, further submitted that all the ingredients ofSections 7(3),7(4)and9of the said Act are satisfied and\n\ntherefore this Court may not exercise powers of quashing the\n\nimpugned complaints, which are, otherwise, required to be\n\nexercised very sparingly. However, he is not in a position to\n\ndispute the factum, on specific query put by the Court, that\n\nsubsequently the payment is made to the workmen and\n\nreceipts are also produced on the record. He, therefore, prays\n\nto pass appropriate order in the facts and circumstances of\n\nthe present case.7. Though served, none appears for the respondent\n\nno.2.8. I have considered the rival submissions made atPage 4 of 15Downloaded on : Mon Sep 18 20:38:57 IST 2023NEUTRAL CITATION\n\n\n\n\n R/SCR.A/2392/2014 ORDER DATED: 14/09/2023\n\n undefined\n\n\n\n\nthe bar and I have also considered the provisions of the Act.9.Sections 7(3)and7(4)of the said Act read as\n\nunder:"(3) The employer shall arrange to pay the amount of\n gratuity within thirty days from the date it becomes payable\n to the person to whom the gratuity is payable.\n (3A) If the amount of gratuity payable under sub-section (3)\n is not paid by the employer within the period specified in\n sub-section (3), the employer shall pay, from the date on\n which the gratuity becomes payable to the date on which it\n is paid, simple interest at such rate, not exceeding the rate\n notified by the Central Government from time to time for\n repayment of long-term deposits, as that Government may,\n by notification specify:Provided that no such interest shall be payable if the delay\n in the payment is due to the fault of the employee and the\n employer has obtained permission in writing from the\n controlling authority for the delayed payment on this\n ground.]\n\n\n (4)(a) If there is any dispute as to the amount of gratuity\n payable to an employee under this Act or as to the\n admissibility of any claim of, or in relation to, an employee\n for payment of gratuity, or as to the person entitled to\n receive the gratuity, the employer shall deposit with thePage 5 of 15Downloaded on : Mon Sep 18 20:38:57 IST 2023NEUTRAL CITATION\n\n\n\n\nR/SCR.A/2392/2014 ORDER DATED: 14/09/2023\n\n undefined\n\n\n\n\n controlling authority such amount as he admits to be\n payable by him as gratuity.[(b) Where there is a dispute with regard to any matter or\n matters specified in clause (a), the employer or employee or\n any other person raising the dispute may make an\n application to the controlling authority for deciding the\n dispute.]\n\n\n [(c) The controlling authority shall, after due inquiry and\n after giving the parties to the dispute a reasonable\n opportunity of being heard, determine the matter or matters\n in dispute and if, as a result of such inquiry any amount is\n found to be payable to the employee, the controlling\n authority shall direct the employer to pay such amount or,\n as the case may be, such amount as reduced by the amount\n already deposited by the employer.]\n\n\n [(d)] The controlling authority shall pay the amount\n deposited, including the excess amount, if any, deposited by\n the employer, to the person entitled thereto.\n [(e)] As soon as may be after a deposit is made under\n clause (a), the controlling authority shall pay the amount of\n the deposit--(i) to the applicant where he is the employee; or(ii) where the applicant is not the employee, to the\n [nominee or, as the case may be, the guardian of such\n nominee or] heir of the employee if the controlling authorityPage 6 of 15Downloaded on : Mon Sep 18 20:38:57 IST 2023NEUTRAL CITATION\n\n\n\n\nR/SCR.A/2392/2014 ORDER DATED: 14/09/2023\n\n undefined\n\n\n\n\n is satisfied that there is no dispute as to the right of the\n applicant to receive the amount of gratuity.9. Penalties.--(1) Whoever, for the purpose of avoiding any\n payment to be made by himself under this Act or of\n enabling any other person to avoid such payment, knowingly\n makes or causes to be made any false statement or false\n representation shall be punishable with imprisonment for a\n term which may extend to six months, or with fine which\n may extend to 3 [ten thousand rupees], or with both.\n (2) An employer who contravenes, or makes default in\n complying with, any of the provisions of this Act or any\n rule or order made thereunder shall be punishable with\n imprisonment for a term [which shall not be less than three\n months but which may extend to one year, or with fine\n which shall not be less than ten thousand rupees but which\n may extend to twenty thousand rupees, or with both]:Provided that where the offence relates to non-payment of\n any gratuity payable under this Act, the employer shall be\n punishable with imprisonment for a term which shall not be\n less than [six months but which may extend to two years]\n unless the court trying the offence, for reasons to be\n recorded by it in writing, is of opinion that a lesser term of\n imprisonment or the imposition of a fine would meet the\n ends of justice."Page 7 of 15Downloaded on : Mon Sep 18 20:38:57 IST 2023NEUTRAL CITATION\n\n\n\n\n R/SCR.A/2392/2014 ORDER DATED: 14/09/2023\n\n undefined10.Section 2(p)of the Industrial Disputes Act (ID Act\n\nfor short) reads as under:"settlement" means a settlement arrived at in the course of\n conciliation proceeding and includes a written agreement\n between the employer and workmen arrived at otherwise\n than in the course of conciliation proceeding where such\n agreement has been signed by the parties thereto in such\n manner as may be prescribed and a copy thereof has been\n sent to an officer authorised in this behalf by the\n appropriate Government and the concliation officer."11. Pursuant toSection 2(p)of the ID Act, the\n\nsettlement is arrived at between the management and\n\nemployees and the settlement is also produced on record. On\n\nperusal of the same, it transpires that it is signed by the\n\nrepresentatives of the employees and representatives of the\n\nemployer. Pursuant thereafter, the respective receipts were\n\nalso issued by the employees which are part of the record,\n\nwhereby it is mentioned that the amount is received on\n\n10.7.2014 by the employees.12. In the case of Gian Singh (supra), the Hon'ble\n\nSupreme Court has observed in para 61 as under:"61. A three-Judge Bench of this Court in State ofPage 8 of 15Downloaded on : Mon Sep 18 20:38:57 IST 2023NEUTRAL CITATION\n\n\n\n\nR/SCR.A/2392/2014 ORDER DATED: 14/09/2023\n\n undefinedKarnataka v. M. Devendrappa and another[18] restated\n what has been stated in earlier decisions that Section\n 482 does not confer any new powers on the High\n Court, it only saves the inherent power which the\n court possessed before the commencement of the Code.\n The Court went on to explain the exercise of inherent\n power by the High Court in paragraph 6(Pg.94) of the\n Report as under :"6. .........It envisages three circumstances under which\n the inherent jurisdiction may be exercised, namely,(i) to give effect to an order under the Code, (ii) to prevent\n abuse of the process of court, and (iii) to otherwise secure\n the ends of justice. It is neither possible nor desirable to\n lay down any inflexible rule which would govern the\n exercise of inherent jurisdiction. No legislative enactment\n dealing with procedure can provide for all cases that may\n possibly arise. Courts, therefore, have inherent powers apart\n from express provisions of law which are necessary for\n proper discharge of functions and duties imposed upon them\n by law. That is the doctrine which finds expression in the\n section which merely recognizes and preserves inherent\n powers of the High Courts. All courts, whether civil or\n criminal possess, in the absence of any express provision, as\n inherent in their constitution, all such powers as are\n necessary to do the right and to undo a wrong in course of\n administration of justice on the principle quando lex aliquid\n alicui concedit, concedere videtur et id sine quo res ipsaePage 9 of 15Downloaded on : Mon Sep 18 20:38:57 IST 2023NEUTRAL CITATION\n\n\n\n\n R/SCR.A/2392/2014 ORDER DATED: 14/09/2023\n\n undefined\n\n\n\n\n esse non potest (when the law gives a person anything it\n gives him that without which it cannot exist). While\n exercising powers under the section, the court does not\n function as a court of appeal or revision.Inherent\n jurisdiction under the section though wide has to be\n exercised sparingly, carefully and with caution and only\n when such exercise is justified by the tests specificallylaid\n down inthe section itself. It is to be exercised exdebito\n justitiae to do real and substantial justice for the\n administration of which alone courts exist. Authority of the\n court exists for advancement of justice and if any attempt is\n made to abuse that authority so as to produce injustice, the\n court has power to prevent abuse. It would be an abuse of\n process of the court to allow any action which would result\n in injustice and prevent promotion of justice. In exercise of\n the powers court would be justified to quash any proceeding\n if it finds that initiation/continuance of it amounts to abuse\n of the process of court or quashing of these proceedings\n would otherwise serve the ends of justice........"13. In the case of Nikhil Merchant (supra), it is held\n\nin paragraphs 20 to 24 as under:"20. Having carefully considered the facts of the case and\n the submissions of learned Counsel in regard thereto, we are\n of the view that, although, technically there is force in the\n submissions made by the learned Additional SolicitorPage 10 of 15Downloaded on : Mon Sep 18 20:38:57 IST 2023NEUTRAL CITATION\n\n\n\n\nR/SCR.A/2392/2014 ORDER DATED: 14/09/2023\n\n undefined\n\n\n\n\n General, the facts of the case warrant interference in these\n proceedings.21. The basic intention of the accused in this case appears\n to have been to misrepresent the financial status of the\n company, M/s Neemuch Emballage Limited, Mumbai, in\n order to avail of credit facilities to an extent to which the\n company was not entitled. In other words, the main\n intention of the company and its officers was to cheat the\n Bank and induce it to part with additional amounts of\n credit to which the company was not otherwise entitled.22. Despite the ingredients and the factual content of an\n offence of cheating punishable underSection 420IPC, the\n same has been made compoundable under Sub-section (2) ofSection 320Cr.P.C. with the leave of the Court. Of course,\n forgery has not been included as one of the compoundable\n offences, but it is in such cases that the principle\n enunciated in B.S.Joshi's case (supra) becomes relevant.23. In the instant case, the disputes between the Company\n and the Bank have been set at rest on the basis of the\n compromise arrived at by them whereunder the dues of the\n Bank have been cleared and the Bank does not appear to\n have any further claim against the Company. What,\n however, remains is the fact that certain documents were\n alleged to have been created by the appellant herein inPage 11 of 15Downloaded on : Mon Sep 18 20:38:57 IST 2023NEUTRAL CITATION\n\n\n\n\n R/SCR.A/2392/2014 ORDER DATED: 14/09/2023\n\n undefined\n\n\n\n\n order to avail of credit facilities beyond the limit to which\n the Company was entitled. The dispute involved herein has\n overtones of a civil dispute with certain criminal facets. The\n question which is required to be answered in this case is\n whether the power which independently lies with this Court\n to quash the criminal proceedings pursuant to the\n compromise arrived at, should at all be exercised?24. On an overall view of the facts as indicated\n hereinabove and keeping in mind the decision of this Court\n in B. S. Joshi's case (supra) and the compromise arrived at\n between the Company and the Bank as also clause 11 of\n the consent terms filed in the suit filed by the Bank, we\n are satisfied that this is a fit case where technicality should\n not be allowed to stand in the way in the quashing of the\n criminal proceedings, since, in our view, the continuance of\n the same after the compromise arrived at between the\n parties would be a futile exercise."14. In the case of Bhajanlal & Ors, it is observed by\nthe Hon'ble Supreme Court as under:"In the backdrop of the interpretation of the various\n relevant provisions of the Code under Ch.XIV and of the\n principles of law enunciated by this court in a series of\n decisions relating to the exercise of the extraordinary power\n underArt.226or the inherent powers under sec.482 of thePage 12 of 15Downloaded on : Mon Sep 18 20:38:57 IST 2023NEUTRAL CITATION\n\n\n\n\nR/SCR.A/2392/2014 ORDER DATED: 14/09/2023\n\n undefined\n\n\n\n\n Code which we have extracted and reproduced above, we\n give the following categories of cases by way of illustration\n wherein such power could be exercised either to prevent\n abuse of the process of any court or otherwise to secure the\n ends of justice, though it may not be possible to lay down\n any precise, clearly defined and sufficiently channelised and\n inflexible guidelines or rigid formulae and to give an\n exhaustive list of myriad kinds of cases wherein such power\n should be exercised.(1) Where the allegations made in the first information\n report or the complaint, even if they are taken at their face\n value and accepted in their entirety do not prima facie\n constitute any offence or make out a case against the\n accused.(2) Where the allegations in the first information report and\n other materials, if any, accompanying the FIR do not\n disclose a cognizable offence, justifying an investigation by\n police officers under sec.156(1) of the Code except under an\n order of a Magistrate within the purview of sec.155(2) of the\n Code.(3) Where the uncontroverted allegations made in the FIR or\n complaint and the evidence collected in support of the same\n do not disclose the commission of any offence and make out\n a case against the accused.Page 13 of 15Downloaded on : Mon Sep 18 20:38:57 IST 2023NEUTRAL CITATION\n\n\n\n\n R/SCR.A/2392/2014 ORDER DATED: 14/09/2023\n\n undefined\n\n\n\n\n (4) Where, the allegations in the FIR do not constitute a\n cognizable offence but constitute only a non-cognizable\n offence, no investigation is permitted by a police officer\n without an order of a Magistrate as contemplated under\n sec.156(2) of the Code.(5) Where the allegations made in the FIR or complaint are\n so absurd and inherently improbable on the basis of which\n no prudent person can ever reach a just conclusion that\n there is sufficient ground for proceeding against the accused.\n\n\n (6) Where there is an express legal bar engrafted in any of\n the provisions of the Code or the concerned Act (under\n which a criminal proceeding is instituted) to the institution\n and continuance of the proceedings and/or where there is a\n specific provision in the Code or the concerned Act,\n providing efficacious redress for the grievance of the\n aggrieved party.(7) Where a criminal proceeding is manifestly attended with\n mala fide and/or where the proceeding is maliciously\n instituted with an ulterior motive for wreaking vengeance on\n the accused and with a view to spite him due to private\n and personal grudge."15. Considering the aspect that now the dispute isPage 14 of 15Downloaded on : Mon Sep 18 20:38:57 IST 2023NEUTRAL CITATION\n\n\n\n\n R/SCR.A/2392/2014 ORDER DATED: 14/09/2023\n\n undefined\n\n\n\n\nsettled between the parties, the amount is already paid to\n\nthe employees and the employees have signed the receipts in\n\nreceipt of the same, and the settled legal position of law as\n\nlaid down by the Hon'ble Apex Court in the cases referred to\n\nhereinabove, I am of the considered opinion that no fruitful\n\npurpose will be served to continue the proceedings as even if\n\nthe petitioners are directed to face the trial, it will amount\n\nto futile exercise.16. Resultantly, all these petitions are allowed.\n\nCriminal Case Nos.19316 of 2013, 19317 of 2018, 19320 of\n\n2018, 19321 of 2018, 19322 of 2018, 19319 of 2018, 19318 of\n\n2018 respectively pending before the Labour Court,\n\nAhmedabad and consequential proceedings, if any, are hereby\n\nquashed and set aside. Rule is made absolute. Direct service\n\nis permitted.(SANDEEP N. BHATT,J)\nSRILATHAPage 15 of 15Downloaded on : Mon Sep 18 20:38:57 IST 2023 |
06b5899f-5731-57ae-823b-9c41e6efeeb2 | court_cases | Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member services -- Free for one month.\n\nCalcutta High Court (Appellete Side)\nPrasanta Hembram & Ors vs State Of West Bengal on 3 February, 2020Item No.145\n\n\n\n IN THE HIGH COURT AT CALCUTTA\n CRIMINAL APPELLATE JURISDICTION\n\nPresent:\nThe Hon'ble Justice Joymalya Bagchi\n And\nThe Hon'ble Justice Bibek Chaudhuri\n\n\n C.R.A.621 of 2016\n Prasanta Hembram & Ors.\n -Vs-\n State of West Bengal\n\n\nFor the Appellants : Mr. Kunal Ganguly\n Mr. Arunava Ganguly\n\n\nFor the State : Mr. S. G. Mukherjee, ld P.P.\n Mr. Partha Pratim Das\n\nHeard on : 3rd February, 2020\n\n\nJudgment on : 3rd February, 2020\n\nJoymalya Bagchi, J. :-\n\n The appeal is directed against the judgment and order dated 25.07.2016\n\nand 27.07.2016 passed by the learned Additional Sessions Judge - cum - Judge,\n\nSpecial Court, Chinsurah, Hooghly in Sessions Trial No. 2(1)/2015 arising out of\n\nSessions Case No.645 of 2014 convicting the appellants under Sections 302/34 of\n\nthe Indian Penal Code sentencing them to suffer rigorous imprisonment for life\n\nand to pay fine of Rs.3,000/- each in default to suffer further rigorous\n\nimprisonment for further three months.\n\n Prosecution case, as alleged, against the appellants is to the effect that\n\nPrasanta Hembram (appellant no. 1) was married to Chumki Kisku (deceased\n\nherein) in 2010 according to customs prevailing in their community. At the time of\n 2\n\n\nmarriage dowry was given to Prasanta as per his demands. Soon after the\n\nmarriage, Chumki was subjected to mental and physical torture by her husband,\n\nmother-in-law Bharati Hembram and uncle-in-law Phul Hembral to bring money\n\nfrom her parental home. Victim bore such torture patiently expecting that things\n\nwould improve in future. At times the appellants used to drive the victim out of the\n\nmatrimonial home. Matter was referred to the local panchayat authority. Upon\n\nintervention from well-wishers the appellants assured that they would not torture\n\nChumki in future. She returned to the matrimonial home. On 03.04.2014 Chumki\n\nwas physically assaulted by the appellants and murdered. On 04.04.2014 Mungli\n\nKisku (P.W. 1), mother of Chumki, was informed about her daughter's death. She\n\nrushed to the matrimonial home and found her daughter was lying on the floor.\n\nOn her written complaint, Pandua Police Station Case No. 245 of 2014 dated\n\n27.05.2014 under Sections 498A/406/304B/34 of the Indian Penal Code was\n\nregistered for investigation against the appellants. In conclusion of investigation\n\ncharge-sheet was filed and the case was committed to the Court of Sessions and\n\ntransferred to the Additional Sessions Judge - cum - Judge, Special Court,\n\nChinsurah, Hooghly for trial and disposal. Charges were framed under Sections\n\n498A/302/304B/34 of the Indian Penal Code. Prosecution examined 15 witnesses\n\nand exhibited a number of documents. Defence of the appellants was one of\n\ninnocence and false implication. In conclusion of trial, the trial judge by the\n\nimpugned judgment and order darted 25.07.2016 and 27.07.2016 convicted and\n\nsentenced the appellants, as aforesaid. By the selfsame judgment and order,\n\nhowever, accused persons were acquitted of the other charges levelled against\n\nthem.\n\n Learned Counsel appearing for the appellants submits that there was\n\ninordinate delay in lodging F.I.R. Although P.W. 6 was present at the time of\n 3\n\n\ninquest no allegation was levelled against the appellants with regard to the murder\n\nof the victim housewife. Accordingly, they are entitled to an order of acquittal.\n\n Learned Pubic Prosecutor with Mr. Das, learned Counsel, argued that the\n\nevidence on record shows that the victim housewife suffered homicidal death at\n\nher matrimonial home. Appellants were present at the place of occurrence and\n\nhave not given any explanation how the housewife suffered homicidal death. There\n\nis also evidence of torture on the housewife over demands of dowry during her\n\nlifetime. Accordingly, the order of conviction and sentence does not call for any\n\ninterference.\n\n I have considered the evidence on record in the light of the rival submissions\n\nof the parties. P.Ws. 1, 3 and 6 are the relations of the victim. P.W. 1 is her mother\n\nand de facto complainant in the case. She deposed her daughter was married to\n\nPrasanta Hembram. She commenced her matrimonial life at her matrimonial\n\nhome with her husband, Prasanta and mother-in-law, Bharati Hembram. Uncle-\n\nin-law, Phul Hembram used to reside with them. Her daughter was subjected to\n\nphysical torture at her matrimonial home over demands of dowry. She complained\n\nof such torture to her. She was informed of the incident by local people. She\n\narrived at the spot and saw black spot on the neck of her daughter. She also found\n\nblood oozing out from her nose. She put thumb impression on the petition of\n\ncomplaint. In cross-examination, she admitted that Phul Hembram did not reside\n\nin the same mess with Prasanta Hembram.\n\n P.W. 3 is the sister of Chumki. She deposed the matrimonial relations did\n\nnot behave well with her sister. Her sister died at her matrimonial home. She\n\nfound the dead body of her sister in the veranda with a blackish mark around her\n\nneck.\n 4\n P.W. 6 is the uncle of the deceased. He deposed the victim had died at her\n\nmatrimonial home.\n\n Evidence of the aforesaid relations appears to be corroborated by P.W. 2, a\n\nneighbour of P.W. 1. He deposed Prasanta and his uncle did not behave well with\n\nChumki. He had heard the incident from Kaliram Kisku, brother of the deceased.\n\n P.W. 13 is the post mortem doctor. He examined the dead body of the victim.\n\nHe opined death was due to effect of manual strangulation, ante-mortem and\n\nhomicidal in nature.\n\n Inquest over the body of the victim was conducted by P.W. 11, a police\n\nofficer and P.W. 14, executive magistrate. They proved the inquest reports (Exts. 5\n\nand 8). P.W. 14 deposed she found blood in the nose and mouth of the deceased.\n\nShe also found injuries on the right hand as well as neck of the deceased.\n\n P.W 12 is the investigating officer in the instant case. He visited the place of\n\noccurrence, prepared rough sketch map. He examined the de facto complainant\n\nand other witnesses. He collected post mortem report and submitted charge sheet.\n\n From the aforesaid evidence it is undisputed that the victim housewife\n\nsuffered homicidal death at her matrimonial home within four years of marriage.\n\n The question which falls for decision:- who is the perpetrator of such crime?\n\n It has been strenuously argued on behalf of the appellants that there is no\n\ndirect evidence connecting them with the murder of the housewife. It is also\n\nargued there is inordinate delay in lodging FIR.\n\n I find that P.W. 1, mother of the victim in the FIR stated due to mental\n\ndepression there was delay in lodging FIR. It appears that injuries were noted\n\nparticularly on the neck of the victim in the course of holding inquest by the police\n\nofficer, P.W 11 as well as the executive magistrate, P.W. 14. Subsequently, post\n\nmortem doctor P.W 13 opined that the victim had suffered ante mortem death due\n 5\n\n\nto strangulation. As forensic evidence on record particularly that of post mortem\n\ndoctor leaves no doubt that victim housewife was murdered, I am inclined to\n\naccede to the explanation given by the mother of the unfortunate housewife that\n\nowing to suddenness and trauma of the unfortunate incident befalling her she was\n\nso perplexed she failed to approach the police immediately and lodge FIR against\n\nthe appellants.\n\n Hence, conduct of P.W 1 in the aforesaid factual matrix does not appear to\n\nbe so unnatural or unreasonable as to improbabilise the prosecution case of\n\nhomicidal death of the housewife as a whole. Judged from this perspective I am of\n\nthe opinion delay in lodging FIR does not affect the truthfulness of the prosecution\n\ncase.\n\n On the other hand, there is overwhelming evidence on record that the\n\nvictim housewife suffered a brutal end at her matrimonial home. Her body was\n\nfound in the veranda of the matrimonial home with marks of injuries on her neck.\n\nBlood was seen oozing out from her mouth and nostril. Post mortem doctor also\n\nopined she suffered homicidal death due to manual strangulation.\n\n Under such circumstances, it was within the special knowledge of the\n\npersons who were ordinarily residing with the housewife at the matrimonial home\n\nhow she had suffered homicidal death.\n\n It is settled law burden of proof in a criminal case lies on the prosecution.\n\nHowever, in appropriate cases where any relevant fact is within the special\n\nknowledge of the accused, the onus shifts upon him to prove such fact. Court\n\nwould be loath to shift such onus on an accused lightly unless the circumstances\n\nestablished by the prosecution create an irrefutable inference that a relevant fact\n\nis exclusively in the knowledge of the accused. Circumstance leading to the\n\nhomicidal death of the housewife at her matrimonial home is a fact which is within\n 6\n\n\nthe special knowledge of the accused who was with her in the room at night when\n\nthe incident occurred. Hence, it would be incumbent on such an accused to\n\nexplain the circumstance leading to her homicidal death. Failure to discharge such\n\nonus would lead to an adverse inference of guilt against the said accused. Trial\n\ncourt appears to have resorted to the aforesaid presumption in law to record an\n\norder of conviction against all the appellants i.e. husband, mother-in-law and\n\nuncle-in-law of the victim housewife on the finding all of them were in the\n\nmatrimonial home on the fateful night. While doing so, the court appears to be\n\nglossed over the cross-examination of P.W 1 wherein she admitted that Phul\n\nHembram did not reside in the same mess with Prasanta and the victim\n\nhousewife. There is also no evidence on record that the couple shared the same\n\nroom with the mother-in-law i.e Bharati Hembram. In a case where the housewife\n\nsuffered homicidal death at her matrimonial home it is advisable not to set the net\n\ntoo wide and come to an inference of guilt against all the inmates of the\n\nmatrimonial home unless it is established beyond doubt that they were in the\n\nsame room with the housewife when she suffered homicidal death. Ordinarily, the\n\nhousewife would be in the exclusive company of her husband at night and not\n\nwith the other matrimonial relations. Under such circumstances, if she suffers\n\nhomicidal death as in the present case, the onus to explain the cause of death\n\nwould lie on her husband who shared her bed for the night and not on all the\n\nmatrimonial relations until and unless some additional evidence is led by the\n\nprosecution that they were also in the same room when the victim suffered\n\nhomicidal death.\n\n As the prosecution has failed to prove such fact qua appellant nos. 2 and 3\n\ni.e. mother-in-law and uncle-in-law of the victim housewife, I am inclined to\n\nextend the benefit of doubt to them. However, in the light of the materials on\n 7\n\n\nrecord which unerringly establish beyond doubt that appellant no 1 i.e. the\n\nhusband shared the bed with the victim housewife on the fateful night when she\n\nsuffered homicidal death, I am inclined to uphold the conviction and sentence\n\nrecorded against him.\n\n In the light of the aforesaid discussion, conviction and sentence of appellant\n\nno. 1 is upheld.\n\n Conviction and sentence of appellant nos. 2 and 3 are set aside.\n\n The period of detention suffered by appellant no. 1 during investigation,\n\nenquiry or trial shall be set off against the substantive sentence imposed on him in\n\nterms of Section 428 of the Code of Criminal Procedure.\n\n Appellant no. 2 and 3 shall be released from custody, if not wanted in any\n\nother cases, upon execution of bond to the satisfaction of the trial court which\n\nshall continue for six months in terms of section 437A of the Code of Criminal\n\nProcedure.\n\n The appeal is partly allowed.\n\n Copy of the judgment along with LCR be sent down to the trial court at once\n\nfor necessary compliance.\n\n Urgent Photostat Certified copy of this order, if applied for, be supplied\n\nexpeditiously after complying with all necessary legal formalities.\n\n\n\n I agree.\n\n\n(Bibek Chaudhuri, J.) (Joymalya Bagchi, J.)\n\n\n\n\nSDAS/TAMAL & PA |
4fb7e1be-a0ee-513b-b8c4-60da8108c80f | court_cases | Rajasthan High CourtSharvan Choudhary S/O Ram Ratan ... vs The State Of Rajasthan ... on 14 March, 2023Author:Sudesh BansalBench:Sudesh Bansal[2023/RJJP/004178]\n\n HIGH COURT OF JUDICATURE FOR RAJASTHAN\n BENCH AT JAIPUR\n\n S.B. Civil Writ Petition No. 17092/2022\n\nDeepak Kumar Son Of Shri Ashok Kumar, Aged About 22 Years,\nResident Of Village And Post Kawai, Tehsil Nadbai, District\nBharatpur (Raj.)\n ----Petitioner\n Versus\n1. State Of Rajasthan, Department Of Home, Through Its\n Secretary, Govt. Secretariat, Jaipur (Raj.)\n2. Director General Of Police, Police Head Quarter, Lalkothi,\n Jaipur (Raj.)\n3. Inspector General Of Police (Recruitment And Promotion\n Board), Rajasthan, Jaipur (Raj.)\n4. Director General Of Police, C.i.d., I.b. Jaipur(Raj.)\n ----Respondents\n Connected With\n S.B. Civil Writ Petition No. 15785/2022\nRamkishore Son Of Shri Hanuman Prasad, Aged About 22 Years,\nResident Of Village Itawa, Post Tejya Ka Bass, Tehsil Phulera,\nDistrict Jaipur (Raj.)\n ----Petitioner\n Versus\n1. State Of Rajasthan, Department Of Home, Through Its\n Secretary, Govt. Secretariat, Jaipur (Raj.)\n2. Director General Of Police, Police Head Quarter, Lalkothi,\n Jaipur (Raj.)\n3. Superintendent Of Police (Recruitment And Promotion\n Board), Rajasthan, Jaipur (Raj.)\n4. Commandant, 14Th Battalion, R.a.c. Jaipur (Raj.)\n ----Respondents\n S.B. Civil Writ Petition No. 16241/2022\nDinesh Kumar Karad Son Of Shri Ram Kalyan Karad, Aged About\n28 Years, Resident Of Shri Radhey Krishna Store, Hariom Nagar,\nRangwari Road, Kota (Raj.)\n ----Petitioner\n Versus\n1. State Of Rajasthan, Department Of Home, Through Its\n Secretary, Govt. Secretariat, Jaipur (Raj.)\n2. Director General Of Police, Police Head Quarter, Lalkothi,\n Jaipur (Raj.)\n3. Inspector General Of Police (Recruitment And Promotion\n Board), Rajasthan, Jaipur (Raj.)\n4. Commandant, 2Nd Battalion, R.a.c., Kota (Raj.)\n ----Respondents\n\n (Downloaded on 11/11/2023 at 04:31:10 PM)\n [2023/RJJP/004178] (2 of 16) [CW-17092/2022]\n\n\n S.B. Civil Writ Petition No. 16284/2022\nChain Singh Nathawat Son Of Shri Dashrath Singh Nathawat,\nAged About 33 Years, Resident Of Thingla Road, Shiv Mandir Ke\nSamne, Sawai Madhopur (Raj.)\n ----Petitioner\n Versus\n1. State Of Rajasthan, Department Of Home, Through Its\n Secretary, Govt. Secretariat, Jaipur (Raj.)\n2. Director General Of Police, Police Head Quarter, Lalkothi,\n Jaipur (Raj.)\n3. Inspector General Of Police (Recruitment And Promotion\n Board), Rajasthan, Jaipur (Raj.)\n4. Superintendent Of Police, Kota Rural, Kota (Raj.)\n ----Respondents\n S.B. Civil Writ Petition No. 16316/2022\nManisha Kumari Meena D/o Kalu Ram Meena, Aged About 23\nYears, R/o Village Dulawa, Po Pundarpapa, District Dausa\nRajasthan.\n ----Petitioner\n Versus\n1. State Of Rajasthan, Through Principal Secretary\n Department Of Home, Government Secretariat,\n Government Of Rajasthan, Jaipur.\n2. Director General Of Police, Rajasthan, Jaipur.\n3. Superintendent Of Police, Jaipur Rural, Jaipur.\n ----Respondents\n S.B. Civil Writ Petition No. 16353/2022\nSumit Kumar Sharma Son Of Shri Mahaveer Prasad Sharma,\nAged About 21 Years, R/o Village And Post Sadaara, Tehsil And\nPolice Station Sawar, District Ajmer (Raj.).\n ----Petitioner\n Versus\n1. State Of Rajasthan, Through Principal Secretary,\n Department Of Home, Secretariat, Jaipur.\n2. The Director General Of Police, Police Head Quarters,\n Near Nehru Place, Tonk Road, Jaipur.\n3. Rajasthan Public Service Commission, Through Its\n Secretary, Ajmer.\n4. Inspector General Of Police, Kota Renj, Kota (Rajasthan)\n5. Superintendent Recruitment And Promotion Board,\n Rajasthan, Jaipur, Off At - Dgp Office, Lalkothi, Jaipur.\n ----Respondents\n S.B. Civil Writ Petition No. 16597/2022\nMohit Didel S/o Dharm Singh Choudhary, Aged About 21 Years,\n\n (Downloaded on 11/11/2023 at 04:31:10 PM)\n [2023/RJJP/004178] (3 of 16) [CW-17092/2022]\n\n\nR/o Didel Ki Dhani, Itawa Phulera, Jaipur (Rajasthan)\n ----Petitioner\n Versus\n1. State Of Rajasthan, Through Secretary Home\n Department, Secretariat, Jaipur\n2. Director General Of Police, Jaipur, Rajasthan\n3. Commissioner, Rajasthan Police, Jaipur, Rajasthan\n ----Respondents\n S.B. Civil Writ Petition No. 16827/2022\nPooja Gurjar D/o Ratiram Gurjar, Aged About 23 Years, R/o 29 D,\nRadha Vihar Colony, Hathoj, Kalwar Road, Jaipur, Rajasthan.\n ----Petitioner\n Versus\n1. The State Of Rajasthan, Through Its Home Secretary,\n Secretariat, Rajasthan, Jaipur\n2. The Secretary, Department Of Personnel, Government\n Secretariat, Jaipur.\n3. The Director General Of Police (Recruitment), Police\n Headquarter, Rajasthan, Jaipur.\n4. The Additional Director General Of Police, Recruitment\n And Promotion Board, Rajasthan, Jaipur.\n5. The Superintendent Of Police, Jodhpur Rural, District\n Jodhpur.\n ----Respondents\n S.B. Civil Writ Petition No. 16976/2022\n Sharvan Choudhary, S/o Shri Ram Ratan Choudhary, Aged\n About 23 Years, R/o VPo Chouru, Tehsil Phagi, District Jaipur,\n Rajasthan\n ----Petitioner\n Versus\n 1. The State Of Rajasthan, Through its Home Secretary,\n Secretariat, Rajasthan, Jaipur\n 2. The Secretary, Department of Personnel, Government\n Secretariat, Jaipur\n 3. The Director General of Police (Recruitment), Police\n Headquarter, Rajasthan, Jaipur\n 4. The Additional Director General of Police, Recruitment\n and Promotion Board, Rajasthan, Jaipur\n 5. The Superintendent of Police, Kota City, Kota\n\n ----Respondents\n S.B. Civil Writ Petition No. 17039/2022\nSupriya Choudhary, D/o Shri Onkar Mal Choudhary, Aged About\n23 Years, R/o Kacholiya Ki Dhani, Shri Govindpur, Tehsil Amer\nDistrict Jaipur\n\n (Downloaded on 11/11/2023 at 04:31:10 PM)\n [2023/RJJP/004178] (4 of 16) [CW-17092/2022]\n\n\n ----Petitioner\n Versus\n1. State Of Rajasthan, Through Principal Secretary\n Department Of Home, Government Secretariat,\n Government Of Rajasthan, Jaipur\n2. Director General Of Police, Rajasthan Jaipur\n3. Superintendent Of Police Intelligence, Jaipur\n ----Respondents\n S.B. Civil Writ Petition No. 17247/2022\nRahul Kumar Meena S/o Shri Ramkesh Meena, Aged About 22\nYears, R/o Datasuti, Tehsil Bamanwas, Danta Sooti\nSawaimadhopur Rajasthan\n ----Petitioner\n Versus\n1. State Of Rajasthan, Through Principal Secretary\n Department Of Home, Government Secretariat,\n Government Of Rajasthan, Jaipur\n2. Director General Of Police Rajasthan, Jaipur\n3. Superintendent Of Police, Telecommunication, Jaipur\n ----Respondents\n S.B. Civil Writ Petition No. 17382/2022\nKamal Verma Son Of Shri Ramesh Kumar Verma, Aged About 22\nYears, Resident Of Ward No. 07, Sed Ka Mohalla, Neem Ka\nThana, District Sikar- Rajasthan- 332713.\n ----Petitioner\n Versus\n1. State Of Rajasthan, Through Principal Secretary To Home\n Department, Government Of Rajasthan, Secretariat,\n Jaipur.\n2. Director General Of Police, Rajasthan, Police Headquarter,\n Jaipur.\n3. Additional Director General Of Police, Recruitment And\n Promotion Board, Rajasthan, Jaipur.\n ----Respondents\n S.B. Civil Writ Petition No. 17415/2022\nSanjana Saini D/o Hanuman Sahay Saini, Aged About 27 Years,\nR/o 346, Heeda Ki Mori, Near Gurudwara, Surajpole Bazar,\nJaipur, District Jaipur, Rajasthan.\n ----Petitioner\n Versus\n1. The State Of Rajasthan, Through Its Home Secretary,\n Secretariat, Rajasthan, Jaipur\n2. The Secretary, Department Of Personnel, Government\n Secretariat, Jaipur.\n\n\n (Downloaded on 11/11/2023 at 04:31:10 PM)\n [2023/RJJP/004178] (5 of 16) [CW-17092/2022]\n\n\n 3. The Director General Of Police (Recruitment), Police\n Headquarter, Rajasthan, Jaipur.\n 4. The Additional Director General Of Police, Recruitment\n And Promotion Board, Rajasthan, Jaipur.\n 5. The Commandant, 4Th Battalion, Rac, Jaipur.\n ----Respondents\n\n For Petitioner(s) : Petitioners present in person in\n SBCWP Nos. 16827/2022,\n 16976/2022 & 17415/2022\n For Respondent(s) : Mr. Rajesh Maharshi, AAG with\n Ms. Kinjal Surana\n Mr. Rupin Kala, GC\n\n\n\n HON'BLE MR. JUSTICE SUDESH BANSAL\n\n Judgment\n\n 14/03/2023\nReportable\n 1. At the outset, it may be noticed that Advocates have taken a\n\n call to abstain from judicial work and not to appear in Courts since\n\n 20th February, 2023 onwards and today as well, no advocate for\n\n and on behalf of petitioner(s) has put in appearance, therefore,\n\n few of petitioners, who are present in person, have been heard.\n\n Since grievances of petitioner(s) in these writ petitions, are\n\n substantially similar, therefore, all these writ petitions have been\n\n considered on merits as per material available on record and are\n\n being decided by this common judgment.\n\n 2. It appears from record that petitioners having participated\n\n and qualified written examination of Rajasthan Police Constable\n\n Examination-2021, for appointment on the post of Constable in\n\n different categories, but could not appear/qualify the Physical\n\n Efficiency Test (hereinafter for short "PET") due to remaining\n\n absent being unfit on the scheduled date(s) for such test, because\n\n (Downloaded on 11/11/2023 at 04:31:10 PM)\n [2023/RJJP/004178] (6 of 16) [CW-17092/2022]\n\n\nof suffering from either serious sickness or injury. And therefore,\n\npetitioners have preferred these writ petitions, praying for an\n\nanother chance/opportunity for PET and to re-fix/reschedule dates\n\nfor their PET and consequently, to consider their candidature for\n\nappointment on merits.\n\n3. In support, petitioners have placed reliance on a judgment of\n\nCoordinate Bench of this Court dated 24.08.2020 passed in SB\n\nCivil Writ Petition No.17260/2019 titled Deepak Singh\n\nKhatana Vs. State of Rajasthan, wherein the Court, after\n\nplacing reliance on a judgment of Hon'ble Supreme Court in case\n\nof Mahendra Pratap Singh Vs. State of Uttar Pradesh\n\n[(2019) 13 SCC 706], in somewhat similar facts and\n\ncircumstances, in respect of recruitment for the post of Sub\n\nInspector, pursuant to advertisement dated 05.10.2016, declared\n\nthat since petitioner was suffering with dengue fever at the time of\n\nscheduled date of his Physical Efficiency Test, therefore, he\n\ndeserved second chance to appear in PET/PST, and accordingly,\n\ndirected respondents to re-conduct the PET/PST for the petitioner.It has also been stated by petitioners that since they have\n\nqualified the written examination and were eligible to appear for\n\nPET, however because of unwanted and unavoidable\n\ncircumstances of suffering from serious sickness/injury, could not\n\nappear in the PET on the scheduled date(s), and it is not\n\ndeliberate or negligent fault on part of petitioner(s), therefore,\n\nsympathetic view be taken in favour of petitioners and one more\n\nchance/opportunity to participate in the PET be accorded to(Downloaded on 11/11/2023 at 04:31:10 PM)[2023/RJJP/004178] (7 of 16) [CW-17092/2022]\n\n\npetitioners, so that their candidature may be considered for\n\nappointment on merits in the present recruitment process-2021.4. Learned counsel for respondents, while opposing writ\n\npetitions, contend that for appointment on the post of Constable in\n\nvarious districts, the recruitment process was initiated vide\n\nadvertisement dated 29.10.2021 under provisions of Rajasthan\n\nPolice Subordinate Service Rules, 1989 (as amended) (hereinafter\n\nfor short "the Rules of 1989"). He has pointed out that in the\n\nadvertisement itself it was specifically indicated that determination\n\nof vacant posts, qualification, eligibility and procedure of\n\nrecruitment etc. would be governed as detailed out in Standing\n\nOrder (S.O.) No. 29/2021 dated 03.09.2021, issued by the Police\n\nHeadquarter, Rajasthan, Jaipur. He has pointed out that Clause\n\nNo.9 of the advertisement, prescribed the procedure of\n\nrecruitment, which reads as under:-9. भर्ती हरे चयन प्र्रकप्रक्रियर-कांस्टबल पद पर चयन राजससान पललस अधअधीनसस सटेवा लनयम, 1989 कट लनयम 25 एेवं राजससान\nपललस अलधलनययम 2007 कट लनयम 28(3) कट पाेवधानसार लकया जायटगा। परअधीका कट स सभअधी चरचरण चरणों कट कल\n200 अंक है लजनककी गरचरणा लनमनानसार ककी जाएगअधी:-परअधीका का चरचरण कांस्टबल कांस्टबल चालक बैण्\n सामानय/पललस\n दूरसंचार\nलललित परअधीका 150 150 लागू नहींशारअधीररक दकता परअधीका 30 20 20दकता परअधीका लागू नहीं 30 30लेवशटष योगयता (एन.सअधी.सअधी, होमगा््\nएेवं पललस सट समबंलधत लेवषय चरणों म\nल्पलोमा/उपालध पाप) पमाचरण पत्र कट 20 लागू नहीं लागू नहीं\nआधार पर आेवंल्त लकयट जानट ेवालट\nअंकअंक चरणों का योग 200 200 505. Learned counsel for respondents has placed on record, a\n\ncopy of the S.O. No.29/2021 dated 03.09.2021 on record and has(Downloaded on 11/11/2023 at 04:31:10 PM)[2023/RJJP/004178] (8 of 16) [CW-17092/2022]\n\n\npointed out that as per Clause 9 of the same, it is clear that the\n\nprocess of selection for the post of Constable shall be as per\n\nprovisions under Rule 25 of the Rules of 1989 and in Part-I, the\n\nmanner and syllabus of written examination is prescribed and in\n\nPart-II, the manner of PET is prescribed. It has been provided in\n\nPart-II that all candidates, declared successful in written\n\nexamination, shall undergo Physical Efficiency Test (PET) and\n\nPhysical Standard Test (PST) at a date and place specified by the\n\nDGP. PET will be held first followed by PST. In respect of PET, it is\n\nspecifically stated that marks obtained in the PET shall be\n\nconsidered for determining the merit of successful candidates. The\n\nCandidates will undergo the PET at their own risk. Any candidate\n\nfailing in PET will be disqualified. Only one chance shall be\n\nprovided for PET. There will be no appeal for PET. Candidate shall\n\nbe required to submit a Fitness Certificate issued by a Government\n\nMedical Officer, prior to appearing for PET. In respect of women\n\ncandidates who are pregnant, it is stipulated that if a pregnant\n\nwomen candidate presents herself before the Board, the Board\n\nshall decide for extension of PET/PST after consideration of marks\n\nobtained in the written exam. The candidate so allowed shall\n\nsubmit an application for conducting PET/PST after a period of two\n\nmonths of her delivery. Failure to do so, will result in cancellation\n\nof her candidature.6. Learned counsel for respondents contended that as per\n\nterms and conditions indicated in the advertisement dated\n\n29.10.2021 as also in the S.O. dated 03.09.2021, it stands clear\n\nthat there is no provision/rule to provide another(Downloaded on 11/11/2023 at 04:31:10 PM)[2023/RJJP/004178] (9 of 16) [CW-17092/2022]\n\n\nchance/opportunity for PET, if candidate does not appear in PET on\n\nor between the scheduled date(s) for his/her PET. Only relaxation,\n\nin case of pregnant women candidates has been provided, subject\n\nto prescribed limits as indicated in the S.O. dated 03.09.2021. It\n\nhas been submitted that indisputably, none of the petitioner(s)\n\nhas/have appeared in the PET on or within the fixed time, date\n\nand scheduled for physical test. In absence of any provision/rule,\n\nthe deferment and extension of PET beyond the prescribed\n\nschedule was not permissible and therefore, request of deferment\n\nof PET by petitioner(s), as per suitability of candidates, on\n\nacquiring their fitness, was not acceptable. Learned counsel\n\nsubmits that schedule of PET in respect of the present recruitment\n\nof Constable has over and the process of selection has already\n\nbeen completed. Learned counsel submits that prayer made by\n\npetitioner(s) is not liable to be acceptable and all these writ\n\npetitions are required to be dismissed.7. Learned counsel for respondents has placed reliance on order\n\ndated 18.09.2018 passed in SB Civil Writ Petition\n\nNo.14086/2018 titledSunil Kumar Vs. State of Rajasthanwhich was affirmed by the Division Bench in DB Special Appeal\n\n(Writ) No.1685/2018 vide order dated 14.11.2018.Reliance has also been placed on a judgment of Division\n\nBench of the Rajasthan High Court dated 30.01.2020 passed in\n\nDB Special Appeal (Writ) No.1310/2019 titledDropadi Jyani\n\nVs. State of Rajasthan.(Downloaded on 11/11/2023 at 04:31:10 PM)[2023/RJJP/004178] (10 of 16) [CW-17092/2022]\n\n\n Further the order/judgment dated 09.11.2022 passed by\n\nthe Division Bench in DB Special Appeal Writ No.1129/20252\n\ntitledState of Rajasthan Vs. Bharat Yadavas also on the order\n\ndated 03.02.2023, passed by the Division Bench in DB Review\n\nPetition (Writ) No. 218/2022, affirming the order dated\n\n09.11.2022, have also been placed on record. In all these cases,\n\nprayer for deferment of PET of the petitioner(s), was declined in\n\nabsence of any provision either in the advertisement or in the\n\nrelevant Rule or Standing Order.8. Heard. Considered.9. A copy of the advertisement dated 29.10.2021, whereby the\n\nrecruitment process-2021 for appointment on the post of\n\nConstable was initiated and a copy of the S.O. No.29/2021 dated\n\n03.09.2021, are available on record. A perusal of relevant Clause\n\nNo.9 of the advertisement dated 29.10.2021 as mentioned\n\nhereinabove as also Clause 9 of the S.O. dated 03.09.2021,\n\nclearly indicates that the process of selection for the post of\n\nConstable shall be as per provisions under Rule 25 of the Rules of\n\n1989. It is not in dispute that final merit list for selection for the\n\npost in question of Constable, is to be prepared on the basis of\n\nmarks obtained in written examination as well as in PET, therefore,\n\nit is essential for candidate to successfully qualify the PET/PST as\n\nper the prescribed criteria, for consideration of his/her candidature\n\nfor selection on merit. In the advertisement dated 29.10.2021, it\n\nis specifically indicated in bold letters that the procedure for\n\nselection shall be governed and finalized as per the S.O.(Downloaded on 11/11/2023 at 04:31:10 PM)[2023/RJJP/004178] (11 of 16) [CW-17092/2022]\n\n\nNo.29/2021 dated 03.09.2021. In the S.O. dated 03.09.2021, it is\n\nstipulated that any candidate failing in PET will be disqualified and\n\nonly one chance shall be given for PET and there will be no appeal\n\nfor PET. As much as candidate shall be required to submit fitness\n\ncertificate issued by the Government Medical Officer prior to\n\nappearing for PET. There is no provision in the advertisement/S.O\n\nfor deferment or providing a second chance/opportunity for PET,\n\nexcept in case of pregnant women candidates. It is admitted case\n\nof petitioner(s) that he/she was/were given an opportunity to\n\nappear in the PET as per the schedule during which the PET was\n\nconducted by respondents. Petitioner(s) failed to appear in PET for\n\nwhich petitioner, states different reasons either because of\n\nsuffering from serious sickness/injury or fever, for whatsoever\n\nreason may, but it is undisputed fact that petitioner(s) did not\n\nappear for PET on the scheduled time & date(s). As per scheme of\n\npreparing merit list, in absence of appearing in PET, the\n\ncandidature of petitioner(s) cannot be considered for appointment\n\non merits. Therefore, petitioner(s) has/have made prayer for an\n\nanother chance/opportunity and to reschedule the date for their\n\nPET. But petitioner(s) have failed to point out any provision or rule\n\nunder which they can claim another chance/opportunity for the\n\nPET, to enable them for consideration of their candidature for\n\nappointment on merits.10. In case of Deepak Singh Khatana (supra) on which\n\npetitioners have placed reliance, learned Single Judge has placed\n\nreliance on judgment of the Hon'ble Supreme Court delivered in\n\ncase of Mahendra Pratap Singh (supra). A perusal of judgment(Downloaded on 11/11/2023 at 04:31:10 PM)[2023/RJJP/004178] (12 of 16) [CW-17092/2022]\n\n\nof the Apex Court, indicates that in the said case, the Competent\n\nAuthority had issued a circular permitting candidates to participate\n\nin Physical Efficiency Test on any subsequent date, who have not\n\nparticipated in the Physical Efficiency Test on account of physical\n\nillness. The case of petitioner(s) in the said case was that though\n\nthey were not physically fit to participate in the PET and yet, they\n\nwere compelled to participate therefore, on the basis of circular\n\nissued by the Competent Authority fixing a subsequent date and\n\ndeferring the physical test for those candidates who were unable\n\nto participate for physical test on account of their physical illness,\n\npetitioners sought a second chance. Under that peculiar facts and\n\ncircumstances, prayer to grant second chance to petitioner(s) for\n\nPET/PST was acceded.This Court cannot and does not disagree with the ratio of law\n\nlaid down by the Hon'ble Supreme Court in case of Mahendra\n\nPratap Singh (supra), however, applying that ratio to the facts of\n\ncase at hand, there is no provision neither in the advertisement\n\ndated 20.09.2021 nor in the S.O. dated 03.09.2021, by which\n\nindisputably the present recruitment process for appointment on\n\nthe post of Constable-2021 is governed, for providing a second\n\nchance/opportunity for PET to candidates who did not/could not\n\nappear for PET on the scheduled time & date(s). Rather under\n\nClause 9 of the S.O. dated 03.09.2021, it is specifically stipulated\n\nthat "only one chance shall be given for PET". Thus in absence of\n\nany provision or rule for deferment or providing a second\n\nchance/opportunity of PET, in the present recruitment process, the\n\njudgment of the Apex Court in case of Mahendra Pratap Singh(Downloaded on 11/11/2023 at 04:31:10 PM)[2023/RJJP/004178] (13 of 16) [CW-17092/2022]\n\n\n(supra), and the judgment of Coordinate Bench in case of Deepak\n\nSingh Khatana (supra) do not render any help/support to the\n\ncase of petitioner(s).11. On facts of the present case, the ratio of law as expounded\n\nin cases ofSunil Kumar(supra) &Dropadi Jyani(supra) stands\n\nsquarely applicable.In case ofSunil Kumar(supra) vide order\n\ndated 18.09.2018, learned Single Judge has observed as under:"The petitioner has participated in a recruitment process,\n where the appointments are required to be granted based on\n inter se merit of the candidates by including the marks\n obtained at Written Examination and PET subject to their\n fulfilling PST. Though unfortunate it is that the petitioner\n suffered accident and consequential knee surgery, the PET of\n the petitioner cannot be postponed indefinitely, i.e. till such\n time the petitioner declared fit to undergo PET.A bare look at the requirements of PET indicates that\n the same is quite stressful, wherein a candidate is required\n to run for 5 kilometers within maximum 25 minutes, based\n on which, the marks are awarded. The Doctors have\n presently advised the petitioner to avoid running in any form\n for next 3 months and, therefore, it is absolutely speculative\n as to when the petitioner would gain medical fitness to\n undertake 5 kilometers running and, therefore, the plea\n seeking deferment of the PET of the petitioner cannot be\n countenanced."The aforesaid order/judgment dated 18.09.2018 has been\n\naffirmed by the Division Bench in DB Special Appeal (Writ)\n\nNo.1685/2018 vide order dated 14.11.2018 and held as under:"Successfully clearing the written examination for being appointed\n as a Constable GD the problem which the appellant faced was of\n not being able to participate at the physical efficiency test to be\n held on 10.09.2018. During the physical efficient test, the\n petitioner was required to run 5 kms. in 25 minutes. The appellant\n suffered an accident and had to undergo operation of the left knee\n on 03.08.2018 he was advised not to run for the next three\n months.2. The appellant made a request to defer he being subjected to\n the physical efficient test, the department refused because this\n would have delayed drawing up to the final merit list and those\n who had cleared the written examination and had also cleared\n the physical efficient test. The appellant filed a writ petition(Downloaded on 11/11/2023 at 04:31:10 PM)[2023/RJJP/004178] (14 of 16) [CW-17092/2022]\n\n\n relying upon clause 12 of the standing order, which reads as\n under:12. Medical Examination:-Immediately after the declaration of the merit list,\n candidates whose names appear in the merit list shall be\n required to undergo a Medical Test by a Government Medical\n Officer. The Appointing Authority shall move the Chief Medical\n and Health Officer/Principal Medical Officer concerned to detail\n one or more medical officers, as required, for this purpose as\n per enclosed proforma (Annexure E).Candidates who are found temporarily unfit and whose\n defect can be rectified within 6 months as per the opinion of\n the Medical Officer shall be eligible for appointment after the\n said period provided they are found fit by medical board.\n Candidates who fail to conform to the prescribed standards of\n medical fitness even on re-examination within stipulated time\n shall be declared medically unfit for appointment and their\n candidature shall stand cancelled.3. The learned Single Judge has correctly pointed out that the\n said clause pertained to the requirement of government servants\n to be declared medically fit after being medically examined before\n they are to joint government service. The clause simply records\n that those fond temporarily medically unfit and whose defects can\n be rectified within six months, shall be eligible for appointment\n after said period provided they are found to be fit by the medical\n board. The clause does not relate to deferment of undergoing\n physical examination test." (Emphasis Supplied)12. The Division Bench, in case ofDropadi Jyani(supra),\n\nfollowed and placed reliance on the observations made in case ofSunil Kumar(supra), dismissed the special appeal vide order\n\ndated 30.01.2020, declining to accord any second chance for the\n\nPhysical Test.13. The ratio of law as expounded in the case ofSunil Kumar(supra) of learned Single judge and in case ofDropadi Jayani(supra) of the Division Bench, have been followed by the Division\n\nBench, recently in case ofState of Rajasthan & Anr. Vs.\n\nBharat Yadav & Anr.in DB Special Appeal Writ\n\nNo.1129/2022 vide order dated 09.11.2022 wherein the order\n\nof learned Single Judge, allowing writ petition and issuing direction\n\nto respondents to re-conduct the PET of petitioner in respect of(Downloaded on 11/11/2023 at 04:31:10 PM)[2023/RJJP/004178] (15 of 16) [CW-17092/2022]\n\n\nrecruitment for the post of Constable, was quashed and special\n\nappeal was allowed. Further, Review Petition (Writ) No. 218/2022\n\npreferred to review the final order dated 09.11.2022, came to be\n\ndismissed vide order dated 03.02.2023 and while dealing the\n\nalternative argument of learned counsel for review petitioner,\n\nwhich has also been made here that since petitioner had qualified\n\nthe written examination, but could not appear in PET due to\n\nmeeting with an accident and suffering an injury/illness, therefore,\n\nsympathetic view to allow him in PET be taken. The Division Bench\n\nhas observed as under -"We find no force in the alternative argument of the counsel\n for the Review Petitioner that sympathetic view be taken in\n favour of the petitioner. Sympathy alone cannot be a ground\n to grant relief to the petitioner. It is well settled principle of\n law that sympathy which is not within the precincts of law,\n cannot be the basis to grant something which is otherwise\n impermissible. The relief sought for cannot be granted to the\n review petitioner by adopting a sympathetic view."14. At this juncture, this Court deems it just and proper to make\n\na clarification that in case ofSunil Kumar(supra), the appellant\n\nrelied upon the Clause 12 of the Standing Order, seeking\n\ndeferment of Physical Efficiency Test and the Division Bench, in its\n\norder dated 14.11.2018, has observed that the Clause 12,\n\nextracted in the order itself, does not relate to deferment of\n\nundergoing Physical Efficiency Test. In the present S.O. dated\n\n03.09.2021, Clause 12 pertains to medical examination in similar\n\nterms finds place, but such Clause talks about medical\n\nexamination of those candidates who have declared successful on\n\nmerits after qualifying the written test and PET/PST. The medical\n\nexamination, conducted under Clause 12 is not applicable before(Downloaded on 11/11/2023 at 04:31:10 PM)[2023/RJJP/004178] (16 of 16) [CW-17092/2022]\n\n\n completion of selection process and at the stage of appearing for\n\n PET. Thus, it is made clear that the Clause 12 of the S.O. dated\n\n 03.09.2021, does not come to rescue to the petitioner(s) for\n\n seeking deferment of the PET.15. For the reasons and discussions made hereinabove, the\n\n prayer of petitioner(s) to provide second chance/opportunity for\n\n PET is not acceptable and instant writ petitions, having no\n\n substance, are hereby dismissed. No costs.16. Interim stay order(s) passed in favour of petitioner(s), if any,\n\n stand(s) vacated accordingly.17. Stay application and other pending application(s), if any,\n\n stand disposed of.18. Copy of this judgment be placed in each file.(SUDESH BANSAL),J\n SACHIN/ 56, 57, 65, 67,\n 68, 69, 72, 75, 79, 80,\n 81, 82 & 83(Downloaded on 11/11/2023 at 04:31:10 PM)Powered by TCPDF (www.tcpdf.org) |
3f535022-6d8b-5231-bf2a-ff01acccd3a6 | court_cases | Telangana High CourtAyesha Bin Abdad vs The State Of Telangana And 3 Others on 18 February, 2020Author:T. Vinod KumarBench:T. Vinod KumarHONOURABLE SRI JUSTICE T. VINOD KUMAR\n\n WRIT PETITION No.2235 OF 2020\n\nORDER (ORAL) :This writ petition is filed by the petitioner questioning the\n\ninaction of respondent No.4 - Station House Officer, Women Police\n\nStation, Charminar, Hyderabad, in conducting investigation into\n\nCrime No.250 of 2019 for the offences punishable underSections 498-A,406and506of Indian Penal Code, 1860, andSections 3and4of Dowry Prohibition Act, 1961, dated 23.11.2019,\n\nas being illegal and arbitrary, and for a consequential direction to\n\nrespondent No.4 to complete the investigation and to file charge sheet\n\nbefore the Magistrate concerned in accordance with law.2. Heard Sri Gajanand Chakravarthi, learned counsel for the\n\npetitioner, and learned Assistant Government Pleader for Home\n\nappearing for respondent Nos.1 to 4, and perused the material on\n\nrecord.3. The learned Assistant Government Pleader for Home based\n\non the written instructions dated 04.02.2020, a copy of which is\n\nplaced on record, submits that on receipt of the complaint from the\n\npetitioner, a case has been registered by respondent No.4 in\n\nCrime No.250 of 2019 on 23.11.2019 for the offences punishable\n\nunderSections 498-A,406and506of Indian Penal Code, 1860, andSections 3and4of Dowry Prohibition Act, 1961, against accused\n\nNos.1 to 10 and the matter is being investigated into by the2Sub Inspector of Police, Women Police Station, Charminar,\n\nHyderabad.(a) The learned Assistant Government Pleader further submits\n\nthat during the course of investigation, detailed statements of LWs.1\n\nto 3 were recorded, notices underSection 41-Aof the Code of\n\nCriminal Procedure, 1973, were issued to the accused on 06.01.2020\n\nand the same has been acknowledged by accused No.1 on 08.01.2020\n\nand the investigation is pending for further evidence. It is further\n\nsubmitted that the investigating officer visited the place of offence and\n\nother probable places and tried to collect more evidence to proceed\n\nfurther in the case, but no one came forward to speak anything and\n\nefforts are being continued to examine some more witnesses and\n\ncollect evidence to proceed further in the matter.(b) It is also submitted by the learned Assistant Government\n\nPleader that the police are discharging their legitimate duties and\n\ninvestigating into the matter by following due procedure of law and\n\nthe investigation would be completed expeditiously and final report\n\nwill be filed before the competent Court.4. Having regard to the aforesaid submissions made by the\n\nlearned Assistant Government Pleader for Home on behalf of the\n\nrespondents' authorities, this Court is of the view that, no interference\n\nis called for into investigation of the crime at this stage, as such, no\n\norders are required to be passed in the matter.35. With the above observations, the writ petition is closed.\n\nNo order as to costs.As a sequel thereto, miscellaneous petitions, if any, pending in\n\nthe writ petition stand closed._______________________\n T. VINOD KUMAR, J\nFebruary 18, 2020.PV |
612406bc-9fba-5116-9d43-df34e788b541 | court_cases | Jammu & Kashmir High CourtReeta Sharma vs Ut Of J&K And Others on 6 February, 2023Sr. No.39\n\n\n\n\n HIGH COURT OF JAMMU & KASHMIR AND LADAKH\n AT JAMMU\n WP(C) No.2524/2021\n\nReeta Sharma .....Appellant(s)/Petitioner(s)\n\n Through: None\n\n Vs\n\nUT of J&K and others ..... Respondent(s)\n\n Through: Mr. Raman Sharma, AAG\n Mr. Suraj Singh, GA\n\nCoram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE\n\n ORDERIn this petition, the petitioner has called in question the Government Order\n\nNo.919-Edu of 2018 dated 16.11.2018, whereby Rehbar-e-Taleem Scheme for\n\nengagement/appointment of persons as Rehbar-e-Taleem in various government\n\nschools was formally closed. A Division Bench of this Court has already\n\ndecided the issue with regard to the validity of the impugned Government Order\n\nin SWP No.3004/2018 titledRuksana Jabeen v. State of J&K and othersand\n\nother clubbed matters vide judgment dated 04.02.2023.The Division has upheld the constitutional validity of the impugned\n\nGovernment Order No.919-Edu of 2018 and has also issued certain directions\n\nwith regard to the impact of the Government order on pending and decided\n\nlitigation(s). Conclusions in this regard are drawn in paragraph No.31 of the\n\njudgment, which, for facility of reference is reproduced hereunder:-"31. We have heard both the sides at some length on the impact of the\n Government order on the pending litigation and we cull out our\n conclusion as under:(i). That the impugned Government order will not affect the select\n panels prepared by the respondents which have been acted upon\n and formal orders of engagement have been issued;2(ii) That the impugned Government Order will not override or\n effect the judgments passed or to be passed by this Court\n holding a candidate/candidates entitled to engagement in the\n selection process which was/is under challenge before the\n Court;(iii) Where the select panels are approved and the aggrieved party\n has approached the Court before it could be acted upon, shall\n also be not affected by the impugned Government order, in\n that,but for litigation in the Court, the approved panel/panels\n could have been acted upon and formal letters of engagement in\n favour of the selected candidates issued prior to the issuance of\n the impugned Government order; and,(iv) Notwithstanding issuance of the impugned Government order,\n the respondents shall abide by the judgments passed by any\n competent Court of law which have attained finality. However,\n the writ petitions involving adjudication of disputes in respect\n of tentative merit lists or tentative select panels shall be liable to\n be dismissed in view of the impugned Government order, in\n that, it would not be permissible for a Court of law to direct the\n respondents to finalize the tentative merit lists or tentative select\n panels and issue engagement orders in view of closure of the\n scheme and a clear stipulation contained in paragraph 2nd of the\n impugned Government order."In view of the above, this petition insofar as it challenges constitutionality\n\nof the impugned Government Order is concerned, fails and same is disposed of\n\nby providing that the impugned Government Order shall be understood and\n\nmade applicable in the manner explained by the Division Bench in the supra\n\njudgment.(SANJEEV KUMAR )\n JUDGE\nJammu\n06.02.2023\nVinod. |
d86cdd5b-8044-5e92-8acd-63ddc27a6c92 | court_cases | Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member services -- Free for one month.\n\nMadhya Pradesh High Court\nSantosh Jaat vs The State Of M.P. on 5 August, 2020Author: Rajeev Kumar Shrivastava\n 01 MCRC-25565-2020\n\n HIGH COURT OF MADHYA PRADESH\n MCRC-25565-2020\n (Santosh Jaat vs. State of M.P.)\n\nGwalior, Dated: 5/8/2020\n Smt. Uma Kushwah, learned counsel for the applicant.\n\n Shri Arjun Singh Parihar, learned Panel Lawyer, for\n\nrespondent/State.\n Matter is heard through Video Conferencing.\n\n I.A.No.10509/2020, an application for urgent hearing, is taken\n\nup, considered and allowed for the reasons mentioned therein.\n\n This is the first bail application u/S.439 Cr.P.C filed by the\n\napplicant for grant of bail.\n\n Applicant has been arrested on 13/7/2020 by Police Station\n\nGirjora, Distt. Gwalior(M.P.) in connection with Crime No.62/2020\n\nregistered for offence under Sections 393, 511, 34 of IPC and Section\n\n11/13 of MPDVPK Act.\n\n It is submitted by learned counsel for the applicant- Santosh\n\nJaat that the applicant has not committed any offence. He has falsely\n\nbeen implicated in this case. Applicant is in custody since 13/7/2020.\n\nThere is omnibus allegation against the present applicant. It is further\n\nsubmitted that there is no any evidence against the present applicant.\n\nInvestigation and trial will take its own time. Hence, prays for grant\n\nof bail to the applicant. He further undertakes to abide by all the terms\n\nand conditions of guidance, circulars and directions issued by Central\n\nGovernment, State Government as well as Local Administration\n 02 MCRC-25565-2020\n\nregarding measures in respect of COVID-19 Pandemic and maintain\n\nhygiene in the vicinity while keeping physical distancing.\n\n Learned State counsel has vehemently opposed the application\n\nand has submitted that the offence committed by the present applicant\n\nis of serious nature. There are two criminal antecedents against the\n\npresent applicant. Hence, prayed to reject the bail application of the\n\napplicant.\n\n Heard learned counsel for the parties at length through Video\n\nConferencing and considered the arguments advanced by them and\n\nperused the available case-diary.\n\n Heard learned counsel for the parties at length through Video\n\nConferencing and considered the arguments advanced by them and\n\nperused the available case-diary.\n\n The Supreme Court by order dated 23-3-2020 passed in the\n\ncase of IN RE : CONTAGION OF COVID 19 VIRUS IN\n\nPRISONS in SUO MOTU W.P. (C) No. 1/2020 has directed all the\n\nStates to constitute a High Level Committee to consider the release of\n\nprisoners in order to decongest the prisons. The Supreme Court has\n\nobserved as under :\n\n "The issue of overcrowding of prisons is a matter\n of serious concern particularly in the present\n context of the pandemic of Corona Virus (COVID\n - 19).\n Having regard to the provisions of Article 21 of\n the Constitution of India, it has become\n imperative to ensure that the spread of the Corona\n Virus within the prisons is controlled.\n We direct that each State/Union Territory shall\n constitute a High Powered Committee comprising\n 03 MCRC-25565-2020\n\n of (i) Chairman of the State Legal Services\n Committee, (ii) the Principal Secretary\n (Home/Prison) by whatever designation is known\n as, (ii) Director General of Prison(s), to determine\n which class of prisoners can be released on parole\n or an interim bail for such period as may be\n thought appropriate. For instance, the State/Union\n Territory could consider the release of prisoners\n who have been convicted or are under trial for\n offences for which prescribed punishment is up to\n 7 years or less, with or without fine and the\n prisoner has been convicted for a lesser number\n of years than the maximum.\n It is made clear that we leave it open for the High\n Powered Committee to determine the category of\n prisoners who should be released as aforesaid,\n depending upon the nature of offence, the number\n of years to which he or she has been sentenced or\n the severity of the offence with which he/she is\n charged with and is facing trial or any other\n relevant factor, which the Committee may\n consider appropriate."\n In view of the aforesaid and considering the facts and\n\ncircumstances of the present case, without commenting upon the\n\nmerits of the case, the application is allowed and it is hereby directed\n\nthat the applicant shall be released on bail on his/her furnishing\n\npersonal bond of Rs.75,000/-(Rupees Seventy Five Thousand) with\n\none solvent surety of the like amount to the satisfaction of the Court\n\nconcerned for his regular appearance before the Court concerned on\n\nthe dates fixed by the Court concerned.\n\n In view of COVID-19 pandemic, the Jail Authorities are\n\ndirected that before releasing the applicant, his/her Corona Virus test\n\nshall be conducted and if it is found negative, then the concerned\n\nlocal Administration shall make necessary arrangements for sending\n\nthe applicant to his/her house, and if his/her test is found positive then\n 04 MCRC-25565-2020\n\nthe applicant shall be immediately sent to concerning hospital for\n\nhis/her treatment as per medical norms. If the applicant is fit for\n\nrelease and if he/she is in a position to make his/her personal\n\narrangements, then he/she shall be released only after taking due\n\ntravel permission from local administration. After release, the\n\napplicant is further directed to strictly follow all the instructions\n\nwhich may be issued by the Central Government/State Government\n\nor Local Administration for combating the COVID-19. If it is found\n\nthat the applicant has violated any of the instructions (whether general\n\nor specific) issued by the Central Government/State Government or\n\nLocal Administration, then this order shall automatically lose its\n\neffect, and the Local Administration/Police Authorities shall\n\nimmediately take him/her in custody and would send him/her to the\n\nsame jail from where he/she was released.\n\n This order will remain operative subject to compliance of the\n\nfollowing conditions by the applicant/s :-\n\n 1. The applicant/s will comply with all the\n terms and conditions of the bond executed by\n him/her;\n\n 2. The applicant/s will cooperate in the\n investigation/trial, as the case may be;\n\n 3. The applicant/s will not indulge\n himself/herself/themselves in extending\n inducement, threat or promise to any person\n acquainted with the facts of the case so as to\n dissuade them from disclosing such facts to the\n Court or to the Police Officer, as the case may be;\n\n 4. The applicant/s shall not commit an offence\n similar to the offence of which he/she is accused;\n 05 MCRC-25565-2020\n\n\n 5. The applicant/s will not move in the vicinity\n of complainant party and applicant/s will not seek\n unnecessary adjournments during the trial;\n\n 6. The applicant/s will not leave India without\n previous permission of the trial Court/Investigating\n Officer, as the case may be; and\n\n 7. The applicant/s will inform the SHO of\n concerned Police Station about his/her/their\n residential address in the said area and it would be\n the duty of the State Counsel to send E-copy of this\n order to SHO of concerned Police Station for\n information.\n\n Application stands allowed and disposed of.\n E- copy of this order be sent to the trial Court concerned for\n\ncompliance.\n\n Certified copy/ e-copy as per rules/directions.\n\n\n (Rajeev Kumar Shrivastava)\n Pawan Kumar Judge\npwn* 2020.08.05\n 17:52:25\n +05'30' |
987d0add-e0d2-5fca-83c0-ad0883e8e7e6 | court_cases | Madhya Pradesh High CourtVicky Balmik vs The State Of Madhya Pradesh on 1 June, 2020Author:Vishal MishraBench:Vishal Mishra1 MCRC-12206-2020\n The High Court Of Madhya Pradesh\n MCRC-12206-2020\n (VICKY BALMIK Vs THE STATE OF MADHYA PRADESH AND OTHERS)\n\n1\nGwalior, Dated : 01-06-2020\n Shri Samar Ghuraiya, Advocate for the petitioner.\n Shri Anoop Nigam, Panel Lawyer for the respondent/State.I n the wake of unprecedented and uncertain situations due to the\noutbreak of Novel Corona Virus COVID-19 and considering the advisories\nissued by the Government of India, this application is being heard and\n\ndecided through video conferencing to maintain social distancing. The parties\nare being represented through their respective counsels through VC and\ntherefore, norms of social distancing/physical distancing were followed in\nletter and spirit.The applicant has filed this first applicationu/S 439, Cr.P.C. for grant\nof bail. The applicant has been arrested by Police Station Seondha Distt.\nDatia in connection with Crime No.88/2018 registered in relation to the\noffences punishable under Secs. 363, 366, 376 (2) of theIPCand underSec.\n5/6of POCSO Act.Learned counsel for the applicant submits that applicant has been\nfalsely implicated in the case. It is submitted that applicant is the husband of\nthe prosecutrix and she is pregnant. It is submitted that on earlier occasion\nsimilar false case has been registered against him by the same complainant\nfor which he has filed M.Cr.C. No. 22168/2018 and he was granted bail by\nthis court vide order dated 2.4. 2018. He has drawn attention of this court to\nthe aforesaid order and has argued that there is observation made by this\ncourt to the extent that as per the radiologist report the prosecutrix is found\nto have completed 18 years of age. He has further read-over the statement of\nthe prosecutrix recorded underSec. 164of the Cr.P.C in the present case\nand has submitted that applicant is the husband of the prosecutrix who is\npregnant. He is in custody since 24.1. 2020 and is ready to abide by all the\n 2 MCRC-12206-2020\nterms and conditions that may be imposed by this court. He has shown his\nwillingness to contribute Rs. 5,000/- in PM Cares Fund. Under these\ncircumstances, counsel for the applicant prays for bail.P e r contra, learned Govt. Advocate has opposed the application\nstating that investigation is still pending in the matter and the allegation against\nthe applicant is of commission of offence punishable underSec. 376of the\n\nIPC including the offence punishable under Sec. POCSO Act and the date\nof birth of the prosecutrix as per the school record is found to be 3.4. 2002.The Supreme Court by order dated 23-3-2020 passed in the case of IN\nRE : CONTAGION OF COVID 19 VIRUS IN PRISONS in SUO\nMOTU W.P. (C) No. 1/202 0 has directed all the States to constitute a High\nLevel Committee to consider the release of prisoners in order to decongest\nthe prisons. The Supreme Court has observed as under :The issue of overcrowding of prisons is a\n matter of serious concern particularly in the\n present context of the pandemic of Corona Virus\n (COVID 19). Having regard to the provisions ofArticle 21of the Constitution of India, it has\n become imperative to ensure that the\n spread of the Corona Virus within the prisons is\n controlled. We direct Committee comprising of(i) Chairman of the State Legal Services\n Committee, (ii) the Principal Secretary\n (Home/Prison) by whatever designation is\n known as, (ii) Director General of Prison(s), to\n determine which class of prisoners can be\n released on parole or an interim bail for such\n period as may be thought appropriate. For\n instance, the State/Union Territory could\n consider the release of prisoners who have been\n convicted or are under trial for offences for\n which prescribed punishment is up to 7 years or\n less, with or without fine and the prisoner has\n been convicted for a lesser number of years than\n the maximum. It is made clear that we leave it\n open for the High Powered Committee to\n determine the category of prisoners who should\n b e released as aforesaid, depending upon the\n nature of offence, the number of years to which3 MCRC-12206-2020\n he or she has been sentenced or the severity of\n the offence with which he/she is charged with\n and is facing trial or any other relevant factor,\n which the Committee may consider appropriate.After considering the rival submissions as well as considering the fact\nsituation, wherein, we are facing wrath of pandemic COVID-19, and looking\nto the custody period and that in the earlier round of litigation, this court has\nalready considered radiologist report and has found that the age of the\nprosecutrix to be more than 18 years of age coupled with the fact that\napplicant is the husband of the prosecutrix, and that applicant has shown his\nwillingness to contribute in PM Cares fund and is ready to give his services\nin this pandemic caused by covid-19, this Court is of the considered\n\nopinion that applicant deserves to be released on bail.Accordingly, application is allowed. It is directed that the applicants\nbe released on bail on furnishing a personal bond in the sum of Rs. 50,000/-\n(Rs. Fifty Thousand only) with one solvent surety in the like amount to the\nsatisfaction of the concerned trial Court.This order will remain operative subject to compliance of the following\nconditions by the applicant :-1. The applicant will comply with all the terms and conditions of the\nbond executed by him;2. The applicant will cooperate in the investigation/trial, as the case may\nbe;3 . The applicant will not indulge himself in extending inducement,\nthreat or promise to any person acquainted with the facts of the case so as to\ndissuade him/her from disclosing such facts to the Court or to the Police\nOfficer, as the case may be;4. The applicant shall not commit an offence similar to the offence of\nwhich he is accused;5. The applicant will not seek unnecessary adjournments during the\ntrial; and4 MCRC-12206-20206. The applicant will not leave India without previous permission of the\ntrial Court/Investigating Officer, as the case may be.7. The applicant shall deposit Rs. 5000/- in PM Cares Fund having\nAccount No. 2121PM20202, IFSC Code: SBIN0000691, SWIFT Code:SBININBB104, Name of Bank and Branch: State Bank of India, New Delhi\nMain Branch within a period of seven days from the date of his release.8. The applicant will inform the concerned S.H.O. of concerned Police\nStation about his residential address in the said area and it would be the duty\nof the Public Prosecutor to send E-copy of this order to SHO of concerned\npolice station as well as concerned who shall inform the concerned SHO\nregarding the same.Applicant shall install Arogya Setu App in his mobile immediately and\nwould intimate his place of residence to the SHO of concerned Police\nStation; where he resides. Aapplicant further submits the undertaking to the\neffect that he will abide by the terms and conditions of different circulars,\norders as well as guidelines issued by Central Government, State Government\nas well as Local Administration for maintaining social distancing, hygiene etc\nto avoid Novel Corona Virus (COVIC-19) pandemic.In view of the COVID-19, jail authorities are directed that before\nreleasing the applicant, medical examination of applicant shall be undertaken\nby the jail doctor and on prima facie, if it is found that he is having the\nsymptoms of COVID-19, then consequential follow up action including the\nisolation/quarantine or any test if required, be ensured, otherwise applicant\nshall be released immediately on bail and shall be given a pass or permit for\nmovement to reach his place of residence.E-copy of this order be provided to the applicant and E-copy of this\norder be sent to the trial Court concerned for compliance. It is made clear\nthat E-copy of this order shall be treated as certified copy for practical\npurposes in respect of this order.(VISHAL MISHRA)\n 5 MCRC-12206-2020\n JUDGE\narDigitally signed byABDUR RAHMANDate: 2020.06.0116:50:08 +05'30' |
ff4fa2c2-5fee-5d9f-b4a2-56f2e4d71c00 | court_cases | Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member services -- Free for one month.\n\nKarnataka High Court\nNational Highways Authority Of ... vs Smt Meerashivalingaiah on 28 July, 2023Bench: H.P.Sandesh\n 1\n\n\n\n IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\n DATED THIS THE 28 TH\n DAY OF JULY, 2023\n R\n BEFORE\n THE HON'BLE MR. JUSTICE H.P. SANDESH\n M.F.A. NO.1402/2023 (AA)\nBETWEEN:\n\n1. NATIONAL HIGHWAYS AUTHORITY OF INDIA\n PROJECT IMPLEMENTATION UNIT-RAMANAGARA,\n NEAR BASAVANAPURA\n (RAMADEVARAPADA)\n RAMANAGARA-562 128.\n REP. BY ITS THE PROJECT\n DIRECTOR B.T.SRIDHARA.\n\n2. SPECIAL LAND ACQUISITION OFFICER\n AND COMPETENT AUTHORITY, NH-275,\n BANGALORE MYSORE DIVISION, MANDYA\n (THE APPELLANT IS NECESSARY PARTY A\n ND HENCE ARRAYED AS APPELLANT)\n ... APPELLANTS\n (BY SRI PRAKASHA ANGADI B.V., ADVOCATE)\nAND:\n\n1. SMT. MEERASHIVALINGAIAH\n D/O S.T. NAGALAKSHMI\n W/O B. SHIVALINGAIAH,\n R/AT TAVEREGERE, MANDYA CITY.\n\n2. THE ARBITRATOR AND\n DEPUTY COMMISSIONER\n MANDYA DISTRICT,\n MANDYA. ... RESPONDENTS\n\n (BY SRI P.V.CHANDRASHEKAR, ADVOCATE FOR R1;\n MRS.LEENA C. SHIVAPURMATH, HCGP FOR R2)\n 2\n\n\n\n\n THIS M.F.A. IS FILED UNDER SECTION 37(1)(C) OF THE\nARBITRATION AND CONCILIATION ACT, AGAINST THE ORDER\nDATED 30.03.2021 PASSED IN A.S.NO.1/2019 ON THE FILE OF\nTHE PRINCIPAL DISTRICT AND SESSIONS JUDGE, MANDYA,\nDISMISSING THE PETITION FILED UNDER SECTION 34 OF THE\nARBITRATION AND CONCILIATION ACT READ WITH ORDER VII\nRULE 1 OF CPC.\n\n THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR\nJUDGMENT ON 12.07.2023 THIS DAY, THE COURT\nPRONOUNCED THE FOLLOWING:\n\n\n JUDGMENT\n\n The appellants have filed an application under Section 5 of\n\nthe Limitation Act to condone the delay of 270 days in filing the\n\nabove appeal and in support of an application, an affidavit is\n\nsworn to that, the judgment passed by the Hon'ble District\n\nJudge, Mandya, is against the provisions of law and the\n\njudgment was passed on 30.3.2021 and a copy of the judgment\n\nwas sent for obtaining the legal opinion. After receipt of the\n\nopinion, it is observed that the impugned judgment passed was\n\nerroneous and it requires to be challenged and hence decided to\n\nchallenge the impugned order by filing the above appeal.\n 3\n 2. It is sworn to that, on account of the procedure involved\n\nin finalizing the papers and processing the same, there is a bit\n\ndelay in filing the above appeal and with an abundant caution,\n\nthe above application is filed for seeking condonation of delay.\n\n\n 3. This application is resisted by filing the statement of\n\nobjections by the respondents contending that the very\n\napplication is not maintainable. In the statement of objections it\n\nis contended that admittedly the appeal is filed after the delay of\n\n605 days and no cogent reason is forthcoming for the said undue\n\ndelay. The only reason forthcoming is that matter was sent for\n\nlegal opinion and the file could not be found and could not be\n\ntraced, are not the cogent reasons. In fact, the reason assigned\n\nis, delay and latches on the part of the appellants. It is\n\ncontended that execution petition was filed in No.118/2022\n\nbefore the Principal District and Sessions Judge, Mandya and the\n\nappellants have filed objections on 2.6.2022 stating that\n\nexecution petition was not maintainable because of non\n\nfurnishing the conversion order and layout plan. Hence, it is\n\nclear that the appellants have accepted the judgment and decree\n 4\n\n\n\nof the District Judge and appellants had no plan to file the appeal\n\nand the present appeal is an after thought.\n\n\n 4. It is also contended that the learned District Judge\n\ndismissed the arbitration suit incidentally relying upon the\n\ndecision of this Court in (H.M. SHANKARAMURTHY Vs.\n\nNATIONAL HIGHWAYS AUTHORITY OF INDIA) reported in\n\n2011(2) Kar.L.J.(DB) and the decision of the Supreme Court in\n\nthe case of M.P. Power Generation Co. Ltd. Vs. Anraldo\n\nEnergia SPA and another reported in SCC Online SC 385 as\n\nwell as Associate Builders Vs. Delhi Development Authority\n\nreported in AIR 2015 SC 620, and hence not made out any\n\nground to condone the delay and having the knowledge about\n\nthe execution, appeared and filed objection statement on\n\n2.6.2022 itself. The present appeal is filed in the year 2023, that\n\ntoo in the month of February and no explanation for the delay\n\nand hence delay cannot be condoned.\n\n\n 5. The counsel in support of his argument relied upon the\n\njudgment reported in (2021) 6 SCC 460 and referring this\n\njudgment the counsel would vehemently contend that Section 5\n 5\n\n\n\nof the Limitation Act is not maintainable in an appeal filed under\n\nSection 37 of the Arbitration and Conciliation Act, 1996\n\n(hereinafter referred to as the 'Act' for short). The counsel also\n\nrelied upon the judgment of this Court dated 23.2.2022 passed\n\nin M.F.A.No.201018/2018 (AA), wherein also this Court held that\n\nmaximum delay period is only 120 days and thereafter they\n\ncannot file an application to condone the delay and Section 5 of\n\nthe Limitation Act cannot be invoked. The counsel also\n\nvehemently contend that the judgment of this Court in\n\nBhimashankar Sahakari Sakkare Karkhane Niyamita\n\npassed in M.F.A.No.201018/2018 also affirmed by the Apex\n\nCourt in Civil Appeal No.6810/2022 vide order dated 10.4.2023\n\nand the Apex Court also comes to the conclusion that High Court\n\nhas not committed any error in rejecting the condonation of\n\ndelay application and hence the very application filed under\n\nSection 5 of the Limitation Act is not maintainable.\n\n\n 6. In reply to the arguments of the respondents counsel\n\nvehemently contend that Arbitration and Conciliation Act, 1996\n\nis clear with respect to an appeal under Section 37, no specific\n 6\n\n\n\nlimitation is mentioned and those judgments arising out of a suit\n\nis filed under 34 of the Act and in order to file an application for\n\nsetting aside the arbitral award under Section 34, specific\n\nlimitation is provided in Section itself and the same is not\n\napplicable to an appeal filed under Section 37 of the Act, Counsel\n\nalso brought to notice of this Court Section 43 of the Limitation\n\nAct, wherein Section 43 of the Limitation Act shall apply to\n\narbitration as it applies to proceedings in Court and Section\n\n43(3) is very clear that notwithstanding that the time so fixed\n\nhas expired, may on such terms, if any, as the justice of the\n\ncase may require, extend the time of such period, as it things\n\nproper. The counsel also would submit that the judgment of the\n\nApex Court in (2021)6 SCC 460 discussed with regard to the\n\napplication of Section 5 of the Limitation Act is applicable for\n\ncondonation of delay in filing the appeal under Section 37 of the\n\nAct, and Limitation Act is applicable. Hence, the very contention\n\nof the counsel for the respondents that the appellants cannot\n\ninvoke Section 5 of the Limitation Act, cannot be accepted.\n 7\n 7. Having heard the appellants' counsel and also the\n\ncounsel appearing for the respondents and also the grounds\n\nurged in the application and the statement of objections, the\n\npoints that would arise for consideration of this Court are:\n\n i) Whether Section 5 of the Limitation Act can be\n invoked in an appeal filed under Section 37 of the\n Arbitration and Conciliation Act, 1996 to condone the\n delay?\n ii) Whether the appellants have made out the ground\n and sufficient cause to condone the delay?\n iii) What order?\n Point No.1: Having heard the respective counsel, the\n\nmain contention of the respondents counsel that the maximum\n\nperiod of limitation is 90 days and additional 30 days, in all 120\n\ndays is provided under the Act itself to file an appeal.\n\n\n 8. Admittedly, this appeal is filed against the dismissal of\n\nthe suit filed under Section 34 of the Act confirming the award of\n\nthe Arbitrator and hence, the present appeal is filed under\n\nSection 37 of the Act.\n 8\n 9. No doubt, the judgments of this Court and the Apex\n\nCourt in the case of Bhimashankar Sahakari Sakkare\n\nKarkhane Niyamita arising out of dismissing the suit filed\n\nunder Section 34 of the Act on the ground of Condonation of\n\ndelay and Apex Court also comes to the conclusion that High\n\nCourt has not committed any error in dismissing the appeal in\n\ncoming to the conclusion that the maximum period allowed to\n\nfile the appeal is within 120 days. Having perused Section 34 of\n\nthe Act, when an application for setting aside of arbitral award, it\n\nis clear that recourse to a Court under an arbitral award may be\n\nmade only by an application for setting aside such award, in\n\naccordance with sub-sections (2) and (3) of Section 34 of the\n\nAct. The grounds also set out to challenge the same and the\n\nproviso under Section 34(3) of the Act is very clear that an\n\napplication for setting aside may not be made after three months\n\nhave elapsed from the date on which the party making that\n\napplication had received the arbitral award or, if a request had\n\nbeen made under Section 33, from the date on which that\n\nrequest had been disposed of by the arbitral tribunal and further\n\nproviso is made that if the Court is satisfied that the applicant\n 9\n\n\n\nwas prevented by sufficient cause from making the application\n\nwithin the said period of three months, it may entertain the\n\napplication within a further period of thirty days, but not\n\nthereafter.\n\n\n 10. Reading of sub-clause (3) of Section 34 of the Act and\n\nalso further proviso, the maximum period is 120 days and the\n\nvery statue itself makes clear that it could be challenged within\n\nthree months and thereafter also after 30 days, in total 120 days\n\nand no dispute with regard to the fact that the principles laid\n\ndown in the judgment of this Court as well as the Apex Court\n\nreferred supra, the maximum period is 120 days, wherein the\n\nappeal was not entertained, since an application was filed before\n\nthe District Court under Section 34 of the Act, since there was a\n\ndelay of more than 120 days and hence, the same is dismissed.\n\n\n 11. But in the case on hand, application filed under Section\n\n34 of the Act was considered and decided the same on merits\n\nand dismissed, thereafter an appeal is filed under Section 37 of\n\nthe Act. This Court would like to extract Section 37 of the Act as\n\nbelow:\n 10\n 37. Appealable orders.-(1) Notwithstanding\n anything contained in any other law for the time\n being in force, an appeal shall lie from the following\n orders (and from no others) to the Court authorizes\n bylaw to hear appeals from original decrees of the\n Court passing the order, namely:-\n\n (a) refusing to refer the parties to arbitration\n under Section 8;\n (b) granting or refusing to grant any measure\n under section 9;\n (c) setting aside or refusing to set aside an\n arbitral award under section 34.\n (2) An appeal shall also lie to a Court from an\n order of the arbitral-\n (a) accepting the plea referred to in sub-\n section(2) or sub-section(3) of Section 16; or\n (b) granting or refusing to grant an interim\n measure under section 17.\n (3) No second appeal shall lie from an order\n passed in appeal under this section, but nothing in\n this section shall affect or take away any right to\n appeal to the Supreme Court.\n\nand also this Court would like to extract Section 43 of the Act\n\nwith regard to the limitation as below:-\n 11\n 43. Limitation.- (1) The Limitation Act, 1963,\nshall apply to arbitrations as it applies to\nproceedings in Court.\n (2) For the purposes of this section and the\nLimitation Act, 1963, an arbitration shall be deemed\nto have commenced on the date referred in Section\n21.\n (3) Where an arbitration agreement to submit\nfuture disputes to arbitration provides that any\nclaim to which the agreement applies shall be\nbarred unless some step to commence arbitral\nproceedings is taken within a time fixed by the\nagreement, and a dispute arises to which the\nagreement applies, the Court, if it is of opinion that\nin the circumstances of the case undue hardship\nwould otherwise be caused, and notwithstanding\nthat the time so fixed Having heard the respective\ncounsel and also on perusal of the material available\non record, expired, may on such terms, if any, as\nthe justice of the case may require, extend the time\nfor such period as it thinks proper.\n (4) where the Court orders that an arbitral\naward be set aside, the period between the\ncommencement of the arbitration and the date of\nthe order of the Court shall be excluded in\ncomputing the time prescribed by the Limitation Act,\n 12\n\n\n\n 1963, for the commencement of the proceedings\n (including arbitration) with respect to the dispute so\n submitted."\n\n\n 12. Having considered Section 37-1(c) of the Act, it is clear\n\nthat, setting aside or refusing to set aside the arbitral award\n\nunder Section 34 of the Act and an appeal lies where an order is\n\npassed under Section 34. But no any exclusion of Section 5 of\n\nthe Limitation Act, but in Section 34 it is very clear that the\n\nmaximum period provided is 90 + 30 days, in all 120 days, but\n\nno specific limitation is made provided under Section 37 of the\n\nAct while filing an appeal.\n\n\n 13. Having read Section 43 of the Act, it is very clear that\n\nLimitation Act, 1963 shall apply to arbitrations as it applies to\n\nproceedings in Court and further sub-clause (3) is very clear\n\nthat, where an arbitration agreement to submit future disputes\n\nto arbitration provides that any claim to which the agreement\n\napplies shall be barred unless some step to commence arbitral\n\nproceedings is taken within a time fixed by the agreement, and a\n\ndispute arises to which the agreement applies, the Court, if it is\n 13\n\n\n\nof opinion that in the circumstances of the case undue hardship\n\nwould otherwise be caused, and notwithstanding that the time so\n\nfixed has expired, may on such terms, if any, as the justice of\n\nthe case may require, extend the time for such period as it\n\nthinks proper.\n\n Sub-clause (4) is also very clear that where the Court\n\norders that an arbitral award be set aside, the period between\n\ncommencement of the arbitration and the date of the order of\n\nthe Court shall be excluded in computing the time prescribed by\n\nthe Limitation Act, 1963, for the commencement of the\n\nproceedings (including arbitration) with respect to the dispute so\n\nsubmitted. Hence it is clear that, Limitation Act, 1963 shall\n\napply to arbitration as it applies to proceedings in the Court.\n\n\n 14. The Apex Court also in the judgment referred by the\n\nrespondents' counsel himself in the case of Government of\n\nMaharashtra (Water Resources Department) represented\n\nby Executive Engineer Vs. Borse Brothers Engineers and\n\nContractors Private Limited with regard to Section 37,\n\nlimitation period for filing appeal under Section 37 of the Act,\n 14\n\n\n\nboth in respect of cases falling under Commercial Courts Act as\n\nwell as the Arbitration and Conciliation Act, 1996, in respect of\n\ncases not falling under Commercial Courts Act, formulated the\n\npoint with regard to Section 5 of the Limitation Act. Since issues\n\ninvolved in the appeal, whether limitation period for filing an\n\nappeal under Section 37 of the Act, would governed by limitation\n\nperiod provided under Section 34 of the Act, or limitation period\n\nprescribed under Article 137 of the Limitation Act or limitation\n\nperiod prescribed under Articles 116 and 117 of the Limitation\n\nAct or limitation period prescribed under Section 131-A of the\n\nCommercial Courts Act, 2015.\n\n\n 15. The third issue was framed whether delay in filing the\n\nappeal under Section 37 of the Act, can be condoned and if so,\n\nto what extent and whether application under Section 5 of the\n\nLimitation Act to condone the delay in filing the appeal under\n\nSection 37 of the Act, is excluded by the scheme of the\n\nCommercial Court's Act. The Apex Court having considered these\n\nissues held that Section 37 of the Act, when read with Section 43\n\nthereof, makes it clear that the provisions of the Limitation Act\n 15\n\n\n\nwill apply to appeals that are filed under Section 37 of the Act.\n\nThis takes us to Articles 116 and 117 of the Limitation Act, which\n\nprovides for a limitation period of 90+30 days, depending upon\n\nwhether the appeal is from any other Court to a High Court or a\n\nintra-High Court Appeal, there can be no doubt whatsoever that\n\nSection 5 of the Limitation Act will apply to the aforesaid\n\nappeals, both by virtue of Section 43 of the Act and by virtue of\n\nSection 29(2) of the Limitation Act and the same is also\n\nreiterated in paragraph 23. Paragraph 23 of the judgment\n\nreferred supra is extracted here below:\n\n "23. Section 37 of the Arbitration Act, when\n read with Section 43 thereof, makes it clear that the\n provisions of the Limitation Act will apply to appeals\n that are filed under Section 37. This takes us to\n Articles 116 and 117 of the Limitation Act, which\n provide for a limitation period of 90 days and 30\n days depending upon whether the appeal is from\n any other court to a High Court or an intra-High\n Court appeal. There can be no doubt whatsoever\n that Section 5 of the Limitation Act will apply to the\n aforesaid appeals, both by virrtue of Section 43 of\n the Arbitration Act and by virtue of Section 29(2) of\n the Limitation Act."\n 16\n 16. Having read Section 37 of the Act, no limitation is\n\nprescribed to file an appeal as in case of an application to be\n\nfiled under Section 34 of the Act, wherein specific limitation is\n\nprovided for three months + 30 days, total 120 days. But no\n\nsuch specific limitation is provided in Section 37 of the Act for\n\nfiling an appeal and also Section 43 of the Act, which I have\n\nextracted above, is also very clear that the provisions of the\n\nLimitation Act will apply to appeals that are filed under Section\n\n37 of the Act. Hence, the judgments which have been relied\n\nupon by the counsel for the respondents, Bhimashankar\n\nSahakari Sakkare Karkhane Niyamita, wherein challenge was\n\nmade only with regard to Section 34 of the Act and limitation as\n\nprovided in the very Section itself, but not in an appeal and\n\nSection 43 of the Act makes it clear that the provisions of the\n\nLimitation Act will apply to appeals that are filed under Section\n\n37 of the Act and Apex Court having discussed the same and\n\neven framing the issues involved between the parties in the said\n\nappeal also, in paragraph 23 which has been extracted is very\n\nclear that there can be no doubt whatsoever that Section 5 of\n 17\n\n\n\nthe Limitation Act will apply to the aforesaid appeals, both by\n\nvirtue of Section 43 of the Arbitration Act and by virtue of\n\nSection 29(2) of the Limitation Act and hence, I do not find any\n\nforce in the contention of the respondents' counsel that Section\n\n5 of the Limitation Act cannot be invoked and hence, I held that\n\nSection 5 of the Limitation Act could be invoked while filing an\n\nappeal under Section 37 of the Act and hence, I answer the point\n\nNo.1 as affirmative.\n\n\n Point No.2: Now the question before this Court is with\n\nregard to, whether sufficient cause has been shown by the\n\nappellants to condone the delay?\n\n\n 17. The Apex Court also in the judgment referred supra in\n\nGovernment of Maharashtra case also discussed the same with\n\nregard to sufficient cause,, wherein held that Government is\n\ninvolved a different yardstick for condonation of delay cannot be\n\nlaid down and hence it is clear that the Court cannot show any\n\nlenience even if Government is involved in the litigation and also\n\nheld that it was open for the High Court to condone the delay\n\napplying Section 5 of the Limitation Act, 1963 and whether the\n 18\n\n\n\nappellants have made out the ground to condone the delay and\n\nthen this Court has to consider the reason assigned in the\n\napplication and reason assigned in the application is that when\n\nthe judgment was passed on 30.3.2021 and after receiving the\n\njudgment and decree passed by the Court and the same was\n\nsent for obtaining legal opinion and after receipt of the opinion, it\n\nwas opined that judgment passed was erroneous and appeal\n\nrequires to be challenged and for finalizing the same in taking\n\nopinion, delay was occurred and it is stated that there is a bit\n\ndelay in filing the above appeal. In the case on hand, there was\n\na delay of 605 days as contended by the respondents and it is\n\nalso the contention that no cogent reason is forthcoming for the\n\nsaid undue delay. But records reveals that judgment was passed\n\non 30.3.2021 and by that time S.O.P. was prevailing in view of\n\nthe Covid-19, but it is calculated as delay of 270 days. But\n\nreason assigned in the application is that while getting the\n\nopinion there was a delay and affidavit is not specific, when the\n\ncopy was obtained and also when the papers were sent for legal\n\nopinion and on what date opinion was received, but affidavit is\n\nvery vague and nothing is mentioned in the application and also\n 19\n\n\n\nit is important to note that in the objection statement\n\nrespondents took the specific contention that when the award\n\nwas not satisfied, they have filed execution petition which was\n\nnumbered as 118/2022 before the Hon'ble District and Sessions\n\nJudge, Mandya and also it has to be noted that the appellants\n\nhave filed objections on 2.6.2022 stating that execution petition\n\nwas not maintainable because of not furnishing the conversion\n\norder and layout plan and hence it is clear that appellants were\n\nalso having knowledge of filing of the execution petition and they\n\nhave filed statement of objections on 2.6.2022 itself and even\n\nthen they have not filed any appeal immediately and the present\n\nappeal is filed on 23.2.2023, almost after eight months of filing\n\nof statement of objections in the execution petition by the\n\nappellants themselves and having perused the order, the\n\narbitration award was confirmed by the District Court. When the\n\nappellants participated in the arbitration proceedings initiated\n\nunder Section 34 of Arbitration and Conciliation Act and order\n\nwas passed on 30.3.2021, almost one year 11 months was taken\n\nto file the appeal and reason was not assigned except stating\n\nthat there was a delay in getting the opinion. The Apex Court in\n 20\n\n\n\nthe judgment referred supra itself held with regard to the\n\nsufficient cause is concerned, merely because the Government is\n\ninvolved, a different yardstick for condonation of delay cannot be\n\nlaid down. In the case on hand, no doubt the appeal is filed by\n\nNational Highway Authority and there was no need to take\n\nopinion for a period of two years and apart from that even\n\nappellants had the knowledge about filing of execution petition\n\nand in the said execution petition participated and filed\n\nstatement of objections on 2.6.2022 itself and even immediately\n\nafter filing statement of objections appeal was not filed.\n\n\n 18. Having perused the certified copy of the order it is\n\nclear that though the judgment was passed on 30.3.2021,\n\ncertified copy was obtained on 2.3.2023 and no material is\n\nplaced on what date earlier certified copy was taken and sent to\n\nthe Department for opinion and nothing is stated in the affidavit\n\nand affidavit is very bald except stating that when the file was\n\nsent to opinion and opinion was given that order was not correct\n\nand it requires challenge and when that opinion was given is also\n\nnot stated in the affidavit, only bald affidavit is filed in paragraph\n 21\n\n\n\nNo.4 narrating the same that file was sent for opinion, after\n\nreceipt of the opinion decided to file an appeal and no sufficient\n\ncause is shown to condone the delay and hence, I do not find\n\nany reason to condone the delay and application deserves to be\n\ndismissed. Hence, I answer point No.2 as negative.\n\n\n 19. In view of the discussions made above, I pass the\n\nfollowing\n\n ORDER\n\n I.A.No.1/2023 is dismissed, since no sufficient cause is\n\nshown. However, made it clear that Section 5 of the Limitation\n\nAct could be invoked in an appeal filed under Section 37 of the\n\nArbitration and Conciliation Act.\n\n Consequently, appeal is also dismissed.\n\n\n Sd/-\n JUDGE\n\n\nAP |
16789f1a-f289-58ea-b916-09cbaff238ab | court_cases | Karnataka High CourtB Ravindra S/O Gaanapathappa vs R S Chandrakantha S/O Subrahmanya ... on 19 November, 2020Author:H.P.SandeshBench:H.P.Sandesh1\n\n\nIN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\n\n DATED THIS THE 19TH DAY OF NOVEMBER, 2020\n\n BEFORE\n\n THE HON'BLE MR. JUSTICE H.P.SANDESH\n\n CRIMINAL APPEAL NO.320/2011\n\n\nBETWEEN:\n\nB. RAVINDRA\nS/O GAANAPATHAPPA\nAGED ABOUT 55 YEARS\nOCCUPATION: BSUINESS\nR/O SORABA TOWN\nSHIVAMOGGA DISTRICT.\n ...APPELLANT\n\n(BY SRI UMESH MULIMANI, ADVOCATE\n SRI S.V. PRAKASH, ADVOCATE)\n\nAND:\n\nR.S. CHANDRAKANTHA\nS/O SUBRAHMANYA REVANKAR\nAGED: MAJOR\nR/O HARALENNIKERI\nSHIKARIPURA TOWN\nSHIRALKOPPA TALUK\nSHIVAMOGGA DISTRICT.\n ...RESPONDENT\n\n(BY SRI N.R. KRISHNAPPA, ADVOCATE)\n 2\n\n\n THIS CRIMINAL APPEAL IS FILED UNDER\nSECTION 378(4) CR.P.C PRAYING TO SET ASIDE THE\nORDER DATED 10.01.2011 PASSED BY THE SENIOR\nCIVIL JUDGE AND JMFC, SORAB IN C.C.NO.56/2010\nACQUITTING THE RESPONDENT/ACCUSED FOR THE\nOFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.\nACT.\n\n THIS CRIMINAL APPEAL COMING ON FOR\nARGUMENTS THIS DAY, THROUGH VIDEO\nCONFERENCE THE COURT DELIVERED THE\nFOLLOWING:\n\n\n JUDGMENTThis appeal is filed challenging the judgment of\n\nacquittal passed in C.C.No.56/2010 dated 10.01.2011\n\non the file of the Senior Civil Judge, & JMFC, Soraba\n\n('Trial Court' for short).2. For the sake of convenience, the parties\n\nare referred to as they are referred in the original suit\n\nbefore the Trial Court.3. The factual matrix of the case is that, the\n\naccused being an owner of the bus was known to the\n\ncomplainant. On 01.12.2000, the accused borrowed a3sum of Rs.50,000/- by agreeing to repay the amount\n\nwith interest @ of 18% per annum. The accused did\n\nnot repay the amount as agreed and hence notice was\n\nissued on 26.11.2001 through registered post as well\n\nas certificate of posting calling upon him to repay the\n\nborrowed amount. Thereafter, on 30.11.2001 the\n\naccused met the complainant and after calculating the\n\noutstanding principal and interest issued a cheque for\n\na sum of Rs.59,000/- dated 06.12.2001. When the\n\ncheque was presented, the same was dishonoured and\n\nagain notice was issued on 27.12.2001. In spite of\n\nservice of notice, he has not given any reply and did\n\nnot comply with the demand made in the notice.\n\nHence, a complaint has been filed.4. The Trial Court has taken the cognizance\n\nand thereafter accused denied accusation made in the\n\ncomplaint. Hence, complainant examined himself as\n\nP.W.1 and got marked the documents as Exs.P.1 to\n\nP10. Statement of the accused under Section 313 of4theCode of Criminal Procedurewas recorded and\n\nthereafter accused examined himself as D.W.1 and\n\ndocuments Exs.D.1 to 12 confronted to the witness\n\nP.W.1 and got marked. The Trial Court after\n\nconsidering the oral and documentary evidence,\n\nacquitted the accused. Hence, the present appeal is\n\nfiled before this Court.5. The grounds urged in the appeal are that\n\nthe Trial Judge has not properly appreciated the\n\nmaterial available on record, particularly, when it is\n\nadmitted from the mouth of D.W.1 regarding the loan\n\ntransaction. The Trial Judge has also carried away\n\nwith regard to payment made to the tune of\n\nRs.22,000/. The complaint is filed in respect of loan\n\ntransaction dated 01.12.2000 and the case has been\n\nregistered to that effect. In fact, Ex.R.1 to R.12\n\nestablish that he had obtained the amount of\n\nRs.50,000/- on 01.12.1999 and he had repaid a sum\n\nof Rs.22,000/-. But, in the cross-examination in para-52, he had categorically admitted that he had obtained\n\na loan of Rs.50,000/- on 01.12.2000. It was also\n\nclarified that the amount of Rs.22,000/- paid by him\n\nand Ex.R.1 does not relates to loan obtained on\n\n01.12.2000.6. The learned Trial Judge without\n\nconsidering the same has illegally held that the\n\nmaterials available on record would raise a doubt\n\nregarding the genuineness of the transaction. The said\n\ndoubt made by the learned trial Judge is without any\n\nbasis. It is also contended that the Trial Judge failed to\n\nnotice that the respondent/accused during the\n\npendency of the proceedings had paid a sum of\n\nRs.5,000/- towards the cheque amount on 12.08.2004\n\nand the accused himself had produced the document\n\nbefore the Trial Court and in spite of the same the\n\nTrial Judge has not discussed anything regarding the\n\nadmission made by the accused. The Trial Judge also\n\nfailed to notice that there is presumption under6Section 139of the Negotiable Instruments Act and not\n\ndrawn any presumption. Since the accused has not\n\ndisputed the issuance of the said cheque but\n\ncontended that the same is issued in respect of earlier\n\nloan transaction and not in respect of this loan\n\ntransaction.7. Learned counsel appearing for the\n\ncomplainant-appellant, in his argument, has\n\nvehemently contended that the Trial Court has\n\ncommitted an error in giving more importance to\n\nEx.P9-Register and doubted the case of the\n\ncomplainant and carried away that there is a\n\ndiscrepancy in respect of Ex.P.9. The Trial Judge failed\n\nto consider the fact that the accused had admitted the\n\nsignature available in the cheque and also\n\ncategorically admitted that he had availed two loans\n\nand not disputed the same. The finding given by the\n\nTrial Court is erroneous and contrary to law.78. The learned Counsel appearing for the\n\ncomplainant brought to the notice of this Court that\n\nthe accused DW.1 admitted in the cross-examination\n\nat page-5 regarding availing the loan on 01.12.2000.\n\nLearned counsel also brought to the notice of this\n\nCourt that before the Trial Court he himself paid\n\nRs.5,000/- towards this loan transaction cheque. In\n\nspite of this admission, the Trial Judge made the\n\nobservation doubting the transaction between\n\ncomplainant and accused. Hence, it requires the\n\ninterference of this Court.9. Per contra, learned counsel appearing for\n\nthe accused in his argument vehemently contended\n\nthat the Court cannot consider stray admission given\n\nby D.W.1 during the course of cross-examination.\n\nLearned counsel also submitted that there is a\n\ndiscrepancy with regard to the entries made in the\n\nrecord maintained by Ravi Finance Firm, which has\n\nbeen marked as Ex.P.9. The learned counsel also8brought to the notice of this Court that in page Nos.\n\n57 and 58 of ledger-Ex.P.9 and would contend that\n\nthere cannot be a subsequent entry in respect of\n\nearlier loan transaction and the trial Judge comes to\n\nthe conclusion that there was no such loan transaction\n\nand also submitted that the accused availed a loan in\n\nthe year 1999 and no loan was availed in the year\n\n2000. The learned Counsel also submitted that\n\nnothing has been stated in the complaint with regard\n\nto the earlier loan transaction between the\n\ncomplainant and the accused and the complainant\n\nsuppressed the earlier loan transaction. Hence, the\n\ntrial Judge has rightly pointed out that the transaction\n\nitself is doubtful and nothing has been stated in the\n\ncomplaint with regard to the earlier loan transaction.\n\nThe Complainant has suppressed the fact with regard\n\nto the earlier loan transaction and hence, the trial\n\nJudge has not committed any error in acquitting the\n\naccused.910. The learned counsel in support of his\n\ncontention relied upon the Judgment reported in ILR\n\n2010 KAR 997 in the case of SRI. A.S.\n\nPARAMESHWARAIAH & OTHERS VS. STATE OF\n\nKARNATAKA, REP., BY ITS SECRETARY TO\n\nGOVERNMENT, DEPARTMENT OF URBAN\n\nDEVELOPMENT AND MUNICIPAL\n\nADMINISTRATION & OTHERS, with regard to the\n\nsuppression of the facts before the Court . He has to\n\napproach the Court with clean hand and the same is\n\nnot done by the complainant.11. Having heard the arguments addressed by\n\nthe learned counsel appearing for the complainant and\n\nso also learned counsel appearing for the accused and\n\nalso on perusal of the material placed on record in\n\nkeeping the contentions urged by the respective\n\ncounsel, the point that would arise for consideration of\n\nthis Court are:10"(1) Whether the Trial Judge has\n committed an error in acquitting the\n accused in coming to the conclusion\n that the very transaction between the\n accused and the complainant is\n doubtful and whether it requires\n interference of this Court?(2) What Order?Re - Point No.1:12. Having heard the arguments of the\n\nrespective counsel and also the grounds urged in the\n\nappeal and on perusal of the material available on\n\nrecord, this Court has to re-appreciate the material\n\navailable on record. Firstly, this Court would like to\n\nrefer to the contention of the complainant and in the\n\ncomplaint it is stated that the accused was the owner\n\nof the bus, having acquaintance with the complainant\n\non 01.12.2000 had availed the loan of Rs.50,000/-\n\nagreeing to repay the same @ 18% interest per\n\nannum.1113. It is the contention of the complainant\n\nthat, the accused did not repay the loan amount as\n\nagreed and hence he issued notice on 26.11.2001\n\nthrough registered post and certificate of posting.\n\nNotice sent through certificate of posting was served\n\non the accused and notice sent through registered\n\npost was refused. After receipt of notice issued\n\nthrough certificate of posting, accused came and\n\nascertained the balance amount as Rs.59,000/- and\n\nthereafter gave a cheque dated 6.12.2001 for an\n\namount of Rs.59,000/-. The said cheque was\n\npresented and the same was dishounoured on\n\n12.12.2001. Hence, notice was sent on 27.12.2001,\n\nthe same was served on the accused and accused did\n\nnot choose to give any reply or comply with the\n\ndemand. Hence complaint was filed.14. The complainant in order to substantiate\n\nhis contention, he himself examined as P.W.1 and\n\nreiterated the contents of the complainant. The12complainant also reiterated that on 12.08.2004\n\naccused has made payment of Rs.5,000/- through his\n\ncounsel. To that effect, the complainant had issued a\n\nreceipt.15. P.W.1 was subjected to cross-examination.\n\nIn the cross-examination, P.W.1 admits that he is\n\nrunning a Finance Firm from the year 1994 in the\n\nname and style of "M/s.Ravi Finance". He has also\n\nsubmitted that he used to collect the loan amount\n\nevery day from the borrowers and also they used to\n\nissue pass book. He also admits that when the loan\n\namount was repaid he used to issue the receipt to that\n\neffect. Ex.D.1 confronted to witness and admits the\n\nsame and he says the same is in respect of loan\n\ntransaction dated 01.12.1999 for having received a\n\nsum of Rs.50,000/-. He also admits that in respect of\n\nthe said loan amount, he paid the amount of\n\nRs.22,000/-. Exs.P2 to P5 confronted to witness and\n\nadmits the same. The witness also admits that they13used to collect the promissory note for advancing the\n\nloan by taking surety. It is suggested that on\n\n01.12.2000, no loan was given to the accused, the\n\nsame was denied. A specific suggestion was made\n\nthat accused not availed loan on 01.12.2000 and the\n\nsame was denied. He also admitted that he has not\n\nproduced the daily book before the Court and also\n\nadmitted that the entries are in chronological order.\n\nEx.P9 subjected to auditing. There is an entry in\n\nEx.P.9, having shown the accused availed the loan in\n\npage No.58 and in the previous page at page No.57 on\n\n04.01.2000, the amount was advanced and witness\n\nsays that the same is not properly visible. It is\n\nsuggested that he is intentionally denying the same\n\nand the same was denied. He admits that in Ex.P.9,\n\nthere is no chronological order in mentioning the name\n\nof the borrower. It is suggested that Ex.P.9 is created\n\nfor their convenience, the same was denied. He also\n\nadmits that he has not produced any voucher and the\n\nsame is in his custody. He also admitted that he14cannot tell whether the surety signed the voucher or\n\nnot. The counsel has made a specific suggestion that\n\nthe cheque and promissory note were collected in\n\nrespect of loan transaction dated 01.12.1999, were\n\nmisused and the same was denied.16. The accused in his evidence sworn to that\n\nhe had availed a loan of Rs.50,000/- on 01.12.1999\n\nand not availed any loan on 01.12.2000 from the\n\ncomplainant. The accused in his evidence has\n\nnarrated with regard to earlier transaction for having\n\npaid the amount of Rs.5,000/- on 12.08.2004 through\n\nhis advocate and collected the receipt for the same.\n\nD.W.1 subjected to cross-examination. In the cross-\n\nexamination, he admits that for having received the\n\namount of Rs.22,000/- in the pass book there was an\n\nentry and he cannot tell that who made that entry. It\n\nis also admitted in the cross-examination that on\n\n01.12.2000 he has borrowed loan from the\n\ncomplainant, for a sum of Rs.50,000/-. It is suggested15that while availing the loan he has signed the\n\npromissory note along with surety of one Prabhakar\n\nRaikar and the said suggestion was denied. He has\n\nalso admitted that he has availed loan from two\n\nfinanciers. He admits that the notice given to him on\n\n07.11.2001 for demanding the amount that he had\n\nnot paid. He had not given any reply to the notice.\n\nHe categorically admits that he went to enquire with\n\nthe financier. He also admits that he has not given any\n\nreply to the notice. It is suggested that he had given\n\nthe cheque dated 6.12.2001 and the said suggestion\n\nwas denied. However, he admits that while availing\n\nloan on 01.12.1999, apart from promissory note he\n\nhad given blank cheque and admits the signature\n\navailable on the cheque-Ex.P.1 as Ex.P.1A. He also\n\nadmits that the notice was given on 27.12.2001 and\n\nthe same was served on him. It is suggested that\n\nthere is an entry in Ex.P.9 ledger at page 58 for\n\nhaving availed the loan of Rs.50,000/- and the said\n\nsuggestion was denied. He also admitted that after16filing the complaint in respect of this cheque he is\n\nnot having any document to show that he made\n\nremaining payment. It is suggested that he had not\n\nrepaid the remaining loan amount and the said\n\nsuggestion was denied. He further admitted the\n\nreceipt of Ex.D.11, the same had given by the\n\ncomplainant.17. Having considered the oral and\n\ndocumentary evidence, it is the case of the\n\ncomplainant that the accused has borrowed a sum of\n\nRs.50,000/- on 01.12.2000 and accused did not repaid\n\nthe amount. Hence, notice was issued. It is to be\n\nnoted that the complainant in the cross-examination\n\nadmitted regarding the discrepancies found in Ex.P.9\n\nregarding the entry made in Ex.P.9 at page No.58.\n\nSpecific defense of the accused is that he had not\n\navailed loan on 01.12.2000 and he had availed loan\n\nonly on 01.12.1999 and the cheque for the said\n\namount was collected on 01.12.1999, which was17misused. No doubt in the cross-examination of P.W.1,\n\nit is elicited that they have collected the voucher at\n\nthe time of availing loan and the same has not been\n\nplaced before the Court and the same is in their\n\ncustody. Even after the cross-examination also the\n\nsaid voucher is not produced before the Court.\n\nHowever, relying upon the cheque Ex.P.1 the accused\n\nadmits that his signature is available in Ex.P.1 and\n\nthere is no dispute regarding the signature available at\n\nEx.P.1. The complainant also relied upon the notice\n\nsent to accused dated 27.12.2001 in terms of Ex.P5\n\nand the accused in the cross-examination did not\n\ndispute the service of notice and also admits that he\n\nhas not given any reply to the said notice. The\n\npromissory note is also marked as Ex.P.10.18. On perusal of the evidence of D.W.1, in his\n\nevidence, he acknowledges availing loan on\n\n01.12.1999 and not acknowledges the availment of\n\nloan on 01.12.2000, is total denial. In his evidence, he18has sworn that he has not availed loan on 01.12.2000.\n\nD.W.1 in the cross-examination at page 5 categorically\n\nadmits that notice was issued to him on 07.11.2001\n\nand he has not given any reply. It is also pertinent to\n\nnote that subsequent to dishonour of the cheque,\n\nnotice was given to him and the same was also served\n\non him and for the second time, the notice was given\n\nand he has not given any reply to the same. It is also\n\nimportant to note that D.W.1 relied upon Exs.D.1 to\n\nD.12 . Ex.D.1 is pass book of payment from\n\n01.12.1999, Ex.D.2 is a notice given to the accused in\n\nrespect of availing loan dated 01.12.1999.It is also\n\nimportant to note that the accused got marked the\n\ndocument Ex.D3 notice dated 07.11.2001 demanding\n\nthe loan amount from the accused in respect of loan\n\ntransaction dated 01.12.2000. In spite of service of\n\nnotice accused has not given any reply. Ex.D.4 is a\n\nnotice subsequent to bouncing of the cheque and\n\nadmitted for the second notice in respect of Ex.D.4.\n\nThis Court would like to refer to the judgment of the19Apex Court in the case ofRangappa vs. Sri Mohanreported in 2010 (4) Supreme 169, the Apex Court\n\nhas categorically held that when the cheque was not\n\ndisputed and the notice was issued and the same was\n\nnot replied the Court should draw the presumption\n\nunderSection 139of the N.I. Act. In the case on\n\nhand accused not denied the signature available in\n\nEx.P.1 cheque. The only contention is that the said\n\ncheque was given at the time of getting the loan on\n\n1.12.1999. If he has not borrowed loan on 1.12.2000\n\nwhat prevented him to give any reply when two\n\nnotices were issued to him with regard to payment of\n\nloan amount and subsequently on bouncing of cheque,\n\nwhich has not been explained by the accused to rebut\n\nthe evidence. He denied the availment of loan on\n\n1.12.2000 and there is no answer with regard to the\n\nadmission made by him during the course of cross-\n\nexamination when a specific question was put to him.\n\nHe had admitted that he had availed loan of\n\nRs.50,000/- from the complainant.2019. The learned counsel appearing for the\n\naccused would submit that the Court cannot take stray\n\nadmission and comes to the conclusion that there was\n\na loan transaction. The said contention also cannot be\n\naccepted for the reason that the said admission is not\n\nonly made before the Court in further cross-\n\nexamination, he categorically admitted that after filing\n\nof this case in respect of the subject matter of the\n\ncheque on 12.08.2004 he made payment of\n\nRs.5,000/- in favour of the complainant. It is also\n\nimportant to note that the accused himself got marked\n\nthe said receipt as per Ex.D12. The accused also relied\n\nupon documents-Exs.D6 to D11 are the notices\n\ndemanding payment in respect of earlier loan\n\ntransaction dated 1.12.1999. The main contention of\n\nthe accused is that there was a discrepancy in making\n\nan entry in Ex.P.9 about the loan transaction. No\n\ndoubt, P.W.1 categorically admits with regard to\n\ndiscrepancy in entering availment of loan in Ex.P.9.21The Trial Court also considered the material placed by\n\nthe complainant as per Ex.P9 page 57 and 58 but trial\n\nCourt failed to consider the admission given by D.W.1\n\nin the cross examination and specific admission was\n\ngiven by the accused regarding availment of loan and\n\nalso admitted that he made payment of Rs.5,000/-\n\nduring the pendency of the present case before the\n\nTrial Court. The Trial Court even not bothered to\n\ndiscuss anything about this admission. When there is\n\nan admission before the Court, there is no need to\n\nprove the same underSection 58of the Evidence Act\n\nand the complainant need not prove the same. The\n\nTrial Court only carried away with the entries found in\n\nEx. P.9 ledger regarding discrepancy. No doubt, there\n\nare transactions, where there is specific admission\n\nmade in the cross examination by D.W.1 for having\n\navailed the loan and also repayment of loan amount of\n\nRs.5,000/- during the pendency of the case. The Trial\n\nJudge lost sight of the said admission given by D.W.1\n\nand proceeded erroneously without discussing the22admission given by D.W.1. When D.W.1 categorically\n\nadmits that he had availed the loan on 1.12.2000 and\n\nalso made the part payment during the pendency of\n\nthe case and also there was no any reply to Exs.D3\n\nand D4. The Trial Judge has not considered document\n\nEx.D3 and D4-notices given to the accused and both\n\ntwo notices have been served on the accused and the\n\naccused kept 'mum' with regard to the transactions.\n\nIf there is no such loan transactions between the\n\ncomplainant and the accused he ought to have given\n\nthe reply at the first instance itself instead of that\n\nduring the course of cross-examination only he took\n\ntotal denial of the loan transaction and the trial Court\n\nhas committed an error in coming to the conclusion\n\nthat the transaction between the complainant and\n\naccused is doubtful in spite of a categorical admission\n\ngiven by the accused during the course of cross-\n\nexamination, availing loan and as well as making part\n\npayment during the pendency of the case. Hence, it is\n\nclear that the findings recorded by the trial Court is23perverse and the said finding is a mistake apparent\n\non the face of the record. Firstly, not discussing\n\nanything about admission of availment of loan and\n\npayment and given more importance to the entries\n\nmade in Ex.P.9. The Trial Court doubted the\n\ntransaction between the complainant and the accused\n\nand proceeded erroneously. It is also important to\n\nnote that the Trial Court has observed that the\n\ncomplainant has not stated anything in the complaint\n\nwith regard to earlier loan transaction and the very\n\napproach of the trial court is erroneous. No doubt in\n\nthe cross examination of P.W.1. It was elicited with\n\nregard to the earlier loan transaction that itself is not\n\na ground to come to the conclusion that the\n\ncomplainant has misused the document regarding the\n\nearlier transaction. The Trial Judge has observed that\n\nthe earlier loan transaction document is misused\n\ninspite of the admission given by D.W.1 and the said\n\nreasoning is also erroneous and it requires\n\ninterference of this Court to set aside the order of the24Trial Court as the Trial Judge has not drawn\n\npresumption underSection 139of the N.I. Act and\n\nalso failed to rebut the presumption underSection 139of N.I. Act. D.W.1 has given admission with regard to\n\nthe transaction and also admitted the payment in\n\nrespect of subject matter of cheque during the\n\npendency of the case before the Trial Court. Hence, I\n\nam of the opinion that the Trial Judge has committed\n\nan error in acquitting the accused.20. The learned counsel appearing for the\n\naccused has vehemently contended that the\n\ncomplainant has suppressed the fact of earlier\n\ntransaction and also in order to substantiate his\n\ncontention, he relied upon the judgment reported in\n\nILR 2010 KAR 997 in the case of SRI. A.S.\n\nPARAMESHWARAIAH & OTHERS, this Court had\n\nheld that a person should approach the Court with\n\nclean hand and non disclosure of earlier transaction in\n\nthe complaint is a suppression. In the case on hand25no suppression as contended and the same is in\n\nrespect of earlier transaction. The complaint is in\n\nrespect of subsequent loan transaction and accused\n\nnot paid the amount, hence the contention of the\n\naccused cannot be accepted.21. It comes to the knowledge of this Court\n\nthat during the pendency of the case, the accused has\n\nmade payment of Rs.5,000/- on 12.08.2004 in terms\n\nof D.12 and the same is not been denied. Having\n\nnoticed the same this Court will take note of this while\n\npassing the final order while directing the accused to\n\npay the fine amount.In view of the above discussions, I pass the\n\nfollowing:-ORDER(i) Appeal is Allowed.(ii) The judgment and order of acquittal dated\n 10.1.2011 passed in C.C.No.56/2010 passed by\n the Senior Civil Judge and JMFC, Soraba is26hereby set aside and convicted the accused-respondent for the offence punishable underSection 138of the N.I. Act.(iii) Accused is directed to pay an amount of\n Rs.1,00,000/- in favour of the complainant\n within a period of 8 weeks from today. If\n accused fails to pay the amount of\n Rs.1,00,000/- within 8 weeks, accused is\n sentenced to undergo Simple Imprisonment for\n a period of one year.(iv) The Trial Court is directed to secure the accused\n and subject him for sentence.(v) The Registry is directed to transmit the Trial\n Court Records forthwith.Sd/-JUDGE\n\n\n\n\nHR |
40957ba8-b42e-53fe-9774-47b6f6c42db1 | court_cases | High Court of MeghalayaShri. Heron Roy Manner & Ors. vs . State Of Meghalaya & Ors. on 20 October, 2021Author:H. S. ThangkhiewBench:H. S. ThangkhiewSerial No. 17\nRegular List\n HIGH COURT OF MEGHALAYA\n AT SHILLONG\n\n WP(C) No. 203 of 2015 with\n WP(C) No. 204 of 2015\n WP(C) No. 205 of 2015 Date of Order: 20.10.2021\n\n\n Shri. Heron Roy Manner & Ors. Vs. State of Meghalaya & Ors.\n Smti. Airona Lyngdoh & Ors. Vs. State of Meghalaya & Ors.\n Shri. Pyntngen Mukhim & Ors. Vs. State of Meghalaya & Ors.\n\n Coram:\n Hon'ble Mr. Justice H. S. Thangkhiew, Judge\n\n\n Appearance:\n\n For the Petitioner/Appellant(s) : Mr. S. M. Suna, Adv. with\n Mr. L. Shongwan, Adv.\n\n For the Respondent(s) : Mr. R. Gurung, GA. withMr. K.P. Bhattacharjee, GA.As a final chance, Mr. R. Gurung, learned GA for the State respondents\n is granted 4 (four) weeks' time to obtain instructions to the additional affidavit\n filed.Accordingly, list this matter after 4 (four) weeks.Judge\n Meghalaya\n 20.10.2021\n "D.Thabah-PS" |
318406fa-4766-57da-a2b6-cbc5c4198dad | court_cases | Patna High Court - OrdersSadhu Saran Prasad vs The State Of Bihar on 3 August, 2021Author:Sudhir SinghBench:Sudhir SinghIN THE HIGH COURT OF JUDICATURE AT PATNA\n CRIMINAL MISCELLANEOUS No.17840 of 2021\n Arising Out of PS. Case No.-493 Year-2020 Thana- GARDANIBAG District- Patna\n ======================================================\n Sadhu Saran Prasad, Male, aged about 44 years, Son Of Sri Sidheshwar\n Prasad @ Kameshwar Prasad, R/O Village- and P.O.- Dasturur, P.S.-\n Tharthari, District- Nalanda.\n\n ... ... Petitioner\n Versus\n The State Of Bihar\n\n ... ... Opposite Party\n ======================================================\n Appearance :\n For the Petitioner : Mr. Amrit Abhijat, Advocate.\n For the Opposite Party : Mr. A.G.\n ======================================================\n CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH\n ORAL ORDER\n\n2 03-08-2021Learned counsel for the petitioner is directed to\n\n remove the defects, as pointed out by the office, within a period\n\n of four weeks from the date of restoration of normalcy.Heard learned counsel for the petitioner and learned\n\n counsel for the State through virtual mode.The petitioner is apprehending his arrest in connection\n\n with Gardanibagh P.S. Case No. 493 of 2020 for the offence\n\n registered underSection 30(a)/34of the Bihar Prohibition and\n\n Excise (Amendment) Act, 2018.The prosecution story, in brief, is that total 26.400\n\n liters wine is recovered from the Innova Crysta Car in question.It has been submitted by learned counsel for the\n\n petitioner that the petitioner has got no criminal antecedent.\n Patna High Court CR. MISC. No.17840 of 2021(2) dt.03-08-20212/3There is no allegation of tampering with the witnesses alleged\n\n against the petitioner. The petitioner has falsely been implicated\n\n in the present case. It is alleged that total 26.400 liters wine is\n\n recovered from the Innova Crysta Car in question. The\n\n petitioner is alleged to be the owner of the Car in question. The\n\n said Car is run as Public Transport. Except for this, there is no\n\n other substantive evidence to suggest the implication of the\n\n petitioner in this case. Nothing incriminating has been recovered\n\n from the conscious possession of the petitioner. The petitioner\n\n had no knowledge regarding the alleged incident. There is no\n\n compliance ofSection 100Cr. P.C.\n\n On behalf of the State, it is submitted that the\n\n petitioner is named in the F.I.R/ Complaint Case.Considering the aforesaid facts and circumstances of\n\n the case, let the petitioner above named, in the event of arrest or\n\n surrender before the learned court below within a period of\n\n twelve weeks from today, be released on anticipatory bail on his\n\n personal bond to the satisfaction of the learned Special Judge,\n\n Excise, Patna, in connection with Gardanibagh P.S. Case No.\n\n 493 of 2020, subject to the conditions as laid down underSection 438(2)of the Code of Criminal Procedure.Once the normalcy is restored, the petitioner shall\n Patna High Court CR. MISC. No.17840 of 2021(2) dt.03-08-20213/3furnish bail bonds of Rs. 10,000/-(Rupees Ten Thousand) with\n\n two sureties of the like amount each within a period of eight\n\n weeks to the satisfaction of the court concerned in connection\n\n with the aforesaid case.(Sudhir Singh, J)\nU.K./-U T |
020696b4-a5d0-5f16-ae18-5c286abbf07b | court_cases | Patna High Court - OrdersUpast Milind @ Mittal Sharma @ Usast ... vs The State Of Bihar on 12 January, 2021Author:Ashutosh KumarBench:Ashutosh KumarIN THE HIGH COURT OF JUDICATURE AT PATNA\n CRIMINAL MISCELLANEOUS No.18801 of 2020\n Arising Out of PS. Case No.-149 Year-2019 Thana- MAHILA P.S. District- Bhojpur\n ======================================================\n UPAST MILIND @ MITTAL SHARMA @ USAST MILIND Son of Sri\n Mahendra Kumar Sharma Resident of Mohalla - Shastri Nagar West, Road\n No. - 8, P.S.- Rampur, District - Gaya.\n ... ... Petitioner/s\n Versus\n 1. THE STATE OF BIHAR Bihar\n 2. Aarti Kumari Wife of Sri Upsat Milind @ Mittal Sharma D/o Uma Sharma,\n Resident of Mohalla - Bhaluhipur, P.S. - Ara Nagar, District - Bhojpur\n ... ... Opposite Party/s\n ======================================================\n Appearance :\n For the Petitioner/s : Mr. Pankaj Kumar Singh, Advocate\n For the Opposite Party/s : Mr. Nirmal Kumar Sinha, APP\n For the O.P. No. 2 : Mr. Nihar Nandan Ambasta, Advocate\n ======================================================\n CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR\n ORAL ORDER\n\n5 12-01-2021Heard Mr. Pankaj Kumar Singh, learned\n Advocate for the petitioner and Mr. Nihar Nandan\n Ambasta for the Opposite Party No. 2. The State is\n represented by Mr. Nirmal Kumar Sinha, learned\n Advocate for the State.The petitioner, who is the husband of\n opposite party no. 2, seeks bail in anticipation of his\n arrest in connection with Ara Mahila P.S. Case No. 149\n of 2019, arising out of Complaint Case No. 1237C of\n 2019 dated 26.09.2019 instituted for the offences underSections 498A,379and406of the Indian Penal Code\n andSections 3/4of the Dowry Prohibition Act.At the outset, learned counsel for the\n petitioner drew the attention of this Court to Annexure-\n 2, which is an affidavit by the opposite party no. 2\n Patna High Court CR. MISC. No.18801 of 2020(5) dt.12-01-20212/2stating that she does not wish to continue with the\n marriage and has settled the dispute after accepting Rs.\n 10 lakhs from the petitioner.The aforesaid statement is seriously refuted\n by the counsel for opposite party no. 2.It has been submitted on behalf of opposite\n party no. 2 that her signature was taken on a blank\n piece of paper and the aforesaid statement was made\n part of the affidavit. Nonetheless, the learned counsel for\n opposite party no. 2 states that she is ready for a\n settlement.Considering the aforesaid fact scenario, I am\n not inclined to grant anticipatory bail to the petitioner.The prayer for anticipatory bail is rejected.\n However, if the dispute between the parties is\n resolved, it would be open for the petitioner to approach\n the court below for grant of anticipatory bail afresh in\n terms of the agreement between them and in that case\n the court below shall consider the aforesaid aspects of\n the matter and shall pass orders in accordance with law\n without being prejudiced by the fact that the present\n petition has not been entertained.The petition stands disposed of accordingly.(Ashutosh Kumar, J)\nkrishna/-U T |
6198e5ae-e370-54a6-873f-db4bcfb36ef2 | court_cases | Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member services -- Free for one month.\n\nNational Company Law Appellate Tribunal\nSteel India vs Theme Developers Pvt Ltd on 11 February, 2020\n NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI\n\n Company Appeal (AT) (Insolvency) No. 1014 of 2019\n\n[Arising out of Impugned Order dated 23rd July 2019 passed by the\nHon'ble National Company Law Tribunal, Mumbai Bench, Mumbai in\nC.P. (IB) No. 843/MB/2019 filed under Section 9 of the Insolvency and\nBankruptcy Code, 2016]\n\nIN THE MATTER OF:\nM/s Steel India\nPartnership registered under the Partnership Act, 1932\nD/7, 40L Kunthunath Apt.\nNahur Road, Mulund (W)\nMumbai - 400080 ...Appellant\n\nVersus\n\nTheme Developers Pvt. Ltd.\n3AB Rajabahadur Mansion\n20 Ambalal Doshi Marg\nFort, Mumbai - 400023 ...Respondent\n\nPresent:\n\nFor Appellant: Mr Harsh Gokhale, Advocate\nFor Respondent: Ms Surekha Raman, Advocate\n\n\n J U D G M E N T\n\n[Per; V. P. Singh, Member (T)]\n\n This appeal emanates from the order passed by the Adjudicating\n\nAuthority on the application filed U/S 9 of the Insolvency and Bankruptcy\n\nCode 2016 (for short „I & B Code‟) by the Appellant /applicant M/s Steel\n\nIndia to initiate Corporate Insolvency Resolution Process (CIRP) against the\n\ncorporate debtor M/s Theme Developers Pvt. Ltd. The appellant contends\n\nthat the „Corporate Debtor‟ committed default in making payment to the\n\nextent of Rs.22,64,054/-, which is inclusive of interest calculated @ 2% on\n\n\nCompany Appeal (AT) (Insolvency) No. 1014 of 2019 Page 1 of 8\n the delayed payments against goods sold and delivered by the „Operational\n\nCreditor‟ to the „Corporate Debtor‟. The Applicant states that it supplied the\n\nsteel bars to the „Corporate Debtor‟ for their construction activity, at their\n\nproject sites and against these supplies various invoices have been raised.\n\nDetails of invoices are given below:\n\n\n "S. No. Buyer Invoice No. Amount Date\n\n 1. Theme S1/086/2015-16 4,16,805.00 30.07.2015\n Developers\n Private Ltd.\n\n 2. Theme S1/100/2015-16 2,94,487.00 30.07.2015\n Developers\n Private Ltd.\n\n 3. Theme S1/101/2015-16 3,16,060.00 30.07.2015\n Developers\n Private Ltd.\n\n 4. Theme S1/102/2015-16 2,19,805.00 30.07.2015"\n Developers\n Private Ltd.\n\n\n It is further stated by the „Operational Creditor‟ that as per the terms\n\nand conditions between the parties; it was aggrieved that in case the\n\npayment is delayed beyond 60 (sixty) days, 2% interest per month will be\n\ncharged.\n\n\n The Appellant/Operational Creditor further contends that amount due\n\ntowards the „Corporate Debtor‟ is of interest amounting to Rs.22,64,054/-.,\n\nfor delayed payment against the goods sold and delivered. The details of\n\ncomputation of outstanding amount, relating to the payment of interest for\n\ndelayed payment is Rs.22,64,054/-, which is due and payable, against the\n\n„Corporate Debtor‟.\n\n\nCompany Appeal (AT) (Insolvency) No. 1014 of 2019 Page 2 of 8\n The Adjudicating Authority rejected the petition, on the ground that\n\noutstanding amount is relating to the payment of interest-only, on account\n\nof the delayed payment, to the extent of Rs.22,64,054/-,i.e. for the period\n\nfrom 2015 to 2018.\n\n The Adjudicating Authority rejected the petition, also on the ground\n\nthat the „Corporate Debtor‟ has raised the dispute on 10th January 2019,\n\nafter receiving the first demand notice, stating that they are not liable to pay\n\nthe amount, as claimed by the „Operational Creditor‟. The demand notice\n\nhas been issued on 15th January 2019. The petition was rejected, on the\n\nground of pre-existing dispute, covered under Section 5 sub Clause 6(a) of\n\nthe I & B Code 2016.\n\n The Learned Counsel for the Respondent, corporate debtor submits\n\nthat the „Operational Creditor‟ has filed the Application under Section 9 of\n\nthe I & B Code, before the Adjudicating Authority, alleging its dues towards\n\ninterest on loan alone, which is not maintainable, given the decision of this\n\nAppellate Tribunal in the cases of SBF Pharma V Gujarat Pharma caps Pvt.\n\nLtd, Company Appeal (AT) (Insolvency) No. 883 of 2019 and Company\n\nAppeal (AT) (Insolvency) No. 1227 of 2019 in S.S. Polymers Versus Kanodia\n\nTechnoplast Limited.\n\n\n The Respondent/Corporate Debtor contends that interest alone on loan\n\ndoes not qualify the term „Operational Debt‟, as defined under the „I & B\n\nCode‟ 2016. The Respondent further submits that the Appellant has\n\nsuppressed the fact that before issuance of demand notice dated 13th\n\nJanuary 2019, it had issued the purported demand notice DT. 28th\n\n\n\nCompany Appeal (AT) (Insolvency) No. 1014 of 2019 Page 3 of 8\n December 2018 under the „I & B Code‟ 2016, in Form-3 claiming a sum of\n\nRs.36,00,006/-, which includes the principal amount Rs.13,35,952/- and\n\ninterest to the tune of Rs.22,64,054/-. In response to the first demand\n\nnotice dated 28th December 2019 the „Corporate Debtor‟ made the payment\n\nof the principal amount of Rs.13,35,952/- via RTGS on 28th January 2019\n\nand raised the dispute regarding the outstanding interest amount, i.e.\n\nRs.22,64,054/- towards interest dues. The Respondent further submits that\n\nbefore the issuance of demand notice under Section 8 of the I & B Code, the\n\n„Corporate Debtor‟ has raised the dispute about the outstanding interest, i.e.\n\nRs.22,64,054/-, which is purported to be claimed as interest on account of\n\ndelayed payment @ 2% per month.\n\n\n We have heard the arguments of the Learned Counsel for the parties\n\nand perused the record.\n\n\n Admittedly, the outstanding amount against the „Corporate Debtor‟ is\n\ntowards interest amount of Rs.22,64,054/-, for delayed payment against the\n\ngoods sold and delivered. It is evident from the particulars of claims annexed\n\nwith the Appeal as Annexure A2 (Page 16).\n\n This Appellate Tribunal in the case of Company Appeal (AT)\n\n(Insolvency) No. 1227 of 2019 in S.S. Polymers Versus Kanodia Technoplast\n\nLimited held that:\n\n\n "5. Admittedly before the admission of an application under Section 9\n of the I&B Code, the „Corporate Debtor‟ paid the total debt. The\n application was pursued for realisation of the interest amount,\n which, according to us is against the principal of the I&B Code,\n\n\n\nCompany Appeal (AT) (Insolvency) No. 1014 of 2019 Page 4 of 8\n as it should be treated to be an application pursued by the\n Applicant with malicious intent (to realise only Interest) for any\n purpose other than for the Resolution of Insolvency, or Liquidation of the\n „Corporate Debtor‟ and which is barred in view of Section 65 of the I&B\n Code."\n (Quoted verbatim)\n\n Similarly, in case of Company Appeal (AT) (Insolvency) No. 883 of 2019\n\nin SBF Pharma Versus Gujarat Liqui Pharmacaps Pvt. Ltd., this Appellate\n\nTribunal rejected the Petition for the realization of only interest amount, on\n\nthe ground that the Petition is filed for other than for the Resolution of\n\nInsolvency or liquidation. This Appellate Tribunal observed that:\n\n\n "7. In the present case, we find that the Respondent-\n 'Corporate Debtor' is not insolvent and viable and feasible to pay\n the claim amount. Only for recovery of the interest, the Appellant\n is pursuing the Insolvency Resolution Process which, according to\n us, is malicious intent for any purpose other than for the\n resolution of insolvency, or liquidation."\n (Quoted verbatim)\n\n The respondent further contends that, the claim of interest alone on\n\nloan, does not clarify as an „Operational Debt‟ under the „I & B Code‟. It is\n\nsettled that the charging of interest, ought to be an actionable claim,\n\nenforceable under law, provided it was properly agreed upon between the\n\nparties. In this case, Learned Counsel for the Appellant submits that the\n\nemail dated 05th September 2015, relates to the quotation only. The scanned\n\ncopy of the email is as under:\n\n\nCompany Appeal (AT) (Insolvency) No. 1014 of 2019 Page 5 of 8\n The Appellant contends that as per agreed terms @ 2% interest was\n\npayable if the payment is delayed for more than 60 days. In this case,\n\nundisputedly, payment was delayed. Therefore the „Corporate Debtor‟ is\n\nliable to pay interest amount as per agreed terms and conditions.\n\n\n\n The „Operational Creditor‟ has placed reliance on the email dated 05th\n\nSeptember 2015, which shows that „Operational Creditor‟ quoted the rate to\n\nthe „Corporate Debtor‟ wherein, it was mentioned that if payment was\n\ndelayed for more than 60 days, then interest@ 2% per month will be\n\ncharged. The „Operational Creditor‟/Appellant has not filed any document to\n\nshow that the „corporate debtor ever agreed to pay the interest on delayed\n\npayment. Based on an email dated 05th September 2015, it is apparent that\n\nthe „Operational Creditor‟ quoted the rate, which contains the clause of\n\ncharging interest on delayed payment if payment is not made within 60\n\ndays. But the copy of supply order is not filed by the operational creditor to\n\nprove that interest @2% per month is chargeable if payment is not made\n\n\nCompany Appeal (AT) (Insolvency) No. 1014 of 2019 Page 6 of 8\n within 60 days. It was mentioned that on delayed payment interest @ 2%\n\nper month will be charged. But no document is placed before us to show\n\nthat the said term of charging 2% interest on delayed payment was accepted\n\nby the „Corporate Debtor‟. The Copies of the invoices, which are annexed\n\nwith the Appeal does not contain the said term that interest is to be paid @\n\n2% per month, if the payment is delayed for more than 60 days.\n\n\n\n It is pertinent to mention that „Operational Creditor‟ issued first\n\ndemand notice on 28th December 2018. Based on this first demand notice.\n\nThe „Corporate Debtor‟ made the payment of the principal amount, and only\n\nan interest amount of Rs.22,64,054/- remained outstanding towards\n\ninterest, for which the „Corporate Debtor‟ raised the dispute. After that, the\n\n„Operational Creditor‟ issued the demand notice on 15th January 2019\n\nApplication for initiation of corporate insolvency resolution process under\n\nSection 9 of the I & B Code was filed before the Adjudicating Authority.\n\nBefore the issuance of the second demand notice, the dispute relating to the\n\npayment of interest was existing. Therefore, the Adjudicating Authority\n\nrejected the Application by the Impugned Order.\n\n\n\n It is also pertinent to allege that the outstanding amount is towards\n\ninterest on the delayed payments, for which there was a pre-existing\n\ndispute, before issuance of demand notice. The alleged claim amount,\n\ntowards interest on loan alone, cannot be termed as an „Operational Debt‟.\n\nFor the reasons aforesaid, we are not inclined to interfere with the order\n\npassed by the Learned Adjudicating Authority.\n\n\nCompany Appeal (AT) (Insolvency) No. 1014 of 2019 Page 7 of 8\n The Appeal is dismissed. No order as to costs.\n\n\n [Justice Venugopal M.]\n Member (Judicial)\n\n\n\n [Kanthi Narahari]\n Member (Technical)\n\n\n\n [V. P. Singh]\n Member (Technical)\nNEW DELHI\n11th FEBRUARY, 2020\n\npks/md\n\n\n\n\nCompany Appeal (AT) (Insolvency) No. 1014 of 2019 Page 8 of 8 |
cdc446b6-3792-5fbe-ad35-e18e0cfa2158 | court_cases | Supreme Court - Daily OrdersArun Singh @ Rajesh Bhadauria vs The State Of Uttar Pradesh on 22 January, 20211\n\n ITEM NO.36 Court 8 (Video Conferencing) SECTION X\n\n S U P R E M E C O U R T O F I N D I A\n RECORD OF PROCEEDINGS\n\n Writ Petition(s)(Criminal) No(s).15/2018\n\n ARUN SINGH @ RAJESH BHADAURIA Petitioner(s)\n VERSUS\n\n THE STATE OF UTTAR PRADESH & ANR. Respondent(s)\n\n (ONLY W.P. (Crl.)194/2019 IS TO BE TAKEN UP AGAINST THIS MATTER. )\n\n WITH\n W.P.(Crl.) No. 194/2019 (X)\n (FOR EXTENSION OF BAIL ON IA 7377/2021)\n\n Date : 22-01-2021 This matter was called on for hearing today.\n\n CORAM :\n HON'BLE MR. JUSTICE L. NAGESWARA RAO\n HON'BLE MR. JUSTICE S. ABDUL NAZEER\n HON'BLE MS. JUSTICE INDU MALHOTRA\n\n For Petitioner(s) Mr. Jetendra Singh, Adv.\n Ms. Kalpana Sabharwal, Adv.\n Ms. Priyanka Singh, Adv.\n Mr. Vijendra Kumar Kaushik, Adv.\n Ms. Manju Sharma Jetley, AOR\n Mr. S S Dharmateja, AOR\n\n Ms. Manju Jetley, AOR\n\n For Respondent(s) Mr. Tushar Mehta, Ld SG\n Mr. Balbir Singh, Adv.\n Mr. Rupesh Kumar, Adv.\n Mr. Rajat Nair, Adv.\n Mr. Shyam Gopal, Adv.\n\n Ms. Anil Katiyar, AOR\n\n Mr. Vinod Diwakar, AAG\n Mr. Sarvesh Singh Baghel, AOR\n Mr. Harsh Pratap Shahi, Adv.\n Mr. B.N. Dubey, Adv.\nSignature Not Verified\n Ms. Shivranjani Ralawata, Adv.\nDigitally signed by\nBALA PARVATHI\nDate: 2021.01.23\n12:42:46 IST\nReason: Mr. T. Suryanarayan, Adv.\n Ms. Yugandhara Pawar Jha, Adv.\n Ms. Manasa Ananthan, Adv.\n Mr. Ashwin Nair, Adv.\n Mr. Kunal Verma, AOR\n 2\n\n Mr. Sarvesh Singh Baghel, AOR\n\n\n UPON hearing the counsel the Court made the following\n O R D E RIA No.7377/2021 W.P.(Crl.) No. 194/2019:The learned counsel appearing for the\n\nPetitioner seeks permission to withdraw the\n\napplication for extension of bail to approach this\n\nCourt as and when the need arises for interim bail, in\n\nview of the marriage of his daughter which is fixed\n\nfor 24.04.2021.IA No.7377/2021 is accordingly, dismissed as\n\nwithdrawn with liberty as aforesaid.(B.Parvathi) (Anand Prakash)\nCourt Master Court Master |
1f4b6973-2643-5453-9c6e-1b45d3287159 | court_cases | Central Information CommissionMohammed Arif vs Ministry Of Environment & Forests on 17 August, 2022Author:Saroj PunhaniBench:Saroj Punhaniके ीय सूचना आयोग\n Central Information Commission\n बाबागंगनाथमाग , मुिनरका\n Baba Gangnath Marg, Munirka\n नई द ली, New Delhi - 110067\n\n\nFile No : CIC/MOENF/A/2021/655859\n\nMohammed Arif ......अपीलकता /Appellant\n\n VERSUS\n बनाम\nCPIO,\nMinistry of Environment, Forest and Climate Change,\nImpact Assessment Division, RTI Cell,\nIndira Paryavaran Bhawan, Vayu Wing,\n6th Floor, Aliganj, Jor Bagh Road,\nNew Delhi-110003 ..... ितवादीगण /Respondent\n\nDate of Hearing : 16/08/2022\nDate of Decision : 16/08/2022\n\nINFORMATION COMMISSIONER : Saroj Punhani\n\nRelevant facts emerging from appeal:\n\nRTI application filed on : 13/10/2021\nCPIO replied on : 28/10/2021\nFirst appeal filed on : 05/11/2021\nFirst Appellate Authority order : 18/11/2021\n2nd Appeal/Complaint dated : 23/11/2021\n\nInformation sought:The Appellant filed an RTI application dated 13.10.2021 seeking the following\ninformation:1The CPIO replied to the appellant on 28.10.2021 stating that the information\nsought is not covered undersection 2(f)of the RTI Act, 2005.Being dissatisfied, the appellant filed a First Appeal dated 05.11.2021. FAA's order\ndated 18.11.2021 upheld the reply of CPIO and further observed as under:-"........2. The Ministry of Environment, Forest and Climate Change has\nnotified the Environment Impact Assessment (EIA) Notification, 2006, as amended\nfrom time to time, which deals with the process to grant Environmental Clearance\n(EC). While granting environmental clearances under these Notifications, various\nconditions and environmental safeguards are stipulated which are required to be\nimplemented by the project proponent during various stages of project cycle. The\nobjectives of Post-Project Clearance Monitoring are (i) to ensure that actions have\nbeen taken to incorporate the environmental safeguards during the project cycle\nin accordance with the conditions stipulated in the Environmental Clearance\nletter; and (ii) to take appropriate corrective measures to check adverse Impact on\nenvironment during operation of the respective projects. Monitoring of projects\nwith respect to conditions stipulated in the environmental clearance issued under\nE1ANotification, 2006 and Coastal Regulation Zone(CRZ), 2011 is carried out\nthrough the nineteen Integrated Regional Offices(IROs). The monitoring report is\nscrutinized in the Ministry and on that basis appropriate action is contemplated\nunder theEnvironment (Protection) Act, 1986for non-compliance of\nenvironmental clearance conditions. Based on the observations made during field\nvisit, necessary follow up action is taken with the project proponents in respect of\nmonitored projects to ensure an effective compliance to EC conditions. The\nmonitoring cell in the Ministry examines the monitoring reports submitted by\nRegional Offices. In cases of major non-compliance, further follow up action is2taken for effecting compliance including issue of show cause notice followed by\ndirections underEnvironment (Protection) Act, 1986on case to case basis. Further,\nit is also informed that rules and regulation is available in public domain on\nMinistry's website i.e envfor.nic.in."Feeling aggrieved and dissatisfied with the non-receipt of desired information, the\nappellant approached the Commission with the instant Second Appeal.Relevant Facts emerging during Hearing:The following were present:-Appellant: Present through video-conference.Respondent: Munna Kumar Shah, Scientist D & CPIO present through intra-video\nconference.The Appellant vehemently expressed his dissatisfaction with the CPIO's reply by\nstating that he has never sought information in the form of question/answers as\nwrongly observed by the CPIO.The CPIO reiterated the contents of his written submission dated 12.08.2022,\nrelevant portion of which is reproduced below in verbatim -"....2. It is to inform that RTI Application no. MOENF/R/P/21/00435 dated\n 22/10/2021 (online portal) and dated 13/10/2021 (physical letter) by Shri\n Mohammad Arif has been replied (Annexure I) by the then CPIO on 28/10/2021 i.e.\n within stipulated timeline of 30 days as perRTI Act, 2005. Further, First Appellate\n Authority has also replied (Annexure II) to the applicant in details on 18/11/2021\n regarding the procedure being followed by Ministry in case of monitoring of projects\n wherein Environment Clearance has been granted to the projects.3. It is further submitted that the applicant has asked the information in form of\n questions and not specified/pinpointed the desired information. The earlier CPIO has\n accordingly replied that the information sought is not covered under definition of\n "information" undersection 2(f)of the RTI Act, 2005 and also FAA has replied in detail\n to the applicant.4. Further, it is submitted that all the Office Memorandum/Notification/Circulars\n regarding grant of Environment Clearance or Terms of Reference applicable under\n the provisions of Environment Impact Assessment Notifications, 2006 are available\n in Public Domain on Ministry's PARIVESH Portal i.e. at\n haps://parivesh.nic.in/Notifications.aspx?id=EC.35. However, in spirit ofRTI Act, 2005the available information in form of Ministry's\n OM dated 30th September, 2009 is enclosed (Annexure III)...."To a query from the Commission, the Appellant denied the receipt of the averred\nwritten submission and in response , the CPIO at the behest of the Commission\nagreed to share a copy of the same with the Appellant through email at[email protected].Decision:The Commission based on a perusal of the facts on record does not find any scope\nof action in the matter with respect to the information sought for as well as the\nreply of the CPIO provided thereon; as the queries raised by the Appellant are\nmore in the nature of seeking clarifications to be drawn by the CPIO.\nThe Appellant shall note that outstretching the interpretation ofSection 2(f)of\nthe RTI Act to include deductions and inferences to be drawn by the CPIO is\nunwarranted as it casts immense pressure on the CPIOs to ensure that they\nprovide the correct deduction/inference to avoid being subject to penal\nprovisions under theRTI Act.In this regard, the Appellant's attention is also drawn towards a judgment of the\nHon'ble Supreme Court on the scope and ambit ofSection 2(f)of RTI Act in the\nmatter of CBSE vs. Aditya Bandopadhyay & Ors.[CIVIL APPEAL NO.6454 of\n2011]wherein it was held as under:"35. At this juncture, it is necessary to clear some misconceptions about\ntheRTI Act.The RTI Actprovides access to all information that is available and\nexisting.........A public authority is also not required to furnish information which\nrequire drawing of inferences and/or making of assumptions. It is also not\nrequired to provide `advice' or `opinion' to an applicant, nor required to obtain\nand furnish any `opinion' or `advice' to an applicant. The reference to `opinion'\nor `advice' in the definition of `information' insection 2(f)of the Act, only refers\nto such material available in the records of the public authority. Many public\nauthorities have, as a public relation exercise, provide advice, guidance and\nopinion to the citizens. But that is purely voluntary and should not be confused\nwith any obligation under theRTI Act." (Emphasis Supplied)\n\nSimilarly, in the matter ofKhanapuram Gandaiah vs Administrative Officer &Ors.\n[SLP (CIVIL) NO.34868 OF2009], the Hon'ble Supreme Court held as under:4"7....Public Information Officer is not supposed to have any material which is\nnot before him; or any information he could have obtained under law.\nUnderSection 6of the RTI Act, an applicant is entitled to get only such information\nwhich can be accessed by the "public authority" under any other law for the time\nbeing in force. The answers sought by the petitioner in the application could not\nhave been with the public authority nor could he have had access to this\ninformation and Respondent No. 4 was not obliged to give any reasons as to\nwhy he had taken such a decision in the matter which was before him...."(Emphasis Supplied)\n\nAnd, in the matter ofDr. Celsa Pinto, Ex-Officio Joint Secretary,(School\nEducation) vs. The Goa State Information Commission[2008 (110) Bom L R\n1238], the Hon'ble Bombay High Court held as under:"..... In the first place, the Commission ought to have noticed that the Act\nconfers on the citizen the right to information. Information has been defined\nbySection 2(f)as follows.Section 2(f)-Information means any material in any form, including records,\ndocuments, memos e-mails, opinions, advices, press releases, circulars, orders,\nlogbooks, contracts, reports, papers, samples, models, data material held in any\nelectronic form and information relating to any private body which can be\naccessed by a public authority under any other law for the time being in force;\nThe definition cannot include within its fold answers to the question why which\nwould be the same thing as asking the reason for a justification for a particular\nthing. The Public Information Authorities cannot expect to communicate to the\ncitizen the reason why a certain thing was done or not done in the sense of a\njustification because the citizen makes a requisition about information.\nJustifications are matter within the domain of adjudicating authorities and\ncannot properly be classified as information." (Emphasis Supplied)\n\nNonetheless, the reply and as a sequel to it further clarifications tendered by the\nCPIO through written submission is in the spirit ofRTI Act, merits of which cannot\nbe called into question.Having observed as above, no further relief is pertinent in the matter.5However, in furtherance of hearing proceedings the CPIO is directed to share a\ncopy of his written submission dated 12.08.2022 along with enclosures free of\ncost with the Appellant within 2 days from the date of receipt of this order.The appeal is disposed of accordingly.Saroj Punhani (सरोजपुनहािन)\n हािन)\n Information Commissioner (सूचनाआयु )\nAuthenticated true copy\n(अिभ मािणत स#यािपत ित)\n\n(C.A. Joseph)\nDy. Registrar\n011-26179548/[email protected]सी. ए. जोसेफ, उप-पंजीयक\n दनांक /6 |
9ce5f241-0e24-5a7a-9437-edc86b47e0ac | court_cases | Himachal Pradesh High CourtDev Raj & Ors vs . Mulakh Raj & Ors on 23 April, 2022Author:Tarlok Singh ChauhanBench:Tarlok Singh Chauhan.Dev Raj & ors Vs. Mulakh Raj & ors\n\n\n\n\n\n RFA No. 324 of 2014\n\n\n\n\n\n23.4.2022 Present: Mr. Vikas Rajput, Advocate, for the\n appellants.Mr. Karan Kapoor, Advocate vice Mr. Suneet\n Goel, Advocate, for the respondents.It would be noticed that the decree passed\n\n by learned District Judge, Mandi was conditional, as is\n\n\n evident from para23 of the judgment, which reads as\n\n under:"In view of the findings on the above issues, the suit\n of the plaintiff is decreed. A decree for possession of\n the house in dispute by way of specific performance\n\n\n\n\n of contract dated 27.7.2009 Ext. PW1/A is hereby\n passed against the defendant and in favour of the\n\n\n\n\n\n plaintiff directing the defendant to execute and\n register the sale deed of the house in dispute within\n\n\n\n\n\n three months from today on receipt of amount of Rs.\n 309156/ as per terms and conditions of agreement\n dated 27.7.2009 Ext. PW1/A on the condition that\n the plaintiff shall pay the entire outstanding loan\n amount regarding the house loan account No.\n 30106376131 to State Bank of India, Mandi upto\n 30.3.2013."Both the parties claim to have deposited\n\n certain amounts in the bank/Court from time to time.In such circumstances, let affidavit be filed by both the\n\n parties regarding the amounts, they claim to have so::: Downloaded on - 23/04/2022 20:16:52 :::CISdeposited. The needful be done within four weeks. List\n\n on 1.6.2022..(Tarlok Singh Chauhan)\n\n\n\n\n\n Judge\n April 23, 2022\n (Kalpana)\n\n\n\n\n r to::: Downloaded on - 23/04/2022 20:16:52 :::CISAnkush Sharma Vs. Rattan Lal & orsFAO(MVA) No. 53 of 2013.\n\n23.4.2022 Present: Mr. T.S. Chauhan, Advocate, for the\n appellant.Mr. Divya Raj Singh, Advocate vice Mr.\n Jagdish Thakur, Advocate, for respondent\n No. 3.Learned vice counsel appearing for\n\n\n\n\n respondent No. 3 prays for an adjournment of four\n\n weeks. Prayer allowed. List on 25.5.2022.(Tarlok Singh Chauhan)\n Judge\n\n\n April 23, 2022\n (Kalpana)::: Downloaded on - 23/04/2022 20:16:52 :::CISOriental Ins.Co. Ltd. Vs. Smt. Nagina & orsFAO(WCA) No. 24 of 2013.23.4.2022 Present: Mr. G.C. Gupta, Senior Advocate with Ms.\n Meera Devi, Advocate, for the appellant.Since the counsel for respondent No. 1 has\n\n been elevated as Hon'ble Judge of this High Court,\n\n therefore, let fresh notice be issued to respondent No. 1,\n\n\n\n\n informing her this fact, returnable for 15.6.2022. His\n\n name be accordingly deleted from the cause list.(Tarlok Singh Chauhan)\n\n\n Judge\n April 23, 2022\n (Kalpana)::: Downloaded on - 23/04/2022 20:16:52 :::CISThe New India Assurance Co. Vs. Neeraj and othersFAO(MVA) No. 13 of 2013.23.4.2022 Present: Mr. M.S. Katoch, Advocate vice counsel, for\n the appellant.None for the respondents.Learned vice counsel appearing for the\n\n appellant prays for an adjournment on the ground that\n\n\n\n 1.6.2022.r to\n his briefs have been misplaced. Prayer allowed. List on\n\n (Tarlok Singh Chauhan)\n Judge\n April 23, 2022\n\n\n (Kalpana)::: Downloaded on - 23/04/2022 20:16:52 :::CISOriental Insurance Co. Vs. Wasim Akram & orsFAO(MVA) No. 10 of 2013.23.4.2022 Present: Ms. Jyoti Dogra, Advocate vice counsel for\n the appellant.Mr. Vishwa Bhushan, Advocate, for\n respondent No. 1.Learned vice counsel appearing for the\n\n\n\n\n\n appellant prays for an adjournment on the ground that\n\n learned senior counsel, who has to conduct the case, is\n\n out of station. Prayer allowed. List on 1.6.2022.(Tarlok Singh Chauhan)\n Judge\n\n\n\n April 23, 2022\n (Kalpana)::: Downloaded on - 23/04/2022 20:16:52 :::CISKrishna Devi Vs. Ram ChanderFAO(HMA) No. 163 of 2012.23.4.2022 Present: Ms. Tanu, Advocate vice Mr. Raju Ram Rahi,\n Advocate, for the appellant.Mr. Mehar Chand Sharma, Advocate, vice\n counsel for the respondent.Learned vice counsel appearing for the\n\n\n\n\n\n appellant prays for an adjournment on the ground that\n\n the original counsel, who has to conduct the case, is out\n\n of station. Prayer allowed. List on 18.5.2022.(Tarlok Singh Chauhan)\n Judge\n\n\n\n April 23, 2022\n (Kalpana)::: Downloaded on - 23/04/2022 20:16:52 :::CISH.P. State Forest Corp. Ltd. Vs. Ashok KumarRSA No. 231 of 2009.23.4.2022 Present: Mr. Mehar Chand, Advocate vice counsel for\n the appellant.Mr. K.D. Sood, Senior Advocate with Mr. Het\n Ram Thakur, Advocate, for the respondent.As prayed for, list on 11.5.2022.April 23, 2022\n (Kalpana)\n to (Tarlok Singh Chauhan)\n Judge::: Downloaded on - 23/04/2022 20:16:52 :::CISSubhadra Devi & ors Vs. Hans RajRSA No. 213 of 2009.23.4.2022 Present: Ms. Anu Tuli, Advocate, for the appellants.Mr. Lalit Kumar Sehgal, Advocate, for the\n\n\n\n\n\n respondent.Learned counsel appearing for the appellants\n\n prays for and is granted an adjournment in order to\n\n r to\n ascertain the status of the parties. List on 1.6.2022.(Tarlok Singh Chauhan)\n\n Judge\n April 23, 2022\n (Kalpana)::: Downloaded on - 23/04/2022 20:16:52 :::CISYash Pal Singh Vs. Anil Kumar KhachiCOPCT No. 936 of 2020.23.4.2022 Present: Mr. Vivek Singh Thakur, Advocate, for the\n petitioner.Mr. Vinod Thakur, Addl. A.G., for the\n respondentsState.Learned counsel for the petitioner prays for\n\n\n\n\n\n and is granted four weeks' time to file counter affidavit to\n\n the supplementary affidavit filed by the respondents. List\n\n on 25.5.2022.(Tarlok Singh Chauhan)\n Judge\n\n\n\n April 23, 2022\n (Kalpana)::: Downloaded on - 23/04/2022 20:16:52 :::CISH.P. Housing & Urban Devlop & anr Vs. Saroj RastogiRSA No. 51 of 2009.23.4.2022 Present: Mr. Amit Singh Chandel, Advocate, for the\n appellant.Mr. Naresh Kaul, Advocate, for the\n respondent.Learned counsel appearing for the\n\n\n\n\n\n respondent states that he has filed an application for\n\n withdrawal of power of attorney, however, the same is\n\n not on record. Be traced and placed on record. List on\n\n 11.5.2022.(Tarlok Singh Chauhan)\n Judge\n April 23, 2022\n\n\n\n\n (Kalpana)::: Downloaded on - 23/04/2022 20:16:52 :::CISUttam Chand Vs. Sandeep BhatnagarCOPCT No. 964 of 2020.23.4.2022 Present: Mr. Naresh Kaul, Advocate vice counsel, for\n the petitioner.None for the respondent.As prayed for, list on 4.5.2022.(Tarlok Singh Chauhan)\n Judge\n April 23, 2022\n (Kalpana)::: Downloaded on - 23/04/2022 20:16:52 :::CISAshok Kumar Vs. Sandeep BhatnagarCOPCT No. 957 of 2020.23.4.2022 Present: Mr. Naresh Kaul, Advocate vice counsel, for\n the petitioner.None for the respondent.As prayed for, list on 4.5.2022.(Tarlok Singh Chauhan)\n Judge\n April 23, 2022\n (Kalpana)::: Downloaded on - 23/04/2022 20:16:52 :::CISSanyukta Thakur Vs. State of H.P.& orsCWPOA No. 3031 of 2019.23.4.2022 Present: None for the petitioner.Mr. Ajay Vaidya and Mr. Rajinder Dogra, Sr.\n\n\n\n\n\n Addl. AGs with Mr. Vinod Thakur, Addl. A.G.\n and Mr.Rajat Chauhan, Law Officer, for the\n respondentsState.Despite repeated calls, no one has put in\n\n\n\n\n appearance on behalf of the petitioner. However, in the\n\n interest of justice, the matter is adjourned. List on\n\n\n 11.5.2022.(Tarlok Singh Chauhan)\n\n\n\n Judge\n April 23, 2022\n (Kalpana)::: Downloaded on - 23/04/2022 20:16:52 :::CISReshma Poswal Vs. Namrata Dwivedi & othersCR No. 37 of 2022.23.4.2022 Present: Ms. Kavita, Advocate vice Mr. Atharv\n Sharma, Advocate, for the petitioner.Mr. Umesh Kanwar, Advocate, for\n respondents No. 1 to 5.Respondents No. 1 to 6 and 8 to 10 have\n\n\n\n\n\n been served, however, appearance has only been put on\n\n behalf of respondents No. 1 to 5 by Mr. Umesh Kanwar,\n\n Advocate. He prays for and is granted six weeks' time to\n\n file power of attorney.As regards respondent No. 7, he has refused\n\n\n\n to accept the notice, therefore, he is deemed to have been\n\n served. List on 15.6.2022.(Tarlok Singh Chauhan)\n Judge\n\n\n\n\n\n April 23, 2022\n (Kalpana)::: Downloaded on - 23/04/2022 20:16:52 :::CISRajinder Kumar Vs. State of H.P.CWPOA No. 1670 of 2019.21.4.2022 Present: Mr. Sanjeev Bhushan, Senior Advocate with\n Mr. Rakesh Chauhan, Advocate, for the\n petitioner.Mr. Vinod Thakur, Addl. A.G., for the\n respondentsState.The letter dated 26.3.2009, as was directed\n\n\n\n\n vide previous order, has not been produced. Needful be\n\n done on the next date of hearing. List on 28.4.2022.(Tarlok Singh Chauhan)\n\n\n Judge\n April 21, 2022\n (Kalpana)::: Downloaded on - 23/04/2022 20:16:52 :::CISSmt. Khimi Devi Vs. State of H.P. & othersCWPOA No. 168 of 2019.21.4.2022 Present: Ms. Anaida Kuthiala, Advocate, for the\n petitioner.Mr. Vinod Thakur, Addl. A.G., for the\n respondentsState.Mr. Surinder Saklani, Advocate, for\n respondent No. 5.The instant petition has been filed for the\n\n grant of following relief(s):i) That the impugned appointment of respondent No.\n 5 Smt. Kamla Devi as Water Carrier in Govt.Primary School, Naun by the respondents No. 1 to 3\n\n\n be quashed and set aside.ii) That the respondents No. 1 to 3 be directed to\n make the appointment of the applicant as Water\n\n\n\n\n Carrier in Govt. Primary School, Naun, after\n adopting proper and legal procedure as envisaged in\n\n\n\n\n\n various guidelines issued from time to time by the\n respondent No. 1State.iii) That the respondent No. 4 be directed to allow the\n applicant Smt. Khimi Devi to join as Water Carrier at\n Govt. Primary School, Shala in accordance with her\n appointment letter dated 13.5.2002( Annexure A8)."2. It is not in dispute that respondent No. 5Smt. Kamla Devi has since retired after attaining the\n\n age of superannuation, therefore, the respondentsState\n\n could well consider the case of the petitioner for\n\n appointment.::: Downloaded on - 23/04/2022 20:16:52 :::CIS3. Let instructions in this regard be obtained\n\n on or before the next date of hearing. List on 5.5.2022..(Tarlok Singh Chauhan)\n Judge\n April 21, 2022\n (Kalpana)\n\n\n\n r to::: Downloaded on - 23/04/2022 20:16:52 :::CISHPPWD throughLAC Vs. Kewal Ram & others&\n connected matters\n\n\n\n\n .CMP(M) No. 126 of 2019 a/w\n\n\n\n\n\n CMP(M) Nos 1250 to 1261 of 2019,\n 1490, 1491 of 2019, 921 and 922 of202021.4.2022 Present: Mr. Vinod Thakur, Addl. A.G. for the\n applicants/appellants.Mr. Rupinder Singh, Advocate, forrespondents No. 1, 4, 5, 7, 12, 17, 18, 22, 28to 31, 38, 43,44, 49, 50,55, 57, 59, 60, 61,\n 63, 64, 65, 67, 68, 69, 79, 83, 85, 87 and88.CMP(M) Nos 921 and 922 of 2020\n\n Notices issued to proposed LRs 3(a) to 3(c )\n\n\n are stated to be awaited. Be awaited for another two\n\n weeks. List on 5.5.2022.(Tarlok Singh Chauhan)\n Judge\n\n\n\n\n\n April 21, 2022\n (Kalpana)::: Downloaded on - 23/04/2022 20:16:52 :::CISHPSEB Ltd. Vs. M/s Indian Tecnomac CorpCOMS No. 21 of 2019.21.4.2022 Present: Mr. T.S. Chauhan, Advocate, for the plaintiff.Mr. Sanjay Dalmia, Advocate, for defendant\n\n\n\n\n\n No. 6.On 3.3.2022, this Court passed the following\n\n order:r to\n "Even though no ground is made out for granting\n further time to the plaintiffBoard to take steps for\n the service of defendants No. 1, 2 and 4, however,\n\n taking into consideration the public interest and the\n plaintiff being the State within the meaning ofArticle\n 12of the Constitution, I deem it proper to grant six\n weeks' time to the plaintiffBoard to do the needful.Ordered accordingly. List on 21.4.2022."Even today, the order dated 3.3.2022 has\n\n\n\n\n\n not been complied with and two weeks' further time is\n\n prayed for, for taking steps for the service of defendants\n\n\n\n\n\n No. 1, 2 and 4. Even though, no ground is made out for\n\n granting further time, however, taking into\n\n consideration the persuasive submission made by\n\n learned counsel for the plaintiff, I deem it proper to\n\n grant two weeks' further time to take steps for the\n\n service of aforesaid defendants. It is made clear that in\n\n case the steps are not taken within the aforesaid period,\n\n the present suit shall be deemed to have been dismissed\n\n for want of prosecution, without further reference to the\n\n Court.::: Downloaded on - 23/04/2022 20:16:52 :::CISList on 5.5.2022..(Tarlok Singh Chauhan)\n Judge\n April 21, 2022\n\n\n\n\n\n (Kalpana)\n\n\n\n\n r to::: Downloaded on - 23/04/2022 20:16:52 :::CISSh. Sant Ram & ors Vs. Sh.Chuni Lal @ Chuni RamRSA No. 153 of 2017.\n\n21.4.2022 Present: Mr. P.S. Goverdhan, Advocate, for the\n appellants.\n\n\n\n\n\n Mr. Romesh Verma, Advocate, for\n respondent No. 1.Mr. J.L. Bhardwaj, Advocate, for\n respondents No. 5 to 11.\n\n\n r toList for consideration on 28.4.2022.(Tarlok Singh Chauhan)\n Judge\n April 21, 2022\n\n\n (Kalpana)::: Downloaded on - 23/04/2022 20:16:52 :::CISSubhash Chand Vs. Bhaue @ Dev RajRSA No. 467 of 2015.21.4.2022 Present: Mr. Ishan Sharma, Advocate, for the\n appellants/applicants.Mr. Prashant Sharma, Advocate, for\n respondent/nonapplicant No. 1.CMP No. 4051 of 2022Notice. Mr. Prashant Sharma, Advocate\n\n appears and waives service of notice on behalf of non\n\n applicant No. 1. He prays for and is granted a week's\n\n time to file reply. List on 28.4.2022.(Tarlok Singh Chauhan)\n Judge\n April 21, 2022\n\n\n\n\n (Kalpana)::: Downloaded on - 23/04/2022 20:16:52 :::CISPushpa Devi Mishra Vs. Sanjeev Jha\n\n RSAs No. 17 and 59 of 2010\n\n\n\n\n .21.4.2022 Present: Mr. Janesh Gupta, Advocate, for the\n appellant.Mr. Surinder Saklani, Advocate, for\n respondent No. 1(a).CMPs No. 3727 of 2022 and 5685 of 2016in RSA No. 17 of 2010r Both these applications have been filed for\n\n early hearing of the instant appeal. Taking into\n\n consideration the averments made in the application,\n\n coupled with the fact that the civil suit, out of which the\n\n\n\n present proceedings emanate, was filed in the year 2000.In such circumstances, the applications are allowed and\n\n\n\n\n disposed of.RSAs No. 17 and 59 of 2010\n\n\n\n\n\n List for final hearing on 16.6.2022.(Tarlok Singh Chauhan)\n Judge\n April 21, 2022\n (Kalpana)::: Downloaded on - 23/04/2022 20:16:52 :::CISKaram Singh Vs. Parkash Chand & othersCMPMO No. 81 of 2022.21.4.2022 Present: Mr. N.K. Thakur, Senior Advocate with Mr.\n Divya Raj Singh, Advocate, for the petitioner.Mr. Sunny Moudgil, Advocate, for\n respondent No. 1.Mr. Prashant Sharma, Advocate, for\n respondents No. 2 and 3.The contesting parties are present in person\n\n who are not averse to make an endeavour to settle the\n\n\n matter amicably.At the joint request of the parties, Mr.\n\n\n Naresh Sood, learned Senior Advocate is appointed as\n\n Mediator. The parties are directed to appear before him\n\n\n\n\n today at 1 p.m. in the Mediation Center.(Tarlok Singh Chauhan)\n\n\n\n\n\n Judge\n April 21, 2022\n (Kalpana)::: Downloaded on - 23/04/2022 20:16:52 :::CISH.P. Primary Teachers Federation Vs. K.K.Pant & orsCOPCT No. 928 of 2020.21.4.2022 Present: Mr. Peeyush Verma, Advocate, for the\n petitioner.Mr. Rajinder Dogra, Sr.Addl. A.G. with Mr.\n Vinod Thakur, Addl. A.G., for the\n respondentsState.Learned counsel for the petitioner prays for\n\n and is granted four weeks' time to file better particulars.List on 26.5.2022.(Tarlok Singh Chauhan)\n Judge\n April 21, 2022\n\n\n\n (Kalpana)::: Downloaded on - 23/04/2022 20:16:52 :::CISDhani Ram Vs. Manoj KumarCOPCT No. 589 of 2020 a/w CWPOA\n\n\n\n\n .No. 3880 of 202021.4.2022 Present: Mr. Rajat Kumar Advocate vice Mr. Ramesh\n Sharma, Advocate, for the petitioner.Mr. Rajinder Dogra, Sr.Addl. A.G. with Mr.\n Vinod Thakur, Addl. A.G., for the\n respondentsState.Learned vice counsel for the petitioner states\n\n that he has filed an application for impleading the\n\n present incumbents as party respondents. However, the\n\n same is not on record. Be traced and placed on record.List on 5.5.2022.(Tarlok Singh Chauhan)\n\n\n\n\n Judge\n April 21, 2022\n\n\n\n\n\n (Kalpana)::: Downloaded on - 23/04/2022 20:16:52 :::CISBrij Mohan Vs. Upendra Prasad Singh & ors\n\n COPC No. 232 of 2019 with\n\n\n\n\n .COPC Nos 72, 73, 117, 118 of\n\n\n\n\n\n 2016,214, 320 of 2017, 97, 267 of 2019,\n 19, 20, 26, 28, 29, 30, 33, 34, 35, 36, 37,\n 38, 154 of 2020 and COPC No. 100 of\n\n\n\n\n\n 2021.21.4.2022 Present: Mr. Ajay Sharma, Senior Advocate with Mr.\n Ajay K. Thakur, Mr. Mukul Sood, Mr. S.D.\n Vasudeva, Advocate, for the respective\n\n\n\n\n petitioner(s).Mr. Rajinder Dogra, Sr.Addl. A.G. with Mr.\n Vinod Thakur, Addl. A.G., for the\n\n respondentsState.Mr. Balram Sharma, ASGI, for respondent\n No. 1UOI in COPC Nos 232/2019, 72/2016,\n 73/2016, 214/2017, 97/2019, 320/2017,\n\n\n 117/2016 and 118/2016.Mr. Ganesh Barowalia, Advocate vice Mr.\n Yashwardhan Chauhan, Advocate, for\n\n\n\n\n respondent No. 3Government of Rajasthan.Learned vice counsel appearing for\n\n respondent No. 3 prays for an adjournment on the\n\n\n\n\n\n ground that the original counsel is to undergo an eye\n\n operation. Prayer allowed. List on 19.5.2022.(Tarlok Singh Chauhan)\n Judge\n April 21, 2022\n (Kalpana)::: Downloaded on - 23/04/2022 20:16:52 :::CISKamlesh & another Vs. Hem Chand & orsCR No. 24 of 2018.21.4.2022 Present: Mr. Arun Raj, Advocate, for the petitioners.Mr. Vivek Sharma, Advocate, for\n\n\n\n\n\n respondents No. 1 and 2.As prayed for, list on 19.5.2022.(Tarlok Singh Chauhan)\n Judge\n April 21, 2022\n (Kalpana)::: Downloaded on - 23/04/2022 20:16:52 :::CISKiran Sharma Vs. Brinda Jewellers & anrCr. Revision No. 191 of 2022.21.4.2022 Present: Ms. Leena Guleria, Advocate, for the\n petitioner.Mr. Rajinder Dogra, Sr. Addl. A.G. with Mr.\n Vinod Thakur, Addl. A.G. for respondent No.2.Cr. Revision No. 191 of 2022 & Cr. M.P.No. 984 of 2022Notice. Mr. Vinod Thakur, learned Additional\n\n Advocate General appears and waives service of notice\n\n on behalf of respondent No. 2. Issue notice to\n\n respondent No. 1 through processserving agency,\n\n\n\n returnable for 28.4.2022.(Tarlok Singh Chauhan)\n\n\n\n\n\n Judge\n April 21, 2022\n (Kalpana)::: Downloaded on - 23/04/2022 20:16:52 :::CISOriental Insurance Co. Vs. Smt. Asha & orsFAO No. 70 of 2022.21.4.2022 Present: Ms. Rajvinder Sandhu, Advocate, for the\n appellant.Issue notice to the respondents through\n\n process serving agency, returnable for 16.6.2022. In the\n\n\n\n\n\n meanwhile, the records be requisitioned.r CMP No. 4328 of 2022Since the entire amount stands deposited\n\n before learned trial Court, therefore, the operation and\n\n execution of the impugned award dated 14.1.2022,\n\n\n\n passed by the Commissioner, Employees' Compensation\n\n Act, Chamba, in petition No. 11 of 2016, is ordered to be\n\n\n\n\n stayed. The application stands disposed of, reserving\n\n\n\n\n\n liberty to the claimants to move an appropriate\n\n\n\n\n\n application for release of amount, which application,\n\n needless to say as and when filed, shall be considered\n\n on its ow merits.The amount lying deposited before learned\n\n Commissioner's Court be requisitioned and thereafter\n\n invested as per procedure.(Tarlok Singh Chauhan)\n Judge\n April 21, 2022\n (Kalpana)::: Downloaded on - 23/04/2022 20:16:52 :::CISNational Insurance Co. Vs. Smt. Usha Devi & orsFAO No. 69 of 2022.21.4.2022 Present: Ms. Devyani Sharma, Advocate, for the\n appellant.Issue notice to the respondents through\n\n process serving agency, returnable for 16.6.2022. In the\n\n\n\n\n\n meanwhile, the records be requisitioned.r CMP No. 4327 of 2022Since the entire amount stands deposited\n\n before learned trial Court, therefore, the operation and\n\n execution of the impugned award dated 19.10.2021,\n\n\n\n passed by the Commissioner, Employees'\n\n Compensation , Kullu in W.C. Act No. 8/19/2013, is\n\n\n\n\n ordered to be stayed. The application stands disposed of,\n\n\n\n\n\n reserving liberty to the claimants to move an appropriate\n\n\n\n\n\n application for release of amount, which application,\n\n needless to say as and when filed, shall be considered\n\n on its ow merits.The amount lying deposited before learned\n\n Commissioner's Court be requisitioned and thereafter\n\n invested as per procedure.(Tarlok Singh Chauhan)\n Judge\n April 21, 2022\n (Kalpana)::: Downloaded on - 23/04/2022 20:16:52 :::CISSh. Kamal Kant & anr Vs. Jyoti PrakashRSA No. 59 of 2022.21.4.2022 Present: Mr. R.L. Chaudhary, Advocate, for the\n appellants.RSA No. 59 of 2022 & CMP No. 2620 of2022Learned counsel for the appellants prays for\n\n\n\n\n\n and is granted an adjournment. List on 28.4.2022.r (Tarlok Singh Chauhan)\n Judge\n\n April 21, 2022\n (Kalpana)::: Downloaded on - 23/04/2022 20:16:52 :::CISC.K. Baljee Vs. Susheela Joshi & anrCR No. 60 of 2022.\n\n21.4.2022 Present: Mr. Ajay Kumar, Senior Advocate with Mr.Rohit, Advocate, for the petitioner.Notice be issued to the respondents, through\n\n process serving agency, returnable for 2.6.2022.The caveat petition, which has been filed by\n\n the petitioner himself, has wrongly been placed in the\n\n instant file. The same is required to be placed in the\n\n\n petition, if any, filed by the respondents herein.Therefore, the Registry is directed to detach the caveat\n\n\n petition.(Tarlok Singh Chauhan)\n Judge\n\n\n\n\n\n April 21, 2022\n (Kalpana)::: Downloaded on - 23/04/2022 20:16:52 :::CIS.::: Downloaded on - 23/04/2022 20:16:52 :::CIS |
Subsets and Splits