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Violation of Article 14 or 21 required for judicial review in non-statutory matters – Patna HC

In the case of Mahendra Yadav Vs State of Bihar & Ors. [Civil Writ Jurisdiction Case No.6901 of 2020] Patna High Court held that pricing and procurement of food-grains for public distribution system, as also fixing Minimum Support Price is a policy decision which cannot be interfered with by the Court, unless of course, such policy is arbitrary, capricious, whimsical or violative of Article 14/21 of the Constitution of India. Petitioner, had filed the instant petition in public interest, desiring that the State fixes a Minimum Support Price for procuring the agricultural crop, i.e. maize, which is lying in abundance in the State of Bihar. The petitioner prayed for issuance of a writ in the nature of mandamus or any writ/ order/ direction to direct the Respondents to henceforth immediately & expeditiously procure the ready & harvested crop of maize grains from the farmers of State and accordingly, pay such beneficiaries at the Minimum Support Prices (MSP) fixed by the Government of India. The issue before the court was that whether the Court can issue a mandamus directing the State to pay a Minimum Support Price (MSP) for an agricultural crop. The respondents submitted that procurement of particular crop is a policy matter and since the Go-downs of the Food Corporation of India are likely to be filled up with other category of food-grains to be procured, any decision for fixing the Minimum Support Price would be contrary to the public interest and against the policy. Court referred the case of Shri Sitaram Sugar Co. Ltd. v. Union of India, (1990) 3 SCC 223 where the apex court held that, “The true position, therefore, is that any act of the repository of power, whether legislative or administrative or quasi-judicial, is open to challenge if it is in conflict with the Constitution or the governing Act or the general principles of the law of the land or it is so arbitrary or unreasonable that no fair-minded authority could ever have made it.” Court further relied on the case of Rayalaseema Paper Mills Ltd. v. Govt. of A.P., (2003) 1 SCC 341 where it was held, “Where the legislature has prescribed the factors which should be taken into consideration and which should guide the determination of price, the courts would examine whether the considerations for fixing the price mentioned in the statute or the statutory order have been kept in mind while fixing the price and whether these factors have guided the determination. The courts would not go beyond that point.” The High Court observed that, “The Hon’ble Apex Court in Bihar SEB v. Pulak Enterprises, (2009) 5 SCC 641 held that in the absence of any provision in that regard the principles of natural justice would not be applicable and the scope of judicial review would also be limited to plea of discrimination i.e. violation of Article 14 of the Constitution of India. As a general proposition, the law on the point is settled.”

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.69020 Mahendra Yadav Son of Chandi Yadav Resident of Lohia Path Garbhuchak B.V. College P.S. Mithapur District Patna ... Petitioner s The State of Bihar through its Chief Secretary Govt. of Bihar Patna The Principal Secretary Department of Food and Civil Supply Patna The Principal Secretary Department of Agriculture Patna ... Respondent s For the Petitioner s Mr. Vikash Kumar Pankaj Advocate Mr. Navin Kumar Advocate Mr. Sarvesh Kumar Singh AAG 13 For the Respondent s CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR Per: HONOURABLE THE CHIEF JUSTICE Date: 19 10 2020 Petitioner prayed for the following reliefs: “To issue writ in the nature of writ of mandamus or any writ order direction directing the Respondents to henceforth immediately expeditiously procure the ready & harvested crop of maize grains from the farmers of State and accordingly pay such beneficiaries at the Minimum Support Prices fixed by the Government of India.” 2. Can the Court issue a mandamus directing the State to pay a Minimum Support Pricefor an agricultural crop is the issue which arises for consideration before this Court. Patna High Court CWJC No.69020 dt.19 10 2020 3. Petitioner who has filed the instant petition in public interest desires that the State fixes a Minimum Support Price for procuring the agricultural crop i.e. maize which is lying in abundance in the State of Bihar. 4. The Respondent No.2 has opposed the petition inter alia on the ground that procurement of particular crop is a policy matter and since the Godowns of the Food Corporation of India are likely to be filled up with other category of food grains to be procured any decision for fixing the Minimum Support Price would be contrary to the public interest and against the policy 5. No other submission is made on behalf of the parties. 6. Pricing and procurement of food grains for public distribution system as also fixing Minimum Support Price is a policy decision which cannot be interfered with by the Court unless of course such policy is arbitrary capricious whimsical or violative of Article 14 21 of the Constitution of India. 7. The principles governing scope of judicial review in the matter of price fixation are now well settled. 1. It is open to the Government to fix such price as it thinks appropriate having regard to public interest 2. Judicial Scrutiny is far less in cases where price fixation has its origins in non statutory materials Patna High Court CWJC No.69020 dt.19 10 2020 3. Principles of natural justice would not be applicable and judicial review would be limited to plea of violation of 8. In the Seventh Schedule List II and List III of the Constitution of India we find the following entries relevant: 14. Agriculture including agricultural education and research protection against pests and prevention of plant 26. Trade and commerce within the State subject to the provisions of entry 33 of List III Under List III 33. Trade and commerce in and the production supply and distribution of — a) the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest and imported goods of the same kind as such products b) foodstuffs including edible oilseeds and oils c) cattle fodder including oilcakes and other d) raw cotton whether ginned or unginned and cotton seed and raw jute 34. Price control” 9. Article 162 of the Constitution of India reads as “Extent of executive power of State Subject to the provisions of this Constitution the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws the Patna High Court CWJC No.69020 dt.19 10 2020 executive power of the State shall be subject to and limited by the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union or authorities thereof Council of Ministers.” 10. The power of judicial review of an act of any authority under legislative administrative quasi judicial power is also well settled. 11. The Hon’ble Apex Court in Shri Sitaram Sugar Co. Ltd. v. Union of India 3 SCC 223 held as under: “52. The true position therefore is that any act of the repository of power whether legislative or administrative or quasi judicial is open to challenge if it is in conflict with the Constitution or the governing Act or the general principles of the law of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it.” 12. Also the Hon’ble Apex Court in AH.S.S.K. Niyami v. Union of India 4 SCC 516 held as under: “12.…It is true as contended by Shri Aggarwal that in paragraphs 52 and 53 in Shri Sitaram Sugar Company case 1990) 3 SCC 223] this Court held that any act of the repository of power whether legislative or administrative or quasi judicial is open to challenge if it is in conflict with the Constitution or the governing Act or the general principles of law of the land or it is arbitrary or unreasonable that no fair minded authority could ever have made it. Even then this Court has pointed out that the Patna High Court CWJC No.69020 dt.19 10 2020 impugned orders are undoubtedly based on an exhaustive study by experts and that the impugned orders though open to criticism would not be subject of judicial review….” Price Fixation where Statutory provision is present 13. Hon’ble the Apex Court in Union of India v Cynamide India Ltd. 2 SCC 720 held as under: “4. We start with the observation “Price fixation is neither the function nor the forte of the court”. We concern ourselves neither with the policy nor with the rates. But we do not totally deny ourselves the jurisdiction to enquire into the question in appropriate proceedings whether relevant considerations have gone in and irrelevant considerations kept out of the determination of the price….” “7. The third observation we wish to make is price fixation is more in the nature of a legislative activity than any other It is true that with the proliferation of delegated legislation there is a tendency for the line between legislation and administration to vanish into an illusion. Administrative quasi judicial decisions tend to merge in legislative activity and conversely legislative activity tends to fade into and present an appearance of an administrative or quasi judicial activity. Any attempt to draw a distinct line between legislative and administrative functions it has been said is “difficult in theory and impossible in practice”… “A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases an administrative act is the making and issue of a specific Patna High Court CWJC No.69020 dt.19 10 2020 direction or the application of a general rule to a particular case in accordance with the requirements of policy….” Price Fixation in the absence of Statutory provision 14. The Hon’ble Apex Court in Rayalaseema Paper Mills Ltd. v. Govt. of A.P. 1 SCC 341 held as under: “15.This Court was examining the scope of judicial scrutiny in the matters of price fixation where it was governed by statutory provisions. The scope of judicial scrutiny would be far less where the price fixation is not governed by the statute or a statutory order. Where the legislature has prescribed the factors which should be taken into consideration and which should guide the determination of price the courts would examine whether the considerations for fixing the price mentioned in the statute or the statutory order have been kept in mind while fixing the price and whether these factors have guided the determination. The courts would not go beyond that point In the present appeals there is no law or any statutory provision laying down the criteria or the principles which must be followed or which must guide the determination of rates of royalty… It is open to the Government to fix such price as it thinks appropriate having regard to public interest which inter alia may include interest of revenue environmental ecology the need of mills and the requirements of other consumers.” Patna High Court CWJC No.69020 dt.19 10 2020 15. Also the Hon’ble Apex Court in Union of India v Cipla Ltd. 5 SCC 262 held as under: “91. In that context and in response to the submission made this Court drew a distinction between price fixation governed by statutory considerations and price fixation governed by non statutory considerations. It was held that on this basis Union of India v. Cyanamide India Ltd. was distinguishable since it dealt with price fixation based on statutory considerations. In a case of price fixation having its origin in non statutory materials the scope of judicial scrutiny would be far less...” “92.In these appeals we too are presently concerned with a stage anterior to actual price fixation namely recommending and prescribing the norms that would eventually form the basis for fixing the retail price and ceiling price of formulations. The view expressed in Rayalaseema Paper Mills1 SCC 341] would in our opinion apply to the Reports of the Masood Committee and the Jharwal Committee set up by the Central Government for recommending the norms for the purposes of Para 7 of the DPCO 1995. The Reports were antecedent materials non statutory and recommendatory and could have been rejected by the Central Government…” 16. The Hon’ble Apex Court in Bihar SEB v. Pulak Enterprises 5 SCC 641 held as under: Patna High Court CWJC No.69020 dt.19 10 2020 “29. The significance of the question as to whether fixing the rate of fuel surcharge is a legislative function or a non legislative function is that if the function is held to be legislative in the absence of any provision in that regard the principles of natural justice would not be applicable and the scope of judicial review would also be limited to plea of discrimination i.e. violation of Article 14 of the Constitution of India. As a general proposition the law on the point is settled.” 17. In the instant case the State has placed on record the revised guidelines for distribution of coarse grains including the maize amongst the beneficiaries termed as “Targeted Public Distribution System or MDM ICDS Scheme”. Whether the decision is in terms of the said policy statute or not we need not go into same. The law laid down in Shri Sitaram Sugar Co. Ltd supra) Cynamide IndiaRayalaseema Paper Mills Ltd supra) and Cipla Ltd.(supra) is very clear Nothing is brought to our notice indicating the policy or the action of the respondents to be violative of Article 14 21 of the Constitution of India. Only for the reason that this year in the State of Bihar the crop of maize is in excess than the previous year cannot be a reason for this Court to issue a mandamus directing the State to procure the food grains i.e. maize under the Minimum Support Price so fixed with respect to other items of food grains. Patna High Court CWJC No.69020 dt.19 10 2020 18. For all the aforesaid reasons writ petition stands 19. Interlocutory Application if any shall stand disposed of. disposed of. Sanjay Karol CJ) ( S. Kumar J

The High Court, in appropriate cases, can entertain a writ petition in spite of there being an alternative remedy available to the petitioner: High Court of J&K and Ladakh

The court should exercise its writ jurisdiction and invoke its powers of judicial review, so as to set at naught the perverse and illegal order passed by the Appellate Authority as held by the Hon’ble High Court of J&K and Ladakh through a learned bench of Hon’ble Mr. Justice Sanjay Dhar in the case of Shafia Samad Vs State of Jammu & Kashmir and Ors [SWP No.594/2012]. The facts emerging from the pleadings of the parties are that, in the year 2010, an Advertisement Notice was issued inviting applications from the eligible female candidates for their engagement as Anganwadi Workers at various Anganwadi Centres. Pursuant to the aforesaid Advertisement Notice, the petitioner, as well as the respondent, offered their candidature for the position of Anganwadi Worker. After undertaking the process of selection, the petitioner was found to have secured the highest merit whereas the respondent found her place at the bottom of the merit list. Respondent made a complaint before the Sub Divisional Magistrate calling into question the eligibility of the petitioner, as according to the said respondent, as per the guidelines of the scheme, petitioner was not eligible to be engaged as Anganwadi Worker for the Centre which was located in Mukdam Mohalla. In light of the report of the Sub Divisional Magistrate, respondent No.7-Child Development Project Officer, ICDS Rohama issued an engagement order dated 05.09.2011 in favor of the petitioner, whereby, she was engaged as Anganwadi Worker for Anganwadi Centre Mukdam Mohalla. It appears that the aforesaid engagement order was challenged by respondent No.8 by way of an appeal before the Dy.Commissioner Baramulla. The appeal came to be decided by the Dy. Commissioner vide his order dated 03.03.2012. It is this order which is under challenge by way of the instant writ petition. According to the petitioner, the Appellate Authority has not applied its mind to the material available before it, inasmuch as, it has not considered the report of Sub Divisional Magistrate that the appeal filed by respondent No.8 was presented beyond the prescribed period of limitation and the Appellate Authority without making any order for condonation of delay has entertained and decided the appeal on merits.  Respondent No.8 in her reply has raised objection on the maintainability of the writ petition on the ground that the petitioner has not availed the alternate remedy of filing revision petition against the order of appellate authority and, as such, the writ petition is not maintainable. After hearing both the parties and studying the material on record, the Hon’ble High Court relied on the Judgments of Hon’ble Supreme Court in the cases of Whirlpool Corporation v Registrar of Trade Marks Mumbai and others, Harbanslal Sahnia and Another v. Indian Oil Corporation Ltd. And Others and Vijayabai v. Shriram Tukaram, to conclude that “It is clear that the exclusion of writ jurisdiction by way of alternative remedy is only a rule of discretion and the High Court, in appropriate cases, can entertain a writ petition in spite of there being an alternative remedy available to the petitioner.”

S. No.168 After Notice Matters HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 28.09.2021 Pronounced on:11.10.2021 SWP No.594 2012 Shafia Samad Through: Mr.Shakir Haqani Advocate vice Mr.Altaf Haqani Sr Advocate State of Jammu & Kashmir and Ors. Through: Mr. Feroz Dy.AG 11.10.2021 Mr. F.A.Bhat Advocate HON’BLE MR. JUSTICE SANJAY DHAR JUDGE ….. Respondent(s) 1. In the instant petition the petitioner has challenged order dated 03.03.2012 passed by respondent No.3 Dy.Commissioner Baramulla whereby the appeal filed by respondent No.8 calling in question the engagement of the petitioner as Anganwadi Worker in Mukdam Mohalla Matipora Rohama has been decided. The direction restraining the respondents from causing interference into the engagement of the petitioner as Anganwadi Worker has also been sought. 2. The facts emerging from the pleadings of the parties are that in the year 2010 an Advertisement Notice was issued by respondent No.7 inviting applications from the eligible female candidates for their engagement as Anganwadi Workers at various Anganwadi SWP No.594 2012 1 | P a g e Centres to be set in Mohallas of the Villages Hamlets of Block Rohama. One of the locations for which Anganwadi Centre had been sanctioned and engagement of an eligible Anganwadi Worker was to be made was Mukdam Mohalla of Village Matipora. 3. It appears that pursuant to the aforesaid Advertisement Notice petitioner as well as respondent No.8 offered their candidature for the position of Anganwadi Worker in respect of Anganwadi Centre Mukdam Mohalla. After undertaking the process of selection the petitioner was found to have secured the highest merit whereas the respondent No.8 found her place at the bottom of the merit list. Accordingly tentative select list of the honorary Anganwadi Workers was issued by the respondents and the petitioner found her way in the said select list. 4. It seems that respondent No.8 made a complaint before the Sub Divisional Magistrate Sopore calling into question the eligibility of the petitioner as according to the said respondent the petitioner was not residing in Mukdam Mohalla of Village Matipora and as such as per the guidelines of the scheme she was not eligible to be engaged as Anganwadi Worker for the Centre which was located in Mukdam Mohalla. 5. The complaint came to be inquired into by the Sub Divisional Magistrate Sopore and vide his report dated 27.08.2011 he came to the conclusion that Matipora is a village of Rohama and Mukdam Mohalla is the Sub Mohalla of Matipora. It was further observed that Matipora being a habitation of village Rohama should be considered as a single unit. A direction was issued to CDPO Rohama to proceed strictly with the guidelines of ICDS Scheme. In light of the report of the Sub Divisional Magistrate Sopore respondent No.7 Child Development Project Officer ICDS Rohama issued engagement order dated 05.09.2011 in favour of the petitioner whereby she was engaged as Anganwadi Worker for Anganwadi Centre Mukdam Mohalla. 6. It appears that the aforesaid engagement order was challenged by respondent No.8 by way of an appeal before the Dy.Commissioner SWP No.594 2012 2 | P a g e Baramulla. The appeal came to be decided by the Dy. Commissioner vide his order dated 03.03.2012. While deciding the appeal the Appellate Authority passed the following directions: facts & “Considering and circumstances the appeal is allowed and the matter is sent the following directions: the official respondents with the above a) to make the selection either on the Mohalla wise basis by selecting one meritorious candidate from each Mohalla or to re advertise the posts for the entire village areas and select two meritorious candidates in case the boundaries of the Mohalla cannot be defined. b) the exercise be completed within two months from the date a copy of order is served upon the official respondents.” 7. It is this order which is under challenge by way of the instant writ 8. According to the petitioner the Appellate Authority has not applied its mind to the material available before it inasmuch as it has not considered the report of Sub Divisional Magistrate Sopore that the appeal filed by the respondent No.8 was presented beyond prescribed period of limitation and the Appellate Authority without making any order for condonation of delay has entertained and decided the appeal on merits that the observation of Appellate Court that sister of the petitioner has been appointed as Anganwadi Worker at Anganwadi Centre Ganie Mohalla is against the records as she was held ineligible for the post of Anganwadi Worker for the Anganwadi Centre Ganie Mohalla that the Appellate Authority has not proceeded in accordance with law and that its order is without jurisdiction. 9. The writ petition has been contested by the official respondents as well as by the private respondent No.8 by filing reply thereto. 10. The official respondents in their reply have defended the engagement of the petitioner as Anganwadi Worker and they have contended that it was after proper verification that the petitioner was engaged as Anganwadi Worker for Anganwadi Centre Mukdam Mohalla as she was found to be the resident of said SWP No.594 2012 3 | P a g e Mohalla. It is further averred that the petitioner was most meritorious amongst the eligible candidates and as such order of engagement was issued in her favour. 11. Respondent No.8 in her reply has raised objection on the maintainability of writ petition on the ground that the petitioner has not availed the alternate remedy of filing revision petition against the order of appellate authority and as such the writ petition is not maintainable. On merits it has been contended that the sister of the petitioner was engaged as Anganwadi Worker for Anganwadi Centre Ganie Mohalla and it is not possible that two sisters were residing in two different Mohallas at the same time. It has been contended that the petitioner was not eligible for consideration because she was not a resident of Mukdam Mohalla whereas respondent No.8 was the most meritorious amongst the eligible 12. I have heard learned counsel for the parties and perused the candidates. material on record. 13. In the writ petition the petitioner has challenged the order of Appellate Authority i.e the Dy.Commissioner Baramulla. It is not in dispute that norms for identification of Anganwadi Centres and selection of Anganwadi Workers and Helpers is governed by Government Order No.07 SW of 2010 dated 18.01.2010. Clause 5 of the said Government order provides that wherever anybody feels aggrieved with the selection of Anganwadi Workers etc an appeal can be preferred to the Dy. Commissioner concerned within 30 days from the date of selection of Anganwadi Worker. Clause 6 of the aforesaid Government Order provides that in case where the order made in the appeal does not satisfy the aggrieved person a revision shall lie with the Divisional Commissioner concerned within15 days from the date of passing of order by the Dy. Commissioner concerned. SWP No.594 2012 4 | P a g e 14. Thus against impugned order passed by the Dy. Commissioner Baramulla the remedy of filing a revision before the Divisional Commissioner was available to the petitioner. 15. The question arises as to whether availability of an alternate remedy to a writ petitioner bars the High Court from entertaining writ petition on the subject. 16. The Supreme Court in the case of Whirlpool Corporation v Registrar of Trade Marks Mumbai and others 8 SCC 11 has held that in an appropriate case in spite of availability of the alternative remedy the High Court my still exercise its writ jurisdiction in at least three contingencies: where the writ petition seeks enforcement of any of the Fundamental Rights where there is failure of principles of natural justice or where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. 17. In Harbanslal Sahnia and Another v. Indian Oil Corporation Ltd. And Others 2 SCC 107 the Supreme Court has observed that rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. The Court further went to observe that in certain contingencies in spite of availability of the alternative remedy the High Court may still exercise its writ jurisdiction. 18. In Vijayabai v. Shriram Tukaram reported I AIR 1999 SC 431 the Supreme Court observed that where the conclusions are arrived at by misconstruing the provisions of an Act and without appreciating the principle of estoppel including adjudication of such right in earlier proceeding under the same Act between the same parties the Court would not hesitate to reconsider such adjudication of facts. SWP No.594 2012 5 | P a g e 19. From the foregoing analysis of case law on the subject it is clear that the exclusion of writ jurisdiction by way of alternative remedy is only a rule of discretion and the High Court in appropriate cases can entertain a writ petition in spite of there being an alternative remedy available to the petitioner. 20. In light of the aforesaid legal position let us now proceed to determine as to whether order impugned passed by the Appellate Authority is of such a nature as would warrant interference from this Court in its writ jurisdiction in spite of there being an alternative remedy available to the petitioner. 21. Upon perusal of impugned order passed by Dy.Commissioner Baramulla it comes to the fore that the Dy. Commissioner has noted that the official respondents have considered sister of the petitioner herein for Ganie Mohalla and the petitioner for Mukdam Mohalla when they are residing in the same house. On this basis the Appellate Authority has concluded that the selection has not been made on Mohalla wise basis as was required to be done as per the advertisement notice. The Dy.Commissioner has further noted that once the notification is issued on Mohalla wise basis and selection is made accordingly the appellant respondent no.8 would emerge as meritorious candidate in Mukdam Mohalla. 22. Both the aforesaid findings of the Appellate Authority are perverse and against the record. This is so because even though the sister of the petitioner had applied for her engagement as Anganwadi Worker for Anganwadi Centre Ganie Mohalla yet she was declared ineligible by the official respondents as she was not found residing in the said Mohalla. Merely because the sister of the petitioner had responded to the Advertisement notice by applying for the Anganwadi Centre located at Ganie Mohalla does not lead to the conclusion that the petitioner was actually residing in Ganie Mohalla and not in Mukdam Mohalla. Instead of referring to any material that would show that the petitioner was not the SWP No.594 2012 6 | P a g e resident of Mukdam Mohalla the Appellate Authority has latched on to un confirmed allegations and landed itself into error. 23. Similarly the observation of the Dy. Commissioner that if the petitioner is held to be ineligible then respondent no.8 would emerge as the most meritorious candidate is also contrary to the record. The merit list published by the official respondents pertaining to Anganwadi Centre Mukdam Mohalla reveals that the petitioner had obtained 53.51 marks Tabasum Ashraf had obtained 47.97 marks Maryam Bano had obtained 47.57 marks and respondent No.8 had obtained only 35.43 marks meaning thereby that the respondent No.8 was at the rock bottom of the merit list. Thus even if the petitioner would be held ineligible to hold the post of Anganwadi Worker in Mukdam Mohalla there is no occasion for the respondent No.8 to be engaged in her place. The conclusion of the Appellate Authority in this regard is absolutely without any basis. 24. Apart from the above it is an admitted case of the parties that on the basis of complaint made by respondent No.8 a detailed inquiry was made by the Sub Divisional Magistrate Sopore and he had submitted a report dated 27.08.2011 with a copy endorsed to the Dy.Commissioner Baramulla. In the said report it was observed that Mukdam Mohalla is a sub Mohalla of Matipora and the officer had also in his report clearly demarcated the boundaries and location of Mukdam Mohalla. Without taking this report into consideration the Appellate Authority has directed that in case boundaries of Mukdam Mohalla cannot be defined the posts are required to be re advertised for the entire village. 25. On top of it all the Appellate Authority has not referred to even a single document or material that would even prima facie suggest that the petitioner was not residing in Mukdam Mohalla at the relevant time. 26. In the face of aforesaid facts the order of the Appellate Authority that has been impugned in this writ petition is not only perverse SWP No.594 2012 7 | P a g e and without any basis but the same also exhibits complete non application of mind on the part of the Appellate Authority. 27. In view of the aforesaid findings this is a fit case where this Court should exercise its writ jurisdiction and invoke its powers of judicial review so as to set at naught the perverse and illegal order passed by the Appellate Authority. It will be doing injustice to the petitioner if she is relegated to remedy of revision after having pursued this petition for more than nine years particularly when the writ petition stands admitted to hearing. 28. For the foregoing reasons the writ petition is allowed and the impugned order passed by respondent No.2 Dy.Commissioner Baramulla is quashed and the order of engagement of petitioner as an Anganwadi Worker for Anganwadi Centre Mukdam Mohalla is 29. The petition shall stand disposed of alongwith all connected CMs. JUDGE upheld. Sarveeda Nissar Whether the order is speaking: Whether the order is reportable: SWP No.594 2012 8 | P a g e

There is no illegality in culling out a table from a different but an equivalent rule for recruitment of school teachers by the Madrasah Service Commission for teachers of Madrasah: Calcutta High Court

All the candidates for the posts of Madrasah teachers will be assessed according to ‘Part-C’ of the School Service Commission Rules, 2016, as held by the Hon’ble Calcutta High Court before the Hon’ble Mr. Justice Abhijit Gangopadhyay in the matter of Mst. Reshma Khatun & Ors. vs. State of West Bengal & Ors. [W.P.A. 12901 of 2021]. The facts of the case relate to a writ petition which had been filed by 32 petitioners, who prayed for the publishing of names of candidates by the West Bengal Board of Madrasah Education in 6th SLST who had been provisionally qualified for the personality test in 6th SLST (AT) (Work Education) and to publish the breakup of marks of all candidates with all details of academic qualification and marks of written examination. They also prayed for a direction to call the petitioners in an interview for 6th SLST (AT) (Physical Education) and hence, provide consequential benefit to appoint the petitioners as Assistant Teachers in Work Education. However, the Court found that the pray for calling of the petitioners in an interview for Physical Education and giving them an appointment in the post of Assistant Teacher in Work Education was “wholly inconceivable”. The learned Advocate for the respondent, being the West Bengal Madrasah Service Commission and its Secretary, objected by submitting that there was no jural relationship between the 32 persons who had filed the application and therefore, despite paying the full court fees, they could not file such writ application jointly. To this, the Hon’ble Court said that the petitioners had not committed any illegality and this could be done under the law. The Hon’ble Calcutta High Court before the Hon’ble Mr. Justice Abhijit Gangopadhyay, while considering the submission of the learned Advocate for the petitioners on the writ application, found that the claim of the petitioners was based upon one notification that was issued by the Madrasah Service Commission on 11th August 2021, which stated that the manner of evaluation of academic qualification of both the 6th SLST (AT) (Physical Education) and 6th SLST (AT) (Work Education) would be done following the NCTE guidelines read with the WBSSC Rules, 2016 adopted by the Commission for lack of such provision in the rules of the West Bengal Madrasah Service Commission. The Hon’ble Calcutta High Court also subsequently found from the petition that in the 6th SLST for Work Education and Physical Education, the marks for essential qualification and training in the rules of the Commission was 25, but the Commission had changed it and decided to raise the marks for academic qualification including professional qualification as 35 instead of 25. This had been declared in the guideline for Work Education (Pass), and it was also considered that the petitioners and the candidates participated in the selection process knowing that the full marks for academic qualification and the professional qualification would be 35 and not 25. Hence, while awarding marks against these 35 marks, the Madrasah Service Commission would have to face a problem for awarding marks and the manner of evaluation of the candidates against full marks 35 for academic qualification including professional qualification as in their own rules, the full marks in such respect was 25 and therefore, the Commission had no tool for awarding the marks to the candidates for their academic qualification, etc. It was also found that the full marks in respect of the academic qualification including professional qualification in the West Bengal School Service Commission Rules was 35 for Assistant Teacher in Work Education and also for Physical Education according to the 2016 Rules of West Bengal School Service Commission. Meanwhile, the petitioner submitted that the Madrasah Service Commission, as well as the West Bengal School Service Commission, has both adopted Rules 7, 12, and 13 of the Rules of the School Service Commission. On the other hand, the Madrasah Service Commission in this regard said that the Commission had its own rules and they did not adopt any other rules. The Hon’ble Court was satisfied that the Commission had some merit as far as the full marks for academic qualification was concerned, enhancement of full marks from 25 to 35 as far as the academic qualification was concerned, and the problem faced by them for evaluating the academic qualification for 35 marks since they did not have a tool for evaluating the candidates against the full marks of 35 for the academic qualification. However, the Commission got the tool from Part-C of Schedule II of 2016 Rules of School Service Commission and they had made it clear in their notification dated 11th August 2021, that this was being done for lack of such provision in the rules of the West Bengal Madrasah Service Commission which was found to be correct from the records before the Hon’ble Court. Therefore, the Hon’ble Court stated that all the candidates for the posts of the Madrasah teachers would be assessed by using the said tool, although, such tool did not mean that the Commission was also adopting the Rules referred in the said Schedule II of the School Service Commission Rules of 2016. Hence, the petitioners’ contention was found to be “wholly baseless”. The claim of the petitioners in the writ petition was adjudged as “totally baseless, meaningless, frivolous and ill-motived”.

IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE PRESENT: HON’BLE MR. JUSTICE ABHIJIT GANGOPADHYAY WPA 129021 Mst. Reshma Khatun & Ors. Versus State of West Bengal & Ors. Via Video Conference) For the petitioners : Mr. Firdous Samim Ms. Gopa Biswas For the Madrasah Service Commission : Mr. Prosenjit Mukherjee Mr. Nirmalya Kumar Das Ms. Madhurima Sarkar Mr. Sauvik Nandy For the NCTE Heard on Judgment on Abhijit Gangopadhyay J .: 18.08.2021 : 18.08.2021 This writ petition has been filed by 32 petitioners. Full court fees in respect of all have been paid against entry no. A 8559 dated 18th August 2021. The document showing full payment of court fees be kept on record. Affidavit of service filed today also be kept on record. The main prayers of the petitioners in this writ application is for publishing of names of candidates by the West Bengal Board of Madrasah Education in 6th SLST who have provisionally qualified for personality test in 6th SLST (Work Education) and to publish the breakup of marks of all candidates with all details of academic qualification and marks of written examination. They have also prayed for a direction to call the petitioners in interview for 6th SLST Physical Education) and thereafter give consequential benefit to appoint the petitioners as Assistant Teacher in Work Education. Emphasis mine) This prayer as to calling the petitioners in interview for Physical Education and giving them appointment in the post of Assistant Teacher in Work Education is wholly inconceivable to me. Mr. Mukherjee learned advocate for the respondent nos. 2 and 3 being the West Bengal Madrasah Service Commission and its Secretary has raised an objection by submitting that there is no jural relationship between these 32 persons who have filed this application and therefore despite payment of full court fees they cannot file this writ application jointly. He has also relied upon a judgement of the Supreme Court reported in 1980 (Physical Education) and 6th SLST (Work Education) in accordance with the NCTE guidelines read with the WBSSC Rules 2016 adopted by the Commission for lack of such provision in the rules of the West Bengal Madrasah Service Commission.” Emphasis mine) The petitioners submit that because of this notification the Madrasah Service Commission has adopted the Rules of West Bengal School Service Commission 2016 starts which appears from page 69 of the writ application. The petitioners and all other candidates participated in the selection process knowing that the full marks for academic qualification and professional qualification would be 35 and not 25. Now while awarding marks against these 35 marks which is the full marks Madrasah Service Commission naturally would face a problem for awarding of marks and manner of evaluation of the candidates against full marks 35 for academic qualification including professional qualification as in their own rules the full marks in this respect was 25 and the Commission has no tool for awarding marks to candidates for their academic qualification etc. I have also found that full marks in respect of academic qualification including professional qualification in respect of West Bengal School Service Commission Rules is 35 for Assistant Teacher in Work Education and also for Physical Education which appears from the 2016 Rules of West Bengal School Service Commission

MBBS requires both theoretical and practical knowledge of senior secondary level: Supreme Court of India

To meet to the criteria of equivalence, all the subjects must have been studied, and practical examinations attempted at the 10+2 or equivalent level must have been conducted. To be eligible for admission, the candidate should produce clear and categorical material to show that they underwent the necessary years of study in all the stipulated subjects. This assertion was made by the honorable Supreme Court of India presided by J. L. NAGESWARA RAO and J. S. RAVINDRA BHAT in the case of KALOJI NARAYANA RAO UNIVERSITY OF HEALTH SCIENCES vs. SRIKEERTI REDDI PINGLE & ORS. [CIVIL APPEAL NO. 390 OF 2021]. The Kaloji Narayana Rao University of Health Sciences appealed a decision of the Telangana High Court which allowed a writ petition preferred by the respondent. The respondent student had sought a direction declaring the action of the University in treating her as ineligible for admission to the MBBS Course as illegal. The student had applied, pursuant to a notification issued by the University for Admission into the management quota for NRI candidates for the MBBS/BDS course. The University published a list containing the respondent student’s name, clarifying that she had not furnished proof of study of Biological Science subject in the qualifying examination. The respondent then secured a letter from the Consulate General of India in New York, stating that she had successfully completed the 12th grade from one Conrad High School, West Hartford, Connecticut and that it was equivalent to the 12-year Senior Secondary Board Examination Certificate of India. The University issued a notification seeking web option for the second round of online counseling for admission to the MBBS/BDS seats in the management quota. The student approached the High Court and besides relying upon the certificate/letter issued by Conrad High School, she also relied upon a certificate issued by the Telangana State Board of Intermediate Education which declared the equivalence. The student applied for an interim order and was permitted to participate in the counseling process conducted for the remaining seats without prejudice to the parties’ rights. Thereafter, the University filed an application for vacation of the interim order, made its position clear and spelt out why according to it, the respondent student was ineligible. The Telangana High Court declared that the University acted arbitrarily in treating the student ineligible.

IN THE CIVIL APPEAL NO. 390 OF 2021 KALOJI NARAYANA RAO UNIVERSITY OF HEALTH SCIENCES …APPELLANTSRIKEERTI REDDI PINGLE & ORS. S. RAVINDRA BHAT J. 1. With consent of learned counsel for the parties the appeal was heard finally. The Kaloji Narayana Rao University of Health Sciences appeals a decision of the Telangana High Court1 in W.P. No.23953 2020 which had allowed a writ petition preferred by the respondent 2020 21. The student had applied for admission to the MBBS course. The University published a list on 12.12.2020 containing the respondent student’s name clarifying that she had not furnished proof of study of Biological Science subject in the qualifying examinationNew Intermediate University and the 12 year Senior Secondary Board Examination Certificate of India. On 23.12.2020 the University issued a notification seeking web option for the second round of online counselling for admission to the MBBS BDS seats in the management quota for AY 2020 21. The student approached the High Court on 24.12.2020 and besides relying up on the certificate letter issued by Conrad High School she also relied upon a certificate issued by the Telangana State Board of Intermediate Education dated 23.12.2020 which declared the equivalence and informed that the 12th class senior secondary examination of the West Hartford Board of Education Connecticut USA was equivalent to the Intermediate Examination conducted by the Telangana State Board of Intermediate Education. The student applied for an interim order and was permitted to participate in the counselling process conducted for the remaining seats without prejudice to the parties’ rights. Thereafter the University filed an application for vacation of the interim order made its position clear and spelt out why according to it the respondent student was ineligible. The High Court by its impugned order relied upon the certificate of the Telangana State Board of Intermediate Education as well as the letter dated 11.12.2020 of Conrad High School and the certificate of 14.12.2020 issued by the West Hartford Science Department Supervisor. The High Court declared that she had completed her 12th grade with Biological Sciences as required by the concerned regulations framed by the erstwhile MCI which continued to govern and regulate admissions to various classes of medical courses. The High Court also held erroneous the University’s position that there was no proof of her studying Biological Sciences in the qualifying examination. The Court took note of the equivalence certificate issued by the Telangana State Board of Intermediate Ed ucation and was of the opinion that the University could not therefore approve and add new grounds in respect of the student’s application for admission. It con cluded that the University acted arbitrarily in treating the student ineligible. 5. Ms. Madhavi Divan Additional Solicitor General for Indiarelied upon Regulation 4(1) of the Medical Council of India Regulations on Graduate Medical Education 1997 as amended from time to time particularly on 23.01.2018He She has passed qualifying examination as under: a) The higher secondary examination or the Indian School Certificate Examination which is equivalent to 10+2 Higher Secondary Examina tion after a period of 12 years study the last two years of study com prising of Physics Chemistry Biology Biotechnology and Mathemat ics or any other elective subjects with English at a level not less than core course of English as prescribed by the National Council of Edu cational Research and Training after the introduction of the 10+2+3 years educational structure as recommended by the National Commit tee on education Note: Where the course content is not as prescribed for 10+2 educa tion structure of the National Committee the candidates will have to undergo a period of one year pre professional training before admis sion to the Medical colleges b) The intermediate examination in science of an Indian Universi ty Board or other recognised examining body with Physics Chemistry and Biology Bio technology which shall include a practical test in these subjects and also English as a compulsory subject c) The pre professional pre medical examination with Physics Chemistry and Biology Bio technology after passing either the higher secondary school examination or the pre university or an equivalent Examination. The pre professional pre medical examination shall in clude a practical test in Physics Chemistry and Biology Bio technology and also English as a compulsory subject d) The first year of the three years degree course of a recognized uni versity with Physics chemistry and Biology Bio technology including a practical test in three subjects provided the examination is a "Uni versity Examination" and candidate has passed 10+2 with English at a level not less than a core course e) B.Sc. examination of an Indian University provided that he she has passed the B.Sc. examination with not less than two of the follow ing subjects Physics Chemistry Biology Bio technology and further that he she has passed the earlier qualifying examination with the following subjects Physics Chemistry Biology and English. f) Any other examination which in scope and standard is found to be equivalent to the intermediate science examination of an Indian Uni versity Board taking Physics Chemistry and Biology including prac tical test in each of these subjects and English. Note: The pre medical course may be conducted either at Medical College or a science College. Marks obtained in Mathematics are not to be considered for admis sion to MBBS Course. After the 10+2 course is introduced the integrated courses should be It is submitted that the University was justified in rejecting the student’s candidature because there was no material furnished for it to conclude that she had undergone a complete course in Biological Sciences and that consequently the qualifications held by her were equivalent to the 10+2 qualification required by the Regulations. The ASG highlighted in this regard that Conrad High School’s letter dated 11.12.2020 stated that the student undertook a rigorous course of study of Advanced PlacementBiology during her 10th grade year. It is submitted that according to the letter issued by Conrad High School the course was an introductory biology course which examines in an accelerated and in depth manner topics in biochemistry cellular biology organismal biology population biology evolution genetics and ecology and that it prepares students for the SAT Biology E M subject test. The learned ASG further pointed out that according to the letter dated 14.12.2020 relied on by the student the AP Biology course at Conrad High School was designed to be equivalent to a first year college level Biology course and was al so aligned to the two courses offered at the University of Connecticut. The letter fur ther clarified that “in most high schools across the US this Course is offered dur ing Grade 11 or 12 to students as a second year Biology course”. The ASG pointed out that as a consequence the University acted correctly and was within its rights in refusing admission on the ground of lack of equivalence in the qualification held by the student. Even in terms of the material submitted by her as far as the letter issued by the Consulate General of India dated 22.12.2020 is concerned the learned ASG emphasized that it merely certified that according to the Resolution adopted at the meetings of the Equivalency Committee and the Standing Committee of the Association of Indian Universities New Delhi the 12 Year High School Diploma of the United States of America is recognized in India as equivalent to 12 years senior secondary board examination certificate of India. However significantly it does not and cannot be construed as equivalent to a 10+2 qualification with Biological Sciences. Likewise it is stated that the Telangana State Board of Intermediate Education’s certificate merely declared equivalence to the intermediate examination conducted by the Telangana State Board of Intermediate Education. This too omitted the equivalence of the qualification held by the students in terms of the Regulation i.e. that the candidate had to complete 2 years scholastic training in Biological Sciences which is essential. It was emphasised that the entire structure of Regulation 4(2) lays emphasis not only on the equivalence of the qualification with respect to 10+2 or intermediate sciences examination in the Indian University Board but that the student should have complete schooling in those subjects in each of the concerned years i.e. 11th and 12th and should have passed 10+2 with English as a subject as well. It was submitted last ly that by all indications the qualification held by the student in this case is equiva lent to 10+2 of any Board in India with English as one of the subjects but there is no further proof that she had undergone study in Biology or Biological Sciences in each of the concerned years at the 10+2 stage. In these circumstances the learned ASG urged that this Court should reverse the impugned judgment. 9. Mr. Rana Mukherjee learned senior counsel appearing for the student argued that the impugned judgment has correctly reasoned that the candidate held equivalent qualifications and was eligible for consideration for a medical UG MBBS course offered by the University as an NRI candidate but submitted that a close look at Regulation 4(2) particularly Regulation 4(2)(f) clarifies that nowhere is it expressly stipulated that an eligible candidate has to undergo schooling in every year in the concerned subjects in the present case that subject being Biology Biological Sciences. Learned counsel placed reliance upon the two letters of Conrad High School dated 11th and 14th December 2020 and the equivalence certificate issued by the Telangana State Board of Intermediate Education. He further placed reliance up on the letter written by the Assistant Principal of Conrad High School on 29.01.2021 which sought to clarify the structure of pre school through 12th grade in the US espe cially in the state of Connecticut. The relevant part of the letter reads as follows: “High school in the United States is not specialized for a specific ca reer path as a result in addition to the core classes that students can choose to takestudents can choose to take elective courses in Business Art Theatre Music Technology and Engineering etc. While there is an expected order of specific courses within each field for example all 9th grade students take Earth Science a student in 10th grade in West Hartford has the option of taking an Advanced Placement Biology course which is challenging and at a college level. Students can earn college credit for these courses. Students can take courses based on their interests but they still must take a certain number of courses in each discipline. Our expectation at Conard High School is that stu dents WILL challenge themselves with difficult and advanced courses to prepare them for college and to determine their future interests and possible pathways to careers. The state of Connecticut does not have a 10+2 system as many other countries do. However students in grades 9 12 have the opportunity to take college level courses through the college Board’s Advanced Placement Program and Early College Experience courses is correct. He emphasised that each of the sub clauses i.e. to of Clause 4(2) are independent of each other and in the present cases the declaration of equivalence established by the certificate of 23.12.2020 by the Telangana State Board of Intermediate Education could not have been discredited as was done by the University. Analysis and Conclusions 11. A plain reading of Regulation 4(2) shows that the MCI visualized five different situations having regard to the nature and structure of high school education in India and provided for equivalence in respect of other variants of similar examinations possibly even overseas qualifications. In all the MCI regulations contemplate six qualifications for eligibility higher secondary examinations conducted by one of the several boards or the Indian School Certificate Examination (ii) intermediate 2 W.P.Nos.32099 2019 & WMP 32352 & 32353 2019 dated 14.07.2020 3WP Nos. 16529 & 16534 2020 & WMP 20510 20512 20517 and 20515 2020 dated01.12.2020 examination in science of an Indian University Board or other recognised examining body(iii) “Pre professional pre medical examination” with Physics Chemistry and Biology Bio technology after passing either the higher secondary school examination or the pre university or an equivalent examination with further stipulation that the pre professional examination should have a practical test in Physics Chemistry and Biology Bio technology (iv) the first year examination of the three years degree course of a recognized university with Physics Chemistry and Biology Bio technology with a further stipulation that the candidate should have passed the 10+2 examination with English at a level not less than the “core course” Reg. 4(2)(d)] the B.Sc. examination of an Indian University only if the candidate “has passed the B.Sc. examination with not less than two of the following subjects Physics Chemistry Biology Bio technology and further that he she has passed the earlier qualifying examination with the following subjects Physics Chemistry Biology and English”and lastly any examination found to be equivalent to the intermediate science examination of an Indian University Board taking Physics Chemistry and Biology including practical test in each of these subjects and English[Reg. 4(2)(f)]. It is noticeable that each variant of what is acceptable lays stress on certain common features: that the candidate should have passed the examination with Physics Chemistry and Biology Bio technology the candidate should have undergone practical tests in those science subjects the candidate should have studied English and lastly that marks obtained in Mathematics would not be tak en into consideration for deciding admission to the MBBS course. 13. The respondent student’s argument is twofold: one that the letters of Conrad High School4 and the West Hartford Science Department Supervisor5 together with the certificate of the Telangana Intermediate Education Board6 establish that she had 4Dated 11.12.2020 and 29.01.2020 5Dated 14.12.2020 6Dated 23.12.2020 successfully undergone a school certificate program equivalent to the 10+2 qualification in India and second that the Advanced Placement course undertaken by her is equivalent to a first year degree qualification in Biology. This court finds the submission insubstantial. While the court cannot claim expertise and pronounce upon the curriculum and pedagogy of any course much less the academic course which the studentqualified what it can certainly do is examine whether the University’s stand that she does not hold a qualification equivalent to any of the five categories of qualifications spelt outtoor the sixth categoryis correct. 14. A careful reading of the said provision discloses that the MCI emphasized that the candidate should have undergone study at the 10+2 stage in the specified subjects of Physics Chemistry and Biology Bio technology. In this case the certificate relied upon by the student7 merely clarifies that she undertook a course whilst in the 10th grade. That by no means is sufficient to fall within the description of “equivalent” qualification under Regulation 4(2)(f). Nor in the opinion of this court can it be deemed adequate having regard to the letter of the Assistant Principal of Conrad High School8 that the AP course in Biological Sciences is of college standard. In the opinion of this court there is a rationale and compelling logic on the part of the University to say that the candidate should have studied biology or biological sciences in all the relevant years during the intermediate or at 10+2 level. Further the reference to having studied in the first year in a degree course at the college level with the said subject carries with it the implication that the student would have necessarily undergone academic study and training in the said three subjects at the 10+2 or intermediate levelclearly signifies that a candidate should have undergone study in those subjects for the last two years at school or intermediate college level. The regulation is further clear that the examination score in Mathematics shall not be taken into consideration for the purpose of admission to a medical course in reckoning merit or performance in the qualifying examination. 16. So far as the judgment of the Madras High Court in Sharanya Balaji Nadar supra) is concerned the candidate there had applied for admission and was permitted to appear in the common entrance examination. The structure of the concerned regulations of the Dental Council of India in that case were closely similar to Regulation 4(2) of the MCI Regulations in the present case. The High Court accepted the candidates’ submissions and held as follows: “14. A careful reading of the above regulations makes it clear that a candidate even at the time of taking NEET examination must fulfil the eligibility criteria that is prescribed in Clause 3 which is extracted supra. Clause 3 contains six sub clauses from to and sub clauserequires consideration. The case of the petitioner is that she falls under sub clauseof the regulations. Any candidate who falls under sub clause f) of the regulations has to obtain an equivalence certificate from the concerned authority. The concerned authority is the Association of the Indian Universities. This authority considered the degree diploma ob tained by the petitioner in as educational institution at USA. The con cerned authority found that the qualification of the petitioner is equiv alent to the senior school certificate of CBSE other boards in India. The evaluation of the educational credentials has been extracted su It is based on this equivalence certificate the petitioner was allowed to write the NEET examination and the petitioner se cured 258 marks and she was allotted a seat in the fourth respondent college by the allotment order passed by the third respondent dated 24.07.2019. The petitioner is undergoing the course.” In Kashvi Udhayakumarthe relevant facts were noted by the court in the following terms: “The petitioners got the confirmation from the Equivalence Commit tee and the Standing Committee of the Association of Indian Universi ties that the high school diploma underwent by the petitioners in USA is equivalent to 12 year senior school Certificate of Central Board of Secondary Education.” 18. The High Court then cited and relied on Sharanya Balaji Nadarto hold that each sub clause of Regulation 4(2) was independent and that the qualification held by the candidate an NRI who had studied in the USA was deemed to be equivalent to the prescribed eligibility conditions: “13. It was categorically held by this Court that each Clause is inde pendent of the other and none of the sub clauses can be read together. If the candidate has fulfilled the requirements of any one of the Clause he or she will be entitled for admission to the Medical Course. The petitioners in the present case will fall within Regulation 4and once the petitioners have produced the Equivalence Certificate issued by the 5th Respondent there is no more requirement to again subject the petitioners for one more scrutiny on their eligibility. It will be too farfetched to declare that a candidate who fulfils the requirements for NEET Examination will not fulfil the qualification when it comes to joining the MBBS Course. Such an interpretation will lead to illogical consequences. The petitioners who were living in USA have come to this country to undergo the Medical Course and they were found to be eligible by the Equivalence Committee to write the NEET Examina After having been given an allotment in the 4th Respondent Institu tion the 4th Respondent Institution cannot now undertake one more exercise and come to a completely different conclusion by reading Regulation 4into Regulation 4and thereby render the effect of Regulation 4completely nugatory and redundant.” It is apparent that the High Court followed its previous judgment and did not closely scrutinize the equivalence certificate or the subject stipulations. It also appears to have been largely influenced by the fact that the candidate was in fact admitted by the University. In the opinion of this court the construction placed on Regulation 4(2) i.e. that each of the sub clauses to prescribes independent qualifications which should be deemed essential is rather simplistic. That interpretation ignores the fact that each of the sub clauses insists that certain subjects should have been studied and practical examinations attempted at the 10+2 or equiv alent level. Secondly the college or intermediate examinationcannot be read in isolation having regard to the cir cumstances. The provision must be read in the context of the requirements for eligi bility under Regulations 4(2)(a) torequires equiva lence in ‘standard and scope’ in an examination where the candidate is tested in Phys ics Chemistry and Biology including practical testing in these subjects along with English. These subject matter requirements are consistent across Regulations 4(2)(a) toandwith practical exams in each of those years that he or she should also have had English as a subject and that the score in Mathematics would be ignored and not taken into consideration9. It would be in this context necessary to clarify that the equivalence relied on by the Telangana Intermediate Board in this case merely alluded to the general equivalence in terms of education at the intermediate level 9The last negative stipulation by a note applicable to all the sub clauses of Regulation 4(2). without stipulating whether the qualifications were equivalent in terms of the subjects in which she undertook courses for the relevant years. 21. The stipulation of equivalence in Regulation 4(2)(f) is not merely a formal one. The provision must be read in the context of the consistent conditions of eligibility prescribed in Regulations 4(2)(a) to as noted above. This court in State of Bombay v. R.M.D. Chamarbaugwala10 interpreted the definition of a ‘prize competition’11. A prize competition was defined as including crossword prize competitions picture prize competitions etc. and finally any other prize competition for which solution is or is not prepared beforehand by the promotors or for which the solution is determined by lot or chance. This last qualification was appended only to the last sub clause on ‘any other competition’. The court held that the qualification should be equally applicable to the other sub clauses too and that there was no difficulty in reading the qualifying clause as lending colour to each of those items. In the present case Regulation 4(2)(f) explicitly refers to the subject matter requirement reiterated in all the eligibility conditions from to the substance of the eligibility requirement indeed is that the candidate should have qual ified an intermediate level examination or first year of a graduate course and studied the subjects of Physics Chemistry and Biology at this level along with practical testing in these subject areas and the English language. This subject matter requirement is at the heart of eligibility to be admitted into the medical course. 22. For these reasons this court is of the opinion that the interpretation placed up on the regulations in both the cited cases by the Madras High Court do not reflect the correct position. To be eligible the candidate should produce clear and categorical material to show that she underwent the necessary years of study in all the stipulated subjects. This court is of the opinion that such stipulations are to be regarded as essential given that the course in question i.e. MBBS primarily if not 101957 SCR 930. 11Under s. 2(1)(d) of the Bombay Lotteries and Prize Competitions Control and Tax Act 1948. 14 predominantly involves prior knowledge both theoretical and practical of senior secondary level in biology or biological sciences. 23. For the above reasons this court is of the opinion that the impugned order cannot be sustained it is therefore set aside. The appeal is allowed without order on [S. RAVINDRA BHAT] costs. New Delhi February 16 2021.

A taxpayer’s electronic credit ledger cannot be blocked beyond one year: High Court of Uttarakhand

The electronic credit ledger maintained by CGST, accumulates credits accrued on account of inward supplies made by a taxpayer within the tax period. The outer limit where the CGST can block an electronic credit ledger is a period of one year as the CGST rules. This was held by a single member bench of the High Court of Uttarakhand consisting of Justice Manoj Kumar Tiwari through the judgement passed in the case of M/s Vimal Petrothin Private Limited v Commissioner, CGST [Writ Petition (M/S) No. 1128 of 2021] pronounced on 24th June 2021. The petitioner, M/s Vimal Petrothin Private Limited is a private limited company which has a manufacturing unit situated in Haridwar. The petitioner’s input credit tax credit available was blocked provisionally by the authorities that the petitioner had allegedly availed input tax credit amounting to Rs. 1.5 crores under fake invoices issues by non-existing firms. The blockage was initiated under Rule 86(A)(1) of C.G.S.T. Rules of 2017 on 15th January 2020. The petitioner filed the immediate writ petition at the High Court of Uttarakhand praying for respondent no. 1 to be directed by the court to unblock the input tax credit of Rs. 71,61,296 which was availed by the petitioner company. The court acknowledged the right of the Commissioner to block the input tax credit of the petitioner in a case where the Commissioner had reasons to believe that there was fraud involved in the input tax credit. However the petitioner contention that the blockage of electronic credit ledger cannot continue beyond one year was also accepted by the court. As the input tax credit ledger of the petitioner had been blocked on 15th January 2020, a period of one year was over which was the outer limit for disallowing debit of electronic credit as per Sub-Rule (3) of the Rule 86(A) of the CGST rules. Ultimately the counsel for the respondents also conceded that that the blockage period cannot exceed one year and that the continuance of blocking the petitioner’s credit ledger after 14th January 2021 was not supported by law.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL ON THE 24TH DAY OF JUNE 2021 HON’BLE SHRI JUSTICE MANOJ KUMAR TIWARI WRIT PETITIONNo. 11221 M s Vimal Petrothin Private Limited. Commissioner CGST and others. By Mr. Rajat Mittal and Mr. Tarun Pande Advocates) ....Petitioner By Mr. Shobhit Saharia Advocate) ...Respondents Petitioner is a Private Limited Company its manufacturing unit at Haridwar. Petitioner’s input tax credit available in its electronic trading ledger was provisionally blocked on the ground that petitioner had availed input tax credit amounting to `1.5 crores based on fake invoices issued by non existing firms. The said blockage was made on 15.01.2020 under Rule 86(A)(1) of C.G.S.T. Rules 2017. Thus feeling aggrieved petitioner has filed this writ petition seeking the following relief: “a) Issue a writ of mandamus or a writ direction the nature of mandamus or any other order or direction directing the Respondent No. 1 to unblock the input tax credit of Rs. 71 61 296 availed by the petitioner in its electronic credit ledger.” On 22.06.2021 learned counsel appearing for the respondents was asked to get instructions on certain aspects. The legal submission made on behalf of petitioner was also noted in the order dated 22.06.2021. For ready reference order passed by this Court on 22.06.2021 is reproduced below: “Petitioner is aggrieved by provisional input tax credit by the blocking of Commissioner Goods and Services Tax vide order dated 15.01.2020. By means of this writ petition petitioner has sought a direction to respondent no. 1 to unblock the input tax credit of `71 61 296 in its electronic trading ledger. Learned counsel for the petitioner has relied upon Rule 86(A)(3) of Central Goods and Services Tax Rules 2017 which reads as under: available in electronic credit ledger. “86A. Conditions of use of amount 1) The Commissioner or an officer authorised by him in this behalf not below the rank of an Assistant Commissioner having reasons to believe that credit of input tax available in the electronic credit ledger has been fraudulently availed or is ineligible in as much as a) the credit of input tax has been availed on the strength of tax invoices or debit notes or any other document prescribed under rule 36 i. issued by a registered person who has been found non existent or not to be conducting any business from any place for which registration has been obtained ii.without receipt of goods or services or both or b) the credit of input tax has been availed on the strength of tax invoices or debit notes or any other document prescribed under rule 36 in respect of any supply the tax charged in respect of which has not been paid to the Government or c) the registered person availing the credit of input tax has been found non existent or not to be conducting any business from any for which registration has been obtained or d) the registered person availing any credit of input tax is not in possession of a tax invoice or debit note or any other document prescribed under rule 36 may for reasons to be recorded in writing not allow debit of an amount equivalent to such credit in electronic credit ledger for discharge of any liability under section 49 or for claim of any refund of any unutilised amount. 2) The Commissioner or the officer authorised by him under sub rule may upon being satisfied that conditions for disallowing debit of electronic credit ledger as above no longer exist allow such debit. 3) Such restriction shall cease to have effect after the expiry of a period of one year from the date of imposing such restriction.” Learned counsel for the petitioner submits that the charge against the petitioner is that he fraudulently availed input tax credit on the basis of fake invoices and proceedings under Rule 86(A)(1) of CGST Rules 2017 were drawn against him. Learned counsel for the petitioner referred to Sub Rule(2) of Rule 86(A) of CGST Rules 2017 in support of his contention Commissioner or the Officer authorised by him under Sub Rule upon being satisfied that condition for disallowing of electronic credit ledger no longer exist allow such credit. He further submits that the outer limit for disallowing debit of electronic credit ledger is one year as has been prescribed in Sub Rule of Rule 86(A) of the CGST Rules which starts running from the date of imposing such restriction. He therefore submits that since the input tax credit ledger of 15.01.2020 therefore in view of Sub Rule 3 of Rule 86(A) of the Rules the 14.01.2021 consequently continuance of blockage of petitioner’s input tax credit ledger after 14.01.2021 is not supported by law. counsel for the respondents was granted time to get instructions on 18.06.2021. According to him he could not get the instructions despite letter issued to the authorities therefore he is granted one more opportunity to get instructions. On next date he will make a statement on the legal aspect namely as to whether blockage of input tax credit petitioner was Saharia ledger of the petitioner can continue after 14.01.2021 if yes then the provision under which it can be continued beyond period of one year. immediately after fresh cases.” List this matter on 24.06.2021 Learned counsel for the respondents on instructions concedes that petitioner’s electronic credit ledger cannot be blocked for any period in excess of one year in view of express provision contained in Sub Rule of Rule 86(A) of C.G.S.T. Rules. Thus he submits that petitioner’s contention to this extent is correct that continuance of blockage of his input credit ledger after 14.01.2021 is not supported by any law. In view of the admission by respondents through their counsel that continuance of blockage of petitioner’s electronic credit ledger cannot continue beyond one year the writ petition stands allowed. Respondent no. 1 is directed to forthwith unblock input tax credit availed by the petitioner in its electronic credit ledger. However this order will not preclude the respondents from taking such action against the petitioner as is permissible under law.

Material evidence is considered as a confession statement of the accused: Ranchi High Court

Any confession or incriminating statement recorded in the course of an inquiry under Section 8(1) of Railway Property (Unlawful Possession) Act 1966, cannot be excluded from the evidence under the said section held by  Hon’ble Mrs Justice Anubha Rawat Choudhary [Cr. Rev. No. 448 of 2012]. The background of the case arises from the course of working out on source information about concealment and storing of huge quantity of railway material, a raid and search were conducted by the Inspector, Railway Protection force with the help of officers of the local police station in the home-cum-go-down. The owner of the go-down flew away leaving the employees to handling and running the go-down dealing with scrap material and stolen railway property. During the search, 71 numbers of railway distribution valve spheres contained in 5 gunny bags, aluminium cable in 5 gunny bags weighing 125 Kgs were found and one gunny bag containing pieces of a plastic insulator or signal cable was recovered and seized.  The petitioner has been convicted based on the confessional statement and co-accused. Apart from the confession statement, there is no material whatsoever to connect the petitioner with the alleged offence. Considering the seizure doesn’t lead to any recovery. The confession of the petitioner was recorded after the seizure. The confession by itself cannot be the sole basis of conviction of the petitioner by Section 25 of the Evidence Act. The officers of the Railway Protection Force are also Police officers by Section 25 of the Indian Evidence Act and accordingly not admissible in evidence.  The fundamental theory is that the petitioner cannot be convicted based on the confession statement. The confession statement was not under Section 313 of Cr. P.C and accordingly the conviction cannot be sustained in the eyes of law. No legal evidence to connect the petitioner with the crime and therefore the petitioner has been wrongly convicted.  The argument of the state submitted that there are concurrent findings recorded after scrutinizing the evidence on record. Along with it, there is no scope for a reappreciation of evidence to convict a person under Section 3 of the aforesaid Act, the stolen goods belonging to Railways do not need to be seized from the physical possession of the accused.  There is always repeated theft of Railway Distributor Valves and signal cables and efforts were being made by the officers and the staff of Railway Protection Force to detect such theft and find out the criminals who were involved in the commission of such offence and also those who purchase of such stolen articles of Railways.  The Hon’ble Court held that the “un-retracted and proved confessional statement of the petitioner recorded by the officer can be the sole basis of conviction of the petitioner under Section 3 of the Aforesaid Act as the same is admissible in evidence and not hit by section 25 of the Evidence Act”. The confessional statement of the petitioner was admitted in evidence without any objection from the side of the defence and other co-accuses. 

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 4412 Salim Khan son of Late Sohrab Khan resident of Loco Bazar Gomoh P.O. Gomoh P.S. Hariharpur District Dhanbad State of Jharkhand … … … Petitioner … … Opposite Party Versus CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY Mr. Yogesh Modi Amicus Curiae Mr. Ravi Prakash A.P.P. For the Petitioner For the State Through Video Conferencing Heard Mr. Yogesh Modi the learned amicus curiae appearing on behalf of the petitioner. 2. Heard Mr. Ravi Prakash the learned A.P.P. appearing on behalf of the Opposite Party State of Jharkhand. The present criminal revision petition has been filed against the judgement of confirmation dated 15.05.2012 passed by the learned Additional Sessions Judge I cum Special Judge Dhanbad in Criminal Appeal No. 118 2012. The trial court’s judgement is dated 29.02.2012 passed in R.P. Case No. 157 1993 T.R. No. 14 of 2012 by the learned Additional Railway Magistrate Dhanbad. The learned trial court has convicted and sentenced the petitioner vide judgement dated 29.02.2012 for Imprisonment of two years and a fine of Rs. 10 000 and in default of payment of fine imprisonment for another six months for offence under Section 3(a) of Railway Property Act 1966at Godown cum residence of co accused Babulal Gupta and at that time also the petitioner was nowhere in picture. He submitted that considering the dates of seizure it cannot be said that the confession was leading to recovery rather the confession of the petitioner was recorded after the seizure. The learned amicus further submitted that on one hand there is no recovery pursuant to confession and on the other hand the confession by itself cannot be the sole basis of conviction of the petitioner as the same is hit by Section 25 of the Evidence Act. The learned amicus submitted that the officers of Railway Protection Force are also police officials as per Section 8 of the aforesaid Act and accordingly the confession made before police official is hit by Section 25 of the Indian Evidence Act and is accordingly not admissible in evidence. The learned amicus relied upon the judgement passed by the Hon’ble Madras High Court in the case of State versus Radhakrishnan and others reported inCr.L.J. 1457 and also the judgement passed by the Hon’ble Orissa High Court in the case of State versus Prahallad Rath and others reported in 2007) Cr.L.J. 1189 to submit that the petitioner cannot be convicted on the basis of the confessional statements. Lastly the learned amicus also submitted that specific question with regard to the confessional statements was not put to the petitioner under section 313 of Cr.P.C. and accordingly his conviction cannot be sustained in the eyes of law. The learned amicus submitted that there is no legal evidence on record to connect the petitioner with the crime and accordingly the petitioner has been wrongly convicted by the learned courts below. Arguments of the State The learned A.P.P. appearing on behalf of the Opposite Party State on the other hand while opposing the prayer of the petitioner submitted that there are concurrent findings recorded by the learned courts below after scrutinizing the evidences on record and accordingly there is no scope for reappreciation of evidences and coming to a different finding in revisional jurisdiction. However the learned A.P.P. does not dispute the fact that the petitioner was made accused on the basis of confessional statement of the co accused and the confessional statement of the petitioner was recorded on 26.11.1993 and the seizure was firstly made on 12.11.1993 at Bokaro and thereafter on 16.11.1993 at Kolkata. The learned counsel also relied upon the judgement passed by the Hon’ble Supreme Court reported in AIR 1979 SC 1825 and AIR 2008 SC 1112 to submit that it has been held by the Hon’ble Supreme Court that in order to convict a person under Section 3 of the aforesaid Act of 1966 it is not necessary that the stolen goods belonging to Railways should be seized from physical possession of the accused and it is sufficient if he had dealt with such stolen goods and the same had been in his possession at any time prior to its seizure. He also relied upon the judgement passed by the Hon’ble Supreme Court reported in 4 SCC 600 to submit that the officers of Railway Protection Force are not “police officers” so as to attract the bar under Section 25 of the Evidence Act 1872 and further submitted that the confession made by the petitioner before the Inspector of RPF is admissible in evidence. He also submitted that non examination of the complainant and consequently the complaint has not been proved is not fatal to the case of the prosecution. The complaint was filed in official capacity and the prosecution witnesses have proved the case against the petitioner beyond all reasonable doubts. The learned counsel submitted that the judgements relied upon by the learned amicus do not apply to the facts and circumstances of this case. The learned counsel submitted that the entire circumstances and evidences as a whole were put to the petitioner while recording his statement under Section 313 of Cr.P.C and there is no irregularity or illegality in the impugned judgments calling of any interference in revisional jurisdiction. Findings of this Court 10. As per the prosecution case there were repeated theft of Railway Distributor valves and signal cables and efforts were being made by the officers and staff of Railway Protection Force to detect such theft and find out the criminals who were involved in the commission of such offence and also those who were purchasers receivers of such stolen articles of Railways. 11. On 12.11.1993 at about 03.00 hours in course of working out on source information about concealment and storing of huge quantity of railway material a raid and search was conducted by the Inspector Railway Protection Force with the help of officers of local police station in the home cum go down of one Balulal Gupta situated in the District Bokaro. Said Babulal Gupta fled away leaving his men who were said to be handling and running the go down dealing with scrap materials and stolen railway property. During the search 71 numbers of railway distributors valve spheres contained in 5 gunny bags aluminum cables in 5 gunny bags weighing 125 Kgs. were found and one gunny bag containing pieces of plastic insulator of signal cable were recovered and seized. Ram Pari Devi Raju Kumar Nathuni Singh Ramesh Kumar Gupta Dablu Kumar Gupta and Vimal Kumar Gupta jointly claimed ownership of godown and handling of broken railway property under the leadership of Babulal Gupta. They disclosed that the seized railway materials have been purchased by them from Salim Ansari Mantu Keshri Chhotu Ansari Bharsa Hussain and Salim Khan @ Salim and 3 bags containing vacuum parts of E.M.U. stolen Railway property worth Rs. 11 lakhs were recovered. 13. During the enquiry all the witnesses supported the fact of the case. All the seized properties were examined by experts Sri Y.V. Rao Sri A.N. Pal Sri M.B. Verma and Sri S.P. Singh who all certified that the seized property belonged to railway. 14. On the basis of aforesaid the complaint was lodged by the Railway Protection Force under Section 3(a) of the aforesaid Act of 1966 and cognizance was taken. Subsequently charge was also framed under the said section. In order to substantiate the prosecution case altogether seven witnesses were produced. P.W. 1 Arun Kumar Gupta P.W. 2 Shivendra Bhattacharya P.W. 3 Rajendra Yadav @ Rajendra Singh P.W. 4 Raj Kumar Sharma P.W. 5 S.M. Hoodi Kabri P.W. 6 J.P. Singh expert witness and P.W. 7 Mani Bhushan Verma expert witness. Apart from the oral evidences of the aforesaid witnesses the seizure list dated 12.11.1993 was exhibited as Exhibit 1. The confessional statements of Nathuni Singh Vimal Kr. Ram Ram Pari Devi Ramesh Kumar Gupta Dablu Kumar Gupta and Raj Kumar were marked as Exhibits 2 to 2 5 respectively. Seizure list dated 16.11.1993 was marked as Exhibit 1 1 and the confessional statements of Hare Ram Singh and Ram Deo Jaiswal were marked as Exhibits 2 6 and 2 7 confessional statements of Salim KhanChhotu Ansari and Ram Babu Gupta were marked as Exhibits 2 8 2 9 and 2 10 respectively. The expert report in the writing and signature of Sri J.P. Singh was marked as Exhibit 3. Expert report in writing and signature of Sri Mani Bhushan Verma was marked as Exhibit 4. 16. P.W. 1 has fully supported the prosecution case and has stated that on 12.11.1993 in the midnight he received that Distributor valve and other property belonging to Railway has been stocked in the house of Babulal Gupta and is likely to be disposed of. Accordingly he along with D.I.C. Adra S. K. Bhattacherjee and other R.P.F. staffs proceeded to the residence of Babulal Gupta but Babulal Gupta was not found. The godown was checked and about 71 numbers of various distributor valves in five sacks aluminium cable wire and plastic cover of the aluminium cable were recovered. The said articles were seized and the statement of Nathuni Singh Vimal Kumar Ram Ram Pari Devi and Ramesh Kumar Gupta were recorded. On the basis of the confessional statement the co accused godown at Kolkata was also raided on 16.11.1993 from where huge railway property were seized. The co accused persons stated that the aforesaid articles were being sold by Salim Khan Chhotu Ansari Karim and Ram Deo Jaiswal. Seizure list was prepared at both the places of seizure and expert opinion was obtained. P.W. 2 Sivendu Bhattacherjee at the time of occurrence was posted as Inspector C.I.V. Signal. He has supported the prosecution case by stating that Inspector Arun Kumar Gupta had come with search warrant and on the identification of accused Nathuni Singh and Raju Kumar the raiding party had reached Kolkata where the other two accused Ram Deo Jaiswal and Hare Ram were present. P.W. 4 and P.W 5 are the witnesses on the point of seizure at two places i.e. Bansgora and Kolkata and P.W. 6 and 7 are the expert witnesses who had examined the seized articles and have certified that the articles were railway property and are not available in the open market. Neither the seizure nor identity of the seized articles as railway property are in dispute. It is apparent from the records of the case that there are confessional statements of 11 accused including that of the petitioner of the aforesaid Act of 1966. The learned appellate court also considered the evidences on record and did not find any error in conviction and sentence of the petitioner. From the perusal of the judgements passed by the learned courts below it appears that the petitioner was neither present at the time of raid conducted at Bansgora Bokaro in the premises of Babulal Gupta nor he was present at the time of raid conducted at Kolkata in the premises of Ram Deo Jaiswal. The petitioner has been named as accused on the basis of the confessional statements of Ram Pari Devi Raju Kumar Nathuni Singh Ramesh Kumar Gupta Dablu Kumar Gupta and Vimal Kumar Ram who claimed to be owner of the godown at Bansgoda under the leadership of Babulal Gupta and that they have been purchasing the railway material from five persons including the petitioner. The raid at Kolkata was conducted on the basis of confessional statements of the aforesaid persons. The persons who were found in the godown at Kolkata and whose confessional statements were recorded were Hare Ram Singh and Ram Deo Jaiswal who had also made allegations the petitioner. Apart the aforesaid confessional statements of a number of co accused of the petitioner the petitioner had also confessed his guilt before the inspector RPF and his confessional statement dated 26.11.1993 was marked as exhibit 2 8 without any objection from the side of the defence. Confessional statement of Nathuni is dated 12.11.1993 Vimal Kumar Ram is dated 12.11.1993 Ram Pari Devi is dated 12.11.1993. The confessional statement of Ramesh Kumar Gupta has been recorded on 12.11.1993 Dablu Kumar Gupta has been recorded on 12.11.1993 Raju Kumar has been also recorded on 12.11.1993 Ram Deo Jaiswal has been recorded on 16.11.1993 Hare Ram Singh has been recorded on 16.11.1993 Chhotu Ansari has been recorded on 28.11.1993 and Babulal Gupta has been recorded on 20. The present petitioner was ultimately convicted on the basis of confessional statements of the co accused as well as his own confessional statementof Railway Property Act 1966 is not attracted against the petitioner. The said argument is also devoid of any merit. Section 3(a) of the Railway Property Possession) Act 1966 clearly mentions that whoever commits theft or dishonestly misappropriates or is found or is proved to have been in possession of any Railway property reasonably suspected of having been stolen or unlawfully obtained shall unless he proves that the Railway Property came into his possession lawfully be punishable under Section 3(a) of the aforesaid Act 1966 if it is his first offence. 24. This Court is of the considered view that not only the person who has been physically found in possession of the stolen Railway Property but also the person who is proved to have been in possession of any stolen Railway Property both are covered by Section 3 of the aforesaid Act of 1966. As per the findings recorded by the learned courts below it was the petitioner who used to commit theft of the Railway Property and hand it over to the co accused persons from whose godown premises the Railway property was physically recovered and seized. In view of the aforesaid merely because the Railway Property was not seized from the physical possession of the petitioner does not take him out of the purview of Section 3 of the aforesaid Act 1966. Accordingly the Railway property having not been seized from the physical possession of the petitioner is not fatal to the prosecution case and the learned Courts below have rightly convicted the petitioner for the offence under Section 3 of the aforesaid Act 1966. 25. The aforesaid view is supported by the judgement of the Hon’ble Supreme court reported in AIR 1979 SC 1825 which has also been followed in the judgement reported in AIR 2008 SC 11124 SCC 600 the applicability of the provision of Section 25 of the Evidence Act when applied in relation to officer of RPFmaking enquiry under Section 8(1) of the aforesaid Act of 1966 has been considered. The Hon’ble Supreme Court held that an Officer of RPF conducting an enquiry under Section 8(1) of the aforesaid 1966 Act having not been vested with all the powers of Officer in charge of a police station making investigation under Chapter XIV of the Code of Criminal Procedure and on several material aspects the enquiry under 1966 Act differs from investigation under Criminal Procedure Code. It has been held in Paras 39 and 58 of the judgement as under: “39. From the comparative study of the relevant provisions of the 1966 Act and the Code it is abundantly clear that an officer of the RPF making an inquiry under Section 8(1) of the 1966 Act does not possess several important attributes of an officer in charge of a police station conducting an investigation under Chapter XIV of the Code. The character of the “inquiry” is different from that of an “investigation” under the Code. The official status and powers of an officer of the Force in the matter of inquiry under the 1966 Act differ in material aspects from those of a police officer conducting an investigation under the 58. In the light of the above discussion it is clear that an officer of the RPF conducting an inquiry under Section 8(1) of the 1966 Act has not been invested with all the powers of an officer in charge of a police station making an investigation under Chapter XIV of the Code. Particularly he has no power to initiate prosecution by filing a charge sheet before the Magistrate concerned under Section 173 of the Code which has been held to be the clinching attribute of an investigating “police officer”. Thus judged by the test laid down in Badku Joti Savant which has been consistently adopted in the subsequent decisions noticed above Inspector Kakade of the RPF could not be deemed to be a “police officer” within the meaning of Section 25 of the Evidence Act and therefore any confessional or incriminating statement recorded by him in the course of an inquiry under Section 8(1) of the 1966 Act cannot be excluded from evidence under the said section.”of the aforesaid Act of 1966 Act was not a “police officer” within the meaning of Section 25 of the Evidence Act and therefore any confessional or incriminating statement recorded by him in the course of an enquiry under Section 8(1) of the aforesaid Act of 1966 Act cannot be excluded from the evidence by referring to Section 25 of the Evidence Act. 31. Thus the contention of the petitioner that the petitioner could not have been convicted on the basis of his confessional statement which was recorded before the inspector RPF and that his statement was hit by Section 25 of Evidence Act is rejected in view of the ratio of the aforesaid Judgment reported in4 SCC 600. Two judgements have been relied upon by the learned amicus one passed by the Hon’ble Madras High Court in the case of State versus Radhakrishnan and others reported in 1993) Cr.L.J. 1457 and another passed by the Hon’ble Orissa High Court in the case of State versus Prahallad Rath and Others reported in Cr.L.J. 1189. Both these judgments have been passed exercising appellate jurisdiction by the High Court in appeal filed by the State and both the cases arise out of case under Section 3(1) of aforesaid Act of 1966. In the judgement passed by Hon’ble Madras High Court the accused nos. 2 to 4 had given confessional statements to personnel belonging to RPF and on consideration of the materials placed the learned Magistrate had convicted the accused no. 1 and did not find accused no. 2 to 4 guilty. The State was in appeal. The High Court found that the learned Magistrate had given reasons for acquittal of accused no. 2 to 4. The High Court also found that even the confessional statement of accused no. 2 to 4 was retracted and practically the material evidence on record consisted of confessional statement of accused. In principle the High Court was of the view that there is no doubt true that personnel belonging to RPF are not police officers and confession made before them is admissible in evidence. However held that the confessional statement of accused no. 1 implicating accused no. 2 to 4 cannot be read as evidence against accused no. 2 to 4 and the same could be taken into consideration if there were other evidences on record. The High Court found that not only the accused no. 2 to 4 retracted from their confessional statements but even the seizure witnesses had turned hostile. In the present case there is confessional statement of petitioner before Inspector of RPF coupled with confessional statement of not less than 6 co accused who had admitted their guilt and pleaded guilty after their statements were recorded under Section 313 of Cr.P.C. and paid Rs.10 000 as fine and ultimately the petitioner was the sole accused who faced the trial. This Court finds that there is enough legal evidence on record to convict the petitioner and there is no ground for interference in revisional jurisdiction. The said judgement passed by Hon’ble Madras High Court does not apply to the facts and circumstances of this case. In the judgement passed by Hon’ble Orissa High Court the State was in appeal against the order of acquittal passed by the Magistrate and upon appreciation of the materials on record the Hon’ble High Court also found that the accused was rightly acquitted. In the last para of the judgement the High Court recorded that the only evidence against the two accused was the confessional statement of the co accused and as the confessional statement of the co accused was found to be unreliable the acquittal of the two co accused was also upheld. In the present case the confessional statement of the petitioner as well as the confessional statement of the co accused disclosing involvement of the petitioner in the commission of the offence both before the Inspector of RPF has been found to be reliable and not hit by Section 25 of the Evidence Act. Accordingly the judgement passed by the Hon’ble Orissa High Court also does not apply on the facts and circumstances of the case. 35. This Court is of the considered view that the un retracted and proved confessional statement of the petitioner recorded by the officer of RPF(Exhibit 2 8) can by itself be the sole basis of conviction of the petitioner under Section 3 of the aforesaid Act of 1966 as the same is admissible in evidence and not hit by section 25 of the evidence Act. In the present case this is coupled with the fact that the confessional statement of the petitioner was admitted in evidence without any objection from the side of the defence and the other co accused had also confessed before the officer of RPF and their confessional statements were exhibited as Exhibit 2 to 2 10 out of which six had admitted their guilt before the court and were released upon payment of fine of Rs.10 000 each. 36. This Court is of the considered view that there is no illegality or perversity in the impugned judgements calling for any interference in revisional jurisdiction. This Court also finds the punishment imposed upon the petitioner as adequate and no interference is called for in his sentence also. 37. As a cumulative effect of the aforesaid findings the present criminal revision petition is devoid of any merit which is accordingly dismissed. Appreciation for Amicus Curiae and Payment: 38. This Court observes that vide order dated 27.07.2021 Mr. Yogesh Modi Advocate was appointed as Amicus Curiae in this case by this Court. This Court records its appreciation for the valuable assistance accorded by the learned Amicus Curiae in final disposal of this case. The Secretary Jharkhand High Court Legal Services Committee is directed to ensure that the legal remuneration of the learned Amicus Curiae is duly paid to him within a period of 4 weeks upon submission of bills by 39. The office is directed to provide a copy of this order to Mr. Yogesh Modi the learned Amicus Curiae and also to the Secretary Jharkhand High Court Legal Services Committee. 40. The interim order stands vacated. 41. The bail bond furnished by the petitioner is cancelled. 42. Let the lower court records of the case be sent back to the 43. Let this judgement be communicated to the learned court court concerned. below through FAX e mail. Anubha Rawat Choudhary J.)

Where disputed questions of facts need to be adjudicated by trial, complaint under S.138 N.I. Act cannot be quashed U/S.482 Cr.P.C: High Court of New Delhi

Where disputed questions of facts are involved which need to be adjudicated  and established during trial, it would be against principles of law to arrive at a conclusion without going into the merits of the case. Thus complaint  U/S.138 NIA ought not be quashed by the High Court by taking recourse to S.482 Cr.P.C. This was held in SHYAM S. BAGESHRA V. STATE NCT OF DELHI & ORS. [CRL.M.C. 1792/2020] in the High Court of New Delhi by single bench consisting of JUSTICE SURESH KUMAR KAIT Facts are that complaint against petitioner as director of accused company under Sections 138/141/142 of NIA, 1881 was made. Trial court held that prima facie offense was made and summoned accused. Directors of the accused company filed application seeking discharge and dismissal of complaint before the trial court, which was dismissed thus seeking quashing of these orders as well as the complaint in question. The counsel for the petitioner contended that he is not Director but in fact an employee of accused-company. Nor he is authorized signatory to operate the bank accounts. Complainant has failed to establish responsibility of petitioner and relied on Supreme Court  judgement in N.K.Wahi Vs. Shekhar Singh. The counsel for respondent contended that petitioner had represented himself as the key managerial person responsible for day to day operations, pleas raised on questions of authorization can only be unfurled in trial, and therefore, the petition is liable to be dismissed. The court referred to the Apex court judgment in N. Rangachari v. BSNL, where in it was held that, “27. We think that, in the circumstances, the High Court has rightly come to the conclusion that it is not a fit case for exercise of jurisdiction under Section 482 of the Code of Criminal Procedure for quashing the complaint. In fact, an advertence to Sections 138 and 141 of the Negotiable Instruments Act shows that on the other elements of an offence under Section 138 being satisfied, the burden is on the Board of Directors or the officers in charge of the affairs of the company to show that they are not liable to be convicted. Any restriction on their power or existence of any special circumstance that makes them not liable is something that is peculiarly within their knowledge and it is for them to establish at the trial such a restriction or to show that at the relevant time they were not in charge of the affairs of the Company. Reading the complaint as a whole, we are satisfied that it is a case where the contentions sought to be raised by the appellant can only be dealt with after the conclusion (sic commencement) of the trial.” The court relied on the judgement of  Rajeshbhai Muljibhai Patel & Ors. Vs. State Of Gujarat & Anr., wherein the following observations were made, “When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the N.I. Act ought not to have been quashed by the High Court by taking recourse to Section 482 Cr.P.C.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 18.03.2021 Pronounced on: 06.04.2021 CRL.M.C. 1792 2020 & Crl.M.A.12554 2020 SHYAM S. BAGESHRA Petitioner Through: Mr.Subhash Chawla Advocate STATE NCT OF DELHI & ORS. Respondents Through: Mr. Amit Chadha Additional Public Prosecutor for respondent No.1 State Ms.Samprikta Ghosal Advocate for respondent No.2 HON BLE MR. JUSTICE SURESH KUMAR KAIT 1. Worlds Window Impex Pvt. Limited incorporated under the provisions of Companies Act 1956 preferred a complaint against Rathi Steel And Power Limited and its Directors Mr. Sumit Dass and Mr.Shyam S. Bageshara under Sections 138 141 142 of Negotiable Instruments Act 1881. The complainant company is engaged in the business of import and trading of ferrous non ferrous metals precious metals and metal scrap whereas accused company is a private limited registered company under the Crl.M.C. 1792 2020 provisions of The Companies Act. 2. The complainant has alleged that the accused company through its Director petitioner herein had approached the office of complainant on various occasions for supply of shredded steel scrap as per their business requirement and the material was promptly supplied as per demand. It is that against supply of steel scrap against invoice bearing Nos.2080000493 and 2080000494 for a sum of Rs.1 14 62 732.27 payment was to be made immediately after supply of material. A few payments against these invoices were received however as per accounts maintained by the complainant company an amount of Rs.80 00 000 along with interest 24% was shown due towards accused company as on 08.05.2017. It is alleged that against discharge of afore noted due payment the accused company had issued cheque bearing No.000531 dated 27.12.2016 for Rs.80 00 000 drawn on Bank of Baroda branch Gandhi Nagar Ghaziabad while assuring the complainant company that the same shall be honoured as and when presented in the bank. However upon presentation of the cheque the same was returned by the bank vide Memo dated 27.03.2017 with the remark “Account Blocked”. The complainant sent a legal Demand Notice dated 12.04.2017 to the accused company and it was Crl.M.C. 1792 2020 served upon the accused company and the petitioner on the same day. On 06.05.2017 the complainant received a reply from the accused company wherein it blatantly refused any liability towards complainant whereas according to the complainant the shredded steel scrap was supplied as per the business requirement of accused company and the cheque in question was issued towards discharge of liability and accused tried to evade the legitimate payments of the complainant. According to the complainant the cause of action had first arisen on the day of issuance of impugned cheque and further action arose when on presentation of cheque in bank the same was dishonoured on 27.03.2017 and thereafter when the accused failed to pay the cheque amount within 15 days of receipt of legal Demand Notice dated 12.04.2017. Hence the complainant filed a complaint under Sections 138 141 142 of Negotiable Instruments Act 1881 before the learned trial court for remedies as per law. In the complaint so filed the learned trial court after going through the dates and events evidence and documents on record as well as upon inquiry under Section 202 Cr.P.C. vide order dated 31.08.2017 held that prima facie offence under the Negotiable Instruments Act was made out against the accused and directed summoning of accused company and its Crl.M.C. 1792 2020 two Directors. Against the aforesaid summoning order dated 31.08.2017 the Directors of the accused company filed application seeking discharge as well as dismissal of complaint before the trial court which was dismissed vide order dated 21.12.2019 while observing that the pleas urged by them have to be seen during trial and also that once the plea of accused is recorded under Section 252 Cr.P.C. procedure contemplated under Chapter XX of the Code has to be followed and the only remedy available with the accused is under Section 482 Cr.P.C. Aggrieved against the impugned summoning order dated 31.08.2017 and dismissal order dated 21.12.2019 petitioner who is allegedly one of the Director of accused company is before this Court seeking quashing of these orders as well as the complaint in question. In the present petition the stand of petitioner is that he is not Director but in fact an employee of accused company. He had joined the services of accused company on 01.07.2015 and prior thereto he was under employment with one M S Ahuja Radios. Learned counsel for the petitioner submitted that in the impugned Demand Notice dated 12.04.2017 the complainant has only stated “that you the notice being the Crl.M.C. 1792 2020 directors and authorised signatory of notice company are responsible for day to day business affairs of the notice company and has signed the cheque in question under the present notice” however it is nowhere stated as to who had signed the impugned cheque on behalf of the accused company. It is further submitted that in reply to the aforesaid legal Demand Notice dated 12.04.2017 accused company has clearly stated that petitioner and the other named person are neither the Directors nor authorized signatories to operate the bank account and that the cheque in question is forged and fabricated and also that a blank cheque leaf had been stolen by the complainant in collusion with employee in respect of which a police complaint was also made at police station Vijay Nagar Ghaziabad on It is further submitted that while passing the impugned summoning order dated 31.08.2017 the learned trial court has not taken into consideration the fact that in the complaint in question complainant has failed to establish as to how petitioner was responsible for dishonour of cheque and the fact that despite directions petitioner could not produce record of Registrar of Companiesshowing that petitioner was one of the Directors of the accused company and was responsible for day to day Crl.M.C. 1792 2020 affairs of the company. It is next submitted that the learned trial court while rejecting petitioner‟s application seeking discharge has ignored the ratio of dictum laid down by the Hon‟ble Supreme Court in N.K.Wahi Vs. Shekhar Singh AIR 2007 SC 1454 and another decision of this Court in Urshila Kerkar Vs. Make My Tri 2013 SCC OnLine Del 4563 however has erroneously held that the only remedy available to the accused is to challenge the summoning order under Section 482 Cr.P.C. 10. Lastly it was submitted that impugned summoning order dated 31.08.2017 as well as order dated 21.12.2019 are untenable in law and are liable to be set aside. filed on behalf of No.2 complainant herein i.e. Worlds Window Impex Pvt. Limited through its representative the stand taken in the complaint has been reiterated and it is stated that petitioner had represented himself as the key managerial person responsible for day to day operations of respondent No.3 company i.e. Rathi Steel and Power Limited and had visited its office on several occasions to supply shredded steel scrap as per their requirements. Reliance is placed upon copy of a documentfrom the MCA website wherein petitioner‟s name is listed as the Authorized Representative Crl.M.C. 1792 2020 of respondent No.3 company. It is stated that as per the requirements of respondent No.3 petitioner had supplied steel scrap on agreed commercial terms including rates quantity and quality of steel scrap against invoice bearing Nos. 2080000494 Rs.1 14 62732.17 as per agreed rate of Rs.23131.80 MT however payment was to be made immediately on supply of material. It is also stated that for an outstanding amount of Rs.80 00 000 the respondent No.3 company had issued a cheque on 27.12.2016 bearing signatures of the petitioner and the same was handed over to respondent No.2 complainant company by petitioner himself on a false assurance that the same shall be honoured on presentation with the bank. further stated that when the said cheque was presented in bank the same was returned vide Return Memo dated 27.03.2021 with the remark “Account Blocked” and thereafter Legal Demand Notice dated 12.04.2017 was served upon the petitioner. 13. Learned counsel for respondent No.2 complainant submitted that the pleas raised by the petitioner in this petition as to whether he was authorized representative of respondent No.3 or its employee and whether respondent No.3 had sent a reply to the Legal Demand Notice or whether the cheque in Crl.M.C. 1792 2020 question is a stolen cheque or has been issued against a pending debt or liability are questions which can only be unfurled in full fledged trial and therefore this petition is liable to be dismissed. In rebuttal it was submitted that petitioner had joined respondent No.3 company on 01.07.2015 whereas the disputed transactions between respondent No.2 and respondent No.3 companies pertain to the year 2013 and also that the document from the MCA website wherein petitioner‟s name is listed as the Authorized Representative of respondent No.3 company pertains to the year ending March 2019 and not August 2013 wherein too petitioner has been mentioned as Authorized Signatory and not the Director of respondent No.3 company. 15. Lastly it was reiterated that petitioner is not the signatory of cheque in question nor is he authorised signatory of the bank account upon which the cheque is drawn. Reliance is also placed upon a copy of certificate dated 17.11.2017 issued from Bank of Baroda Gandhi Nagar Branch Ghaziabad UPto substantiate this argument. It was therefore submitted that petitioner has no liability towards the complainant and hence legal proceedings cannot be initiated against him. It was further submitted that respondent No.3 in its reply to the Legal Demand Notice has categorically Crl.M.C. 1792 2020 stated that the accused petitioner is not the Director of company nor he is authorised to issue any cheque on its behalf and that the stolen forged cheque in question does not bear signature of any authorised person. Thus the allegations that petitioner had issued and handed over cheque in question to complainant are false and after thought as no such averment has been made in the complainant in question. Accordingly it is urged that the impugned orders deserve to be set aside. 16. The rival contentions raised by learned counsel for the parties have been heard at length and I have gone through the impugned orders and material placed on record. 17. The stand of complainant is that against supply of material to accused company two invoices bearing Nos.2080000493 and 2080000494 for a sum of Rs.1 14 62 732.27 were raised however an amount of Rs.80 00 000 along with interest @24% was shown due towards accused company as on 08.05.2017 and against the said debt liability the cheque in question was issued by the petitioner which dishonoured and led to filing of the complaint in question. 18. Whether or not the complainant company had entered into some kind Crl.M.C. 1792 2020 of agreement with accused company for the business transaction in question and in what manner the accused company made payment of the amount Rs.34 62 732 i.e. the amount which stands already paid out of total transaction of Rs.1 14 62 732.27 to the complainant company is a matter of scrutiny. In the present petition petitioner has taken the plea that the respondent No.2 complainant company had entered into some business dealing with respondent No.3 accused company and that upon receipt of legal Demand Notice under Section 138 of N.I.Act and pursuant to having received summons he appeared before the learned trial court seeking discharge in the complaint in question. Petitioner has also stated that he had joined the services of accused company on 01.07.2015 and the record of Registrar of Companiespertains to the year the year 2019 cannot be taken into consideration. He has also taken the plea that he is neither the Director nor is the person managing day to day affairs of the accused company and also that despite opportunity given by the trial court complainant has not been able to bring any documents on record to establish this fact and had even failed to file reply to his application seeking discharge and in the absence thereof the impugned dismissal order passed by the trial Crl.M.C. 1792 2020 court cannot sustain in the eyes of law. 20. Petitioner has further pleaded that he is not the signatory of the cheque in question and has rather stated in his application before the trial court that the said cheque leaf was stolen from the office of accused company by the complainant with the connivance of some worker and in this regard a complaint was lodged in May 2017. 21. A bare perusal of chain of events as stipulated in the complaint in question shows that against an outstanding debt liability respondent No.3 company had issued a cheque dated 27.12.2016 which on presentation with the bank was returned vide Return Memo dated 27.03.2017 with the remark “Account Blocked” and thereafter Legal Demand Notice dated 12.04.2017 was served upon the petitioner. 22. The copy of Company Master Data as available on the website of the accused company and relied upon by the petitioner though pertains to the year 2019 but at the last page it mentions the name of petitioner under the category headed as “Directors Signatory Details” and under another heading “Begin Date” it mentions the date 01.07.2015. Pertinently the cheque in question is dated 27.12.2016. Hence the claim of petitioner that he was not the Director of the accused company on the date of issuance of cheque Crl.M.C. 1792 2020 comes under the clouds. Moreover the complaint against theft of cheque is stated to have been registered in May 2017 i.e. much after dishonouring of cheque by the Bank on 27.03.2017 and issuance of Legal Demand Notice dated 12.04.2017. Thus possibility of an afterthought escape from liability cannot be ruled out. Moreover extract of Form 14 „Leave with Wages Register‟ does reflect petitioner‟s name and also the date of “entry into service” as 01.07.2015 but the details mentioned therein pertains to the period January 2019 till November 2020 but no record qua the years 2015 to 2018 i.e. the period of his employment has been placed on record and this leaf does not even reflect by whomthese entries have been recorded and in the absence thereof a logical conclusion cannot be arrived at by merely looking at this half informed document. However several other documents including copies of the Income Tax Returns for the year 2013 14 2014 15 2015 16 and 2016 17 and Annual Reports of Rathi Steel and Power Ltd. i.e. accused company have been placed on record to establish petitioner‟s stand. Similarly the contents of certificate issued from the Bank of Baroda Branch Gandhi Nagar Ghaziabad stating that “the cheque in question did not bear signature of authorized signatory person as per their records” are also Crl.M.C. 1792 2020 subject to verification. 23. The question for consideration before this Court is as to whether the averments in the complaint are sufficient to proceed against the petitioner as contemplated under Sections 138 and 141 of Negotiable Instruments Act and also whether continuation of the proceedings against the petitioner who claims to be neither the signatory of the cheque nor the person in charge of 24. The Hon‟ble Supreme Court in N. Rangachari v. BSNL 5 the accused company is proper SCC 108 has held as under: “27. We think that in the circumstances the High Court has rightly come to the conclusion that it is not a fit case for exercise of jurisdiction under Section 482 of the Code of Criminal Procedure for quashing the complaint. In fact an advertence to Sections 138 and 141 of the Negotiable Instruments Act shows that on the other elements of an offence under Section 138 being satisfied the burden is on the Board of Directors or the officers in charge of the affairs of the company to show that they are not liable to be convicted. Any restriction on their power or existence of any that makes special circumstance something that is peculiarly within their knowledge and it is for them to establish at the trial such a restriction or to show that at the relevant time they were not in charge of the affairs of the Company. Reading the complaint as a whole we are satisfied that it is a case where the contentions sought to be raised by the appellant can only be dealt with after the conclusionof the trial.” them not 25. Further the Hon‟ble Supreme Court in a decision of 10.02.2020 in Crl.M.C. 1792 2020 Rajeshbhai Muljibhai Patel & Ors. Vs. State Of Gujarat & Anr. 2020SCC 794 has held that “When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence the complaint under Section 138 of the N.I. Act ought not to have been quashed by the High Court by taking recourse to Section 482 Cr.P.C.”. 26. Whether petitioner‟s employment with the accused company was confined to maintenance of accounts or he was the Director or Authorized Signatory of accused company and whether or not the cheque in question was signed by him or whether complainant is able to bring sufficient material before the court to rope in petitioner for the offence in question are the aspects which can be established during trial therefore it would be against principles of law to arrive at a conclusion without going into the merits of the case. In the light of above I am not inclined to interfere in the orders passed by the learned trial court. The petition and pending applications are accordingly dismissed while refraining to comment upon the merits of the SURESH KUMAR KAIT) JUDGE Crl.M.C. 1792 2020 APRIL 06 2021

No cause for writ petition if there is no colourable exercise of power: Bombay High Court

In case there is no improper or ulterior motive or colourable exercise of power, there is no cause for the writ court to exercise its jurisdiction under Article 226, held, a division bench of S.C. GUPTE & M.S. KARNIK, JJ., while adjudicating the matter in Satia Industries Ltd. And Anr v. The State of Maharashtra & Anr. [WRIT PETITION NO.995 OF 2021]. It is the case of the Petitioners, who are manufacturers of paper from virgin pulp, which is made of agricultural waste (and not of wood), that this particular condition, which requires paper to be supplied from 100% recycled pulp only and not virgin pulp, improperly excludes the Petitioners and similar manufacturers, who use virgin pulp for manufacturing paper. The challenge is also on the footing that manufacturers of writing and printing paper from 100% recycled pulp have improperly been included as potential bidders in response to the notice inviting tenders. a statement was made by learned Advocate General appearing for the Respondent State that subject to further orders that may be passed in the three petitions at hand, the Respondents would amend the impugned tender conditions of both e-tenders so as to include not only those tenderers, who are presently eligible, but also manufacturers of paper from agro based virgin pulp, i.e. pulp made up of basic agricultural waste like wheat straw, rice straw, sarkanda grass, baggasse, etc. This statement was said to be without prejudice to the rights and contentions of the parties and in view of the urgency involved in the matter. In keeping with this statement, a corrigendum has been issued by the Respondents amending the relevant terms of both e-tenders. The grievance of the Petitioners is that they, who are manufacturers of paper from virgin pulp (agro based and not wood/tree based), have been improperly excluded from participating in the tender process, has been fully redressed by the Respondent State. As a result of this corrigendum, the Petitioners, who manufacture paper made from virgin pulp (not being pulp made from wood/tree) are eligible to participate and be selected for supply of paper.

on 29 06 2021 on 22 03 sg1 92. wp995 21.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTIONWRIT PETITION NO.995 OF 2021 Satia Industries Ltd. And Anr...Petitionerv s.The State of Maharashtra & Anr...RespondentsWITHWRIT PETITIONNO.7598 OF 2021 Shreyans Industries Ltd. And Anr...Petitionersv s.The State of Maharashtra & Anr...RespondentsWITHWRIT PETITIONNO.7709 OF 2021 Delta Paper Mills Ltd. And Anr...Petitionersv s.The State of Maharashtra & Anr...RespondentsWITHWRIT PETITIONNO.12507 OF 2021 Shree Rama Newsprint Ltd...Petitionerv s.The State of Maharashtra & Ors...Respondents….Dr. Milind Sathe Senior Advocate a w. Mr. Subhash Jadhav Mr. RupeshGeete Ms. Raksha Thakkar and Ms. Sailee Dhayalkar i b. Parinum LawAssociates for the Petitioner in WP 995 2021.Dr. Birendra Saraf Senior Advocate a w. Mr. Subhash Jadhav Mr. RupeshGeete and Ms. Sayali Dhayalkar i b. Parinam Law Associates for thePetitioners in WPL 7598 2021.Dr. Abhinav Chandrachud a w. Mr. Subhash Jadhav and Mr. RupeshGeete i b. Parinam Law Associates for the Petitioners inWPL 7709 2021. on 29 06 2021 on 22 03 sg2 92. wp995 21.doc Mr. Subhash Jadhav a w. Mr. Rupesh Geete Ms. Raksha Thakkar and Ms.Sailee Dhayalkar i b. Parinum Law Associates for Respondent Nos. 3 to 5in WPL 12507 2021.Mr. Kedar Dighe AGP for Respondent No.1 in WP 995 2021.Mr. Abhay Patki Additional Government Pleader for Respondent No.1 in WPL 7709 2021.Mr. Milind More Additional Government Pleader for Respondent No.1 inWPL 7598 2021.Mr. A.A. Kumbhakoni Advocate General a w. Mr. Jagdish G. Aradwad(Reddy) for Respondent No.2 in all petitions.Mr. R.V. Govilkar a w. Mr. Ajinkya Badar for Respondent No.3 inWPL 7598 2021.Mr. Chetan Kapadia a w. Mr. Yash Momaya Mr. Munaf Virjee and Mr.Akash Agarwal i b. ABH Law LLP for Respondent No.3 in WP 995 2021and for Petitioner in WPL 12507 2021. ….CORAM: S.C. GUPTE & M.S. KARNIK JJ. DATE : 15 JUNE 2021.(Oral Judgment) Per S.C. Gupte J.:.Heard learned Counsel for the Petitioners and learned Addl.Government Pleaders for the Respondent State. This group of petitions(Writ Petition No.9921 Writ PetitionNos.7598 and 7709 of2021) challenges tender conditions forming part of invitations to tender.2.The tendersare for supply of 70 GSM(White Shade) writing and printing paperof para 2.2.1 titled as“Important Instructions to bidders”. The clause is in the following terms:2.2.1 Important instructions to bidders(3)Manufacturers of paper i.e. Paper Mills who arehaving a water mark facility and those who are willing tosupply paper with mill’s and Bureau’s water mark andmanufacturing writing and printing paper from 100%recycled pulp only are eligible to submit the tender.”4.It is the case of the Petitioners who are manufacturers ofpaper from virgin pulp which is made of agricultural wastethat this particular condition which requires paper to be suppliedfrom 100% recycled pulp only and not virgin pulp improperly excludesthe Petitioners and similar manufacturers who use virgin pulp formanufacturing paper. The challenge is also on the footing thatmanufacturers of writing and printing paper from 100% recycled pulphave improperly been included as potential bidders in response to thenotice inviting tenders.5.When the matter appeared before this Court on 23 March on 29 06 2021 on 22 03 sg4 92. wp995 21.doc 2021 a statement was made by learned Advocate General appearing forthe Respondent State that subject to further orders that may be passed inthe three petitions at hand the Respondents would amend the impugnedtender conditions of both e tenders so as to include not only thosetenderers who are presently eligible but also manufacturers of paperfrom agro based virgin pulp i.e. pulp made up of basic agricultural wastelike wheat straw rice straw sarkanda grass baggasse etc. Thisstatement was said to be without prejudice to the rights and contentionsof the parties and in view of the urgency involved in the matter. Inkeeping with this statement a corrigendum has been issued by theRespondents amending the relevant terms of both e tenders. Thecorrigendum issued by the State which is part of the additional affidavitfiled on behalf of Respondent No.2 inter alia allows manufacturers ofpaper i.e. paper mills who are having a water mark facility and who arewilling to supply paper with Mill’s and Bureau’s water mark andmanufacturing paper made from 100% virgin pulp and or paper madefrom virgin pulpto submittenders. In other words by this corrigendum the first grievance of thePetitioners that they who are manufacturers of paper from virgin pulp(agro based and not wood tree based) have been improperly excludedfrom participating in the tender process has been fully redressed by theRespondent State. As a result of this corrigendum the Petitioners whomanufacture paper made from virgin pulpare eligible to participate and be selected for supply of paper.The fact that this corrigendum was made by the Respondent State inpursuance of a statement made without prejudice to its rights andcontentions before this Court implies that the State does not accept the on 29 06 2021 on 22 03 sg5 92. wp995 21.doc original contention of the Petitioners that it was not permissible for theState to exclude manufacturers of paper made from virgin pulpaltogether it does not imply that participation of manufacturers of papermade from virgin pulp is in any way restricted or subject to the orders ofthis Court. 6.That leaves the only other grievance in the petition namely that contrary to the earlier view of Respondent No.2 and practice followedby them thus far manufacturers of paper made from 100% recycled pulphave been improperly included in the tendering process. The Petitionersrely on a report made by Central Pulp and Paper Research Institute Saharanpur inter alia indicating that paper made out of recycled pulp istoxic and carcinogenic and is harmful for use by students. LearnedCounsel for the Petitioners submit that this research institute is anautonomous body under administrative control of Department forPromotion of Industry and Internal Trade that is to say a department ofthe Union Government. Relying on this report it is submitted thatdepending on the deinking efficiencycertain residual inkcontaining toxic heavy metals and carcinogenic ingredients remains in thepaper when the pulp is made from recycled paper. It is submitted thatduring the paper making process dispensers are used to disperse inkparticles and converting them into very small loosely bound particles sothat they are not visible to naked eye but these may cause health hazardsto the users as these are closely bound in the paper matrix. It is submittedthat ink particle sludge generated during the deinking operations is bio refractory in nature and toxic waste. On the other hand it is submitted on 29 06 2021 on 22 03 sg6 92. wp995 21.doc that paper containing 10 40% ink particles is considered non toxic. It issubmitted that as against this report underlining the harmful nature ofrecycled paper the State Government has not produced any material orscientific literature to repel the findings of the Central Pulp and PaperResearch Institute. It is also submitted that in response to an earlier PILbefore a Division Bench of this Court at Nagpur the Respondents hadjustified the use of paper from virgin pulpand promoting of virgin pulp paper over recycledpulp paper. Learned Counsel also rely on the decision of the NagpurBench dismissing that PIL and desisting from interfering with the tendercondition of use of paper made of virgin pulp only. 7.Calling for e tenders being an administrative matter it maywell be necessary for the Respondent State to form its policy vis a vis useof paper for manufacture of textbooks but as long as the decision of theState is not demonstrably unreasonable or capricious or guided byimproper or oblique motives this Court sitting in its writ jurisdictionunder Article 226 of the Constitution of India has no cause to interferewith it. In the present case the State has relied on a directive issued bythe Ministry of Environment Forest and Climate Change of Governmentof Indiafor promotingprocurement of recycled paper. The directive has been issued with a viewto promote procurement of recycled paper and avoid improper restrictivemeasures like insisting only on paper made out of virgin pulp in theinterest of environment and for preservation of forests. The directiveindicates that the matter was examined in the Ministry and afterexamination the Ministry was of the view that recycled paper pulp helps on 29 06 2021 on 22 03 sg7 92. wp995 21.doc preserve forest by avoiding cutting of trees besides such paper having lesspollution potential compared to paper made from virgin pulp. Inpursuance of this conclusion the Ministry has advised other departments Ministries such as Ministry of Human Resource Development and State UT Governments to consider purchasing paper made from both recycledpulp as well as virgin pulp made of wood based or agro based material for printing of educational textbooks and for other purposes In keepingwith this directive even the University Grant Commission by itscommunication dated 19 February 2019 issued to Vice Chancellors of alluniversities has requested them to promote procurement of recycledpaper and avoid incorporating restrictive conditions such as exclusive useof paper made of virgin pulp in tenders for procurement of writing andprinting paper. It is obvious from this material that Union Ministry ofEnvironment Forest and Climate Change has been of a considered viewthat it was important to promote use of paper made of recycled pulpequally with paper made of virgin pulp even agro based virgin pulp. Thepractice followed by other departments such as Human Resources as alsothe Respondent State before us was of earlier years that is to say beforethis directive was issued by the Ministry of Environment Forest andClimate Change and the University Grants Commission. The earlieraffidavit referred to by the Petitioners in the PILwasof such anterior date. There has since been a change of view in theMinistry which has now proposed as a matter of policy promotion of useof paper made of recycled pulp with a view to address environmentalconcerns such as climate change air pollution resources depletion waste disposal etc. caused by activities relating to mass production andmass disposal. If that is so that is if the policy of promotion of recycled on 29 06 2021 on 22 03 sg8 92. wp995 21.doc paper pulp has been deliberately propounded by the Ministry afterconsideration of the matter and the concerns behind such policy beingimportant and legitimate concerns with a view to address environmentalissues referred to above it cannot possibly be suggested that theprocurement notice issued by the Respondent State is either capricious orwhimsical or unreasonable. There is no case of any improper or ulteriormotive or colourable exercise of power in the present case. If that is so there is no cause for the writ court to exercise its jurisdiction under Article226.8.The view expressed by the Central Pulp and ResearchInstitute Saharanpur is but a point of view. It is the view of oneparticular body under the agies of the Union Government. Even this pointof view makes it clear that its conclusion of carcinogenic or toxic natureof paper made out of recycled pulp is not based on any concrete scientificliterature or material. As the report itself indicates as regards cancer breathing problems or any other illnesses specifically due to waste pulp the institute has not come across any study in this regard. The statementin its report is merely meant to be a general caution for the use ofrecycled paper for textbooks for children as children tend to ingest paperor lick on it while turning pages. So also it is obvious that the institutehas not come across any specific studies on health hazards from recycledpaper. The institute has made it clear that no such studies are known toit in case such studies have been conducted in any part of the world. Itdoes not emerge from the report of the institute relied upon by thePetitioners that use of paper made from 100% recycled pulp is soobnoxious or harmful that it does not admit of use by children in any on 29 06 2021 on 22 03 sg9 92. wp995 21.doc event. If that is so we are not expected to apply our mind to decidewhether and to what extent if at all use of recycled paper pulp may beharmful or ill advised or to what extent use of alternative paper i.e. papermade of virgin pulp is either advisable or beneficial. 9.We accordingly find no merit in the challenge to theparticular tender condition of allowing manufacturers of paper made of100% recycled pulp to participate in the tender process.10.There is accordingly no merit in the petitions. The petitionsare dismissed. In the facts of the case however there shall be no order asto costs.11.The companion petitionis across petition filed by manufacturers of paper made of 100% recycledpulp. Their grievance is that paper manufactured out of agro based virginpulp cannot be distinguished from paper made out of wood based pulp.Considering that presently we are at the stage of tender conditions andnot consideration of any particular tender learned Counsel for thePetitioners seeks leave to withdraw the petition with liberty to take up achallenge in this behalf as and when advised later. The petition isdismissed as withdrawn with liberty as prayed. We make it clear that wehave not applied our mind to this aspect of the matter and all rights andcontentions of the parties in that behalf are kept open.(M.S. KARNIK J.)(S.C. GUPTE J.)

Government employees cannot be discontinued from service without valid reasons: High Court of Chhattisgarh

A government employee has the right to hold on to his job and cannot be discontinued from service without valid reasons such as misconduct, gross negligence, violation of specific service rules or other similar offences. Therefore a worker who has been removed from government service has the right to either be reappointed to service or to be given a valid reason for being discontinued from service. This issue has been addressed by a single member bench of the High Court of Chhattisgarh consisting of Justice Sam Koshy in the case of State of Chattisgarh v Rameshwar Prasad Katakwar [Writ Petition (L) No. 7412 of 2010] on the 11th of June 2021. The respondent, Rameshwar Prasad Katakwar is a 40 year old daily wage worker who worked under the state’s department of water resources from 1982 till 1995 when he was discontinued from service abruptly. He raised a dispute under the Industrial Disputes Act and the Labour Court in found that the he is entitled to the benefit of reinstatement without back-wages and passed an order 1st April 2010 for the same. The state of Chhattisgarh who are petitioners in this case, challenged the Labour Court’s order through a writ petition before the High Court in the same year. The court noted that on 8th March 2019, the new state government of Chhattisgarh passed an order regularising the respondent in service and that he has been working as a regular employee under the petitioners since then. Additionally it was noted that the respondent had served the petitioners for a considerable amount of time was nearing the end of his service career with only a few years left for him to reach the age of retirement.

1 HIGH COURT OF CHHATTISGARH AT BILASPUR Writ PetitionNo. 74110 1. State of Chhattisgarh through the Secretary Department of Water Resources DKS Bhawan Mantralaya Naya Raipur The petitioner No.1 was not a party before the Labour Court but has been impleaded as petitioner No.1 in the instant petition as the proper course is to implead the State Govt. through the Secretary of the concerned department. 2. The Executive Engineer Hasdeo Canal Water Management Division Janjgir District Janjgir Champa (CG). Petitioner(s Rameshwar Prasad Katakwar aged about 40 years S o Khiruram Katakwar Ex. Chowkidar R o Village & Post Barra Thana Bamhanidih Tahsil Champa District Janjgir Champa Respondents For Petitioner State Shri Jitender Pali Dy. Advocate Shri SP Kale Advocate. Hon ble Shri Justice P. Sam Koshy Order on Board 1. The present writ petition was filed challenging the award dated 01.05.2010 passed by the Labour Court Bilaspur in case No.44 ID Act 2009 (Ref.). Vide the impugned award the Labour Court has granted relief of reinstatement without backwages. 2. The respondent worker involved in the present case is said to have employed as daily wage worker under the petitioners during 1982 to 09.02.1995. Thereafter he was discontinued from service abruptly 2 The worker thereafter raised a dispute under the Industrial Disputes Act and the matter stood referred to the Labour Court. The Labour Court taking into consideration the pleadings and the evidence which have been brought on record on either side vide impugned award has answered the reference in the affirmative holding that the respondent worker is entitled for the benefit of reinstatement without 3. The impugned award dated 01.05.2010 was challenged by way of present writ petition which was filed by the petitioners on 13.12.2010 4. From the documents enclosed along with the writ petition itself it shows that the respondent worker was reinstated by the authorities as early as on 14.07.2010 and from 14.07.2010 onwards the worker has been continuously working under the petitioners. Today when the matter is taken up for final hearing the counsel for the respondent worker submits that pending the writ petition before this court the State Government itself has vide order dated 08.03.2019 regularized the services of the worker and since then he is working as a regular employee under the petitioners. 5. Given the aforesaid submission by the counsel for the respondent worker particularly taking note of the fact that he stood regularised in service pending the writ petition equity stands in favour of the worker who firstly was reinstated immediately by the petitioners w.e.f. 14.07.2010 and since then he has put in a decade of continuous service and meanwhile he also stands regularized under the petitioners. Moreover by efflux of time as the respondent worker 3 also has served the petitioners for quite some time and is at the fag end of his service career where only few years of service is left for his retirement on this count also it would not be justifiable at this juncture to interfere with the Award 6. Under the circumstances this court is inclined to dispose of the writ petition holding that the award passed by the Labour Court does not warrant any interference at this stage in the light of subsequent development that has transpired particularly in favour of the respondent worker. 7. The writ petition accordingly stands disposed of maintaining the award passed by the Labour Court P. Sam Koshy

The accused is not legally entitled to cross examine the scientific expert who made report on record: High Court of Jharkhand

An order cannot be quashed on grounds that the scientific expert who drafted a report on record was not called to court and cross-examined by the petitioner. This was held in the judgement passed by a single member bench of the High Court of Jharkhand consisting of Justice Sanjay Kumar Dwivedi in the case of Sujit Dey v The State of Jharkhand [Cr. M.P. No. 506 of 2021] pronounced on 10th August 2021. The petitioner, Sujit Kumar Dey who was working as a Halka Karamchari in the Revenue Office at Shitalpur filed this criminal miscellaneous petition before the High Court of Jharkhand to quash the order passed by the District Judge II-cum-Special Judge Dhanbad on 8th February 2021 in the case of Special Case No. 15 of 2012 on the grounds that the court allowed the petition under Section 293 of the Cr.P.C and exhibited the report given by the forensic science laboratory in Ranchi without giving an opportunity to cross examine the expert who made the report. As per the prosecution case, the complainant- Sanjay Kumar Singh had visited the circle office for paying some dues on his land, where the petitioner demanded for Rs. 15,000 from the complainant to get the work finished. As a result of this, the First Information report was filed against the petitioner. The petitioner’s counsel submitted that the charge-sheet was submitted on 8th September 2012 without the report of chemical examination and that the prosecution filed the petition on 20th March 2020 under Section 293 of the Cr.P.C to mark exhibit of chemical examination without giving the petitioner an opportunity of defence. The case of Keshav Dutt v State of Haryana [9 SCC 286 of 2010] was cited by the petitioner’s counsel, where it was held that when the trial court relied on the report of a handwriting expert, the expert should have been summoned and the accused should have been given an opportunity to cross-examine him. This submission was countered by Mr Suraj Verma who was appearing for the state by citing the case of Rajesh Kumar & another v State Government of NCT of Delhi [4 SCC 493 of 2008] where the Supreme Court of India observed that “It is not obligatory that an expert who furnishes his opinion on the scientific issue of the chemical examination of substance, should be of necessity made to depose in proceedings before the court”.

1 Cr.M.P. No. 5021 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 5021 Sujit Dey @ Sujit Kumar Dey aged about 54 years son of Late Kashinath Dey resident of Rajganj P.O. & P.S. Rajganj District Dhanbad Versus … Petitioner The State of Jharkhand through A.C.B … Opposite Party HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioner For the State : Mr. Dilip Kumar Chakraverty Advocate : Mr. Suraj Verma Spl. P.P C.A.V. on 03.08.2021 Pronounced on 10.08.2021 Heard Mr. Dilip Kumar Chakraverty learned counsel for the petitioner and Mr. Suraj Verma learned Spl. P.P. for the opposite party State This criminal miscellaneous petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID 19 pandemic. None of the parties have complained about any technical snag of audio video and with their consent this matter has been heard on merit This criminal miscellaneous petition has been filed for quashing the order dated 08.02.2021 passed by learned District Judge II cum Special Judge Dhanbad in Special Case No.15 of 2012 arising out of Vigilance P.S. Case No.15 of 2012 whereby the learned court without giving opportunity to cross examine the expert exhibited the report given by the Forensic Science Laboratory Jharkhand Ranchi and allowed the petition dated 20.03.2020 under Section 293 of the Cr.P.C The case of the prosecution is that one Sanjay Kumar Singh had complained to the S.P. Vigilance Ranchi stating therein that he is having 2 Cr.M.P. No. 5021 land in the name of his grandmother in Rangamati Police Station Baliapur District Dhanbad. After selling 20 25 decimals of land he went to the Circle Office for giving rent of remaining land which was due since last 18 years and meet with the Halka Karamchari then Halka Karamchari had given advise to go and file an application before the Circle Officer thereafter the Circle Officer sent application to Halka Karamchari petitioner). Again complainant visited the office of Halka Karamchari who demanded Rs.15 000 from the complainant. The complainant made request that he is not able to pay such huge amount. The complainant namely Sanjay Kumar Singh had complained to the S.P. Vigilance Ranchi After receiving the aforesaid complaint the Police Inspector for verification went along with complainant to the Revenue Office of Shitalpur on 07.07.2012 by hiding his identity and again in front of Police Inspector the petitioner demanded Rs.15 000 from the complainant and thereafter the First Informant Report was lodged. Mr. Dilip Kumar Chakraverty learned counsel for the petitioner submitted that the petitioner is innocent. The petitioner was working as Halka Karamchari in the Revenue Office at Shitalpur. He further submitted that on 23.01.2019 a petition under Section 311 of the Cr.P.C. has been filed by the prosecution for examination of Deputy Superintendent of Police A.C.B. namely Nawal Kishore Prasad which has been allowed vide order dated 22.11.2019. The argument in the case was already completed on 02.03.2020 and the case is fixed for pronouncement of judgment Mr. Chakraverty learned counsel for the petitioner further submitted that charge sheet was submitted on 08.09.2012 without report of chemical examination of Forensic Science Laboratory Jharkhand Ranchi. The prosecution has filed a petition on 20.03.2020 under Section 293 of the 3 Cr.M.P. No. 5021 Cr.P.C. to mark exhibit of result of chemical examination of Forensic Science Laboratory Jharkhand Ranchi which has been allowed by the impugned order dated 08.02.2021 without giving any opportunity of defence to the petitioner. Mr. Chakraverty learned counsel for the petitioner relied upon Sub sectionof Section 293 of the Cr.P.C. and submitted that in view of this provision the petitioner was required to be provided an opportunity of cross examination which has not been allowed and for that the petitioner has been prejudiced. He further relied upon the judgment rendered by the Hon ble Supreme Court in the case of Keshav Dutt v. State of Haryana reported in9 SCC 286 and submitted that this case is also arising out of the same section and the Hon ble Supreme Court has directed to allow the accused to cross examine the expert. Paragraphs 16 17 and 18 of the said judgment are quoted herein “16. We are afraid that we cannot concur with the views either of the trial court or of the High Court in the above regard. When the trial court chose to rely on the report of the handwriting expertit ought to have examined the handwriting expert in order to give an opportunity to the appellant and the other accused to cross examine the said expert. There is nothing on record to show that the appellant and the other respondents had admitted to the report of the 17. In our view the trial court ought to have allowed the appellant an opportunity to cross examine the expert and both the trial court and the High Court erred in denying him such opportunity and shifting the onus on the accused to disprove Ext. PR which had not been formally proved by the prosecution. The decision cited on behalf of the appellant regarding reliance on the opinion of an expert who had not been examined as a witness however includes an Assistant Director of the State Forensic Science Laboratory in clauseof Section 293 CrPC 18. Section 293(4)(e) which is relevant for our purpose is “293. Reports of certain government scientific experts —(1) Any document purporting to be a report under the hand of a government scientific expert to whom this section applies upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code may be used as evidence in any inquiry trial or other 4 Cr.M.P. No. 5021 proceeding under this Code 2)4) This section applies to the following Government scientific experts namely— a)e) The Director Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State Forensic Science Laboratory f) On the other hand Mr. Suraj Verma learned Spl. P.P. for the opposite party State submitted that there is no illegality in the impugned order and the trial court has rightly passed the order. He further submitted that chemical examination of Forensic Science Laboratory Jharkhand Ranchi was already on the record which was only required to be marked and for that a petition was filed. He also submitted that there is no need for providing cross examination to the defence in light of Sub sectionof Section 293 of the Cr.P.C. He relied upon the judgment rendered by the Hon ble Supreme Court in the case of Rajesh Kumar and another v State Government of NCT of Delhi reported in4 SCC 493 Paragraph 9 of the said judgment is quoted herein below “9. A bare reading of sub sectionsandof Section 293 shows that it is not obligatory that an expert who furnishes his opinion on the scientific issue of the chemical examination of substance should be of necessity made to depose in proceedings before the court. This aspect has been highlighted by this Court in Ukha Kolhe v. State of Maharashtra and Bhupinder Singh v. State of Punjab Therefore there is no substance in the revision petition so far as the conviction is concerned.” By way of relying on this judgment Mr. Suraj Verma learned Spl. P.P submitted that in the case of the petitioner there is no question of examination of handwriting expert and only chemical examination was required and in that view of the matter the trial court has rightly passed the impugned order. 10. On perusal of the impugned order it transpires that the case record was running at the stage of judgment on the petition dated 20.03.2020 5 Cr.M.P. No. 5021 filed by the prosecution under Section 293 of the Cr.P.C. for exhibiting the result of chemical examination of Forensic Science Laboratory Jharkhand Ranchi. For correct appreciation Section 293 of the Cr.P.C. is incorporated “293. Reports of certain Government scientific experts 1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code may be used as evidence in any inquiry trial or other proceeding under this Code 2) The Court may if it thinks fit summon and examine any such expert as to the subject matter of his report 3) Where any such expert is summoned by a Court and he is unable to attend personally he may unless the Court has expressly directed him to appear personally depute any responsible officer working with him to attend the Court if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf 4) This section applies to the following Government scientific experts namely: a) any Chemical Examiner or Assistant Chemical Examiner to Government b) the Chief Inspector of Explosives c) the Director of the Finger Print Bureau d) the Director Haffkeine Institute Bombay e) the Director Deputy Director or Assistant Director] of a Central Forensic Science Laboratory or a State Forensic Science f) the Serologist to the Government.” In the case of the petitioner the substance of chemical examination of Forensic Science Laboratory Jharkhand Ranchi was already on the record and only for exhibiting the same the petition was filed. Thus Sub sectionsandof Section 293 of the Cr.P.C. are not obligatory that an expert who furnishes his opinion on the scientific issue it should be necessitated that he may depose in the proceeding before the court and this has been held by the Hon ble Supreme Court in the case of Rajesh Kumar and another the Hon ble Supreme Court has clearly observed in paragraph 19 of the said judgment that it is only the report of handwriting expert which connects the appellant of that case and that is why the prayer for cross examination was allowed by the Hon ble Supreme Court. In the case in hand there is no question of handwriting expert. The report of Forensic Science Laboratory Jharkhand Ranchi which was already on record was only required to be considered. Thus the judgment relied by Mr. Chakraverty learned counsel for the petitioner is not helping the petitioner. 13. The report of the Forensic Science Laboratory Jharkhand Ranchi are admissible in terms of Section 293 of the Cr.P.C. There is no illegality in the impugned order dated 08.02.2021 passed by learned District Judge II cum Special Judge Dhanbad in Special Case No.112 arising out of Vigilance P.S. Case No.112. 14. Accordingly this criminal miscellaneous petition stands dismissed (Sanjay Kumar Dwivedi J High Court of Jharkhand Ranchi Dated: the 10th day of August 2021 Ajay N.A.F.R.

Virendra Gaur and Ors vs State of Haryana and Ors

Introduction:  The court in this case has denied construction on land which is intended for public use. This case held that the right of people to a healthy environment also comes under the purview of Article 21. It held that any construction is done with the need to contravene such right will be struck down.  Constitution and statutory provisions discussed: Article 14, 21, 47, 48-A, and 51-A (g) of the Constitution. Section 61, 64, 66, 203, 250 of the Haryana Municipal Act, 1973. Principle 1 of the Stockholm Declaration of 1972. Facts:  The Municipal Committee of District Kurukshetra in Haryana had framed Town Planning Scheme No.5 which was sanctioned by the Government of Haryana. The first appellant owned a small portion of land in the scheme. The appellant had surrendered 25% of her land to the Municipality as a requisite to allow her building to be constructed. The said land was vested in the Municipality by Section 61 of the Haryana Municipal Act, 1973. The same land, in the scheme, was a subject matter of the lease for 99 years which was made in favor of PSS (Punjab Samaj Sabha) and was marked for open spaces. The Government allotted the land to PSS upon payment on April 18th, 1991. It obtained sanction for construction of Dharmashala on December 18th, 1992. The construction began in July 1992 and on becoming aware of such construction the appellant filed a writ petition seeking for an ad-interim injunction. The High Court denied relief and dismissed the petition. Aggrieved by this, this matter is brought to the Supreme Court by way of Special Leave. Issues: Arguments: Arguments of the appellants: Arguments of the respondents: Judgement: The court held that the government did not have the proper authority to take such a decision. It stated that the sanction of land by the municipality for various uses is against the scheme and violative of law and constitution.  The court emphasized the need to preserve the environment with the help of Principle 1 of the Stockholm Declaration of 1972. It was held that the right to have a living atmosphere suitable for human existence comes within the scope of the right to life. The affirmative declaration in Principle 1 encourages the municipal states to tackle environmental problems in the broadest human context and not just as trivial problems to conserve nature for its own benefit. The court also mentioned 48-A and 51-A (g) to highlight the need to safeguard the environment and forests of the country. Article 47 imposes a duty on the state to improve public health. Taking into account the above provisions the court stated that the word ‘environment’ is of the broad spectrum which brings within its ambit “hygienic atmosphere and ecological balance”. The state is bound in its duty to forge policies to maintain ecological balance. Article 21 in its ambit would also include protection and preservation of the environment, sanitation, and ecological balance free from pollution. Any act which can cause any form of environmental pollution be it air or water would amount to a violation of Article 21. There is a constitutional imperative on the states and municipalities to take adequate measures to promote and preserve both man-made and natural environments. The court stated that Section 203 enjoins the Municipality to frame schemes providing for environmental and sanitary amenities and to preserve and protect parks, open lands, sanitation, roads, sewage, etc. to maintain ecological balance. The lands vested in section 61 (c) of the Act should be used for the above-mentioned purposes. The court disagreed with the appellant’s view that the land being unused for a span of more than 20 years would divest it from the municipality and vest it to them.  The court stated that Section 66 gives Municipality power to transfer lands vested into the government but it is subject to provisions of Section 64 of the Act. Section 250 of the Act confers general power to the government to issue directions to any committee for carrying out purposes of the Act but it should only be used to further the goals stated in the given scheme. The land vested or reserved under the scheme cannot be directed to be used for any other public purposes unless there is grave compelling demand to issue such directions. Thus, the court held that the Government has no power to lease out land to PSS and hence, the grant of the lease in favor of PSS is without authority of law and jurisdiction. The court referred to the case of Bangalore Medical Trust v. B.S. Muddappa to explain whether landmarked for open spaces can be used for public purposes. In the above case, the court held that ‘the preservation of open spaces for parks and playgrounds are universally recognized as a legitimate exercise of statutory power rationally related to the protection of the residents of the locality from the ill-effects of urbanization.’ The ratio of this case was applied by the court and it stated that in the given case open lands vested in the municipality were meant for public amenities to the residents to maintain ecology, sanitation, recreational, play-ground, and ventilation purposes. The construction of a building would affect all these things and have ill effects on the residents. Hence, such an order passed by the government and the action of the municipality would go against the order of the scheme. The court differed from the respondents and stated that though two decades have passed, any land taken from the citizens for a public purpose is required to be used for the protection and preservation of hygienic conditions for the residents. The court further stated that PSS had proceeded with the construction despite having knowledge of a writ petition filed by the appellants being pending. Instead of awaiting the decision on merits, PSS continued with their construction and expended money on it. It can be said that it was a deliberate risk undertaken by the respondents and the court wouldn’t validate such actions. Under these circumstances the court refused to justify the actions of the government or municipality to allot land to PSS. The court held that such allotment was detrimental to people in the locality and in gross violation of the scheme. The court thus concluded that any construction made by PSS should be pulled down and it must be brought back to the condition in which it existed prior to allotment. It directed the municipality to pull down the construction within four weeks. Thus, the appeal was granted and the writ petition was ordered as prayed for.  Conclusion: The court through this judgement has upheld the need to preserve open-spaces, building, etc. for the use of public. It has ascertained that no construction can be done if it hinders with public use or poses as an environmental threat. It also emphasized on the need for preservation of environment and equated the right to a healthy environment to the status of fundamental right under Article 21.

Virendra Gaur And Ors vs State Of Haryana And Ors on 24 November 1994 Supreme Court of India Virendra Gaur And Ors vs State Of Haryana And Ors on 24 November 1994 Bench: K. Ramaswamy N. Venkatachala CASE NO Appeal91594 VIRENDRA GAUR AND ORS STATE OF HARYANA AND ORS DATE OF JUDGMENT: 24 11 1994 K. RAMASWAMY & N. VENKATACHALA JUDGMENT 1994 SUPPL.SCR 78 The following Order of the Court was delivered The undisputed facts are that the Municipal Committee Thanesar District Kurukshetra in Haryana State framed Town Planning Scheme No. 5. The Government of Haryana had sanctioned that Scheme on October 30 1975. It would appear that one of the appellants namely the first appellant was the owner of a parcel of land in the Scheme. She surrendered 25% of her land to the Municipality which was a condition for sanction to construct her building. By operation of section 61 of the Haryana Municipal Act 1973the land stood vested in the Municipality The construction of the buildings had to be in accordance with section 203 while section 205 prohibited construction in contravention of the Scheme. Admittedly in the Scheme the land the subject matter of the lease for 99 years made in favour of the Punjab Samaj Sabhawas earmarked for open spaces. The Government on April 3 1991 sanctioned for the allotment of the land to PSS on payment of the price at the rates specified therein. It would also appear that PSS had paid the price on April 18 1991 and had obtained sanction on December 18 1992 for construction of Dharamshala. It is the case of the appellants that PSS started construction in the month of July 1992 and immediately on becoming aware of it they filed the writ petition on July 18 1993 and sought for ad interim injunction. But the High Court declined to grant an injunction. By the order dated January 7 1994 the High Court dismissed the Writ Petition No 9019 93. Thus this appeal by special leave It is contended by Shri Jitendra Sharma the learned senior counsel for the appellants that the purpose of the Scheme was to reserve the land in question for open spaces for the better sanitation environment and the recreational purposes of the residents in the locality. The government had no power to lease out the land to PSS. Though the construction of Dharamshala may be a public purpose the government cannot give any direction to the Municipality to permit the use of land defeating the Scheme which provided for keeping open land namely to deprive the residents in the Indian Kanoon Virendra Gaur And Ors vs State Of Haryana And Ors on 24 November 1994 locality of the public amenity of using the land as an open land for environmental and recreational purposes. Hence the government have acted in excess of its power under section 250 of the Act. It was contended by Shri D.V. Sehgal learned senior counsel for the Municipality that the government have formulated general guidelines as to the manner in which the land belonging to the Municipality could be put to public purpose and one of the public purposes is grant of the lease for the charitable purposes. The PSS intends to construct Dharamshala for charitable purpose the assignment of the land by tease of 99 years is in accordance with me provisions of the Act. The High Court therefore was right in dismissing the writ petition. Shri V.C. Mahajan learned senior counsel for the PSS contended that the government s power to assign the land for any public purposes envisaged in their policy to keep open land in the Scheme is not a permanent one. Since more than two decades had elapsed after the Scheme had come into force and the open land was not put to any public use and it being an open land vested in the Municipality and the government had power under section 250 to give directions to use the land for a charitable purpose. Therefore the action of the government and sequel sanction was perfectly in accordance with law. Even otherwise it is not a fit case for our interference since the PSS has already expended more than seven lakhs in constructing the building Therefore any order passed by this Court may be made prospective Having given our anxious consideration to the respective contentions we are of the view that the action taken by the government is wholly without authority of law and jurisdiction and the sanction of land by Municipality for different use defeats the purpose and is in violation of law and the Environment is poly centric and multi facet problem affecting the human existence. Environmental pollution causes bodily disabilities leading to non functioning of the vital organs of the body. Noise and pollution are two of the greatest offenders the latter affects air water natural growth and health of the people. Environmental pollution affects thereby the health of general public. The Stockhoim Declaration of United Nations on Human Environment 1972 reads its Principle No. 1 inter alia thus Man has the fundamental right to freedom equality and adequate conditions of life. In an environment of equality that permits a life of dignity and well being and he bears a solemn responsibility to protect and improve the environment for present and future generations The Declaration therefore affirms both aspects of environment the natural and the man made and the protection is essential to his well being and to the enjoyment of basic human rights i.e. the right to life itself. The right to have living atmosphere congenial to human existence is a right to life. The Declaration therefore says that "in the developing countries most of the environmental problems are caused by under developments." The Declaration suggests recourse to safe actions with prudent care for ecological balance. "It is necessary to avoid massive and irreversible harm to the earthly environment and strive for achieving a better life for the present generation and posterity in an environment more in keeping with their needs and hopes. The affirmative declaration in Principle No. 1enjoins the Municipal States to solve environmental problems in the broadest human context and not as mere problems to conserve the nature for its own sake Indian Kanoon Virendra Gaur And Ors vs State Of Haryana And Ors on 24 November 1994 Article 48 A in Part IVbrought by the Constitution 42nd Amendment Act 1976 enjoins that "the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country." Article 47 further imposes the duty on the State to improve public health as its primary duty. Article 51 A(g) imposes "a fundamental duty" on every citizen of India to protect and improve the natural "environment" including forests lakes rivers and wild life and to have compassion for living creatures." The word environment is of broad spectrum which brings within its ambit "hygienic atmosphere and ecological balance." It is therefore not only the duty of the State but also the duty of every citizen to maintain hygienic environment The State in particular has duty in that behalf and to shed its extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance and hygienic environment. Article 21 protects right to life as a fundamental right. Enjoyment of life and its attainment including their right to life with human dignity encompasses within its ambit the protection and preservation of environment ecological balance free from pollution of air and water sanitation without which life cannot be enjoyed. Any contra acts or actions would cause environmental pollution. Environmental ecological air water pollution etc. should be regarded as amounting to violation of Article 21. Therefore hygienic environment is an integral facet of right to healthy life and it would be impossible to live with human dignity without a humane and healthy environment. Environmental protection therefore has now become a matter of grave concern for human existence Promoting environmental protection implies maintenance of the environment as a whole comprising the man made and the natural environment Therefore there is a constitutional imperative on me State Government and the municipalities not injure to ensure and safe guard proper environment but also an imperative duty to take adequate measures to promote protect and improve both the man made and the natural environment Section 203 of the Act enjoins the Municipality to frame the Scheme providing environmental and sanitary amenities and obtain sanction from the competent authority to provide preserve and protect parks open lands sanitation roads sewage etc. to maintain ecological balance with hygienic atmosphere not only to the present residents in the locality but also to the future generation. The lands vested in section 61of the Act should be used for the purposes envisaged therein. We do not agree with the appellants for non user of open land by the Municipality for more than two decades the land stood divested from the Municipality and vested in them. Yet the Municipality has to use the land for the purposes envisaged in the Scheme read with those found in section 61 unless unavoidable compelling public purpose require change of user. Take a case where in the zonal plan certain land is marked out and reserved for park or recreational purpose. It cannot be acquired or allotted for building purpose though housing is public purpose Section 66 gives power to the Municipality to transfer any of the lands vested in it to the government in accordance with the provisions of the Act but they will be subject to section 64 thereof and other related purposes. Section 250 of the Act reserves general power in the government and it provides that the State Government may issue directions to any Committee for carrying out the purposes of the Act and in particular with regard to various uses to which any land within municipal area may be put ............(e) adoption of development measures and measures for promotion of public safety health convenience and welfare andsanitation and cleanliness etc. Therefore the government though have power to give directions that power should be used only to effectuate and Indian Kanoon Virendra Gaur And Ors vs State Of Haryana And Ors on 24 November 1994 further goals of the approved Scheme zonal plans etc. and the land vested under the Scheme or reserved under the plan would not be directed to be used for any other public purposes within the area envisaged thereunder unless grave compelling purpose of general public demands requires issuance of such directions The question is whether the government can lease the land to the private trust like PSS 4th respondent in the appeal. It is seen that the land is vested in the municipalities and the government have no right and title or interest therein. They have no power to give either by lease to PSS or deal with the property as if the land vested in it therefore the grant of lease by the government in favour of PSS is clearly without authority of law and jurisdiction. This Court has considered the power of the government to grant lease or issue directions to the Corporation to lease out open land reserved for public use to private trust to establish hospital and explained the context in which the power could be exercised when the land was reserved for town scheme or city scheme in Bangalore Medical Trust v. B.S. Muddappa 4 SCC 54. The facts therein were that a site near the Sankey s Tank in Rajamahal Vilas Extension in the City of Bangalore was reserved as an open space in an improvement scheme adopted under the City of Bangalore Improvement Act 1945. Pursuant to the orders of the State Government dated May 27 1976 and June 11 1976 and by its resolution dated July 14 1976 the Bangalore Development Authority allotted the open space in favour of the appellant a Medical Trust for the purpose of constructing a hospital. That allotment was challenged by the respondent in the locality. This Court considered the power of the Government for granting assignment or directions to lease out in favour of the private trust and consequential effect emanating from the user of the land reserved for public purpose or to any other purpose. In para 23 of the judgment this Court held that the Scheme is meant for the reasonable accomplishment of the statutory object which is to promote the orderly development of the city of Bangalore and adjoining areas and to preserve open spaces by reserving public parks and playgrounds with a view to protecting the residents from ill effects of urbanisation. It meant for the development of the city in a way that maximum space is provided for the benefit of me public at large for recreation enjoyment ventilation and fresh air. The statutory object is to promote the healthy growth and development of the city of Bangalore and the areas adjacent thereto. The legislative intent has always been the promotion and enhancement of the quality of life by preservation of the character and desirable aesthetic features of the city. The subsequent amendments are not a deviation from or attention of the original legislative intent but only an elucidation or affirmation of the same. In paragraph 25 of the judgment this Court further held that the reservation of open spaces for parks and playgrounds are universally recognised as a legitimate exercise of statutory power rationally related to the protection of the residents of the locality from the ill effects of urbanisation. The residents of the locality are the persons intimately vitally and adversely affected by any action of the BDA and the government which is destructive of the environment and which deprives them of facilities reserved for the enjoyment and protection of the health of the public at large. The residents of the locality such as the writ petitioners are naturally aggrieved by the impugned orders and they have therefore the necessary locos standi. The action of5 SCC 709 relied on by Shri V.C Mahajan renders little assistance to the respondents. In that case this Court while declaring section 203 of the Haryana Municipality Act 1973 as violative of Article 14 of the Constitution has given effect to the judgment prospectively. The reasons given in the judgment are eloquent. The Municipalities in Punjab and Haryana States have acquired vast extents of land under different schemes and the lands stood vested in the municipality and used the land for diverse purposes. The declaration would be rendered illegal unless the prospective operation was given. A chaos would ensue. To obviate such a catastrophe this Court had made the operation of the declaration prospective. That is not the situation in this case It is seen that as soon as the appellants have become aware of the grant made in favour of PSS they filed the writ petition. Instead of awaiting the decision on merits PSS proceeded with the construction in post haste and expended the money on the construction. They have deliberately chosen to take a risk. Therefore we do not think that it would be a case to validate the actions deliberately chosen as a premium in not granting the necessary relief. It was open to the PSS to await the decision and then proceed with the construction. Since the writ petition was pending it was not open to them to proceed with the construction and then to plead equity in their favour Under these circumstances we will not be justified in upholding the action of the State Government or the municipality in allotting the land to PSS to the detriment of the people in the locality and in gross violation of the requirements of the Scheme. Any construction made by PSS should be pulled down and it must be brought back to the condition in which it existed prior to allotment. The Municipality is directed to pull down the construction within four weeks from today. They should place the report on the file of the Registry of the action taken in the matter Accordingly the appeal is allowed. The writ petition is ordered as prayed for. The law as to preservation of open spaces buildings lay out schemes of public bodies has since found elucidation in this judgment we make no order as to costs Indian Kanoon

Manner in which the administration should act is their responsibility and they should not seek court orders – SC

In the case of Amit Sahni Vs Commissioner of Police & Ors [Civil Appeal No 3282 of 2020], Supreme Court held that each fundamental right, be it of an individual or of a class, does not exist in isolation and has to be balanced with every other contrasting right. The Legislature, in its wisdom, enacted the Citizenship (Amendment) Act, 2019, which has its share of supporters and opponents. A section of the society, aggrieved by this legislative amendment, has filed petitions before this Court under Article 32 of the Constitution of India, assailing the constitutionality and legality of this amendment, which is pending consideration. A petition was originally filed before the Delhi High Court, as Writ Petition (Civil) No. 429/2020, which was disposed of on the very first day. The grievance made in the petition was that the persons opposing the Citizenship Amendment Act and the National Register of Citizens, the details of which were yet to be propounded, had adopted a method of protest which resulted in the closure of the Kalindi Kunj- Shaheen Bagh stretch, including the Okhla underpass. The High Court directed the respondent authorities to look into the grievances ventilated by the petitioner in the writ petition in accordance with the law, rules, regulations and Government policies, but simultaneously, it asked the respondent authorities to keep in mind the larger public interest as well as the maintenance of the law and order. In such a situation, it was observed that no specific writ, order or direction can be issued as to how to handle the agitation or protest, or even the place of protest and traffic, as the same would be determined based on the ground reality and the wisdom of the police, especially where situations may keep changing. However, since the situation remained the same, the petitioner therein filed the present appeal by way of a Special Leave Petition against this order of the High Court. In the endeavour of pursuing an out of the box solution, Supreme Court had considered it appropriate to appoint two interlocutors – Mr. Sanjay R. Hegde, learned senior counsel and Ms. Sadhana Ramachandran, a mediator trainer, to meet the protestors at the site. According to the report submitted by them it was found that the nature of demands was very wide and that it was difficult to find a middle path towards at least facilitating the opening of the blocked public way. In a second report it was observed that, “While the women protestors had sat in protest inside the tent, there was a huge periphery comprising mainly of male protestors, volunteers and bystanders who all seemed to have a stake in the continuance of the blockade of the road. It appeared that an absence of leadership guiding the protest and the presence of various groups of protesters had resulted in many influencers who were acting possibly at cross-purposes with each other. Thus, the Shaheen Bagh protest perhaps no longer remained the sole and empowering voice of women, who also appeared to no longer have the ability to call off the protest themselves.” Court observed that, “Our Constitutional scheme comes with the right to protest and express dissent, but with an obligation towards certain duties. Article 19, one of the cornerstones of the Constitution of India, confers upon its citizens two treasured rights, i.e., the right to freedom of speech and expression under Article 19(1)(a) and the right to assemble peacefully without arms under Article 19(1)(b). These rights, in cohesion, enable every citizen to assemble peacefully and protest against the actions or inactions of the State. The same must be respected and encouraged by the State, for the strength of a democracy such as ours lies in the same. These rights are subject to reasonable restrictions, which, inter alia, pertain to the interests of the sovereignty and integrity of India and public order, and to the regulation by the concerned police authorities in this regard.” Court further remarked that, “High Court should have monitored the matter rather than disposing of the Writ Petition and creating a fluid situation. Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone. The present case was not even one of protests taking place in an undesignated area, but was a blockage of a public way which caused grave inconvenience to commuters. We cannot accept the plea of the applicants that an indeterminable number of people can assemble whenever they choose to protest.”

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3282 OF 2020 …APPELLANT COMMISSIONER OF POLICE & ORS …RESPONDENTS JUDGMENT SANJAY KISHAN KAUL J Our country made tryst with destiny on the midnight hour of 15th August 1947 shedding the colonial yoke. Despite the pain and turbulence of the partition the best of the legal and political minds assembled together in the Constituent Assembly to give us one of the most elaborate and modern Constitutions One of the bedrocks of the Constitution of India is the separation of powers between the Legislature the Executive and the Judiciary. It is the function of the Legislature to legislate of the Executive to implement the legislation and of the Judiciary to test the constitutional validity of the legislation if a challenge is so The Legislature in its wisdom enacted the CitizenshipAct 2019 which has its share of supporters and opponents. The Legislature performed its task. A section of the society aggrieved by this legislative amendment has filed petitions before this Court under Article 32 of the Constitution of India assailing the constitutionality and legality of this amendment which is pending consideration. There is no stay of the legislation for the purpose of record There have been protests against this legislation in Delhi and in different parts of the country. We had noted in our order dated 17.02.2020 that despite the law facing a constitutional challenge before this Court that by itself will not take away the right to protest of the persons who feel aggrieved by the legislation. We however simultaneously noted that the question was where and how the protest can be carried on without public ways being affected The aforesaid was in the context of a petition which was originally filed before the Delhi High Court as Writ PetitionNo. 429 2020 which was disposed of on the very first day i.e. on 14.01.2020. The grievance made in the petition was that the persons opposing the Citizenship Amendment Act and the National Register of Citizens the details of which were yet to be propounded had adopted a method of protest which resulted in the closure of the Kalindi Kunj Shaheen Bagh stretch including the Okhla underpass from 15.12.2019. It was submitted that the public roads could not be permitted to be encroached upon in this manner and thus a direction be issued to clear the same The High Court directed the respondent authorities to look into the grievances ventilated by the petitioner in the writ petition in accordance with the law rules regulations and Government policies but simultaneously it asked the respondent authorities to keep in mind the larger public interest as well as the maintenance of the law and order. It was also emphasised that the respondents had all the powers jurisdiction and authority to control traffic wherever protests or agitations were going on in the larger public interest. In such a situation it was observed that no specific writ order or direction can be issued as to how to handle the agitation or protest or even the place of protest and traffic as the same would be determined based on the ground reality and the wisdom of the police especially where situations may keep changing every 10 minutes However since the situation remained the same the petitioner therein filed the present appeal by way of a Special Leave Petition against this order of the High 8. We may note that intervention applications were also filed by parties claiming to have the best interests of the agitators in mind or rather having sympathy for them. In our order dated 17.02.2020 we had put to the learned counsel of one of these applicants our concern that there may be persons of different points of view who may tomorrow seek to emulate this protest and such a scenario would only lead to a chaotic situation. Such kind of protests were thus required to cease on public ways everywhere In our endeavour of pursuing an out of the box solution we had considered it appropriate to appoint two interlocutors Mr. Sanjay R. Hegde learned senior counsel who was present in Court and Ms. Sadhana Ramachandran who is a mediator trainer to meet the protestors at the site. The interlocutors made appreciable effort and submitted a report before this court which was taken note of by us on 24.02.2020. We had perused the report and found that the nature of demands was very wide and that it did look difficult to find a middle path towards at least facilitating the opening of the blocked public way. However unfortunate developments in other parts of Delhi required us to adjourn the proceedings 10. We had the benefit of a second report received on 22.03.2020 and perused the same. We believe that the interlocutors had done their best but their efforts could not fructify into success although the number of people at protest site had eventually diminished. The report suggested that the views reflected in private conversations with the protestors were somewhat different from the public statements made to the media and to the protesting crowd in attendance. While the women protestors had sat in protest inside the tent there was a huge periphery comprising mainly of male protestors volunteers and bystanders who all seemed to have a stake in the continuance of the blockade of the road. Even after the arrival of the pandemic when a visit was made to the site on 20.03.2020 it was found that there were about 35 40 takhts inside the tent and each takht had 2 3 women occupying the space resulting in a rough estimate of about 75 100 women inside the tent as well as 200 or more outside the tent having a connection with the protest. While the tent was occupying half of the carriageway the remaining half of the carriageway had been blocked by creating facilities such as a library a large model of India Gate and a big metallic three dimensional map of India located upon a very strong metal scaffolding and was anchored by heavy stones making its removal very difficult. It appeared that an absence of leadership guiding the protest and the presence of various groups of protesters had resulted in many influencers who were acting possibly at cross purposes with each other. Thus the Shaheen Bagh protest perhaps no longer remained the sole and empowering voice of women who also appeared to no longer have the ability to call off the protest themselves. There was also the possibility of the protestors not fully realising the ramifications of the pandemic coupled with a general unwillingness to relocate to 11. We are conscious that we chartered a different path and thought of an out of the box solution towards an effort which can loosely be called a mediation However this did not produce a solution. But then we have no regrets as we are of the view that it is better to try and fail than not to try at all The hand of God subsequently intervened and overtook the situation as not only our country but also the world grappled with the Coronavirus pandemic. This pandemic by its very definition required coordination across the country and even beyond the borders of our country. This resulted in repeated appeals of the desirability of seclusion as a method to fight the disease. Greater wisdom prevailed over the protestors at the Shaheen Bagh site and the site was cleared albeit with some police action to remove the aforementioned structures. The pandemic has however not seen its end and we are still battling with the same. Thus really speaking the reliefs in the present proceedings have worked themselves out 13. We however pen down a few more lines for clarity on the subject on account of its wider ramifications. Learned counsel for the applicants Mr. Mehmood Pracha has sought to canvass that there was an absolute right of peaceful protest both in respect of space and numbers. He submitted that the right under Article 19(1)(a) and 19(1)(b) of the Constitution of India are only circumscribed by the provisions of Clauses&and the only applicable aspect would be ‘public order’ but such restriction must be reasonable in character. On the other hand the appellant herein sought to contend that such a situation should be avoided in the future and some norms may be laid down 14. Mr. Tushar Mehta learned Solicitor General referred to judicial pronouncements to rebut the case sought to be made out by the applicants. In Himat Lal K. Shah v. Commissioner of Police Ahmedabad & Anr. 1 a challenge was made to the rules framed by the Commissioner of Police Ahmedabad by the powers conferred under Section 33(1)(o) of the Bombay Police Act 1951. One of these rules required prior permission to be taken for the holding of public meetings. The Supreme Court opined that the State can only make regulations in aid of the right of assembly of each citizen and can only impose reasonable restrictions in the interests of public order. With regard to whether or not these rules violated Article 19(1)(b) of the Constitution of India it was held that while the State cannot impose any unreasonable restrictions a right to hold meetings on public streets was subject to the control of the appropriate authority regarding the time and place of the meeting and subject to considerations of public order However as the rule requiring prior permission of the concerned authority did not 11 SCC 227 contain any guidance as to when such permission to hold a public meeting may be refused it was found that the same conferred arbitrary powers and gave an unguided discretion to the concerned authority and this was accordingly held to be ultra vires Article 19(1)(b) of the Constitution. In Mazdoor Kisan Shakti Sangathan v. Union of India & Anr. 2 this Court was concerned with regulating the aspect of demonstrations in the earmarked space by the concerned authorities at Jantar Mantar. The judgment endeavoured to emphasise on the principle of balancing the interests of the residents in the area vis à vis the interests of protestors to hold demonstrations at Jantar Mantar. The concerned police authority was directed to devise a proper mechanism for the limited use of the Jantar Mantar area for peaceful protests and demonstrations and to lay down parameters for the same. With regard to the orders being passed under Section 144 of the Code of Criminal Procedure 1973 prohibiting activities like holding public meetings processions etc. in areas in and around the Parliament area the Court noted that the tenor and language of such orders indicated that the concerned authority was to examine every request and take a decision as to whether it should or should not allow the proposed demonstration public meeting etc. keeping in view its likely effect namely whether it would cause any obstruction to traffic danger to human safety or disturbance to public tranquility 217 SCC 324 etc. However as such orders were repeatedly being passed the same were held to amount to create a situation of perpetuity and also amounted to what would be equivalent to the “banning” of public meetings demonstrations etc. The police and other concerned authorities were accordingly directed to formulate proper and requisite guidelines for regulating protests in and around the area India as we know it today traces its foundation back to when the seeds of protest during our freedom struggle were sown deep to eventually flower into a democracy. What must be kept in mind however is that the erstwhile mode and manner of dissent against colonial rule cannot be equated with dissent in a self ruled democracy. Our Constitutional scheme comes with the right to protest and express dissent but with an obligation towards certain duties. Article 19 one of the cornerstones of the Constitution of India confers upon its citizens two treasured rights i.e. the right to freedom of speech and expression under Article 19(1)(a and the right to assemble peacefully without arms under Article 19(1)(b). These rights in cohesion enable every citizen to assemble peacefully and protest against the actions or inactions of the State. The same must be respected and encouraged by the State for the strength of a democracy such as ours lies in the same. These rights are subject to reasonable restrictions which inter alia pertain to the interests of the sovereignty and integrity of India and public order and to the regulation by the concerned police authorities in this regard.3 Additionally as was discussed in the Mazdoor Kisan Shakti Sangathan case each fundamental right be it of an individual or of a class does not exist in isolation and has to be balanced with every other contrasting right. It was in this respect that in this case an attempt was made by us to reach a solution where the rights of protestors were to be balanced with that of commuters 17. However while appreciating the existence of the right to peaceful protest against a legislationwe have to make it unequivocally clear that public ways and public spaces cannot be occupied in such a manner and that too indefinitely. Democracy and dissent go hand in hand but then the demonstrations expressing dissent have to be in designated places alone. The present case was not even one of protests taking place in an undesignated area but was a blockage of a public way which caused grave inconvenience to commuters. We cannot accept the plea of the applicants that an indeterminable number of people can assemble whenever they choose to protest Justice K.K. Mathew in the Himat Lal case4 had eloquently observed that “Streets and public parks exist primarily for other purposes and the social interest 3 See In re Ramlila Maidan Incident 5 SCC 1 promoted by untrammeled exercise of freedom of utterance and assembly in public street must yield to social interest which prohibition and regulation of speech are designed to protect. But there is a constitutional difference between reasonable regulation and arbitrary exclusion.” Furthermore we live in the age of technology and the internet where social movements around the world have swiftly integrated digital connectivity into their toolkit be it for organising publicity or effective communication. Technology however in a near paradoxical manner works to both empower digitally fuelled movements and at the same time contributes to their apparent weaknesses. The ability to scale up quickly for example using digital infrastructure has empowered movements to embrace their often leaderless aspirations and evade usual restrictions of censorship however the flip side to this is that social media channels are often fraught with danger and can lead to the creation of highly polarised environments which often see parallel conversations running with no constructive outcome evident. Both these scenarios were witnessed in Shaheen Bagh which started out as a protest against the Citizenship Amendment Act gained momentum across cities to become a movement of solidarity for the women and their cause but came with its fair share of chinks as has been opined by the interlocutors and caused inconvenience of commuters 19. We have thus no hesitation in concluding that such kind of occupation of public ways whether at the site in question or anywhere else for protests is not acceptable and the administration ought to take action to keep the areas clear of encroachments or obstructions 20. We are also of the view that the High Court should have monitored the matter rather than disposing of the Writ Petition and creating a fluid situation. No doubt it is the responsibility of the respondent authorities to take suitable action but then such suitable action should produce results. In what manner the administration should act is their responsibility and they should not hide behind the court orders or seek support therefrom for carrying out their administrative functions. The courts adjudicate the legality of the actions and are not meant to give shoulder to the administration to fire their guns from. Unfortunately despite a lapse of a considerable period of time there was neither any negotiations nor any action by the administration thus warranting our intervention 21. We only hope that such a situation does not arise in the future and protests are subject to the legal position as enunciated above with some sympathy and dialogue but are not permitted to get out of hand. 22. We accordingly close these proceedings once again expressing our appreciation of the difficult roles played by the interlocutors The Civil Appeal stands disposed of leaving the parties to bear their own [SANJAY KISHAN KAUL [ANIRUDDHA BOSE OCTOBER 07 2020 [KRISHNA MURARI

Resolution Plan approved by CoC cannot be permitted to withdraw its Resolution Plan: NCLAT

Resolution Plan has been approved by the Committee of Creditors by the required majority, the Resolution Applicant cannot be allowed to withdraw the Resolution Plan even if the said Resolution Plan is pending approval from NCLT. The judgment passed by the NCLAT New Delhi (principle bench), in its decision in Kundan Care Products Ltd. vs. Aman Gupta (Company Appeal (AT) (Insolvency) No. 653 of 2020)   by Hon’ble Shri Justice Bansi Lal Bhat and Justice Anant Bijay Singh. The facts of the case were such that – The Adjudicating Authority,  (NCLT) rejected the interlocutory appeal inter alia, on the ground that it would not be suitable for the Adjudicating Authority to manage an issue that is now sub-judice under the steady gaze of the Hon’ble Apex Court. With the help of this Appeal the Appellant, who has arisen as the Successful Resolution Applicant in Insolvency Resolution Process of M/s Astonfield Solar (Gujarat) Pvt. Ltd./Corporate Debtor attacks the reproved request dismissing its Application for withdrawal of its Resolution Plan and crossing out/disavowal of the Performance Bank Guarantee, on the ground that there is no lawful premise or defense for holding that an application for withdrawal of a Resolution Plan post-endorsement isn’t viable and that the matter forthcoming thought under the watchful eye of Hon’ble Apex Court in Civil Appeal was documented by the Appellant summoning Article 142 of the Constitution of India looking for explicit help in substitute to the alleviation of withdrawal of the Plan and same made little difference to Interlocutory appeal forthcoming before the Adjudicating Authority. The council on behalf of the appellant submitted that there is no premise or legitimization for the tracking down that the Adjudicating Authority under the Insolvency and Bankruptcy Code has no force or purview to permit withdrawal of a Resolution Plan post endorsement from the Committee of Creditors. It is additionally presented that I&B Code doesn’t contain any arrangements to urge explicit execution of a Resolution Plan by a reluctant Resolution Applicant and supplication for withdrawal of an arrangement should be acknowledged, if the arrangement is discovered to be unviable, unsuitable for execution, or is either deficient with regards to arrangements for its effective execution or depends on mistaken suspicions. It is additionally presented that the Adjudicating Authority must be fulfilled about the possibility and practicality of the Resolution Plan and in case of these pertinent variables found coming up short on the Adjudicating Authority may dismiss the Resolution Plan endorsed by CoC or dispatch the case to CoC for re-evaluation. It is finally presented that in the moment case the endorsed Resolution Plan has been delivered economically unviable because of postponement in finish of CIRP and the Appellant couldn’t be kept from pulling out something similar. In the landmark case of “Committee of Creditors of Metalyst Forging Ltd. Vs. Deccan Value Investors LP & Ors.” It was held that – The company Resolution Plan approved by the Committee of Creditors was found to be violative of Section 30(2)(e) of the I&B Code. It is in the context of such infirmity that this Appellate Tribunal had observed that the Adjudicating Authority could not compel specific performance of a plan by an unwilling Resolution Applicant. Such observations cannot be treated as a ratio to be followed as a precedent. The facts were entirely different and contravention of Section 30(2)(e) was found to have been established in that case. Same has no resemblance or comparison with the facts of the instant case where the Resolution Plan approved by the Committee of Creditors is still awaiting approval of the Adjudicating Authority

NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI Company Appeal(Insolvency) No. 6520 Arising out of Order dated 03rd July 2020 passed by the National Company Law Tribunal New Delhi Special Bench Court II in I.A. No.1679 2019 in C.P. No.(IB) …Appellant IN THE MATTER OF: Kundan Care Products Ltd. 3 Scindia House 2nd Floor Janpath Connaught Place New Delhi 110001 Through Its Director) 1. Mr. Amit Gupta Resolution Professional 309 The Crescent Business Park Sakinaka Telephone Exchange Lane Sakinaka Andheri East Mumbai 400072 2. Export Import Bank of India Centre One Building Floor 21 World Trade Centre Complex Cuffe Parade Mumbai 400005 3. Power Finance Corporation Ltd. ‘Urjanidhi’ 1 Barakhamba Lane Connaught Place New Delhi 110001 Astonfield Renewables Pvt. Ltd. 716 7th Floor Dalamal Tower Nariman Point Mumbai 400021 …Respondents 4. For Appellant: For Respondents: Mr. Prithu Garg and Mr. Siddharth Mehta Mr. Amit Gupta Resolution Professional Ms. Pooja Mahajan and Ms. Mahima Singh Advocates for R 1. Mr. Ashish Rana Advocate for R 22018 inter alia on the ground that it would not be appropriate for the Adjudicating Authority to deal with an issue which is already sub judice before the Hon’ble Apex Court. Through the medium of this Appeal the Appellant Kundan Care Products Ltd. who has emerged as the Successful Resolution Applicant in Insolvency Resolution Process of M s Astonfield Solar Pvt. Ltd. assails the impugned order rejecting its Application for withdrawal of its Resolution Plan and cancellation revocation return refund of the Performance Bank Guarantee on the ground that there is no legal basis or justification for holding that an application for withdrawal of a Resolution Plan post approval is not maintainable and that the matter pending consideration before Hon’ble Apex Court viz IA No.9682 2020 in Civil Appeal No.9241 2019 was filed by the Appellant invoking Article 142 of the Constitution of India seeking specific relief in alternate to the relief of withdrawal of the Plan and same had no bearing on IA No.1679 2019 pending before the Adjudicating Authority. It is submitted on behalf of Appellant that there is no basis or justification for the finding that the Adjudicating Authority under the Insolvency and Bankruptcy Code 2016 has no power or jurisdiction to allow withdrawal of a Resolution Plan post approval from the Committee of Creditors (Insolvency) No. 6520 Adjudicating Authority runs parallel to the view taken by NCLT Mumbai Bench in Deccan Value Investors LP case which has been upheld by this Appellate Tribunal in Company AppealNo.1276 2019 decided on 27th September 2019. It is further submitted that I&B Code does not contain any provisions to compel specific performance of a Resolution Plan by an unwilling Resolution Applicant and a plea for withdrawal of a plan will have to be accepted if the plan is found to be unviable unfit for implementation or is either lacking provisions for its successful implementation or is based on incorrect assumptions. It is further submitted that the Adjudicating Authority has to be satisfied about the feasibility and viability of the Resolution Plan and in the event of these relevant factors found lacking the Adjudicating Authority may reject the Resolution Plan approved by CoC or remit the case to CoC for reconsideration. It is lastly submitted that in the instant case the approved Resolution Plan has been rendered commercially unviable on account of delay in conclusion of CIRP and the Appellant could not be prevented from withdrawing the same. Per contra it is argued on behalf of Respondent No.1 that the Appeal is not maintainable in view of the same being squarely covered by the judgment of this Appellate Tribunal rendered in “Committee of Creditors of Educomp Solutions Ltd. vs. Ebix Singapore Pte. Ltd. & Anr.” wherein it was held that after approval of the Resolution Plan by the Committee of Creditors the Adjudicating Authority has no jurisdiction to entertain or permit the withdrawal application filed by the Resolution Applicant and that Adjudicating Authority cannot enter into the arena of the majority decision of the Committee of Creditors. It is Company Appeal(Insolvency) No. 6520 further submitted that there is no provision in the Code which allows withdrawal of an approved Resolution Plan and provisions in the for submission of Performance Bank Guarantee by a Resolution Applicant while submitting its Resolution Plan is a provision to discourage the Resolution Applicant from withdrawing its Resolution Plan. The business decision of the CoC based on their commercial wisdom is not open to judicial review before the Adjudicating Authority or even before this Appellate Tribunal. It is lastly submitted that the Resolution Plan of Appellant was approved in preference to two other Resolution Applicants for maximizing the value of Corporate Debtor and the Appellant cannot be permitted now to scuttle the Corporate Insolvency Resolution Process of the Corporate Debtor by walking away from its Resolution Plan which will have the effect of pushing the Corporate Debtor into liquidation. On behalf of Respondent No.2 it is submitted that the I&B Code does not prescribe any provision for withdrawal of Resolution Plan by the Resolution Applicant and the Adjudicating Authority is not bestowed with any power to allow withdrawal of the Resolution Plan. Allowing such prayer would be without jurisdiction. It is further submitted that once the Resolution Plan has been approved it becomes a binding contract between the parties and the Successful Resolution Applicant cannot be permitted to withdraw the same which will have the effect of sending the Corporate Debtor into liquidation. Heard learned counsel for the parties and considered their verbal and written submissions in the backdrop of facts of the case and the circumstances in which the impugned order came to be passed. It appears Company Appeal(Insolvency) No. 6520 that in terms of the impugned order the Adjudicating Authority has rejected the prayer emanating from the Resolution Applicant seeking withdrawal of the Resolution Plan which had been approved by the Committee of Creditors and in respect whereof application under Section 31 of the I&B Code filed by the Resolution Applicant was pending consideration before the Adjudicating Authority. The Adjudicating Authority was of the view that it had no jurisdiction to permit withdrawal of a Resolution Plan which had been duly approved by the Committee of Creditors. It has also been influenced by the fact that an issue of similar nature was sub judice before the Hon’ble Apex Court. It is brought to our notice by learned Counsel for Respondent No.1 that the recent decision of this Appellate Tribunal in “Committee of Creditors of Educomp Solutions Ltd. Vs. EBIX Singapore Pte Ltd. Company Appeal Insolvency) No.2020” squarely covers the present case where an Appeal filed against order of Adjudicating Authority permitting withdrawal of Resolution Plan by the Resolution Applicant which had been approved by the Committee of Creditors on the ground of the Resolution Plan having been rendered commercially unviable on account of lapse of substantial time and inordinate delay in Corporate Insolvency Resolution Process was rejected by this Appellate Tribunal holding that the Adjudicating Authority cannot enter into the arena of the majority decision of the Committee of Creditors and once the Resolution Applicant has accepted the conditions of Resolution Plan it was not open to it to make a U turn and wriggle out of the liabilities imposed upon it under the Resolution Plan approved by the Committee of Creditors. Para 95 of the aforesaid judgment rendered on Company Appeal(Insolvency) No. 6520 extracted as under: 29th July 2020 relevant for purposes of disposal of this Appeal may be “95. In the instant case notwithstanding the fact only upon the approval of the ‘Adjudicating Authority’ the ‘Resolution Plan’ of the ‘Resolution Applicant’ would be binding on all the parties and further that the application for withdrawal was filed by the 1st Respondent ’Resolution Applicant’ was filed earlier to the stage of ‘Approval’ by the ‘Adjudicating Authority’ yet this Court comes to an cocksure conclusion that the ‘Adjudicating Authority’ in law cannot enter into the arena of the majority decision of the ‘Committee of Creditors’ other than the grounds mentioned in Section 32 of the ‘I&B’ Code. Moreover after due deliberations when the 1st Respondent ’Resolution Applicant’ had accepted the conditions of ‘Resolution Plan’ especially keeping in mind ingredients of Section 25(2)(h) of the ‘Code’ to the effect that ‘no change or supplementary information to the ‘Resolution Plan’ shall be accepted after the submission date of ‘Resolution Plan’ then it is not open to the 1st Respondent ’Resolution Applicant’ to take a ‘topsy turvy’ stance and is not to be allowed to withdraw the approved ‘Resolution Plan’.” Company Appeal(Insolvency) No. 6520 Before approval of a Resolution Plan by the Committee of Creditors the Corporate Insolvency Resolution Process passes through various stages. After admission of the Application under Section 7 9 or 10 of the I&B Code IRP is appointed moratorium is slapped prohibiting activities enumerated in Section 14 public announcement is made claims are invited received and collated by the Interim Resolution Professional Committee of Creditors is constituted and after appointment of Resolution Professional Expression of Interest is floated inviting Resolution Plans whereafter the Resolution Professional places all Resolution Plans before the Committee of Creditors. After preparation of Information Memorandum and examination of each Resolution Plan conforming the conditions laid down in Section 30(2) of the I&B Code the Resolution Professional is required to present such compliant Resolution Plans to the Committee of Creditors for its approval. The Committee of Creditors may approve a Resolution Plan by a vote of not less than 66% of voting share of the Financial Creditors after considering its feasibility and viability the manner of distribution proposed and other requirements as specified by IBBI. This process is to be concluded within 180 days and in the event of extension granted by the Adjudicating Authority for sufficient reasons the CIRR period may extend to 270 days with maximum outer limit of 330 days including the period which may have been consumed by the judicial intervention during the CIRP process. It is manifestly clear that I&B Code provides for insolvency resolution in a time bound manner the object sought to be achieved iner alia being maximization of value of assets of corporate persons and balancing the interests of all stake holders. Primacy Company Appeal(Insolvency) No. 6520 is given to the Committee of Creditors who are empowered to take a business decision in regard to feasibility and viability of a Resolution Plan based on their commercial wisdom which is not justiciable as by now well settled by a catena of rulings handed down by the Hon’ble Apex Court. Intervention by the Adjudicating Authority is limited to compliance of the Resolution Plan approved by the Committee of Creditors to requirements of Section 30(2) and by this Appellate Tribunal in Appeal to grounds embodied in Section 61(3) of the I&B Code. Reference in this regard may be made to law laid down by the Honb’le Apex Court in K Shashidhar vs. Indian Overseas Bank and Ors. reported in SccOnline SC 257. Be it seen that the CIRP process undertaken involves filing of Expression of Interest by the prospective Resolution Applicants which may ultimately manifest in the form of prospective Resolution Plan after negotiations as regards improvement or revision in terms of the proposed Resolution Plan. This process is in the nature of a bidding process where based on consideration of the provisions of a Resolution Plan with regard to financial matrix capacity of the Resolution Applicant to generate funds infusion of funds upfront payment the distribution mechanism and the period over which the claims of various stake holders are to be satisfied besides the feasibility and viability of the Resolution Plan a Resolution Applicant emerges as the highest bidder eliminating the Resolution Plans of Resolution Applicants which are ranked H2 and H3. The approval of a Resolution Plan by the Committee of Creditors with requisite majority has the effect of eliminating H2 and H3 from the arena. Though Company Appeal(Insolvency) No. 6520 such approved Resolution Plan would be binding on the Corporate Debtor and all stake holders only after the Adjudicating Authority passes an order under Section 31 of the I&B Code approving the Resolution Plan submitted by Resolution Professional with the approval of Committee of Creditors in terms of provisions of Section 30(6) of the I&B Code it does not follow that the Successful Resolution Applicant would be at liberty to withdraw the Resolution Plan duly approved by the Committee of Creditors and laid before the Adjudicating Authority for approval thereby sabotaging the entire Corporate Insolvency Resolution Process which is designed to achieve an object. A Resolution Applicant whose Resolution Plan stands approved by Committee of Creditors cannot be permitted to alter his position to the detriment of various stake holders after pushing out all potential rivals during the bidding process. This is fraught with disastrous consequences for the Corporate Debtor which may be pushed into liquidation as the CIRP period may by then be over thereby setting at naught all possibilities of insolvency resolution and protection of a Corporate Debtor moreso when it is a going concern. That apart there is no express provision in the I&B Code allowing a Successful Resolution Applicant to stage a U turn and frustrate the entire exercise of Corporate Insolvency Resolution Process. The argument advanced on behalf of the Appellant that there is no provision in the I&B Code compelling specific performance of Resolution Plan by the Successful Resolution Applicant has to be repelled on four major grounds: Company Appeal(Insolvency) No. 6520 There is no provision in the I&B Code entitling the Successful Resolution Applicant to seek withdrawal after its Resolution Plan stands approved by the Committee of Creditors with requisite majority The successful Resolution Plan incorporates contractual terms binding the Resolution Applicant but it is not a contract of personal service which may be legally unenforceable iii) The Resolution Applicant in such case is estopped from wriggling out of the liabilities incurred under the approved Resolution Plan and the principle of estoppel by conduct would apply to it The value of the assets of the Corporate Debtor is bound to have depleted because of passage of time consumed in Corporate Insolvency Resolution Process and in the event of Successful Resolution Applicant being permitted to walk out with impunity the Corporate Debtor’s depleting value would leave all stake holders in a state of devastation. 8. We are of the considered opinion that the sanctity of resolution process has to be maintained and the Resolution Applicant whose Resolution Plan has been approved by Committee of Creditors cannot be permitted to withdraw its Resolution Plan. Provision for submission of a Performance Bank Guarantee by a Resolution Applicant while submitting Company Appeal(Insolvency) No. 6520 its Resolution Plan as required under the amended provisions of IBBI Insolvency Resolution Process of Corporate Persons) Regulations 2016 is a step in this direction but may not be deterrent enough to prevent a Successful Resolution Applicant from taking a U turn. Reliance placed by the Appellant on judgment rendered by this Appellate Tribunal in “Committee of Creditors of Metalyst Forging Ltd. Vs. Deccan Value Investors LP & Ors. Company Appeal(Insolvency) 12719 decided on 7th February 2020” is of no consequence as in that case the Resolution Plan approved by the Committee of Creditors was found to be violative of Section 30(2)(e) of the I&B Code. It is in the context of such infirmity that this Appellate Tribunal had observed that the Adjudicating Authority could not compel specific performance of a plan by an unwilling Resolution Applicant. Such observations cannot be treated as a ratio to be followed as a precedent. The facts were entirely different and contravention of Section 30(2)(e) was found to have been established in that case. Same has no resemblance or comparison with the facts of the instant case where the Resolution Plan approved by the Committee of Creditors is still awaiting approval of the Adjudicating Authority. Therefore no reliance can be placed on the observations made in the aforesaid ruling. We may also add that the approved Resolution Plan admittedly does not have a provision which could be treated as a contract of personal service rendering the same unenforceable or of a nature in respect of which specific performance cannot be an appropriate remedy. This feature of the plan also distinguishes it from the one which was the subject matter in the aforestated Appeal decided by this Appellate Tribunal. Company Appeal(Insolvency) No. 6520 12 Having regard to the forgoing discussion we find no merit in this Appeal. The Appellant has failed to demonstrate that the impugned order suffers from any legal infirmity. The Appeal being devoid of merit is dismissed. No order as to costs. Justice Bansi Lal Bhat] Acting Chairperson Justice Anant Bijay Singh ] MemberDr. Ashok Kumar Mishra ] MemberNew Delhi 30th September 2020. Company Appeal(Insolvency) No. 6520

The petitioners allege that although the College started functioning, its infrastructure was inadequate to meet the requirements: High court of Sikkim

Petitioner seek a direction to the respondent to recall of witness power to be invoked to meet the ends of justice for strong and valid reasons with cautions and circumspection, and the same issue was held in the judgement passed by a single bench judge HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE. In the matter Praveen Basnet Versus State of Sikkim [W. P. (C) No. 11 of 2021 ]dealt with an issue mentioned above. The petitioners allege that although the College started functioning, its infrastructure was inadequate to meet the requirements; it did not offer streams like science and commerce, and it did not have an academic environment. Respondents no.1, 2 and 3 have filed their counter-affidavits. It is contended by the respondents that the impugned expulsion orders are the culmination of several failed attempts aimed at ensuring that the petitioners and other students of the College maintain discipline as expected of them. They assert that despite several instances of misconduct on the part of the petitioners, the respondents have condoned them with the hope that the petitioners would mend their ways. The court perused the facts and arguments presented in the case in the facts of case, this court is also of the view that the College authorities shall be fully within their rights to issue show cause notice upon the petitioners on ascertained facts giving them an opportunity to explain themselves and after following the principles of natural justice to take such measured disciplinary action as befitting the indiscipline and as per rules and regulations of the College.

THE HIGH COURT OF SIKKIM: GANGTOK Civil Extra Ordinary Jurisdiction) SINGLE BENCH: HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE ….. Petitioner W. P.No. 121 Praveen Basnet Son of Shri Mohan Singh Basnet Resident of Middle Gyalshing P.O & P.S Gyalshing West Sikkim. State of Sikkim Through the Chief Secretary Government of Sikkim Gangtok 737101. Education Department Through the Additional Chief Secretary cum Principal Secretary Government of Sikkim Gangtok 737101. The Principal Sikkim Government College Gyalshing Gyalshing 737111. ….. Respondents and W. P.No. 121 Pravin Sharma Son of Shri Khara Nanda Sharma Resident of Aarigoan P.O. Langang & P.S. Gyalshing West Sikkim. State of Sikkim Through the Chief Secretary Government of Sikkim Gangtok 737 101. ….. Petitioner W.P.No. 121 Praveen Basnet vs. State of Sikkim & Ors. with W.P.No. 121 Pravin Sharma vs. State of Sikkim & Ors. with W.P.No. 121 Lok Nath Chettri vs. State of Sikkim & Ors.with W.P.No. 121 Nakul Sharma vs. State of Sikkim & Ors. Education Department Through the Additional Chief Secretary cum Principal Secretary Government of Sikkim Gangtok 737101. The Principal Sikkim Government College Gyalshing Gyalshing 737 111. ….. Respondents and W. P.No. 121 Lok Nath Chettri Son of Shri Abi Keshor Chettri Resident of Upper Hathidunga Rinchenpong P.O. Rinchenpong and P.S. Kuluk West Sikkim. ….. Petitioner State of Sikkim Through the Chief Secretary Government of Sikkim Gangtok 737101. Education Department Through the Additional Chief Secretary cum Principal Secretary Government of Sikkim Gangtok 737101. The Principal Sikkim Government College Gyalshing Gyalshing 737111. and W. P.No. 121 Nakul Sharma Son of Shri Ghana Shyam Sharma R o Aarigaon P.O. Langang and P.S. Gyalshing West Sikkim. ….. Respondents ….. Petitioner W.P.No. 121 Praveen Basnet vs. State of Sikkim & Ors. with W.P.No. 121 Pravin Sharma vs. State of Sikkim & Ors. with W.P.No. 121 Lok Nath Chettri vs. State of Sikkim & Ors.with W.P.No. 121 Nakul Sharma vs. State of Sikkim & Ors. State of Sikkim Through the Chief Secretary Government of Sikkim Gangtok 737101. Education Department Through the Additional ChiefSecretary cum Principal Secretary Government of Sikkim Gangtok 737101. The Principal Sikkim Government College Gyalshing Gyalshing 737111. ….. Respondents Petitions under Article 226 of the Constitution of India. Mr. Debasish Banerjee Mr. Madhukar Dhakal Mr. Sunder Basnett and Mr. Krishna Bhandari Advocates for the Petitioners. Mr. Sudesh Joshi Additional Advocate General with Mr. Yadev Sharma Government Advocate Mr. Sujan Sunwar Assistant Government Advocate and Mr. Zigmee Bhutia Standing Counsel Education Department for the Respondents. JUDGMENT(14.12.2021) Bhaskar Raj Pradhan J. W.P.(C) No. 121 W.P.(C) No. 121 W.P.(C) No. 13 of 2021 and W.P.(C) No. 14 of 2021 are being disposed of by this common judgment. W.P.No. 121 Praveen Basnet vs. State of Sikkim & Ors. with W.P.No. 121 Pravin Sharma vs. State of Sikkim & Ors. with W.P.No. 121 Lok Nath Chettri vs. State of Sikkim & Ors.with W.P.No. 121 Nakul Sharma vs. State of Sikkim & Ors. The writ petitions have been filed by four students of the Sikkim Government College Gyalshingwho challenges their expulsion orders all dated 19.02.2021 bearing identical reference no. 276 SGC GYAL EDN W 2021No. 121 Praveen Basnet vs. State of Sikkim & Ors. with W.P.No. 121 Pravin Sharma vs. State of Sikkim & Ors. with W.P.No. 121 Lok Nath Chettri vs. State of Sikkim & Ors.with W.P.No. 121 Nakul Sharma vs. State of Sikkim & Ors. The petitioners allege that on 02.02.2021 they along with other students of the College met the Respondent no. 2 regarding their grievances. Although they sought for an appointment with the Minister in charge the meeting could not take place. On 05.02.2021 they were arrested. The petitioners alleged that the allegations in the FIR were false. They were released on 06.02.2021. On 06.02.2021 some students submitted a written complaint at the Sadar Police Station against the respondent no.2 for alleged misbehaviour. After the petitioners were released on bail they held a press conference giving details of the assurances given by the State Government on 19.03.2020 and till the time of their arrest and release. On 07.02.2021 some other students filed yet another complaint against the respondent no.2. Thereafter on 17.02.2021 18.02.2021 the respondent no.3 asked the father guardian of the petitioners to be present in his office at 2 p.m. along with the petitioners for having violated the rules and regulations of the College. The petitioners along with their relatives went to the office of the respondent no.3 where they requested the authorities to take them back. On 19.02.2021 the petitioners were expelled. On 02.03.2021 the counsel of the petitioners served a legal notice to the respondents. Under such circumstances the petitioners have sought for quashing of the impugned expulsion orders as well as the decision taken by the General Body Meeting held on 10.02.2021. W.P.No. 121 Praveen Basnet vs. State of Sikkim & Ors. with W.P.No. 121 Pravin Sharma vs. State of Sikkim & Ors. with W.P.No. 121 Lok Nath Chettri vs. State of Sikkim & Ors.with W.P.No. 121 Nakul Sharma vs. State of Sikkim & Ors. The respondents no.1 2 and 3 have filed their counter affidavits. It is contended by the respondents that the impugned expulsion orders are the culmination of several failed attempts aimed at ensuring that the petitioners and other students of the College maintain discipline as expected of them. They assert that despite several instances of misconduct on the part of the petitioners the respondents have condoned them with the hope that the petitioners would mend their ways. However emboldened by the lack of stringent action against them the petitioners on 02.02.2021 not only entered the State Secretariat at Gangtok without permission of the authorities but also threatened attempted to assault and browbeat the respondent no.2. Pursuant to which he was compelled to lodge the FIR. It is contended that the petitioners were made aware of the rules and regulations published in the prospectus of the College which are critical for the maintenance of discipline. The petitioners were aware of the rules and regulations and the consequences of flouting them. Attention was drawn to rules 1 2 3 7 8 9 12 and 16. It is alleged that the petitioners in the month of February 2020 had uploaded a false and derogatory post in Facebook questioning the legality and authenticity of the College’s accreditation by the National Assessment and Accreditation Council No. 121 Praveen Basnet vs. State of Sikkim & Ors. with W.P.No. 121 Pravin Sharma vs. State of Sikkim & Ors. with W.P.No. 121 Lok Nath Chettri vs. State of Sikkim & Ors.with W.P.No. 121 Nakul Sharma vs. State of Sikkim & Ors. repeat their mistakes in future. With regard to their misbehaviour with the College authorities the students expressed their desire to meet them for further discussion and clarification and the matter was forwarded to the College for information and action. On 19.11.2020 without any discourse with the College authorities and their consent the petitioners held a press conference and circulated disparaging and defamatory contents amongst the media personnel including the social media outlets regarding the progress of construction activities of the College while giving an ultimatum that construction should be completed within three months. It is the respondents’ case that the petitioners have violated the rules and thus they were served with a show cause notice on 24.11.2020. Further on 26.11.2020 a new Disciplinary Committee for the period 2020 2022 was constituted comprising of all Heads of Departments and faculties of the College as members of the Committee. Praveen Basnet Pravin Sharma and Lok Nath Chettri submitted their reply to the show cause notice on 26.11.2020. Nakul Sharma did not submit his reply on 26.11.2020. On 30.11.2020 the Disciplinary Committee resolved to ask Praveen Basnet Praveen Sharma and Lok Nath Chettri to submit an apology letter for their misconduct but they did not do so. Nakul Sharma was suspended for a month. The Disciplinary Committee decided to suspend Praveen Basnet Praveen Sharma and Lok Nath Chettri for a month as well. Thereafter the Dean of the College vide a letter dated 11.12.2020 requested the Disciplinary Committee to grant the petitioners a final chance and revoke the suspension. On 11.12.2020 the Disciplinary Committee resolved to grant the petitioners one final chance thereby W.P.No. 121 Praveen Basnet vs. State of Sikkim & Ors. with W.P.No. 121 Pravin Sharma vs. State of Sikkim & Ors. with W.P.No. 121 Lok Nath Chettri vs. State of Sikkim & Ors.with W.P.No. 121 Nakul Sharma vs. State of Sikkim & Ors. withholding any disciplinary action against the petitioners with the hope that the petitioners would resume their academic activities. The Disciplinary Committee further resolved that if the students were found to be violating the rules and regulations of the College stringent disciplinary action would be taken. Thereafter the petitioners emboldened by the leniency shown by the College authorities travelled to Gangtok without the consent of the College authorities entered the State Secretariat and staged dharna without permission of the authorities attempted to threaten assault and browbeat the respondent no.2 culminating in the lodging of the First Information Report. Thereafter the petitioners conducted another unauthorized press conference and filed a complaint against the respondent no.2 false and baseless allegations. On 10.02.2021 another Disciplinary Committee meeting was held which resolved to take action against the students and also to expel the petitioners. It is the respondents’ case that they had granted numerous opportunities and hearing to the petitioners to comply with the rules and regulations of the College to which the petitioners have repeatedly engaged in a conduct subverting the very foundation and discipline which is needed for a conducive academic environment. The petitioners have filed a rejoinder contesting the factual averments made in the counter affidavits by the respondents no.1 2 and 3. W.P.No. 121 Praveen Basnet vs. State of Sikkim & Ors. with W.P.No. 121 Pravin Sharma vs. State of Sikkim & Ors. with W.P.No. 121 Lok Nath Chettri vs. State of Sikkim & Ors.with W.P.No. 121 Nakul Sharma vs. State of Sikkim & Ors. Heard the learned counsel for the petitioners as well as the learned Additional Advocate General. The format of the impugned expulsion orders reads thus “Ref. No. 276 SGC Gyal EDN W 2021 Date: 19.02.2021 OFFICE ORDER while initially joining this college was made aware of the Rules and Regulations of the college vide the prospectus. And whereas ........................ had signed the undertaking dated: ................... stating that he would abide by the rules and Regulations of the college and would submit himself to the disciplinary jurisdiction of the Disciplinary Committee and other authorities of the college who may be vested with the authority to exercise discipline under Rules and Regulations that have been framed by the college. And whereas .................... despite having signed the undertaking dated: ...................... violated Sl. No. 1 2 3 7 8 9 12 & 16 of the Rules and Regulations of the Now therefore after taking into account of the aforesaid instances of repeated breach of institutional Rules and Regulations based on common consensus vide General Body Meeting dated 10.02.2021) the Disciplinary Authority is satisfied that all the allegations levelled against you are correct and expel you from the college with immediate effect.” A perusal of the impugned expulsion orders reflects that not a single instance of any breach of the rules has been mentioned in it. On a pointed question to the learned Additional Advocate General as to whether the impugned expulsion order was preceded by a show cause notice he very fairly stated that there was no show cause notice issued highlighting the various instances of the breach of the rules. The learned Additional Advocate General pointed out the minutes of the meeting dated 10.02.2021 in reply to the query as to what were the breaches that were alleged in the impugned expulsion orders. A W.P.No. 121 Praveen Basnet vs. State of Sikkim & Ors. with W.P.No. 121 Pravin Sharma vs. State of Sikkim & Ors. with W.P.No. 121 Lok Nath Chettri vs. State of Sikkim & Ors.with W.P.No. 121 Nakul Sharma vs. State of Sikkim & Ors. perusal of the minutes of the meeting reflects that the meeting was of the Head of Departments alleging that the students had violated the rules by staging dharna. Neither the petitioners nor other students were part of the meeting convened on 10.02.2021 in which it was recorded that 21 students named therein were identified for violating the institutional rules and regulations by staging dharna without seeking prior permission from the institution inappropriate and indecent use of language instigating other students to take part in such acts and disrupting the teaching learning environment. The Disciplinary Committee seems to have thereafter decided to issue a show notice to those students who breached the institutional norms for the first time as deterrent and expelled those who had violated the rules on multiple occasions. It was in this meeting that a resolution was taken to expel the petitioners for engaging themselves in such activities bringing disrepute to the institution conducting press conferences in the College campus without seeking permission from College administration on multiple occasions staging dharna at the Education Department Headquarters at Gangtok without the consent of the administration and disrupting the teaching and learning environment of the College. Besides these minutes there is nothing on record placed as proof of evidence to establish the allegations made against the In the present case the petitioners are seeking for setting aside the impugned expulsion orders and the decision at the General Body Meeting dated 10.02.2021 passed against them by the College. W.P.No. 121 Praveen Basnet vs. State of Sikkim & Ors. with W.P.No. 121 Pravin Sharma vs. State of Sikkim & Ors. with W.P.No. 121 Lok Nath Chettri vs. State of Sikkim & Ors.with W.P.No. 121 Nakul Sharma vs. State of Sikkim & Ors. In Dr. Ambedkar Institute of Hotel Management Nutrition & Catering Technology Chandigarh vs. Vaibhav Singh Chauhan1 the Supreme Court held that there should be strict discipline in academic matters and malpractices should be severely punished. High educational standards have to be maintained if the country is to progress. The High Court should not ordinarily interfere with the functioning and order of the educational authorities unless there is clear violation of some statutory rule or legal principle. In M.D. Mobashashir Sarwar vs. Jamia Millia Islamia2 the Delhi High Court examined an expulsion of a student. It held that when it comes to maintenance of academic standards court should ordinarily refrain interfering with matters relating to the internal working of educational institutions for the reason that the decisions taken by such academic bodies are largely in the nature of policy decisions and the rules and regulations made by the institutions are based on their day to day experience. As long as such a decision rule regulation is on the face of it unreasonable arbitrary or in violation of the principles of natural justice the courts ought not to interfere therein as every institution has a right to set its own benchmark for achieving academic excellence. There should be strict discipline in academic matters and to maintain such discipline an academic institution is well empowered to take disciplinary action against a delinquent and or rusticating a student. The bottom line is that if the tussle is between the interest of an 11 SCC 59 2 2012 SCC Online Del 1289 W.P.No. 121 Praveen Basnet vs. State of Sikkim & Ors. with W.P.No. 121 Pravin Sharma vs. State of Sikkim & Ors. with W.P.No. 121 Lok Nath Chettri vs. State of Sikkim & Ors.with W.P.No. 121 Nakul Sharma vs. State of Sikkim & Ors. educational body and a student the former ought to prevail over the latter and further that the head of the institution is the best judge of a prevailing situation and wherever a student is found to be acting in an indisciplined manner or is found to be indulging in violent criminal acts and or in moral turpitude he is empowered to take a decision taking into consideration the past conduct of the student and the prevalent situation. There is a difference in jural interference in academic standards and judicial review of the punishment. When an order of punishment is examined the court must satisfy itself that the order is a reasoned one. The court is required to examine whether it ought to interfere in the decision and consider whether there is any arbitrariness in the action taken or whether the rules of natural justice have been violated or not or the decision taken is so unreasonable and or discriminatory that it requires interference. The punishment of expulsion and campus ban has serious implications and ought to be inflicted on a student only in cases of grave offences. An earlier decision of the Delhi High Court in Amir Jamia vs Desharath Raj3 was also referred to where it was held that when a student is expelled by an educational authority on the allegations that he is guilty of indiscipline such an action is in the nature of an adjudication and therefore a student against whom such a serious action is proposed to be taken must be afforded a reasonable opportunity of being heard against the proposed action and that rules of natural justice ought to be observed before exercising the drastic powers of expulsion and if they failed to do so then the court 3 ILR 1969 Delhi 2002 W.P.No. 121 Praveen Basnet vs. State of Sikkim & Ors. with W.P.No. 121 Pravin Sharma vs. State of Sikkim & Ors. with W.P.No. 121 Lok Nath Chettri vs. State of Sikkim & Ors.with W.P.No. 121 Nakul Sharma vs. State of Sikkim & Ors. would be constrained to intervene though reluctantly. The Delhi High Court held in paragraph 29 as follows: “29. The impugned order passed by the respondents have far reaching consequences. Expulsion from the school and the ban imposed on the petitioner from entering the school campus is a grave punishment to be inflicted. While it is true that no leniency ought to be in academic matters and the educational institutions ought to be very strict in maintaining high academic standards and academic discipline but at the same time the rules of audi alteram partem cannot be thrown to the winds. Following the principles of natural justice is the first filter of a judicial act. Turning a blind eye to the said rule is close to being sacrilegious to the rule of law. The circumstances notes hereinabove do not justify dispensing completely with the procedure prescribed under Ordinance 14 by invoking Statute 31.” The averments in the writ petitions as well as the counter affidavits filed by the respondents no.1 2 and 3 make it evident that the allegations levelled against the petitioners were not without any reason. The allegations if true may amount to indiscipline which ought to be disciplined. The College authorities are fully within their power and to discipline indiscipline and misconduct. Students are enrolled in colleges to pursue education which is fundamental to their growth. Students must always ensure that they take this opportunity of being enrolled in an institute to educate themselves and make them better citizens. is the educated enlightened students which makes the back bone of our nation. Having said that on examination of the records of the present cases it is noticed that there has been a complete violation of the principles of natural justice. The impugned expulsion orders have been passed without giving an opportunity to the petitioners to show cause as to why such an action as was resorted to ought not to be W.P.No. 121 Praveen Basnet vs. State of Sikkim & Ors. with W.P.No. 121 Pravin Sharma vs. State of Sikkim & Ors. with W.P.No. 121 Lok Nath Chettri vs. State of Sikkim & Ors.with W.P.No. 121 Nakul Sharma vs. State of Sikkim & Ors. taken. There is no material even at this stage on perusal of the counter affidavits which reflect that the authorities applied their mind to the evidence to establish the allegations and thereafter to pass the impugned expulsion orders after affording an opportunity to them. The impugned expulsion orders as well as the decision for their expulsions taken at the General Body Meeting dated 10.02.2021 in such circumstances cannot be sustained. They are accordingly set aside. In the facts of the case this court is also of the view that the College authorities shall be fully within their rights to issue show cause notice upon the petitioners on ascertained facts giving them an opportunity to explain themselves and after following the principles of natural justice to take such measured disciplinary action as befitting the indiscipline and as per rules and regulations of the College. The writ petitions are allowed to the extent above and disposed of accordingly. The Interlocutory Applications also stand disposed of. No order as to costs. Bhaskar Raj Pradhan ) Judge Approved for reporting: Yes No : Yes No Internet

Whenever some adverse action is to be taken, particularly of the kind of non-sitting a publicly elected person, principles of natural justice have to be followed and the charges have to be strictly established: Bombay High Court

If the contents of the report of Tehsildar were to be relied upon by the learned Collector before taking the decision, the principles of natural justice ought to have been followed by giving its copy to the petitioner and enabling him to meet the contents thereof. This is not an empty formality but would have enabled him to demonstrate that the contents were not factually correct. Such an observation was made by the Hon’ble Bombay High Court before Hon’ble Justice MANGESH S. PATIL in the matter of Manik s/o Laxmanrao Zate vs The District Collector, Hingoli & ors [WRIT PETITION NO.400 OF 2021 ] on 30.11.2021 The facts of the case were that the petitioner had to incur disqualification on the alledged ground he had committed lapses in holding the mandatory meetings and gram sabhas. It was the contention of the petitioner that the district collector had not provided him an opportunity of hearing. Thus the instant writ petition is preferred by the petitioner. The Hon’ble High Court observed that there is no contention to the fact that the notice was served on the petitioners which simply called upon him to appear before Collector and to furnish his written and oral submissions. It did not contain the particulars for which he was called upon to tender his explanation. Additionally, the Hon’ble High Court referred to the case of Padminbai Narsing Panchal Vs. The Additional Collector & Ors.; Writ Petition No.2971 of 2017 in which under similar circumstances the matter was remanded back to the o the concerned Collector for taking a decision afresh by extending an opportunity of being heard to the concerned petitioners by communicating specific charges to them. Finally, the Hon’ble High Court partly allowed the instant writ petition and set aside the impugned order with a direction to respondent No.1 Collector for taking a decision afresh by conducting a fresh hearing in the light of the observations made hereinabove. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The facts of the case were that the petitioner had to incur disqualification on the alledged ground he had committed lapses in holding the mandatory meetings and gram sabhas. It was the contention of the petitioner that the district collector had not provided him an opportunity of hearing. Thus the instant writ petition is preferred by the petitioner. The Hon’ble High Court observed that there is no contention to the fact that the notice was served on the petitioners which simply called upon him to appear before Collector and to furnish his written and oral submissions. It did not contain the particulars for which he was called upon to tender his explanation. Additionally, the Hon’ble High Court referred to the case of Padminbai Narsing Panchal Vs. The Additional Collector & Ors.; Writ Petition No.2971 of 2017 in which under similar circumstances the matter was remanded back to the o the concerned Collector for taking a decision afresh by extending an opportunity of being heard to the concerned petitioners by communicating specific charges to them. Finally, the Hon’ble High Court partly allowed the instant writ petition and set aside the impugned order with a direction to respondent No.1 Collector for taking a decision afresh by conducting a fresh hearing in the light of the observations made hereinabove. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble High Court observed that there is no contention to the fact that the notice was served on the petitioners which simply called upon him to appear before Collector and to furnish his written and oral submissions. It did not contain the particulars for which he was called upon to tender his explanation. Additionally, the Hon’ble High Court referred to the case of Padminbai Narsing Panchal Vs. The Additional Collector & Ors.; Writ Petition No.2971 of 2017 in which under similar circumstances the matter was remanded back to the o the concerned Collector for taking a decision afresh by extending an opportunity of being heard to the concerned petitioners by communicating specific charges to them. Finally, the Hon’ble High Court partly allowed the instant writ petition and set aside the impugned order with a direction to respondent No.1 Collector for taking a decision afresh by conducting a fresh hearing in the light of the observations made hereinabove. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur Additionally, the Hon’ble High Court referred to the case of Padminbai Narsing Panchal Vs. The Additional Collector & Ors.; Writ Petition No.2971 of 2017 in which under similar circumstances the matter was remanded back to the o the concerned Collector for taking a decision afresh by extending an opportunity of being heard to the concerned petitioners by communicating specific charges to them. Finally, the Hon’ble High Court partly allowed the instant writ petition and set aside the impugned order with a direction to respondent No.1 Collector for taking a decision afresh by conducting a fresh hearing in the light of the observations made hereinabove.

on 30 11 2021 on 30 11 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.400 OF 2021Manik s o Laxmanrao Zate Age : 51 years Occu. Agri. R o Ukhali Tq. AundhaPETITIONERDistrict Hingoli District Hingoli on 30 11 2021 on 30 11 2WP400 2021.odt11.The Village Panchayat Ukhali through its Gramsevak at R o Ukhali Tq. AundhaDistrict Hingoli RESPONDENTS…..Mr. Sudhir K. Chavan Advocate for the petitionerMr. Y.G. Gujrathi A.G.P. for the respondent StateMr. S.S. Tope Advocate for respondent No.2Mr. A.N. Nagargoje Advocate for respondent Nos.3 5 and 6Mr. Vaibhav Pawar Advocate for respondent Nos.4 and 7 to 10…..CORAM :MANGESH S. PATIL J.DATE OF JUDGMENT RESERVED :25.11.2021DATE OF JUDGMENT PRONOUNCED :30.11.2021JUDGMENT :Heard.2.Rule. The Rule is made returnable forthwith. The learnedA.G.P. waives service on behalf of respondent No.1 learned Advocate Mr.S.S. Tope waives service for respondent No.2 learned Advocate Mr. A.N.Nagargoje waives service for respondent Nos.3 5 and 6 and learnedAdvocate Mr. Vaibhav Pawar waives service for respondent Nos.4 and 7 to10. At the joint request of learned Advocates for the parties the matter isheard finally at the stage of admission.3.The petitioner is challenging the order passed by respondentNo.1 Collector dated 31.12.2020 holding him to have incurred adisqualification under Section 36 read with Section 7 of the MaharashtraVillage Panchayat Act 1958from on 30 11 2021 on 30 11 3WP400 2021.odtholding the post of Sarpanch of village Ukhali Taluka AundhaDistrict Hingoli for not holding the requisite number of monthly meetingsand gram sabhas. The decision was rendered on a complaint filed byrespondent No.2.4.Mr. S.K. Chavan learned Advocate for the petitioner wouldstrenuously submit that the decision under challenge has been rendered inblatant disregard to the principles of natural justice. The petitioner wasserved with a vague notice dated 26.05.2020without containingspecific allegations as to what were the lapses on his part so as toconstitute the disqualification. In the absence of such specific chargeshaving been ever communicated to him the decision was rendered. Byreferring to the rojnama of the proceeding before respondent No.1Collector he would point out that the last date before pronouncement ofthe order under challenge was 03.08.2020. It only marks presence of theparties i.e. petitioner and respondent No.2 and the other respondentsthrough their Advocates. It does not mention about any arguments havingbeen heard by the learned Collector. He would further point out that itreads that a report from Tahsildar Aundha was called and the matter wasstraightway reserved for final decision. Subsequently the impugnedjudgment and order has been pronounced on 31.12.2020. He wouldfurther point out from the observations in the impugned order that areport from the concerned Deputy Chief Executive OfficerZilla Parishad Hingoli was also perused. It was dated 31.08.2020 and no on 30 11 2021 on 30 11 4WP400 2021.odtopportunity was ever extended to the petitioner to know the contents ofthe report which were subsequently relied upon by respondent No.1Collector while passing the impugned decision. If at all he was to relyupon such a report a copy of it ought to have been served to thepetitioner. That having not happened the impugned order suffers fromgross illegality. In support of his submission the learned Advocate wouldplace reliance upon the following decisions:(i)Pratibha Sanjay Hulle Vs. Additional Collector & Ors. 2010Bom.C.R.700(ii)Sunil Daulat Patil V. State of Maharashtra & Ors. 2014(1) Bom.C.R.1(iii)Laxmibai Yadavrao Panchal Vs. The Additional Collector& Ors. Writ Petition No.86615 decided on 05.05.2016(iv)Saw. Padminbai Narsing Panchal Vs. The AdditionalCollector & Ors. Writ Petition No.29717 decided on 05.12.2017 5.The learned A.G.P. and Mr. S.S. Tope learned Advocate forrespondent No.2 by referring to their respective affidavits in reply submitthat though the notice served to the petitioner to appear and contest theproceeding before respondent No.1 Collector did not contain theparticulars he was aware about the contents of the complaint filed byrespondent No.2and had even filed his written statementMh.L.J.900 learnedA.G.P. and Mr. Tope learned Advocate would submit that in similar set offacts this court had concluded that the petitioner therein had knowledgeabout the specific allegations against him. He had filed a reply and itcould not be said that an opportunity of being heard was not extended tohim. They would also place reliance on the decision of coordinate benchof this court in the case of Salimbi Mubarak Tamboli Vs. The State ofMaharashtra & Ors. Writ Petition No.109518 decided on12.03.2019. on 30 11 2021 on 30 11 6WP400 2021.odt8.The learned A.G.P. and learned Advocate Mr. Tope would thenrefer to the report of Tahsildar dated 27.11.2020and submit thatthe report was eloquent enough to demonstrate the number of lapses forwhich the petitioner was guilty in not holding the meetings and even therewas an attempt in manipulation of the gram panchayat record. Theywould further submit that even the gramsevak has indulged in theillegality and respondent No.1 Collector specifically directed a disciplinaryproceeding to be initiated against him by his communication dated04.08.2020that aconsequence of not holding necessary meetings pursuant to the provisionsof Section 7 of the Act and Rule No.4 of the Rules framed thereunder isautomatic.11.The question that needs to be addressed in the present on 30 11 2021 on 30 11 7WP400 2021.odtproceeding is as to if there is a failure on the part of respondent No.1Collector in conducting enquiry by adhering to the principles of naturaljustice and as to if based on the material before him his conclusion as tothe proof of charge are sustainable.12.There cannot be dispute about the fact that the petitioner wasserved with a noticewhich simply called upon him to appearbefore respondent No.1 Collector and to furnish his written and oralsubmissions. It did not contain the particulars for which he was calledupon to tender his explanation. In similar set of facts and circumstances in the matters of Pratibha Sunil Laxmibai and Padminbai thecoordinate benches of this Court had remanded the matters back to theconcerned Collector for taking a decision afresh by extending anopportunity of being heard to the concerned petitioners by communicatingspecific charges to them.13.At the first blush the submission on behalf of the petitioner referring to these decisions seems to be attractive. However it needs to beborne in mind that though the noticewas vague and did notcontain the particulars the petitioner had subsequently appeared beforerespondent No.1 Collector and has filed his written statementtothe complaint of respondent No.2dated 31.08.2020 and based on such on 30 11 2021 on 30 11 9WP400 2021.odtreport it was concluded by the Collector that there was sufficient materialto demonstrate that the petitioner had failed to hold mandatory meetings.If such is the state of affairs when the last date of hearing was 03.08.2020and the Collector had received the report of the Deputy Chief ExecutiveOfficer on 31.08.2020 and subsequently passed the impugned order dated31.12.2020 there is absolutely no material to demonstrate that the reportof the Deputy Chief Executive Officer inspite of having sufficient time athand before pronouncing the impugned decision was ever communicatedto the petitioner. If the contents of the report were to be relied upon bythe learned Collector before taking the decision the principles of naturaljustice ought to have been followed by giving its copy to the petitioner andenabling him to meet the contents thereof. This is not an empty formalitybut would have enabled him to demonstrate that the contents were notfactually correct.15.Pertinently the impugned order reads that the concernedgramsevak in the proceeding book dated 18.08.2018 having made anendorsement that no meetings were ever held after 18.08.2018. TheCollector by his communication dated 04.08.2020addressed tothe Chief Executive Officer of Zilla Parishad Hingoli specificallymentioned that after conclusion of the enquiry by the Collector theconcerned gramsevak had made a statement denying the contents of hisearlier report. In view of his such change in the stance it was concludedthat he was misleading the Government and a disciplinary proceeding be on 30 11 2021 on 30 11 10WP400 2021.odtinitiated against him. This circumstance clearly indicates that there is aserious dispute as to the genuineness of the endorsement appearing in theproceeding book of the village panchayat dated 18.08.2020 which readsto the effect that no meeting was ever held after that date. If this is thestate of affairs factually even it is doubtful as to if this entry could havebeen relied upon by the learned Collector while holding the charge havingbeen proved.16.In view of such peculiar state of affairs in my considered view even this matter requires the course adopted by this court in the matters ofPratibha Sunil Laxmibai and Padminbai to be followed.17.The Writ Petition is allowed partly. The impugned order isquashed and set aside and the matter is remitted back to respondent No.1Collector for taking a decision afresh by conducting a fresh hearing in thelight of the observations made hereinabove.18.The parties shall appear before respondent No.1 Collector on15.12.2021 and there shall be no need for him to issue any notice to them.He shall thereafter conduct appropriate hearing and decide the matter asearly as possible and in any case within six weeks thereafter. 19.The Rule is mad absolute in above terms. [MANGESH S. PATIL]JUDGEnpj WP400 2021.odt

DELSTAR COMMERCIAL & FINANCIAL LTD V/S SARVOTTAM VINIJAYA LTD. & ORS.

“They may or they may not. That is beside the point. Some technicalities cannot be permitted to defeat the exercise of the equitable jurisdiction conferred by Section 397 of the Companies Act” The petitioner is {SKS} which seeks to highlight the plight of division of business between him and his brothers. All the petitioners are under the control of one Shri S.K. Somany (SKS). He is one of the members of Somany family which controlled a large number of business entitles. Originally, the family consisted of 6 brothers of which 2 of them separated in 1983 and the other 4 brothers were managing the family businesses including 4 major companies. In 1994, these brothers entered into a family settlement by which two of the brothers were allotted certain companies, each one of the 4 major companies individually while SKS and his eldest brother H.L. Somany (HLS) decided to continue together to manage the companies including the 2 remaining major companies.  The division of the business of the family and allocation of the major companies was done on the basis of a valuation done by Price Waterhouse and each brother was to take businesses worth 1/4th of the total value. Two major companies allotted to SKS and HLS were SPL Ltd. (SPL) and Soma Textile Ltd. (STL). It was agreed between SKS and HLS that all the companies in their group would be jointly held and managed. The respondent-companies are investment companies and their main investment is in the shares of SPL and STL and they collectively hold 17% and 36% shares in SPL and STL respectively. SKS and HLS more or less control 50% shares each in these nine respondent-companies. With their individual group holdings in these two companies and together with the shares held by the investment companies, HLS and SKS were having equal percentage of shares in both SPL and STL and thus were in joint control and management of these two companies. SPL has two manufacturing units — one at Kassar and another at Kadi. Kassar was being managed by HLS while Kadi was managed by SKS. The two units of STL were being managed by SKS. HLS is the Chairman of SPL wherein SKS is also a director. SKS is the Chairman of STL. Some disputes arose between SKS and HLS in regard to the management of SPL in July, 1997. In view of these disputes, HLS tried to take over the control of the nine investment companies by inducting his own family members and associates as directors without notice to SKS in the AGMs of these companies in February and April, 1998. By taking over the management of these companies, which hold substantial shares in SPL and STL, HLS is trying to marginalise SKS in the affairs of SPL and STL, which would be against the agreement of equality and joint management. In addition to this general allegation, in respect of Sarvopari, another allegation relates to further issue of shares and in Sarvottam, the allegation relates sale of shares held by Sarvottam in SPL. Both these actions, according to the petitioners, are prejudicial to the interest of the petitioners and SKS. The main prayer in these petitions is that there should be equality of directors from both SKS and HLS group in these companies and as also an independent Chairman.PROCEDURAL HISTORY:When certain disputes arose in relation to the family settlement, both SKS and HLS have filed a joint Suit No. 35 of 1997 in the Calcutta High Court seeking for implementation of the family settlement. All the respondent-companies are parties to the suit. In the plaint itself, at paragraphs 7 and 8, it has been stated that the brothers had been carrying on the business in co-partnership with each other and that there had been equality in the shares held by the brothers. Therefore, between SKS and HLS, there has always been joint and equal co-partnership, which is now being disturbed by HLS. In those proceedings also, a declaration of 50% shareholding has been claimed. In those proceedings, certain directions have been issued by the High Court. That being the position, the question of the Company Law Board deciding the claim of SKS for a partition or otherwise on the basis of 50% shareholding does not arise and, as a matter of fact, there is no foundation to claim this percentage on any evidence.ISSUE BEFORE THE COURT:Whether there should be equality of directors from both SKS and HLS group in these companies and as also an independent Chairman?RATIO OF THE COURT:The court observed that both SKS and HLS should try to resolve their disputes amicably, they agreed to do so. The court also appointed a chartered accountant to assist them in their endeavour to settle their disputes amicably. The chartered accounted prepared a report after interacting with them, but neither of them accepted the report and as such, the compromise efforts failed. Since the discussions were without prejudice, the court is not detailing the contents of the report of the chartered accountant and also stipulate that the documents exchanged during the efforts towards amicable settlement should not be used in any manner by the other side. Before the court deal with the allegations in the petition, we shall first deal with certain legal issued raised by Shri Sen. He pointed out that until and unless this Board is satisfied that the allegations of oppression are established and forms an opinion that the company is liable to be wound up on just and equitable grounds, no order under Section 402 could be passed. On this contention, he submitted that, even in case of a compromise, this Bench cannot approve the same without satisfying itself about the fulfilment of these two conditions. He also pointed out that the observation of the apex court in Needle Industries (India) Ltd.’s case (1982) 1 Comp LJ 1 (SC), that even when the allegations of oppression are not established, the court is not powerless to do justice between the parties, was made in exercise of the powers of the Supreme Court in terms of Article 136/142 of the Constitution. The court opined that these appeals arose out of a petition under Section 397 and that the court had extensively dealt with the provisions of this section in the judgment and made the above observation, we are of the view that the observation of the apex court that the court is not powerless to do substantial justice between the parties even when acts of oppression are not established, is a proposition made with reference to the powers of a court in dealing with Section 397 petition. This view gets strengthened from wherein, when it was argued that Coats and Newey who were two of the three main partners were not of one mind and that Newey never complained of oppression, the Supreme Court observed: “They may or they may not. That is beside the point. Such technicalities cannot be permitted to defeat the exercise of the equitable jurisdiction conferred by Section 397 of the Companies Act.” The counsel pointed out that HLS is not denying the family settlement by which two of the brothers parted ways and HLS and SKS decided to continue together on the understanding that all the companies under their control would be jointly managed. Even one of the brothers in the Calcutta suit has admitted joint management. No joint management could exist without equal shareholding. Referring to AIR (1968) 3 SCC 639 (sic), he pointed out that in case of joint management, equality in shareholding could be presumed. All the respondent companies were promoted by two trusted employees of SKS and HLS and these companies always had directors approved by both SKS and HLS. Neither SKS nor HLS, even though were controlling substantial shares in the companies, was a director in these companies. The court observed that the main apprehension of SKS is that by virtue of the control of the respondent-companies by HLS, these companies might exercise voting in respect of the shares held by them in Soma and SLP to the detriment of the interests of SKS. The court find that the Calcutta High Court has already protected the interests of SKS in SPL by directing that no decision shall be taken to deprive the SKS group from having joint management of SPL without the leave of the court. As far as Soma is concerned, the learned counsel for the respondents, Shri Sen has made a statement that the control of Soma now with SKS shall not be disturbed. Thus, the court find that the interests of SKS in both Soma and SPL are now protected. Therefore, the court is of the view that, in view of the pending proceedings before the Calcutta High Court and view of the complicated shareholdings in the respondent companies, we should decline considering the prayer of the petitioners for division of assets and accordingly, the court do so. However, the court grant liberty to the petitioners to approach in case the declaration sought by them in the Calcutta High Court is granted by the court. The court said that in the present case, court find that even though both SKS and HLS groups hold shares in the respondent companies, substantial percentage of the shares in these companies are held by various companies known as common companies. The shareholding pattern of these companies is also complicated. The main apprehension of SKS is that by virtue of the control of the respondent-companies by HLS, these companies might exercise voting in respect of the shares held by them in Soma and SLP to the detriment of the interests of SKS. Court find that the Calcutta High Court has already protected the interests of SKS in SPL by directing that no decision shall be taken to deprive the SKS group from having joint management of SPL without the leave of the court.DECISION HELD BY COURT:The court dispose of all these nine petitions, however, without any order as to cost.The court observed that pending proceedings before the Calcutta High Court and view of the complicated shareholdings in the respondent companies, court should decline considering the prayer of the petitioners for division of assets and accordingly, court do so.However, court grant liberty to the petitioners to approach us in case the declaration sought by them in the Calcutta High Court is granted by the court.

Briefcased.in Case Name: DELSTAR COMMERCIAL & FINANCIAL LTD V S SARVOTTAM VINIJAYA LTD & ORS Case Year: 2001 They may or they may not. That is beside the point. Some technicalities cannot be permitted to defeat the exercise of the equitable jurisdiction conferred by Section 397 of the Companies Act" DELSTAR COMMERCIAL & FINANCIAL LTD V S SARVOTTAM VINIJAYA LTD. & ORS. Case name: Delstar Commercial & Financial Ltd. v s Sarvottam Vinijaya 2003 113 CompCas 642 CLB Company law board A.K. BANERJI By CHAIRMAN S. BALASUBRAMANIAN By VICE CHAIRMAN Decided on: MARCH 30 2001 Section 397 398 398 402 in the Companies Act 1956 Article 136 141 142 in the Constitution of India 1950  BRIEF FACTS AND PROCEDURAL HISTORY: 1. The petitioner is {SKS} which seeks to highlight the plight of division of business between him and his brothers. All the petitioners are under the control of one Shri S.K. Somanydecided to continue together to manage the companies including the 2 remaining major companies. 2. The division of the business of the family and allocation of the major companies was done on the basis of a valuation done by Price Waterhouse and each brother was to take businesses worth 1 4th of the total value. Two major companies allotted to SKS and HLS 1 | P a g e Briefcased.in Case Name: DELSTAR COMMERCIAL & FINANCIAL LTD V S SARVOTTAM VINIJAYA LTD & ORS Case Year: 2001 were SPL Ltd.and Soma Textile Ltd.Ltd. s case1 Comp LJ 1that even when the allegations of oppression are not established the court is not powerless to do justice between the parties was made in exercise of the powers of the Supreme Court in terms of Article 136 142 of the Constitution. 3 | P a g e Briefcased.in Case Name: DELSTAR COMMERCIAL & FINANCIAL LTD V S SARVOTTAM VINIJAYA LTD & ORS Case Year: 2001 2. The court opined that these appeals arose out of a petition under Section 397 and that the court had extensively dealt with the provisions of this section in the judgment and made the above observation we are of the view that the observation of the apex court that the court is not powerless to do substantial justice between the parties even when acts of oppression are not established is a proposition made with reference to the powers of a court in dealing with Section 397 petition. This view gets strengthened from wherein when it was argued that Coats and Newey who were two of the three main partners were not of one mind and that Newey never complained of oppression the Supreme Court observed: "They may or they may not. That is beside the point. Such technicalities cannot be permitted to defeat the exercise of the equitable jurisdiction conferred by Section 397 of the Companies Act." 3. The counsel pointed out that HLS is not denying the family settlement by which two of the brothers parted ways and HLS and SKS decided to continue together on the understanding that all the companies under their control would be jointly managed. Even one of the brothers in the Calcutta suit has admitted joint management. No joint management could exist without equal shareholding. Referring to AIR3 SCC 639 sic) he pointed out that in case of joint management equality in shareholding could be presumed. All the respondent companies were promoted by two trusted employees of SKS and HLS and these companies always had directors approved by both SKS and HLS. Neither SKS nor HLS even though were controlling substantial shares in the companies was a director in these companies. 4. The court observed that the main apprehension of SKS is that by virtue of the control of the respondent companies by HLS these companies might exercise voting in respect of the shares held by them in Soma and SLP to the detriment of the interests of SKS. The court find that the Calcutta High Court has already protected the interests of SKS in SPL by directing that no decision shall be taken to deprive the SKS group from having joint management of SPL without the leave of the court. As far as Soma is concerned the learned counsel for the respondents Shri Sen has made a statement that the control of Soma now with SKS shall not be disturbed. Thus the court find that the interests of SKS in both Soma and SPL are now protected. 4 | P a g e Briefcased.in Case Name: DELSTAR COMMERCIAL & FINANCIAL LTD V S SARVOTTAM VINIJAYA LTD & ORS Case Year: 2001 5. Therefore the court is of the view that in view of the pending proceedings before the Calcutta High Court and view of the complicated shareholdings in the respondent companies we should decline considering the prayer of the petitioners for division of assets and accordingly the court do so. However the court grant liberty to the petitioners to approach in case the declaration sought by them in the Calcutta High Court is granted by the court. 6. The court said that in the present case court find that even though both SKS and HLS groups hold shares in the respondent companies substantial percentage of the shares in these companies are held by various companies known as common companies. The shareholding pattern of these companies is also complicated. The main apprehension of SKS is that by virtue of the control of the respondent companies by HLS these companies might exercise voting in respect of the shares held by them in Soma and SLP to the detriment of the interests of SKS. Court find that the Calcutta High Court has already protected the interests of SKS in SPL by directing that no decision shall be taken to deprive the SKS group from having joint management of SPL without the leave of the  DECISION HELD BY COURT: 1. The court dispose of all these nine petitions however without any order as to cost. 2. The court observed that pending proceedings before the Calcutta High Court and view of the complicated shareholdings in the respondent companies court should decline considering the prayer of the petitioners for division of assets and accordingly court do 3. However court grant liberty to the petitioners to approach us in case the declaration sought by them in the Calcutta High Court is granted by the court. so. 5 | P a g e

The learned Arbitrator shall ensure compliance of Section 12 of Arbitration and Conciliation Act, 1996 before commencing the arbitration: High Court of Delhi

Justice (Retd.) A.K. Sikri was appointed as the sole arbitrator by Hon’ble Mr. Justice Suresh Kumar Kait in the case of Jakson Power Pvt. Ltd. Versus Vikram Solar Pvt. Ltd. [ARB.P. 693/2021]. The facts of the present case are such that the petitioner agreed with the present respondent to purchase the Solar Photo Voltaic modules under the Special Purchase Agreement dated 06.08.2012. According to the present agreement the respondent is required to sell, supply, and deliver SPV modules in Rajasthan of technical specification amounting to Rs.100.625 crores between September 2012 to January 2013. The agreement between the parties was to purchase Solar Photo Voltaic modules under the Special Purchase Agreement dated 06.08.2012. According to the petitioner, the respondents were informed that the products are of sub-standard quality and not generating the minimum amount of power guaranteed. The petitioner engaged an independent firm named “PV Diagnostics” to check the specification of the products, the firm found that the products were defective themselves, the report by the firm confirmed that the modules of the respondent were defective, has partial cracks, snail trails and also has bus bar corrosion in several places, thus in such circumstances, petitioner was constrained to send legal notice dated 17.02.2020 to the respondent for breach of Article 10 of the Agreement. Whereas the respondent’s claim is such that according to the site inspections committed by the respondent, the low power being generated by the product is due to the mishandling and mismanagement at the hands of the petitioner. Thereafter the petitioner invoked the arbitrator and nominated its arbitrator, as per Clause 14 of the Agreement, read with section 21 of the Arbitration and Conciliation Act, 1996, and nominated its Arbitrator, to which no response has been given by the respondent to date. The Parties had requested the present court to adjudicate the appointment of an arbitrator to adjudicate the dispute which is pending in front of the parties. After the request of the parties, the present High Court is pressed to appoint an arbitrator to be appointed to settle the dispute between the parties. Accordingly Justice (Retd.) A.K. Sikri is appointed to adjudicate the present dispute. The fees of the present arbitrator shall be decided according to the fourth schedule of the arbitration and conciliation act, 1996, and in compliance with section 12 of the act. After this appointment, the present petition is dismissed by the High Court.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 17.09.2021 ARB.P. 693 2021 JAKSON POWER PVT LTD. Petitioner Through Mr.Vaibhav Mishra & Mr.Ekansh Mishra Advs. VIKRAM SOLAR PVT. LTD. Through Ms.Mamta Tiwari Adv. Respondent HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENTThe present petition has been filed by petitioner seeking appointment of a Sole Arbitrator under the provisions of Section 11(6) of the Arbitration and Conciliation Act 1996. Petitioner a private limited company with the object of installing establishing developing commissioning and maintaining two Solar Power Plants each of 10 MW(AC) capacity entered into an agreement with the respondent to purchase Solar Photo Voltaic modules under Special Purchase Agreement dated 06.08.2012. As per the agreement respondent undertook ARB.P. 693 2021 to sell supply and deliver SPV modules in Rajasthan of technical specification amounting to Rs.100.625 crores between September 2012 to January 2013. As per the version of petitioner he informed the respondent that his products are sub standard quality and they are not even generating minimum guaranteed output wattage. Petitioner also engaged an independent firm “PV Diagnostics” to inspect the specification and condition of the respondent’s modules whereby as per its report dated 05.07.2018 confirmed that respondent’s modules are defective show full compound partial cracks snail trail and bus bar corrosion in several places. The report of the PV Diagnostics was supplied to the respondent in the month of September 2018. It is submitted that in response to the complaints of the petitioner respondent conducted various site inspections but failed to repair the defective modules or replace them which has resulted in petitioner being unable to achieve the minimum guaranteed power output which causes financial losses to the petitioner. Counsel for the petitioner submits that in such circumstances petitioner was constrained to send legal notice dated 17.02.2020 to the respondent for breach of Article 10 of the Agreement. Further submitted that ARB.P. 693 2021 petitioner called upon the respondent to rectify their breaches and replace the faulty modules within a period of two weeks of the receipt of the notice. However respondent sent a reply dated 13.05.2020 wherein refuted allegations alleged by the petitioner and stated that the reason for low performance was mishandling and mismanagement at the hands of the petitioner. Thereafter petitioner sent notice dated 05.08.2020 arbitration as per Clause 14 of the Agreement read with section 21 of the Arbitration and Conciliation Act 1996 and nominated its Arbitrator to which no response has been given by the respondent till date. During the course of hearing learned counsel appearing for the parties pressed that this Court may appoint Arbitrator to adjudicate the disputes pending amongst the parties. During the pendency of the present petition parties tried to settle their disputes out of the court however could not reach to some conclusion. Accordingly Justice A.K. Sikri former Judge of the Hon’ble Supreme Court is appointed as the sole Arbitrator to adjudicate the dispute between the parties. 10. The fee of the learned Arbitrator shall be governed by the Fourth ARB.P. 693 2021 Schedule of the Arbitration and Conciliation Act 1996. 11. The learned Arbitrator shall ensure compliance of Section 12 of Arbitration and Conciliation Act 1996 before commencing the arbitration. 12. With aforesaid directions the present petition is accordingly disposed of. SEPTEMBER 17 2021 JUDGE SURESH KUMAR KAIT) ARB.P. 693 2021

The monetary penalty imposed on noticee for violating the regulations  of SEBI and dealing with illiquid trade options –  THE SECURITIES AND EXCHANGE BOARD OF INDIA

The monetary penalty imposed on noticee for violating the regulations  of SEBI and dealing with illiquid trade options –  THE SECURITIES AND EXCHANGE BOARD OF INDIA The noticee was alleged  of violating the  provisions of regulations 3(a),(b),(c),(d) and regulations 4(1),4(2)(a) of the SEBI Regulations, 2003 for dealing in reversal trades and for the creation of artificial trade option the adjudication proceeding were initiated against the noticee by the appointed adjudication officer RAM RUDRA MURARI in ADJUDICATION ORDER NO.: Order/RM/RV/2021-22/14894 SEBI observed some large-scale trade reversals in the stock options segment of BSE and the investigation was initiated in the matter and the results of the investigation show that a total of 2,91,643 trades comprising 81.38% of all the trades executed in the Stock Options Segment at the BSE and Smt. Manohari Devi Dhandharia (NOTICEE) was found to be involved in conducting these trades and was alleged for violation of SEBI rules and regulation and a show-cause notice was sent to noticee under Rule 4(1) of the Adjudication Rules to show causes to why an inquiry should not be initiated against the Noticee and why penalty should not be imposed on the Noticee under Section 15HA of the SEBI Act for the violation alleged to have been committed by the noticee . The administrative representative(AR) on behalf of the noticee submitted that Rule 4(1) does not stipulate a limitation period to send a show-cause notice in terms of the said Rule may be issued. And it is a settled principle of law that in various situations where a specific statute does not provide a period of limitation, then the Limitation Act, 1963 shall be applied. The general period of limitation being 3 years, he submitted that the show cause notice is time-barred and liable to be quashed. And the AR relied upon the case of Ashok Shivlal Rupani, Naresh Shivlal Rupani, Uttam Ravji Gada Versus Securities and Exchange Board of India 2019 (8) TMI1474 to show that the issued SCN is not sustainable in the eyes of law. The adjudication officer in response to this relied on the case of Mr. Rakesh Kathotia & Ors. Versus Securities and Exchange Board of India 2019 (5) TMI 1762  and found the scn to be valid. The proceedings were initiated and the noticee conduct and trading activities were stating that the noticee was involved in dealing with illiquid stock options and the trade log of noticee made it clear that the noticee was involved in dealing with illiquid trade options and has conducted non-genuine trades. The trading behavior and other findings made it clear that the allegation of violation of regulations 3(a), (b), (c), (d), 4(1), and 4(2)(a) of PFUTP Regulations, 2003 by the Noticee stands established and a monetary penalty of ₹5,00,000/- imposed under section 15-I of the SEBI Act read with rule 5 of the Adjudication Rules. Click here to read the Order Order reviewed by Naveen Sharma

BEFORE THE ADJUDICATING OFFICER SECURITIES AND EXCHANGE BOARD OF INDIA ADJUDICATION ORDER NO.: Order RM RV 2021 22 14894 UNDER SECTION 15 I OF THE SECURITIES AND EXCHANGE BOARD OF INDIA ACT 1992 READ WITH RULE 5 OF THE SECURITIES AND EXCHANGE BOARD OF INDIARULES In respect of: Manohari Devi Dhandharia PAN: AFXPD1048R BH 58 Sector 2 Salt lake City Near Tank No 7 Kolkata PIN 700096 In the matter of Dealings in Illiquid Stock Options at BSE Securities and Exchange Board of India observed large scale reversal of trades in the Stock Options segment of the Bombay Stock Exchangeleading to the alleged creation of artificial volume in the stock options segment. In this regard SEBI conducted an investigation into the trading activity in the illiquid Stock Options segment at the BSE for the period April 01 2014 to September 30 2015 hereinafter referred to as “Investigation Period”). It was observed during the course of investigation that a total of 2 91 643 trades comprising 81.38% of all the trades executed in the Stock Options Segment at the BSE during the investigation period were trades which involved reversal of buy and sell positions by the clients and counterparties in a contract on the same Adjudication Order in respect of Manohari Devi Dhandharia in the matter of dealings in Illiquid Stock Options at BSE `` day. It was observed that Smt. Manohari Devi Dhandhariawas one such client whose reversal trades involved squaring off open positions with a significant difference without any basis for such change in the contract price. The aforesaid reversal trades allegedly resulted into generation of artificial volumes leading to allegations that the Noticee had violated the provisions of regulations 3(a)(c)and regulations 4(1) 4(2)(a) of the SEBI Regulations 2003 read with rule 3 of the SEBI Rules 1995 hereinafter referred to as “Adjudication Rules”) vide order dated April 30 2021 to inquire into and adjudge under section 15HA of the SEBI Act against the Noticee for the alleged violation of the aforesaid provisions of PFUTP Regulations 2003. SHOW CAUSE NOTICE REPLY AND HEARING 4. A PTA RRM RV OW 2021 0000017061 1 dated July 30 2021was issued via Speed Post Acknowledgement Dueon August 4 2021 to the Noticee under Rule 4(1) of the Adjudication Rules to show cause as to why an inquiry should not be initiated against the Noticee and why penalty should not be imposed on the Noticee under Section 15HA of the SEBI Act for the Adjudication Order in respect of Manohari Devi Dhandharia in the matter of dealings in Illiquid Stock Options at BSE `` violations alleged to have been committed by the Noticee. The said SCN was also sent via e mail to the Noticee on August 13 2021 and was duly delivered. 5. The SCN issued to the Noticee inter alia mentioned alleged the following: 5. The Noticee was one of the entities which indulged in reversal trades which allegedly created false and misleading appearance of trading generating artificial volumes in the Stock Options Segment of BSE during the investigation period. The Noticee is alleged to have engaged in reversal trades through 2 trades in 1 unique contract which led to generation of alleged artificial volume of 410000 units. These trades of the Noticee involved reversal with the same counterparty on the same day but at different prices. 7. A summary of dealings of Noticee in 1 Stock Options contract in which the said Noticee allegedly executed reversal trades during the investigation period is … .” as follows: Contract Name Rs. ) no. of Rs. ) no. of of Noticee in to Total Volume in of Noticee in Volume in 1. MFSL15MAR265.00CEW2 0.05 205000 2.00 205000 Adjudication Order in respect of Manohari Devi Dhandharia in the matter of dealings in Illiquid Stock Options at BSE `` 8. The abovementioned reversal trades and volumes are illustrated through the dealings of Noticee in the one contract viz “MFSL15MAR265.00CEW2” during the investigation period as follows: a) During the investigation it was found that Noticee executed 1 trade reversal through 2 non genuine transactions on 12 03 2015 and with same counter party i.e. CLIF TREXIM PRIVATE LIMITED. b) While dealing in the said contract on 12 03 2015 at 12:41:06:10 hrs the Noticee entered into a sell trade with the counterparty CLIF TREXIM PRIVATE LIMITED for 205000 units at Rs.2. At 13:16:29.10 hrs the Noticee entered into a buy trade with same counterparty CLIF TREXIM PRIVATE LIMITED for 205000 units at Rs. 0.05 per unit. c) It was also found that during investigation period Noticee had only traded in one contract i.e. MFSL15MAR265.00CEW2 therefore 100% of trade of the Noticee was in the contract of MFSL15MAR265.00CEW2 itself. d) The Noticee’s trades while dealing in the above said contract during the investigation period allegedly generated artificial volume of 410000 units which made up 28.28 % of total market volume in the said contract during this period. 9. In view of the foregoing it is alleged that Noticee by indulging in execution of non genuine reversal of trades in Stock Options with same entities on the same day created false and misleading appearance of trading in stock options and therefore allegedly violated Regulation 3(a)(c)4(1) 4(2)(a) of PFUTP Regulations 2003. 6. The SCN sent via Speed Post Acknowledgement Due was returned undelivered on August 20 2021 stating “left”. Thereafter the SCN PTA RRM RV OW 2021 0000033433 1 dated November 22 2021) was re sent Adjudication Order in respect of Manohari Devi Dhandharia in the matter of dealings in Illiquid Stock Options at BSE `` to the other address of the Noticeevia SPAD which was duly served to the Noticee on December 3 2021. An email was also sent to the Noticee on November 22 2021 in respect of re sending of SCN to the new address duly delivered. 7. In the interest of natural justice and in terms of the Adjudication Rules the Noticee was provided with an opportunity of personal hearing in the matter on January 5 2022 at 11.00 am through the online Webex platform. Notice of hearing PTA RRM RV OW 2021 0000038019 1 dated December 20 2021) was sent via SPAD on December 22 2021. An email to this effect was also sent on December 20 2021 duly delivered. The Notice of Hearing via SPAD was served to the Noticee on January 3 2022. Vide email dated January 3 2022 it was confirmed by the Authorized Representative of the Noticee i.e. Mr. Manish Raj Dhandharia to appear for the hearing. 8. Mr. Manish Raj Dhandharia appeared as the Authorised Representativeon behalf of the Noticee on the stipulated date of hearing. During the course of the hearing the AR apprised the inability of the Noticee to appear on account of her age 90 yrs). The AR was given time till January 12 2022 to submission of reply to the SCN document if any in defense of the Noticee. Vide reply dated January 7 2022 received in SEBI on January 15 2022) the AR submitted the a) Medical Certificate of Noticee b) Submissions c) Power of Attorney in favour of the AR to act deal and appear on behalf of the Noticee d) Copy of PAN Card of Noticee and e) Medical Reports of Noticee. Submissions made by the AR in her reply on behalf of the Noticee i.e. subsequent to hearing date consisted the following information : I) The AR liked to bring the following facts on record regarding the health condition of the noticee: bed ridden state. a. Smt Manohari Devi Dhandharia is aged about 89 years and is in a completely Adjudication Order in respect of Manohari Devi Dhandharia in the matter of dealings in Illiquid Stock Options at BSE `` b. She is suffering from Advanced Dementia with Advanced Parkinson Disease with recent Cerebrovascular accident. c. She is not in a position to move speak or recall past incidents after facing a d. She is unable to move out of bed and is entirely dependent for her basic needs brain stroke on 07.10.2020. and activities. e. A copy of the Doctor’s Certificate dated 06.01.2022 certifying her present condition is attached hereto and marked as ‘Annexure A’. f. A complete set of documents containing her medical reports and prescriptions are attached hereto and marked as ‘Annexure B’. II) In response to the allegations and facts mentioned in the notice AR submitted as under: a. AR submitted that there is an inordinate delay in the issuance of noticeand the date of alleged transactions i.e. there is a delay of more than six years in the initiation of the proceedings under the SEBI Act. b. AR submitted that Rule 4(1) does not stipulate a limitation period within which a show cause notice in terms of the said Rule may be issued. However it is a settled principle of law that in case where a specific statute does not provide a period of limitation then the Limitation Act 1963 shall apply. The general period of limitation being 3 years he submitted that the show cause notice is time barred and liable to be quashed. c. For that the case of Ashok Shivlal Rupani Naresh Shivlal Rupani Uttam Ravji Gada Versus Securities and Exchange Board of India 2019TMI 1474 Securities Appellate Tribunal Mumbai is relied upon by the AR Adjudication Order in respect of Manohari Devi Dhandharia in the matter of dealings in Illiquid Stock Options at BSE `` wherein it was held that where the SCN was issued after a long delay penalty under the SEBI Act was not sustainable in law. d. For that the case of Mr. Rakesh Kathotia & Ors. Versus Securities and Exchange Board of India 2019 TMI 1762 Securities Appellate Tribunal Mumbai is relied upon by the AR wherein the proceedings were quashed on account of inordinate delay. Relevant extract of the judgment is reproduced as under: “23. It is no doubt true that no period of limitation is prescribed in the Act or the Regulations for issuance of a show cause notice or for completion of the adjudication proceedings. The Supreme Court in Government of India vs Citedal Fine Pharmaceuticals Madras and Others SC 1771] held that in the absence of any period of limitation the authority is required to exercise its powers within a reasonable period. What would be the reasonable period would depend on the facts of each case and that no hard and fast rule can be laid down in this regard as the determination of this question would depend on the facts of each case. This proposition of law has been consistently reiterated by the Supreme Court in Bhavnagar University v. Palitana Sugar Mill 2004) Vol.12 SCC 670 State of Punjab vs. Bhatinda District Coop. Milk P. Union Ltd Vol.11 SCC 363 and Joint Collector Ranga Reddy Dist. & Anr. vs. D. Narsing Rao & Ors.Vol. 3 SCC 695. The Supreme Court recently in the case of Adjudicating Officer SEBI vs. Bhavesh PabariSCC Online SC 294 held: “There are judgments which hold that when the period of limitation is not prescribed such power must be exercised within a reasonable time. What would be reasonable time would depend upon the facts and circumstances of the case nature of the default statute prejudice caused whether the third party rights had been created etc.”” Adjudication Order in respect of Manohari Devi Dhandharia in the matter of dealings in Illiquid Stock Options at BSE `` e. For that it is submitted by the AR that the Noticee is not in a position to convey the happenings of the period in which the impugned transactions were entered into. However being an old lady who was aged about 83 years at the time of entering into the transaction it is in no speck of imagination possible to hold that she may have indulged into fraudulent stock market transactions. Therefore there is a possibility that the broker might have committed an error as far as the transaction in question is concerned. Further the noticee cannot be held responsible for the mistake fraud committed by the broker using the account of the noticee if any. f. For that it is submitted by the AR that as per the facts stated there was a total of 2 91 744 trades during the period under investigation which as per the show cause notice were non genuine nature. It is submitted that the Noticee’s one or two trade out of 2.92 lakh trades are a drop in the ocean. In the absence of multiple transactions and or voluminous transactions inference of fraud and or undue trade practices cannot be drawn. g. For that it is submitted by the AR that there is no question of the Noticee having created any artificial volume in the market and or made any undue profit. Therefore the Noticee has not violated Regulations 3(a) (c) and 4(1) 4(2)(a) of SEBIRegulations 2003. h. For that it is submitted by the AR that noticee is not related to the counterparty in question and that it is impossible for any trader to know the identity of the buyer and seller while entering into any stock transaction through the broker. i. For that it is submitted by the AR that SEBIRules 1995 has itself provided in Adjudication Order in respect of Manohari Devi Dhandharia in the matter of dealings in Illiquid Stock Options at BSE `` Rule 5that while adjudging the quantum of penalty under section 15I the adjudicating officer shall have due regard to the following factors namely: — i. the amount of disproportionate gain or unfair advantage wherever quantifiable made as a result of the default ii. the amount of loss caused to an investor or group of investors as a result of the default iii. the repetitive nature of the default. It is submitted by the AR that none of the above factors are present in the Noticee’s case. As such the question of imposing penalty under the SEBI Act and rules framed thereunder does not arise. j. For that it is submitted by the AR that one has to establish a connection between a buyer and with the seller in order to infer a manipulation in the price of the scrip. In the given case there is no connection of the noticee with the counterparty and therefore it can be established that there was no collusion or manipulation in the given case. Hence levy of penalty on such a transaction is bad in law. k. For that the case of M S Nishith M. Shah HUF Versus Securities and Exchange Board of India 2020TMI 1485 Securities Appellate Tribunal Mumbai is relied upon by AR wherein it was held that where the investigative reports nor the WTM or the AO found any connection between the buyer and the seller nor between the appellant and the promoters directors of the Company no causal connection has been established. Allegation that the appellant has contributed to the LTP cannot be upheld in the absence of any collusion with the buyer or promoter director of the Company. One has to establish a connection between a buyer and with the seller in order to infer a manipulation in the price of the scrip. There must be evidence to show Adjudication Order in respect of Manohari Devi Dhandharia in the matter of dealings in Illiquid Stock Options at BSE `` collusion between the buyer and the seller. In the instant case there is none. The principle of preponderance of probability cannot be exercised in the absence of any connection between the seller and the buyer. l. For that the cases of Jagruti Securities Ltd. Versus Securities and Exchange Board of India 2008 TMI 705 Securities Appellate Tribunal Mumbai and Vikas Ganeshmal Bengani Versus Whole Time Member 2010TMI 1273 Securities Appellate Tribunal Mumbai are relied upon by AR wherein it was held that the charge of raising price artificially has to be established and the element of collusion between the buyer and the seller is a sine quo non. m. For that the case of Labhu Gohil Versus Securities and Exchange Board of India 2020TMI 167 Securities Appellate Tribunal Mumbai is relied upon by AR wherein it was held that where there is no evidence on any fund transfer between the appellants with any other entities in the absence of which motive for a collusive or manipulative effort becomes blunt. Moreover when a group of entities themselves becomes parties to each other s trade in a circular fashion though to a limited extent the net amount of profits or losses also become negligible and only to the extent of their trades getting matched with entities outside the group. The tribunal finally held that that no penalty can be imposed on the appellants. III) In view of the foregoing submissions and with due consideration to the health condition of the noticee it is humbly prayed by the AR to consider the case sympathetically and drop the proceedings with respect to imposition of penalty under Section 15HA of the SEBI Act initiated in the Show Cause Notice vide reference No: PTA RRM RV OW 2021 0000033433 1 dated 22nd November Adjudication Order in respect of Manohari Devi Dhandharia in the matter of dealings in Illiquid Stock Options at BSE `` CONSIDERATION OF ISSUES AND FINDINGS I have taken into consideration the facts and circumstances of the case the material documents made available on record and the submissions of the Noticee. The issues that arise for consideration in the instant case are : a) Whether the Noticee has violated the provisions of Regulations 3(b) d) 4(1) and 4(2)of PFUTP Regulations 2003 b) Does the violation if any attract monetary penalty under section 15HA of the SEBI Act 15J of the SEBI Act If so what would be the quantum of monetary penalty that can be imposed on the Noticee after taking into consideration the factors mentioned in section 10. Before advancing into the merits of the case I would like to deal with the issue pertaining to the delay as alleged by the Noticee AR in her reply. Pursuant to a preliminary examination conducted in the Illiquid Stock Options matter Interim order was passed by SEBI on August 20 2015 which was confirmed vide Orders dated July 30 2016 and August 22 2016. Meanwhile SEBI initiated a detailed investigation relating to stock options segment of BSE which was completed in the year 2018. The investigation revealed that 14 720 entities were involved in executing non genuine trades in BSE’s stock option segment during the investigation period. The proceedings initiated vide the aforementioned Interim Order were disposed of vide Final Order dated April 05 2018 also considering that appropriate action was initiated against the said 14 720 entities in a phased manner. Adjudication Order in respect of Manohari Devi Dhandharia in the matter of dealings in Illiquid Stock Options at BSE `` During the course of hearing in the case of R. S. Ispat Ltd Vs SEBI the Hon’ble Securities Appellate Tribunalvide its Order dated October 14 2019 inter alia observed that “SEBI may consider holding a Lok Adalat or adopting any other alternative dispute resolution process with regard to the Illiquid Stock Options”. A Settlement Scheme was framed under the SEBI Regulations 2018 which provided one time opportunity for settlement of proceedings in the Illiquid Stock Options matter. The said scheme was kept open from August 01 2020 till December 31 2020. Adjudication proceedings were initiated against those entities who had not availed of the opportunity of settlement. As can be seen from the narration of facts in the foregoing paragraphs pursuant to appointment of AO SCN was issued on July 30 2021. In compliance with principles of natural justice an opportunity of personal hearing was scheduled on January 5 2022 and upon conclusion of hearing written submissionswere received from Noticee AR on January 15 2022. 11. I further note that there is no provision under SEBI Act which prescribes a time limit for taking cognizance of a breach of the provision of SEBI Act and Rules and Regulations made thereunder. Further as per Section 11C of SEBI Act SEBI can initiate investigation at any point of time for any period of alleged violation or any period of alleged transactions. I also note that the investigations relating to the PFUTP Regulations 2003 are complexand time consuming. In this regard I feel it is pertinent to note that in the matter of SEBI Vs Bhavesh PabariSCC Online SC 294 the Hon’ble Supreme Court of India has inter alia observed as follows: Adjudication Order in respect of Manohari Devi Dhandharia in the matter of dealings in Illiquid Stock Options at BSE `` “There are judgments which hold that when the period of limitation is not prescribed such power must be exercised within a reasonable time. What would be reasonable time would depend upon the facts and circumstances of the case nature of the default statute prejudice caused whether the third party rights had been created etc.” 12. Further I note that the Hon’ble SAT in the matter of Pooja Vinay Jain vs SEBI Appeal No. 1519 Date of Decision 17.03.2020) held that “The record would show that all the documents concerning the defense of the appellant were filed by her before the AO. Therefore for want of any prejudice the proceedings cannot be quashed simply on the ground of delay in launching the same” 13. I also note that the Hon’ble SAT in the matter of Bipin R Vora vs SEBI held that “As regards the plea of delay and latches and submission that the show cause notice is barred by limitation I do not find any merit in these contentions as the time and efforts involved in an investigation though may vary from case to case generally investigations per se is a time consuming process which invariably involve collection scrutiny and careful examination of voluminous records order trade details of all the concerned including the exchanges recording of statements etc. and therefore no time limit can be fixed in this regard to enable a regulator to take appropriate disciplinary action for the safeguard and improvement of the system market”. 14. In view of the aforesaid and considering the facts of the aforesaid matter I do not find any merit in the contentions of the Noticee. 15. With respect to the alleged violations in the instant matter I note that it is pertinent to refer to the relevant provisions of the PFUTP Regulations 2003 which are reproduced as follows: Adjudication Order in respect of Manohari Devi Dhandharia in the matter of dealings in Illiquid Stock Options at BSE `` PFUTP Regulations 2003 3. Prohibition of certain dealings in securities No person shall directly or indirectly— a) buy sell or otherwise deal in securities in a fraudulent manner b) use or employ in connection with issue purchase or sale of any security listed or proposed to be listed in a recognized stock exchange any manipulative or deceptive device or contrivance in contravention of the provisions of the Act or the rules or the regulations made there under c) employ any device scheme or artifice to defraud in connection with dealing in or issue of securities which are listed or proposed to be listed on a recognized stock exchange d) engage in any act practice course of business which operates or would operate as fraud or deceit upon any person in connection with any dealing in or issue of securities which are listed or proposed to be listed on a recognized stock exchange in contravention of the provisions of the Act or the rules and the regulations made there under. 4. Prohibition of manipulative fraudulent and unfair trade practices 1) Without prejudice to the provisions of regulation 3 no person shall indulge in a fraudulent or an unfair trade practice in securities. 2) Dealing in securities shall be deemed to be a 6[manipulative] fraudulent or an unfair trade practice if it involves fraud and may include all or any of the following namely : a) indulging in an act which creates false or misleading appearance of trading in the securities market Adjudication Order in respect of Manohari Devi Dhandharia in the matter of dealings in Illiquid Stock Options at BSE `` 16. I note that the allegation against the Noticee is that while dealing in the stock option contracts at BSE during the Investigation Period the Noticee had executed reversal trades which were allegedly non genuine trades and the same had resulted in generation of artificial volume in stock options contracts at BSE. Reversal trades are considered as those trades in which an entity reverses its buy or sell positions in a contract with subsequent sell or buy positions with the same counterparty during the same day. The said reversal trades are alleged to be non genuine as they are not executed in the normal course of trading lack basic trading rationale lead to false or misleading appearance of trading in terms of generation of artificial volumes and hence are deceptive and manipulative. 17. I note from the trade log of the Noticee that the Noticee had traded in 1 unique contract in stock options segment of BSE during the Investigation Period. It is observed that the Noticee had executed 2 non genuine trades in 1 contract. I further note that the above mentioned trades of the Noticee had resulted in the creation of artificial volume of a total of 410000 units in the said 1 contract. The summary of the non genuine trades of the Noticee are as follows: Contract Name Avg Buy Buy Qty Sell Qty of non of artificial of artificial Rate No. of No. of Rate trades of of noticee in the generated by in ₹) in ₹) contract to total by noticee in noticee in the the contract to contract to to noticee’s total volume in total volume the contract Adjudication Order in respect of Manohari Devi Dhandharia in the matter of dealings in Illiquid Stock Options at BSE `` 18. It is noted that the Noticee had executed non genuine trades in 1 contract wherein the percentage of non genuine trades of the Noticee to the total trades in the contract was 50%. Further the artificial volume generated by the Noticee in the contract amounted to a substantial 100% of total volume generated by him in the contract. It is also noted that artificial volume generated by the Noticee contributed 28.28% to the total volume from the market in the said contract. The non genuine trades executed by the Noticee in the above contract had significant difference between buy and sell rates considering that the trades were reversed on the same Upon perusing the trade log I note that the trades executed by the Noticee in the contract were squared up within a short span of time with the same counterparty. To illustrate on March 12 2015 at 12:36:17 the Noticee placed a sell limit order for 205000 units at a price of ₹2 per unit and the said order was matched with the buy limit order of counterparty client CLIF TREXIM PRIVATE LIMITED. I note that the said buy limit order was placed at 12:41:06 i.e. after the entry of the sell limit order by the Noticee. I also note that there was no modification of either price or quantity by either the Noticee or the counterparty and the sell limit order of the Noticee got executed into trade immediately upon the entry of the buy limit order by the counterparty. Subsequently at 13:16:29 the Noticee placed a buy limit order for 205000 units at a price of ₹0.05 per unit and the said order was matched with the same counterpartywho placed a sell limit order for the same quantityand pricethe Noticee reversed the position with the same counterparty client with a significant price difference. Such a short span of time taken for reversing the trades in an illiquid stock option contract suggests the non genuineness of these trades executed by the Noticee. The fact that the orders of the Noticee and her counterparty matched with such precision indicates a prior meeting of minds with a view to execute the reversal trades at a predetermined price. Since these trades were done in illiquid option contracts there was very little trading in the said contract and hence there was no price discovery in the strictest terms. The wide variation in prices of the said contracts within a short span of time determination in the prices by the counterparties while executing the trades. Therefore it is observed that the Noticee had indulged in reversal trades with her counterparty in the stock options segment of BSE and the same were non genuine trades. 20. The Notice has inter alia contended about the awareness of SEBI regarding the possibility of trades being executed at substantial price difference and possible loss due to lower liquidity and wider spreads in illiquid stock options and the contracts the Noticee traded in being illiquid. However I note that the allegation in the instant matter is not whether the Noticee has traded in an illiquid contract or not but whether the trades executed by the Noticee in the concerned Illiquid Adjudication Order in respect of Manohari Devi Dhandharia in the matter of dealings in Illiquid Stock Options at BSE `` contract were non genuine or not. Therefore I dismiss the contentions of the Noticee in this regard. 21. I note that it is not a mere coincidence that Noticee could match her tradeswith the same counterparty with whom she had undertaken first leg of the respective trades. It indicates meeting of minds. In this context I would like to rely on the judgment of the Hon’ble Supreme Court of India in SEBI Vs Kishore R Ajmerawherein it was held that “…in the absence of direct proof of meeting of minds elsewhere in synchronized transactions the test should be one of preponderance of probabilities as far as adjudication of civil liability arising out of the violation of the Act or provision of the Regulations is concerned. The conclusion has to be gathered from various circumstances like that volume of the trade effected the period of persistence in trading in the particular scrip the particulars of the buy and sell orders namely the volume thereof the proximity of time between the two and such other relevant factors. The illustrations are not exhaustive...” 22. The Hon’ble Supreme Court of India further held in the same matter that “…It is a fundamental principle of law that proof of an allegation levelled against a person may be in the form of direct substantive evidence or as in many cases such proof may have to be inferred by a logical process of reasoning from the totality of the attending facts and circumstances surrounding the allegations charges made and levelled. While direct evidence is a more certain basis to come to a conclusion yet in the absence thereof the Courts cannot be helpless. It is the judicial duty to take note of the immediate and proximate facts and circumstances surrounding the events on which the charges allegations are founded and to reach what would appear to the Court to be a reasonable conclusion therefrom. The test would Adjudication Order in respect of Manohari Devi Dhandharia in the matter of dealings in Illiquid Stock Options at BSE `` always be that what inferential process that a reasonable prudent man would adopt to arrive at a conclusion.” 23. In the instant matter I note that though direct evidence regarding meeting of minds or collusion of the Noticee with the counterparty is not forthcoming the trading behavior of the Noticee makes it clear that the aforesaid non genuine trades could not have been possible without meeting of minds at some level. In this context I find it pertinent to refer to the Hon’ble SAT Order dated July 14 2006 in the matter of Ketan Parekh Vs SEBIwherein the Hon’ble SAT has held that “…The nature of transactions executed the frequency with which such transactions are undertaken the value of the transactions the conditions then prevailing in the market are some of the factors which go to show the intention of the parties. This list of factors in the very nature of things cannot be exhaustive. Any one factor may or may not be decisive and it is from the cumulative effect of these that an inference will have to be drawn.” 24. In the matter of SEBI Vs Rakhi Trading Pvt Ltd the Hon’ble Supreme Court of India held that “…Considering the reversal transactions quantity price and time and sale parties being persistent in number of such trade transactions with huge price variations it will be too naive to hold that the transactions are through screen based trading and hence anonymous. Such conclusion would be over looking the prior meeting of minds synchronization of buy and sell order and not negotiated deals as per the board s circular. The impugned transactions are manipulative deceptive device to create a desired loss and or profit. Such synchronized trading is violative of transparent norms of trading in securities....” Adjudication Order in respect of Manohari Devi Dhandharia in the matter of dealings in Illiquid Stock Options at BSE `` 25. Additionally the Hon’ble SAT in its judgment dated September 14 2020 in the matter of Global Earth Properties and Developers Pvt Ltd Vs SEBI and judgment dated November 24 2021 in the matter of Radha Malani vs. SEBIrelied upon the aforesaid judgment of the Hon’ble Supreme Court and held that “…It is not a mere coincidence that the Appellants could match the trades with the counter party with whom he had undertaken the first leg of respective trade. In our opinion the trades were non genuine trades and even though direct evidence is not available in the instant case but in the peculiar facts and circumstances of the present case there is an irresistible inference that can be drawn that there was meeting of minds between the Appellants and the counter parties and collusion with a view to trade at a predetermined price.” 26. The trading behavior of the Noticee which confirms that the trades executed by the Noticee were not normal the wide variation in prices of the trades in the same contract in a short time without any basis for such wide variation all indicate that the trades executed by the Noticee were not genuine trades and being non genuine created an appearance of artificial trading volumes in respective contracts. In view of the aforesaid I find that the allegation of violation of regulations 3(a) (c) 4(1) and 4(2)(a) of PFUTP Regulations 2003 by the Noticee stands established. The Hon’ble Supreme Court of India in the matter of SEBI Vs Shri Ram Mutual Fund 68 SCL 216(SC) held that “…In our considered opinion penalty is attracted as soon as the contravention of the statutory obligation as contemplated by the Act and the Regulations is established and hence the intention of the parties committing such violation becomes wholly irrelevant..” Adjudication Order in respect of Manohari Devi Dhandharia in the matter of dealings in Illiquid Stock Options at BSE `` 27. In view of the aforesaid judgment of the Hon’ble Supreme Court I am convinced that in the instant matter the Noticee is liable for monetary penalty under the provisions of section 15HA of the SEBI Act which reads as follows: Penalty for fraudulent and unfair trade practices 15HA. If any person indulges in fraudulent and unfair trade practices relating to securities he shall be liable to a penalty which shall not be less than five lakh rupees but which may extend to twenty five crore rupees or three times the amount of profits made out of such practices whichever is higher. 28. While determining the quantum of penalty under section 15 HA of the SEBI Act it is pertinent to consider the relevant factors stipulated in section 15J of the SEBI Act which reads as under : Factors to be taken into account while adjudging quantum of penalty 15J. while adjudging quantum of penalty under 15 I the adjudicating officer shall have due regard to the following factors namely: a) the amount of disproportionate gain or unfair advantage wherever quantifiable made as a result of the default b) the amount of loss caused to an investor or group of investors as a result of the default c) the repetitive nature of the default. Explanation.—For the removal of doubts it is clarified that the power of an adjudicating officer to adjudge the quantum of penalty under sections 15A to 15E clauses and of section 15F 15G 15H and 15HA shall Adjudication Order in respect of Manohari Devi Dhandharia in the matter of dealings in Illiquid Stock Options at BSE `` ORDER be and shall always be deemed to have been exercised under the provisions of this section. 29. I observe that the material documents made available on record does not quantify any disproportionate gains or unfair advantage if any made by the Noticee and the losses if any suffered by the investors due to such violations on part of the said Noticee. However Noticee has entered into 2 non genuine trades in 1 stock option contract during the investigation period. 30. Therefore I note that the Noticee indulged in execution of reversal trades in stock options on BSE in the Investigation Period which were non genuine and created false and misleading appearance of trading in terms of artificial volumes in stock options leading to violation of regulation 3(a) (c) 4(1) and 4(2)(a) of PFTUP Regulations 2003. 31. I further note that the AR of the Noticee has requested for imposing only the minimum penalty as stipulated under the relevant Act considering the fact that the Noticee executed only 2 trades and that too in only 1 contract. 32. After taking into consideration all the facts and circumstances of the case the material documents made available on record including the submissions of the Noticee the factors mentioned in section 15J of the SEBI Act and in exercise of the power conferred upon me under section 15 I of the SEBI Act read with rule 5 of the Adjudication Rules I hereby impose a penalty of ₹5 00 000 on the Noticee viz. Smt. Manohari Devi Dhandharia under section 15HA of the SEBI Act for the violation of regulation 3(a) (c) 4(1) and Adjudication Order in respect of Manohari Devi Dhandharia in the matter of dealings in Illiquid Stock Options at BSE `` 4(2)(a) of PFTUP Regulations 2003. I am of the view that the said penalty is commensurate with the lapse omission committed by the Noticee. 33. The Noticee shall remit pay the said amount of penalty within 45days of the receipt of this order either by way of Demand Draftin favour of “SEBI Penalties Remittable to Government of India” payable at Mumbai or through online payment facility available on the website of SEBI i.e. www.sebi.gov.in i.e. ENFORCEMENT Orders Orders of AO PAY NOW. 34. The Noticee shall forward the aforesaid DD payment confirmation details to the Division Chief Enforcement Department I FDM2 Division SEBI Bhavan Plot No.C 7 ‘ G’ Block Bandra Kurla Complex BandraMumbai 400 051 and also send an email to tad@sebi.gov.in with Name of the ‘Payer Noticee’ along with PAN of the following detail: 1. Case Name 2. 3. Date of Payment 4. Amount Paid 5. Transaction No. 6. Bank Name and Account No. 7. Purpose of payment Adjudication Order in respect of Manohari Devi Dhandharia in the matter of dealings in Illiquid Stock Options at BSE `` 35. In the event of failure to pay the aforesaid amount of penalty within 45 days of receipt of this Order recovery proceedings may be initiated under section 28A of the SEBI Act for realization of the said penalty amount along with interest thereon inter alia by attachment and sale of movable and immovable properties. 36. In terms of Rule 6 of the Adjudication Rules a copy of this order is sent to the Noticee and SEBI. DATE: 03rd February 2022 RAM RUDRA MURARI PLACE: MUMBAI ADJUDICATING OFFICER Adjudication Order in respect of Manohari Devi Dhandharia in the matter of dealings in Illiquid Stock Options at BSE

Even when the materials collected by the prosecution is taken as a proof, the same would not constitute any of the aforesaid offences – Madras High Court

“When a person has entered into an agreement of sale by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owners behalf, then it can be said that there is a making of false document.” This was stated by the single bench of Honourable Justice N. Sathish Kumar in the case of Perumal & Ors. V. The State represented by The Inspector of Police & Anr. (Crl.M.P.No.14880 of 2017) The facts are, Ramasamy Gounder owned an extent of one acre property in survey No.207D and he was allotted one acre of land in Survey No.196 by a partition deed dated 29.06.1924. Thereafter, the said Ramasamy Gounder has sold the property to one Chenniappa Gounder. While selling the property, instead of mentioning the survey No.207 [D] he has referred the survey number as 196. However, the boundaries are correct. Thereafter, patta was also issued in favour of Chenniappa Gounder. Subsequent to the same he has also executed a settlement in favour of his legal heirs and the remaining extent has also been settled to his daughter and the settlees also dealt with the properties. When the matter stood thus, A1 and his brother Krishnamurthy have partitioned their property in the year 1983. They dealt with the property knowing well that they do not have any right in the property. They also executed a Power of Attorney in favour of A1, wherein A2 and A7 were attested witnesses. Pursuant to the same A1 to A3 had entered into an agreement for sale in favour of A4 to A6. Thereby, the accused had committed the aforesaid offences. The learned counsel for the petitioner mainly contended that the civil nature of the case is converted into criminal prosecution. Originally in two survey numbers 207 [D] and 196 to an extent of 35 cents and 58 cents have been allotted to the one Ramasamy Gounder in a partition deed dated 29.06.1924. The said Ramasamy Gounder had sold the property to an extent of one acre land in survey No.196 in favour of Chenniappa Gounder on 17.03.1959. The defacto complainant is the legal heir of the Chenniappa Gounder and the accused are the legal heirs and agreement holders in respect of the property. It is his contention that the Ramasamy Gounder has not sold the property allotted to him under the partition deed dated 29.06.1924, whereas he has sold a different area comprised in survey No.196. Therefore, it is his contention that when the allotment in his favour was in respect of 93 cents, the question of selling one acre in the same survey does not arise at all. Whereas, he has sold the property relating to survey No.196, which is no way connected to the property allotted in partition deed on 29.06.1924. It is his further contention that though the petitioner has filed a suit for declaration, the same was dismissed for default and the application filed to restore the suit was also dismissed against which the petitioner has filed CRP, which is pending. It is his further contention that merely because the parties have sold the properties claiming that the properties are their own properties, creating false documents as per section 464 of IPC cannot be attracted. Therefore, submitted that the entire prosecution is nothing but abuse of process of law. The single bench of Honourable Justice N. Sathish Kumar stated following in this case. When a person has entered into an agreement of sale by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owners behalf, then it can be said that there is a making of false document. But when the document itself executed by the person claiming to be owner of the property, execution of such documents do not fall within the definition of execution of false document as defined under section 464 IPC. Considering the above judgment and that the entire charge relate to the title to the property, the defacto complaint claiming title on the basis of the property in respect of survey No.196, when the issue relating to the title is in question, merely the agreement for sale is executed by the legal heirs of the original owner, who is said to have been allotted the property in the year 1924, such an act would not constitute any offence. Even when the materials collected by the prosecution is taken as a proof, the same would not constitute any of the aforesaid offences. In such view of the matter, continuing of prosecution is a futile exercise and is nothing but an abuse of process of law. Accordingly, this Criminal Original Petition is allowed and the proceedings in C.C.No.84 of 2015 on the file of the learned Chief Judicial Magistrate, Erode is quashed. Consequently, connected miscellaneous petition is closed.

Crl.O.P.Nos.258217 &Crl.M.P.No.148817 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 15.12.2021Coram:THE HONOURABLE MR.JUSTICE N.SATHISH KUMARCrl.O.P.No.258217 &Crl.M.P.No.1488171. Perumal 2. Satheeshkumar 3. Karthikeyan 4. V.K.Subramanian ... PetitionersVs1. The State represented by The Inspector of Police District Crime Branch Erode District.2. N.Parvathi ... RespondentsPRAYER: Criminal Original Petition filed under Section 482 of Criminal Procedure Code to call for the records in C.C.No.815 on the file of the learned Chief Judicial Magistrate Erode and quash the same.Page 1 16 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.258217 &Crl.M.P.No.148817 For petitioners: Mr.T.GowthamanFor Respondent: S.Vinoth Kumar Government AdvocateR1 Mr.C.Deivasigamani R2O R D E RThis petition has been filed to quash the final report in C.C.No.815 on the file of the learned Chief Judicial Magistrate Erode against the petitioners for the offences punishable under Sections 120420 467 468 and 471 of IPC.2. The crux of the prosecution case is as follows : One Ramasamy Gounder owned an extent of one acre property in survey No.207D and he was allotted one acre of land in Survey No.196 by a partition deed dated 29.06.1924. Thereafter the said Ramasamy Gounder has sold the property to one Chenniappa Gounder on 17.03.1959. While selling the property instead of mentioning the survey No.207he has referred the survey number as 196. However the boundaries are correct. Thereafter patta was also issued in Page 2 16 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.258217 &Crl.M.P.No.148817favour of Chenniappa Gounder. Subsequent to the same he has also executed a settlement in favour of his legal heirs and the remaining extent has also been settled to his daughter and the settlees also dealt with the properties. When the matter stood thus A1 and his brother Krishnamurthy have partitioned their property in the year 1983. They dealt with the property knowing well that they do not have any right in the property. They also executed a Power of Attorney in favour of A1 wherein A2 and A7 were attested witnesses. Pursuant to the same A1 to A3 had entered into an agreement for sale in favour of A4 to A6. Thereby the accused had committed the aforesaid offences. 3. The learned counsel for the petitioner mainly contended that the civil nature of the case is converted into criminal prosecution. Originally in two survey numbers 207and 196 to an extent of 35 cents and 58 cents have been allotted to the one Ramasamy Gounder in a partition deed dated 29.06.1924. The said Ramasamy Gounder had sold the property to an extent of one acre land in survey No.196 in favour of Chenniappa Gounder on 17.03.1959. The defacto complainant is the legal heir of the Chenniappa Gounder and the accused are the legal heirs and Page 3 16 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.258217 &Crl.M.P.No.148817agreement holders in respect of the property. It is his contention that the Ramasamy Gounder has not sold the property allotted to him under the partition deed dated 29.06.1924 whereas he has sold a different area comprised in survey No.196. Therefore it is his contention that when the allotment in his favour was in respect of 93 cents the question of selling one acre in the same survey does not arise at all. Whereas he has sold the property relating to survey No.196 which is no way connected to the property allotted in partition deed on 29.06.1924. It is his further contention that though the petitioner has filed a suit for declaration the same was dismissed for default and the application filed to restore the suit was also dismissed against which the petitioner has filed CRP which is pending. It is his further contention that merely because the parties have sold the properties claiming that the properties are their own properties creating false documents as per section 464 of IPC cannot be attracted. Therefore submitted that the entire prosecution is nothing but abuse of process of law. 4. Whereas the learned counsel for the defacto complainant submitted that the the petitioner being the agreement holder has filed a suit in O.S.No.331 of Page 4 16 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.258217 &Crl.M.P.No.1488172013 before the Principal Subordinate Judge Erode for specific performance of the agreement. The learned trial judge found that the defendants have no claim over the property and therefore the agreement is not valid in law. He has also submitted that the suit filed by the petitioner herein in O.S.No.3610 has already been dismissed. Hence when a person has no title over the property executing an agreement itself amounts to forgery. Therefore the final report filed by the prosecution cannot be quashed. 5. The learned Government Advocatesubmitted that the prosecution has filed the final report and the same cannot be quashed. 6. Heard both sides and perused the records.7. The crux of the prosecution case has already been extracted above. The main grievance of the defacto complainant is that what was purchased by ancestor Chenniappa Gounder in the year 1959 is the property allotted to the vendor in a Page 5 16 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.258217 &Crl.M.P.No.148817partition deed dated 29.06.1924. As the Civil suit has already been filed in respect of which CRP is pending this Court is not going to those aspects. 8. Normally when the final report is filed the materials unearthed by the prosecution discloses prima facie materials as against the accused to proceed against the charges the court will not venture into evidenciary value in exercising its power under section 482 of Cr.P.C. to quash the same. But at the same time when the entire materials collected by the prosecution on its face value do not constitute any offence to prevent abuse of process of law the Court can quash the final report. 9. The main charge against the accused is the offence of forgery and fabrication of records. As indicated above the entire final report reveal that the accused do not have title to the property to enter into an agreement of sale of the property. It is relevant to note that to attract the offence under section 420 IPC essential ingredients of the offence of cheating are as follows :deception of a person either by making a false or Page 6 16 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.258217 &Crl.M.P.No.148817misleading representation or by dishonest concealment or by any other act or omissionfraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived andsuch act or omission causing or is likely to cause damage or harm to that person in body mind reputation or property. Therefore to constitute an offence under section 420 there should not only be cheating but as a consequence of such cheating the accused should have dishonestly induced the person deceived to deliver any property to any person. It is not case of the defacto complainant that the agreement holder or any third party have been dishonestly induced to enter into such an agreement. The main charge itself indicate that the accused have entered into an agreement with the agreement holders. Page 7 16 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.258217 &Crl.M.P.No.14881710. It is to be noted that in this regard the apex Court in Mohammed Ibrahim and others Vs. State of Bihar and another reported in8 SCC 751 in para 20 the Apex Court has held as follows :18. Let us now examine whether the ingredients of an offence of cheating are made out. The essential ingredients of the offence of "cheating" are as follows:deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived andsuch act or omission causing or is likely to cause damage or harm to that person in body mind reputation or property.Page 8 16 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.258217 &Crl.M.P.No.14881719. To constitute an offence under section 420 there should not only be cheating but as a consequence of such cheating the accused should have dishonestly induced the person deceivedto deliver any property to any person or(ii) to make alter or destroy wholly or in part a valuable securitymakes signs seals or executes a document or part of a documentmakes or transmits any electronic record or part of any electronic recordaffixes any digital signature on any electronic recordmakes any mark denoting the execution of a document or the authenticity of the digital signature with the intention of causing it to be believed that such document or a part of document electronic record or digital signature was made signed sealed executed transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made signed sealed executed or affixed or Secondly. Who without lawful authority dishonestly or fraudulently by cancellation or otherwise alters a document or an electronic record in any material part thereof after it has been made executed or affixed with digital signature either by himself or by any other person whether such person be living or dead Page 11 16 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.258217 &Crl.M.P.No.148817at the time of such alternation or Thirdly. Who dishonestly or fraudulently causes any person to sign seal execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot or that by reason of deception practised upon him he does not know the contents of the document or electronic record or the nature of the alteration.Explanation 1 A man s signature of his own name may amount to forgery.Explanation 2 The making of a false document in the name of a fictitious person intending it to be believed that the document was made by a real person or in the name of a deceased person intending it to be believed that the document was made by the person in his lifetime may amount to forgery.”Therefore to attract offence under sections 467 and 471 the essential requirement is making of false documents. In this regard also the Apex Court in the above judgment in para 16 and 17 has clearly held as follows : Page 12 16 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.258217 &Crl.M.P.No.148817“16. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner to execute the deed on owner s behalf. When a person executes a document conveying a property describing it as his there are two possibilities. The first is that he bonafide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of `false documents it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by or by the authority of a person by whom or by whose authority he knows that it was not made or executed.17. When a document is executed by a person claiming a property which is not his he is not claiming that he is someone else Page 13 16 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.258217 &Crl.M.P.No.148817nor is he claiming that he is authorised by someone else. Therefore execution of such documentis not execution of a false document as defined under section 464 of the Code. If what is executed is not a false document there is no forgery. If there is no forgery then neither section 467 nor section 471 of the Code are attracted. Section 420 IPC ”12. When a person has entered into an agreement of sale by impersonating the owner or falsely claiming to be authorised or empowered by the owner to execute the deed on owners behalf then it can be said that there is a making of false document. But when the document itself executed by the person claiming to be owner of the property execution of such documents do not fall within the definition of execution of false document as defined under section 464 IPC. Considering the above judgment and that the entire charge relate to the title to the property the defacto complaint claiming title on the basis of the property in respect of survey No.196 when the issue relating to the title is in question merely the agreement for sale is executed by the legal heirs of the original owner who is Page 14 16 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.258217 &Crl.M.P.No.148817said to have been allotted the property in the year 1924 such an act would not constitute any offence. Even when the materials collected by the prosecution is taken as a proof the same would not constitute any of the aforesaid offences. In such view of the matter continuing of prosecution is a futile exercise and is nothing but an abuse of process of law. 13. Accordingly this Criminal Original Petition is allowed and the proceedings in C.C.No.815 on the file of the learned Chief Judicial Magistrate Erode is quashed. Consequently connected miscellaneous petition is closed. 15.12.2021vrc kbsIndex: YesInternet: YesSpeaking OrderTo1. The Chief Judicial Magistrate Erode. 2. The Inspector of Police District Crime Branch Erode District.Page 15 16 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.258217 &Crl.M.P.No.148817N.SATHISH KUMAR J.vrc kbsCrl.O.P.Nos.258217 &Crl.M.P.No.14881715.12.2021Page 16 16

Courts would have the territorial jurisdiction u/s 20 of the Code of Civil Procedure even if a part of cause of action arises within the territory: High Court of Delhi

Section 20 of the Code of Civil Procedure lays down that every suit shall be instituted in Court within the local limits of jurisdiction and accordingly the Courts would have a territorial jurisdiction u/s 20 of the Code of Civil Procedure even if a part of cause of action arises within the territory. These were stated by High Court of Delhi, consisting Justice Sanjeev Sachdeva in the case of M/S Doro Designs Pvt. Ltd. vs. M/S Radium Creation Ltd. [FAO 48/2020] on 12.01.2022. The facts of the case are that the appellant impugned the order dated 30.10.2019 that was returned under Order 7 Rule 10 CPC on an application filed by the respondent under Order 7 Rule 11 CPC. The plaint was returned on the ground of alleged lack of territorial jurisdiction by the trial court. It was held that the averments in the plaint that the discussion and negotiation took place in the Delhi office were bald and vague averments without being substantiated by any material. The learned Counsel for the appellant submitted that the trial court has erred in not appreciating that apart from the discussion that had taken place in the office at Delhi the arrangement between the parties was that work was undertaken by the appellant at Delhi which clearly showed that part of the cause of action arose in Delhi and the Courts at Delhi would have jurisdiction. He submitted that the business transactions between the parties were that the respondent used to send raw material or semi-finished articles to Delhi on which the appellant used to do certain additions and fabrication work after which he used to send back the finished articles to the respondent in Mumbai. Therefore, since the articles were received in Delhi for processing and fabrication and then sent back to Mumbai and the ground for non-payment by the invoices to the appellant by respondent was for job work undertaken by the appellant in Delhi, thus, a part cause of action accordingly arose in Delhi and Courts at Delhi would have the territorial jurisdiction in terms of Section 20 of the Code of Civil Procedure. The learned Counsel for the respondent submitted that the nature of business was such that the articles were sent to Delhi for fabrication and finishing and then shipped to Mumbai. However, on merits, the appellant has no case and respondent had suffered substantial loss because of the deficient job work of the appellant. The dispute in the present case with regard to the merits of the claim of the appellant. It was submitted that the dispute is with regard to the quality of the work done by the appellant on the articles at Delhi.

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 12th January 2022 FAO 48 2020 M S DORO DESIGNS PVT LTD Appellant M S RADIUM CREATION LTD Respondent Advocates who appeared in this case: For the Petitioner For the Respondent : Mr. Avtar Singh Advocate Mr. Rahul Kumar Advocate CORAM: HON’BLE MR. JUSTICE SANJEEV SACHDEVA SANJEEV SACHDEVA J. The hearing was conducted through video conferencing. Appellant impugns order dated 30.10.2019 whereby the plaint has been returned under Order 7 Rule 10 CPC on an application filed by the respondent under Order 7 Rule 11 CPC. The plaint has been returned on the ground of alleged lack of territorial jurisdiction by the trial court. It has been held that the averments in the plaint that discussion and negotiation had taken place FAO 48 2020 in the Delhi office were bald and vague averments without the same being substantiated by any material. In these circumstances the plaint has been returned. Learned counsel appearing for the appellant submits that the trial court has erred in not appreciating that apart from the discussion that had taken place in the office at Delhi the arrangement between the parties was that work was undertaken by the appellant at Delhi which clearly showed that part of the cause of action arose in Delhi and the Courts at Delhi would have jurisdiction. He submits that the business transactions between the parties were that the respondent used to send raw material or semi finished articles to Delhi on which the appellant was supposed to do certain additions and fabrication work after which the finished articles were sent back to the respondent in Mumbai. He submits that since admittedly the articles were received in Delhi for processing and further fabrication and then sent back to Mumbai and the ground for non payment by the respondent of the invoices of the appellant is that the job work undertaken by the appellant in Delhi was not up to the mark and the goods were rejected by the buyer. FAO 48 2020 He submits that part cause of action accordingly arose in Delhi and as such the Courts at Delhi would have the territorial jurisdiction in terms of Section 20 of the Code of Civil Procedure. Learned counsel appearing for the respondent admits that the nature of business was such that the articles were sent to Delhi for fabrication and finishing and then shipped to Mumbai. He however submits that on merits the appellant has no case and respondent had suffered substantial loss because of the deficient job work of the appellant. The dispute in the present case with regard to the merits of the claim of the appellant and the defence of the respondent. However it is not in dispute that articles were sent by respondent to Delhi for fabrication and finishing and they were processed in Delhi and then sent back to Mumbai to the respondent. The dispute is with regard to the quality of the work done by the appellant on the articles at Delhi. 10. Clearly part of the cause of action for filing the subject suit has accrued in Delhi and in view thereof the impugned order dated 30.10.2019 holding that no part of cause of action has arisen in Delhi is erroneous and is not sustainable. In view of the above the impugned order dated 30.10.2019 is set aside. The matter is remitted to the concerned trial court for adjudication in accordance with law. FAO 48 2020 12. Parties shall appear before the concerned Court on 21.02.2022. Trial court shall thereafter dispose of the Suit in accordance with law. 13. The appeal is allowed in the above terms. 14. Copy of the order be uploaded on the High Court website and be also forwarded to learned counsels through email by the Court JANUARY 12 2022 SANJEEV SACHDEVA J FAO 48 2020

Affinity test may not be regarded as a litmus test for establishing the link of the applicant with a scheduled tribe: Bombay High Court

Rejection of claim of petitioners on the ground of failure to establish cultural affinity is absolutely unwarranted such findings cannot be legally sustained. Nobody can be denied the benefit on the ground that their present traits do not match the tribe’s peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, etc. since affinity test can only be used to corroborate the documentary evidence and should not be the sole criteria to reject the claim. This remarkable judgment was passed by the Bombay High Court in the matter of SATISH JANARDAN THAKUR & ONR. V ST CASTE CERTIFICATE VERIFICATION COMMITTEE [WRIT PETITION NO. 3770 OF 2017] by Honourable Justice R.D.Dhanuka and Justice V. G. Bisht. This Petition was filed under Article 226 challenging the impugned judgment and order of the Scheduled Tribe Caste Certificate Verification Committee, Pune Division. The Petitioner seeks direction for the respondents to validate his tribal claim and thus hold that he belongs to ‘Thakar’ (Reserved Category). The facts of the case in brief are, Petitioner No.1 is working as a Senior Clerk in the office of Superintendent Pay and Provident Unit in Solapur and Petitioner No.2 is his who is a college-going boy. The petitioners have submitted that the Caste Certificate was issued in 2003 by the Competent Authority that clearly depicted that both of them belong to Thakar. He submitted his Caste Certificate in 2007 to respondents and his son submitted it in 2013 for verification of the tribe claim along with all necessary documents in support of their tribe claim. However, respondent No.1 rejected the tribe claim. According to petitioners, the school records of the father show his caste as Hindu- Thakar and the same is the case with his relatives. However, evidence is much prior to the Presidential Order of the year 1950 and thus, the said evidence has got the probative value but the same was not taken into consideration by the committee. The certificates of validity of the relatives of the petitioners are not only in very much operation but the same till date have not been invalidated or canceled by the Scrutiny Committee after giving an opportunity to the concerned relatives of the petitioners. The HC observed that the “Approach of Scrutiny Committee is absurd and preposterous since they blinked the contents of pre-constitutional school records. The Scrutiny Committee could not have proceeded in absence of concrete and clinching evidence, that too without offering a reasonable opportunity to these relatives of petitioners whose certificates of validity it was questioning. There is no perceptible and tangible basis to opine that certificates of validity of named relations were obtained or secured by suppression of facts or by misrepresentation.” In Anand Vs. Committee for Scrutiny and Verification of Tribe Claims and Ors, the Hon’ble Apex Court held that while applying the affinity test, a cautious approach has to be adopted. Thus, the HC stated that “the petitioner could not be denied the benefit on the ground that his present traits do not match his tribe’s peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, etc., and thus the affinity test can only be used to corroborate the documentary evidence and should not be the sole criteria to reject the claim.” Also, the HC opined that “if the caste claim of the candidate has been held to be belonging to Scheduled Tribe, then other close blood relatives cannot be denied the validity certificate. In the light of the ratio laid down by this Court in the case of Apoorva d/o Vinay Nichale as the petitioners’ real cousins are already granted caste validity certificates as belonging to Thakar- Scheduled Tribe, in that view of the matter, the present petitioners also deserve the similar certificates of validity.”

on 20 04 2021 on 21 04 wp 3770 2017.docIN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTIONWRIT PETITION NO. 3770 OF 20171.Satish Janardan Thakur )age about 51 years )Occupation : Service)2.Anirudh Satish Thakur )age about 20 years )Occupation: Student)Both residing at Block No.24)Shree Guru Siddheshwar Housing )Society Vishram Nagar Hotgi Road)Solapur) ...Petitioners Versus1.Scheduled Tribe Caste Certificate)Verification Committee Pune Division)Pune through its Member Secretary )2.The State of Maharashtra)through its Secretary )Tribal Development Department)Mantralaya Mumbai 400 032)3.Deputy Director of Education )Pune Region Pune)4.The Principal Walchand College)Ashok Chowk Solapur)...Respondents ......Mr.Shikur G. Kudle for the Petitioners.Mrs.A.A.Purav AGP for Respondent Nos. 1 to 3.…... Trupti 1 28 on 20 04 2021 on 21 04 wp 3770 2017.doc CORAM: R.D.DHANUKA & V. G. BISHT JJ.RESERVED ON : 2nd MARCH 2021PRONOUNCEMENT ON : 20th April 2021JUDGMENT :1.By this Petition filed under Article 226 of the Constitution ofIndia the petitioners have impugned the judgment and orderdated 15th June 2016 of the Scheduled Tribe Caste CertificateVerification Committee Pune Division Pune respondent No.1herein invalidating the claim of petitioners by issuing appropriatewrit order and seek that respondent No.1 be directed to validatethe tribal claim of the petitioners holding that they belong toThakar(Reserved Category).2.Facts necessary for the purpose of deciding this Writ Petitionare as under :Petitioner No.1 is working as a Senior Clerk in the office ofSuperintendent Pay and Provident Unit Solapur.Petitioner No.2 is son of petitioner No.1 and he is a collage goingTrupti 2 28 on 20 04 2021 on 21 04 wp 3770 2017.docboy. The petitioners submit that the Caste Certificate came to beissued on 28th August 2003 by the Competent Authority showingthat both the petitioners belong to Thakarand accordingly the Caste Certificates to thateffect came to be issued on 28th August 2003 by the CompetentAuthority. Subsequently they submitted the Certificates torespondent No.1 Scrutiny Committee for the purpose ofverification of their Tribe Claim along with necessary documentsbefore Vigilance Cell. These documents are as under :(a) Extract of General School Register of the father of petitioner No.1 namely Janardan Gopal Gaikwad inter alia showing his date and place of birth and Caste Trupti 7 28 on 20 04 2021 on 21 04 wp 3770 2017.doc(b)Extract of General School Register of the uncle of petitioner No.1Village Namuna No. 14 pertaining to father of petitioner No.1School Leaving Certificate of Satish Janardan Gaikwadi.e. petitioner No.1School Leaving Certificate of Satish Janardan Gaikwadi.e. petitioner No.1Affidavit of petitioner No.1 filed before the Executive Magistrate SolapurCaste Certificate of petitioner No.1 issued by Sub Divisional Officer Madha Division Kurdwadi on 28th August 2003Maharashtra Government Gazette in respect of changeof surname of petitioner No.1Caste Certificate of father of petitioner No.1 and grandfather of petitioner No.2 dated 24th June 1977 issued by Tehsildar and Executive Magistrate North SolapurSchool Leaving Certificate of father of petitioner No.1 and grandfather of petitioner No.2School Leaving Certificate of cousin grandfather of petitioner No.2 namely Vasant Gopalrao GaikwadSchool Leaving Certificate of cousin grandfather of petitioner No.2 namely Suryakant Gopal GaikwadSchool Leaving Certificate of cousin grandfather of petitioner No.2 namely Mahadeo Gopal GaikwadCertificates of validity issued by the Scheduled Tribe Certificate Scrutiny Committee Pune Division to :ChandrakantGopal GaikwadVasant GopalraoGaikwadand Mahadev Gopal Gaikwad(uncle of petitioner No.1). In all these School LeavingCertificates Caste is shown as Thakar and not Hindu Maratha asis indicated by the Scrutiny Committee.19.There are extracts of School General Register. The first suchextract at Serial No. 17 shows the name of Janardan GopalGaikwad with date of birth as 18th July 2023 and Caste Thakar.The column No. 7 of the said extract shows date of admission as19th July 1928. Second extract at serial Nos. 1 3 and 4 shows thenames of uncles of petitioner No.1 viz. Vasant Gopalaro Gaikwad Chandrakant Gopal Gaikwad and Mahadev Gopal Gaikwad withtheir date of birth as 2nd April 1937 20th July 1929 and 21stTrupti 13 28 on 20 04 2021 on 21 04 wp 3770 2017.docNovember 1934 respectively and Caste as Thakar. The columnNo.7 shows their date of admission as 20th July 1942 4th July 1934 and 4th July 1940 respectively.20.The entries in School Leaving Certificates of the father anduncles of petitioner No.1 being pre independene period it bear“great probative value” wherein they declared themselves to beThakar. The school record comparatively is not only oldest but itbeing the record pertaining to theirs’ admission to school prior toindependence it carry greatest probative evidentiary value.However the Scrutiny Committee adopted an erroneous view andreflected an improper approach to the issue in question. Therewas no proper scrutiny as far as School Leaving Certificates ofpetitioner No.1’s father and uncles are concerned.21. We now have the certificates of validity issued to MangeshArun GaikwadArun Chandrakant Gaikwad(relative) Sanjay Suryakant GaikwadRupesh RameshGaikwadand Ganesh Bholenath Gaikwadwas applicable to the case of presentpetitioners’ and therefore refused to acknowledge the certificatesof validity relied upon by the petitioners.23.The learned Counsel for the petitioners heavily criticized theapproach of Committee by submitting that the observations of theCommittee were ill founded inasmuch as those person wereneither heard nor their certificates of validity are invalidated tillthe time of recording of said observations. According to learnedCounsel the certificates of validity of the said relatives are very22010Mh.LJ 401Trupti 15 28 on 20 04 2021 on 21 04 wp 3770 2017.docmuch in operation. This statement of learned Counsel is notdisputed by the learned AGP.24.In case of Apoorva d o Vinay Nichaleit has beenheld by this Court that if the Committee is of the view that theearlier certificate is obtained by fraud it would not be bound tofollow the earlier caste validity certificate and Committee isentitled to refuse the caste claim and also in addition initiateproceedings for cancellation of the earlier order. Thus accordingto this Court if the Scrutiny Committee finds on the evidence thatvalidity of the certificate of such relation has been obtained byfraud then the Scrutiny Committee would not be bound to followthe said caste validity certificate and it would be entitled not onlyto refuse the caste claim but also at the same time would be atliberty to initiate proceedings for cancellation of the earliervalidity certificate.25.In case in hand as already noted the certificates of validityof the relatives of the petitioners are not only in very muchoperation but the same till date have not been invalidated orTrupti 16 28 on 20 04 2021 on 21 04 wp 3770 2017.doccancelled by the Scrutiny Committee after giving an opportunityto the concerned relatives of the petitioners. Therefore in ourconsidered opinion the reliance placed by the Scrutiny Committeeon the ratio laid down in Apoorva’s case was far fetched anddoes not in any manner further the stand taken by the ScrutinyCommittee.26.There is need to guard again such observation put on recordby the Scrutiny Committee. We have already pointed out how theCommittee blinked the contents of pre constitutional schoolrecords. Rather it was expected of Scrutiny Committee to bemore circumspect. We find instead approach of ScrutinyCommittee absurd and preposterous. The Scrutiny Committeecould not have proceeded in absence of concrete and clinchingevidence that too without offering a reasonable opportunity tothese relatives of petitioners whose certificates of validity it wasquestioning.27.We do not find of having unearthed such an evidence byScrutiny Committee which could have disentitled those relativesTrupti 17 28 on 20 04 2021 on 21 04 wp 3770 2017.docof their certificates of validity during said verification. There is noperceptible and tangible basis to opine that certificates of validityof named relations were obtained or secured by suppression offacts or by misrepresentation. The Scrutiny Committee ought tohave substantiated its belief by cogent and convincing evidence.28.Before placing the said observations on record the ScrutinyCommittee ought to have discerned and discovered that ingranting certificates of validity to the relations of petitioners vitalevidences had been ignored. It is only in that eventuality it couldhave decisively differed and observed that certificates of validitygranted to the relations of petitioners were procured bysuppression of facts or misrepresentation.29.There were similar obtaining facts in the case of Ms. SnehalDilip Gaikwadand Janardan Gopal Gaikwad(paternal uncle of petitioner’s father). It may be noted here thatthe above named persons are father and uncle of petitioner No.1Trupti 18 28 on 20 04 2021 on 21 04 wp 3770 2017.docin the present case. There were certificates of validity issued toArun Chandrakant Gaikwad Mangesh Arun Gaikwad SanjaySuryakant Gaikwad and Shrikant Mahadeo Gaikwad who arecousins of petitioner. Out of them Mangesh Arun Gaikwad andSanjay Suryakant Gaikwad happen to be cousin and cousinnephew respectively of present petitioner No.1.30.This Courtafter taking into consideration the evidence and inparticular the school records of the petitioner’s paternalgrandfather and that of uncle of petitioner’s father was of theopinion that the Scrutiny Committee kept out of considerationpre constitutional documents as well as caste validity certificatesof the blood relatives of the petitioner and thus was not justifiedin discarding this evidence. This Court further held that thepetitioner therein had proved that she belongs to Thakar tribe.Thus facts and the ratio laid down therein are squarely applicableto the case in hand.31.The Scrutiny Committee was also of the opinion that theTrupti 19 28 on 20 04 2021 on 21 04 wp 3770 2017.docpetitioners or their family members could not prove culturalaffinity vis a vis. Thakar Tribe. At paragraph No. 5 of theimpugned judgment it is noted that according to petitioners theycelebrate festival of Diwali their community God are Khandobaand deity Bhavani of Tulzapur traditionally their avocation is toperform marriages and to give and take wards in marriages to andfrom K Thakar Ka Thakar M Thakar Ma Thakar and Thakartribes. Thus according to Scrutiny Committee the lifestyle ofpetitioners’ community is actually different than genuine Thakartribe and hence they fail to prove cultural affinity test.32.In Anand Vs. Committee for Scrutiny and Verification ofTribe Claims and Ors3. the Hon’ble Apex Court held that whileapplying the affinity test a cautious approach has to be adopted.A few decades ago when the tribes were somewhat immune tothe cultural development happening around them the affinity testcould serve as a determinative factor however with the migration modernisation and contact with other communities thesecommunities tend to develop and adopt new traits which may not32012SCCTrupti 20 28 on 20 04 2021 on 21 04 wp 3770 2017.docessentially match with the traditional characteristics of a tribe andtherefore the affinity test may not be regarded as a litmus test forestablishing the link of the applicant with a scheduled tribe.33. The Apex Court in the said judgment also observed that thepetitioner could not be denied benefit on the ground that hispresent traits do not match his tribe’s peculiar anthropological andethnological traits deity rituals customs mode of marriage death ceremonies etc. and thus the affinity test can only be usedto corroborate the documentary evidence and should not be thesole criteria to reject the claim. 34.At the cost of repetition we reiterate that the Committee notonly overlooked the pre constitutional school records of father ofpetitioner No.1 and his relatives but also the caste certificatesissued in favour of the petitioners and caste validity certificates infavour of various relatives of the petitioners.35. In our considered view rejection of claim of petitioners’ onthe ground of failure to establish cultural affinity was absolutelyTrupti 21 28 on 20 04 2021 on 21 04 wp 3770 2017.docunwarranted in the facts and circumstances of case and thereforethat finding cannot be sustained. 36.The Scrutiny Committee then found that since beginning thepetitioners claimed that the original place of residence of theirfamily is Madha Taluka Madha District Solapur. Even schoolrecords of blood relations since 1916 prove that petitioners’ familymembers were permanent residents of Madha. According toScrutiny Committee before Area Restriction Removal Order of1976 came into force petitioners’ village Taluka Madha had noconnection even remotely to the areas where the tribe Thakarpresumed to have been resided. Similarly the petitioners’ couldnot produce any evidence to show that their ancestors migrated before the Removal of Area Restriction from the area of ThakarTribe to present place of residence.37.By an order dated 5th December 2009 Writ Petition No.21507 filed by Jaywant Dilip Pawar v. State of Maharashtraand Others came to be rejected on the premise that the petitionerhad failed to show that the real brother of the petitioner wasTrupti 22 28 on 20 04 2021 on 21 04 wp 3770 2017.docgranted validity certificate after applying affinity test andtherefore in the opinion of this Court the petitioner would not beentitled to rely on that certificate.38.The order of this Court dated 5th December 2009 wascarried in Appeal before the Hon’ble Apex Court. It would bepertinent to reproduce the order passed by the Hon’ble ApexCourt dated 8th March 2017 which reads thus : “1. The short point raised by learned counsel forthe appellants in these appeals is that after TheScheduled Castes and Scheduled Tribes Orders(Amendment) Act 1976 held that if the caste claim of the candidatehas been held to be belonging to Scheduled Tribe then other closeblood relatives cannot be denied the validity certificate. In thelight of ratio laid down by this Court in case of Apoorva d o VinayNichaleas the petitioners’ real cousins are already grantedcaste validity certificates as belonging to Thakar Scheduled Tribe in that view of the matter the present petitioners also deserve thesimilar certificates of validity.43. We may usefully draw attention to the judgment of thisTrupti 26 28 on 20 04 2021 on 21 04 wp 3770 2017.docCourtin case ofSmt. Jayshree d o Subhash Suryawanshi @ Smt. Jayshree w oNitin Thakur Versus The State of Maharashtra and others in WritPetition No. 22313 decided on 8th January 2021. Afteradverting to judgment of the Hon’ble Apex Court given in case ofJaywant Dilip Pawarthis Court held that the ScrutinyCommittee thus could not have relied upon the provisions of theBombay Reorganization Act 1960 while rejecting the caste claimof the petitioner on the ground of area restriction and the view ofthe Scrutiny Committee was found to be ex facie contrary to theprinciples of law laid down by the Supreme Court in the case ofJaywant Dilip Pawaris hereby quashed and set asideRule is made absolute in aforesaid terms.(iv) There shall be no order as to costs. (R.D.DHANUKA J.)Trupti 28 28

Right to be Forgotten an integral part of an Individual’s Right to Privacy: Odisha HC

The Odisha HC headed by Justice SK Panigrahi found that “the information in the public domain is like toothpaste, once it is out of the tube one can’t get it back in and once the information is in the public domain it will never go away.”, thereby confirming the verdicts of several other High Courts by holding that an individual has a right to expect intermediaries (such as Facebook, Twitter) to remove sensitive information relating to them online in case of Subhranshu Rout @ Gugul vs State of Odisha,BLAPL No.4592 OF 2020.  This comes three years after the landmark K.S. Puttuswamy v Union of India judgment, which upheld that the Right to Privacy is a fundamental right under Article 21 of the Indian Constitution. The present case deals with intimate pictures of a woman being published online. The victim claimed she had been in love with the accused for around a year before the incident occurred. Both parties were from the same village and had also been classmates. Having learned one day that the victim was alone at home, the accused visited and raped her. While doing so, he also captured pictures and a video of the incident without her consent. After the act, he threatened to kill her and then upload her pictures onto the internet if she told anyone. The woman informed her parents of the incident and in response, the accused created a fake Facebook profile in her name and uploaded their intimate pictures. The police were apathetic to the victim’s plight, and it was only after some time that they convinced the accused to delete the fake profile and its content. The counsel for the petitioner submits that there was no crime as the accused and the victim were rational adults in a consensual relationship. He also claimed that he was going to marry her unconditionally. In addition, the counsel also argued that as he was a Diploma holder seeking employment, the detention was going to hinder his prospects. The counsel for the State contended that in addition to the intercourse being non-consensual, the accused also photographed the incident and threatened the woman with it. It was clear from her statement under S.161 CrPC that she had been subjected to blackmail and threats after the rape. While there is a serious penal deterrent for such heinous crimes, there exist no mechanisms to ensure that the victim’s right to be forgotten is fulfilled. In the present case, it was only after the police visited the accused did he take down the content. There was no mechanism whereby the victim could directly approach the intermediary (Facebook) and ask them to take it down. It further noted that “Though the statute prescribes penal action for the accused for such crimes, the rights of the victim, especially, her right to privacy which is intricately linked to her right to get deleted in so far as those objectionable photos have been left unresolved. There is a widespread and seemingly consensual convergence towards an adoption and enshrinement of the right to get deleted or forgotten but hardly any effort has been undertaken in India till recently, towards adoption of such a right, despite such an issue has inexorably posed in the technology dominated world. Presently, there is no statute in India which provides for the right to be forgotten/getting the photos erased from the server of the social media platforms permanently.” The Court recognized the intrinsic significance of one’s right to be forgotten in the larger context of our fundamental Right to Privacy. “It is their right to enforce the right to be forgotten as a right in rem. Capturing the images and videos with consent of the woman cannot justify the misuse of such content once the relation between the victim and accused gets strained as it happened in the present case. If the right to be forgotten is not recognized in matters like the present one, any accused will surreptitiously outrage the modesty of the woman and misuse the same in the cyber space unhindered. Undoubtedly, such an act will be contrary to the larger interest of the protection of the woman against exploitation and blackmailing, as has happened in the present case. The sloganeering of “betibachao” and women safety concerns will be trampled.”  

HIGH COURT OF ORISSA: CUTTACK BLAPL No.4592 OF 2020 In the matter of an application under Section 439 Criminal Procedure Code 1973) Subhranshu Rout @ Gugul Petitioner … Opposite Party State of Odisha For petitioner : For the Opp. Party: Shri Manoj Kumar Mohanty Additional Standing Counsel Shri Bibhuti Bhusan Behera and S. Bahadur Advocates THE HONOURABLE SHRI JUSTICE S.K. PANIGRAHI Date of Hearing: 20.10.2020 Date of judgment: 23.11.2020 1. The present application is preferred under Section 439 of the Criminal Procedure Code 1973 in connection with G.R. Case No.171 of 2020 arising out of Rasol P.S. Case No.62 of 2020 pending in the Court of learned SDJM Hindol registered for the commission of offences punishable under Sections 376 292 465 469 509 of IPC read with Sections 66 66(C) 67 67(A) of the I.T. Act 2000. 2.The factual conspectus as set forth in the F.I.R. is that on 03.05.2020 one Rupali Amanta D o. Raghunath Amanta of Village Giridharprasad P.S. Rasol District Dhenkanal alleged that for a period of about one year she had been in love with the petitioner. Both the petitioner as well as the accused were village mates and classmates. On the day of last Kartika Puja the petitioner went to the house of the informant and taking advantage of the fact that she was alone he committed rape on the informant and recorded the gruesome episode in his mobile phone. When the informant warned petitioner that she would apprise her parents of the brutal incident and its serious undertones the petitioner threatened to kill her as well as to make viral the said photos videos. Further she has alleged that since 10.11.2019 the petitioner had maintained physical intimacy with the informant. Upon the informant narrating the incident to her parents the petitioner opened a fake Facebook ID in the name of the informant and uploaded all the objectionable photos using the said ID in order to further traumatize her. Though the informant disclosed the said fact to the IIC Rasol P.S.by way of a written complaint on 27.04.2020 the Police has failed to take any step on the said complaint and thereby portrayed unsoundness of the police system. After much difficulty finally the informant could get the present FIR lodged. 3.Learned counsel for the petitioner submits that both the victim and accused are adults and hence they know the best what is right or wrong. He submits that the petitioner is an ITI Diploma holder who is in search of a job and hence his detention will spoil his career. He further stated that the petitioner is interested to marry the victim girl unconditionally. 4.Per contra learned counsel for the State submits that the petitioner had not only forcibly committed sexual intercourse with the victim girl but he had also deviously recorded the intimate sojourn and uploaded the same on a fake Facebook account created by the Petitioner in the name of the victim girl. The allegation is very serious since there is specific allegation of forced sexual intercourse by the accused petitioner against the will of the victim. Statement recorded under Section 161 of Cr. P.C. of the victim girl also clearly divulges the fact that the petitioner has been threatening and blackmailing her stating that if she discloses these facts to anybody he would eliminate her and also make her intimate scenes viral on the social media. He further submits that the investigation of the case has not yet been completed. The entire allegation in the FIR as well as the statement recorded under Section 161 of Cr.P.C read with other materials available on records are a pointer to the fact that the crime committed by the petitioner are serious in nature. The victim has been at the receiving end of an unabated mental torture due to the blackmailing tactics used by the petitioner. 5. While examining the pages of the case records prima facie it appears that the petitioner has uploaded the said photos videos on a social media platform i.e. Facebook and with the intervention of the police after some days he deleted the said objectionable contents from the Facebook. In fact the information in the public domain is like toothpaste once it is out of the tube one can’t get it back in and once the information is in the public domain it will never go away. Under the Indian Criminal Justice system a strong penal action is prescribed against the accused for such heinous crime but there is no mechanism available with respect to the right of the victim to get the objectionable photographs deleted from the server of the Facebook. The different types of harassment threats and assaults that frighten citizens in regard to their online presence pose serious concerns for citizens. There is an unprecedented escalation of such insensitive behavior on the social media platforms and the victim like the present one could not get those photos deleted permanently from server of such social media platforms like facebook. Though the statute prescribes penal action for the accused for such crimes the rights of the victim especially her right to privacy which is intricately linked to her right to get deleted in so far as those objectionable photos have been left unresolved. There is a widespread and seemingly enshrinement of the right to get deleted or forgotten but hardly any effort has been undertaken in India till recently towards adoption of such a right despite such an issue has inexorably posed in the technology dominated world. Presently there is no statute in India which provides for the right to be forgotten getting the photos erased from the server of the social media platforms permanently. The legal possibilities of being forgotten on line or off line cries for a widespread debate. It is also an undeniable fact that the implementation of right to be forgotten is a thorny issue in terms of practicality and technological nuances. In fact it cries for a clear cut demarcation of institutional boundaries and redressal of many delicate issues which hitherto remain unaddressed in Indian jurisdiction. The dynamics of hyper connectivity abundance pervasiveness and accessibility of communication network have redefined the memory and the prescriptive mandate to include in the technological contours is of pressing 6. However this issue has attracted sufficient attention overseas in the European Union leading to framing of General Data Protection Regulationwhich governs the manner in which personal data can be collected processed and erased. The aspect of right to be forgotten appears in Recitals 65 and 66 and in Article 17 of the GDPR1 which vests in the victim a right to erasure of such material after due diligence by the controller expeditiously. In addition to this Article 5 of the GDPR requires data controllers to take every reasonable step to ensure that data which is inaccurate is 1The data subject shall have the right to obtain from the controller regarding the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay. “erased or rectified without delay”. Every single time it cannot be expected that the victim shall approach the court to get the inaccurate data or information erased which is within the control of data controllers such as Facebook or Twitter or any other social media platforms. 7. A similar issue was raised in England in the Wales High Courts in NT1 and NT2 Vs. Google LLC2which ordered Google to delist search results referring to the spent conviction of a businessman known as NT2 but rejected a similar request made by a second businessman NT1. The claimants therein had been convicted of certain criminal offences many years ago who complained that search results returned by Google featured links to third party reports about the convictions in the past which were either inaccurate and or old irrelevant and of no public interest or otherwise an interference with their rights. The reliefs sought in those cases were based on the prevailing data protection laws and English Law principles affording protection in case of tortuous misuse of private information. The Court rejected NT1’s request based on the fact that he was a public figure with a 2[2018] EWHC 799and another4 the European Court of Justice ruled that the European citizens have a right to request that commercial search engines such as Google that gather personal information for profit should remove links to private information when asked provided the information is no longer relevant. The Court in that case ruled that the fundamental right to privacy is greater than the economic interest of the commercial firm and in some circumstances the same would even override the public interest in access to information. The European Court in the aforesaid case had affirmed the judgment of the Spanish Data 3Para 223 of Judgment 4C 131 12[2014] QB 1022 Protection Agency SPDA)in a case which concerned a proceeding relating to bankruptcy which had ordered removal of material from the offending website by recognizing a qualified right to be forgotten and held that an individual was entitled to have Google de list information of which he complained. 9.Recently the European Court of Justice in Google LLC vs. CNIL5 ruled that “currently there is no obligation under EU law for a search engine operator to carry out such a de referencing on all the versions of its search engine.” The Court also said that the search operator must “take sufficiently effective measures” to prevent searches for differenced information from within the EU. The court specifically held as under: “69. That regulatory framework thus provides the national supervisory authorities with the instruments and mechanisms necessary to reconcile a data subject’s rights to privacy and the protection of personal data with the interest of the whole public throughout the Member States in accessing the information in question and accordingly to be able to adopt where appropriate a de referencing decision which covers all searches conducted from the territory of the Union on the basis of that data subject’s name. 5Case C 507 17 C 314 12 70. In addition it is for the search engine operator to take if necessary sufficiently effective measures to ensure the effective protection of the data subject’s fundamental rights. Those measures must themselves meet all the legal requirements and have the effect of preventing or at the very least seriously discouraging internet users in the Member States from gaining access to the links in question using a search conducted on the basis of that data subject’s name see by analogy judgments of 27 March 2014 UPC Telekabel Wien EU:C:2014:192 paragraph 62 and of 15 September 2016 McFadden C 484 14 EU:C:2016:689 paragraph 96). 71. It is for the referring court to ascertain whether also having regard to the recent changes made to its search engine as set out in paragraph 42 above the measures adopted or proposed by Google meet those 72. Lastly it should be emphasized that while as noted in paragraph 64 above EU law does not currently require that the de referencing granted concern all versions of the search engine in question it also does not prohibit such a practice. Accordingly a supervisory or judicial authority of a Member State remains competent to weigh up in the light of national standards of protection of fundamental rights see judgments of 26 February 2013 Åkerberg Fransson C 617 10 EU:C:2013:105 paragraph 29 and of 26 February 2013 Melloni C 399 11 EU:C:2013:107 paragraph 60) a data subject’s right to privacy and the protection of personal data concerning him or her on the one hand and the right to freedom of information on the other and after weighing those rights against each other to order where appropriate the operator of that search engine to carry out a de referencing concerning all versions of that search engine. 73. In the light of all of the foregoing the answer to that on a proper the questions that effect 11 those provisions construction of Article 12(b) and subparagraph of the first paragraph of Article 14 of Directive 95 46 and Article 17(1) of Regulation 2016 679 where a search engine operator grants a request for de referencing pursuant operator is not required to carry out that de referencing on all versions of its search engine but on the versions of that search engine corresponding to all the Member States using where necessary measures requirements which while meeting effectively prevent or at the very least seriously discourage an internet user conducting a search from one of the Member States on the basis of a data subject’s name from gaining access via the list of results displayed following that search to the links which are the subject of that request.” 10.Presently there is no statue which recognizes right to be forgotten but it is in sync with the right to privacy which was hailed by the Apex Court as an integral part of Article 21in K.S. Puttaswamy 10 SCC 1 privacy of an individual. The relevant paras of the judgment are as under: R. Essential nature of privacy 297. What then does privacy postulate Privacy postulates the reservation of a private space for the individual described as the right to be let alone. The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality. The notion of privacy enables the individual to assert and control the human element which from the personality of the individual. The inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life. The autonomy of the individual is associated over matters which can be kept private. These are concerns over which there is a legitimate expectation of privacy. The body and the mind are inseparable elements of the human personality. The integrity of the body and the sanctity of the mind can exist on the foundation that each individual possesses an inalienable ability and right to preserve a private space in which the human personality can develop. Without the ability to make choices the inviolability of the personality would be in doubt. Recognizing a zone of privacy is but an acknowledgment that each individual must be the course of development of personality. Hence privacy is a postulate of human dignity itself. Thoughts and behavioural patterns which are intimate to an individual are entitled to a zone of privacy where one is free of social expectations. In that zone of privacy an individual is not judged by others. Privacy enables each individual to take crucial decisions which find expression in the human personality. It enables thoughts expressions ideas ideologies preferences and choices to chart and pursue their beliefs to preserve against societal demands of homogeneity. Privacy is an intrinsic recognition of heterogeneity of the right of the individual to be different and to stand against the tide of conformity in creating a zone of solitude. Privacy protects the individual from the searching glare of publicity in matters which are personal to his or her life. Privacy attaches to the person and not to the place where it is associated. Privacy constitutes the foundation of all liberty because it is in privacy that the individual can decide how liberty is best Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural culture. 402. “Privacy” is “[t]he condition or state of being free from public attention to intrusion into or interference with one s acts or decisions” Black s Law Dictionary3783 . The right to be in this condition has been described as “the right to be let alone” . What seems to be essential to privacy is the power to seclude oneself and keep others from intruding it in any way. These intrusions may be physical or visual and may take any of several including peeping over one s shoulder to eavesdropping directly or instruments devices or technological aids. 479. Both the learned Attorney General and Shri Sundaram next argued that the right to privacy is so vague and amorphous a concept that it cannot be held to be a fundamental right. This again need not detain us. Mere absence of a definition which would encompass the many contours of the right to privacy need not deter us from recognising privacy interests when we see them. As this judgment will presently show these interests are broadly classified into to marry rights as interests pertaining to the physical realm and interests pertaining to the mind. As case law both in the US and India show this concept has travelled far from the mere right to be let alone to recognition of a large number of privacy interests which apart from privacy of one s home and protection unreasonable searches and seizures have been extended to protecting an individual s interests in making vital personal choices such as the right to abort a foetus rights of same sex couples—including the right to procreation contraception general family relationships child bearing education data protection etc. This argument again need not detain us any further and is 560. The most popular meaning of “right to privacy” is—“the right to be let alone”. In Gobind v. State of M.P.2 SCC 148 : 1975 SCC 468] K.K. Mathew J. noticed multiple facets of this right and then gave a rule of caution while examining the contours of such right on case to case basis. 636. Thus the European Union Regulation of 2016 Regulation No. 2016 679 of the European Parliament and of the Council of 27 4 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive No. 95 46 EC General Data Protection Regulation).] has recognised what has been termed as “the right to be forgotten”. This does not mean that all aspects of earlier existence are to be obliterated as some may have a social ramification. If we were to recognise a similar right it would only mean that an individual who is no longer desirous of his personal data to be processed or stored should be able to remove it from the system where the personal data information is no longer 15 is necessary necessary relevant or is incorrect and serves no legitimate interest. Such a right cannot be exercised exercising the right of freedom of expression and information for compliance with legal obligations for the performance of a task carried out in public interest on the grounds of public interest in the area of public health for archiving purposes in the public interest scientific or historical research purposes or statistical purposes or for the establishment exercise or defence of legal claims. Such justifications would be valid in all cases of breach of privacy including breaches of data privacy.” The Hon’ble Apex court while considering the issue of a conflict between the right to privacy of one person and the right to a healthy life of another person has held that in such situations the right that would advance public interest would take precedence.” emphasis supplied) 11.The Hon’ble Supreme Court of India in the case of Mr ‘X’ v. Hospital ‘Z’7 has recognized an individual’s right to privacy as a facet Article 21 of the Constitution of India. It was also pertinently held that the right which would advance the public morality or public interest would alone be enforced through the process of court for the reason that moral considerations cannot be kept at bay and the Judges are not expected to sit as mute structures of clay in the halls known as the courtroom but have to be sensitive “in the sense that they 7(1998) 8 SCC 296 must keep their fingers firmly upon the pulse of the accepted morality of the day.” 12. The Ld. Single Judge of High Court of Karnataka in the case of Vasunathan v. The Registrar General High Court of Karnataka8 has acknowledged the right to be forgotten keeping in line with the trend in the Western countries where it is followed as a matter of rule. The High Court of Delhi in its recent judgment in Zulfiqar Ahman Khan vs. Quintillion Business Media Pvt. Ltd. and Ors9 has also recognized the “right to be forgotten” and Right to be left alone as an integral to part of individual’s existence. The Karnataka High Court in Name Redacted} vs. The Registrar General10 recognized “Right to be forgotten” explicitly though in a limited sense. The petitioner’s request to remove his daughter’s name from a judgment involving claims of marriage and forgery was upheld by the Court. It held that recognizing right to be forgotten would parallel initiatives by ‘western countries’ which uphold this right when ‘sensitive’ cases concerning the ‘modesty’ or ‘reputation’ of people especially women were the High Court of Gujarat However 82017 SCC OnLine Kar 424 92019(175) DRJ 660 10Writ PetitionNos.36554 36555 2017decided on 4th January 2018 in Dharamraj 17 Bhanushankar Dave v s State of Gujarat & Ors. 11 in a case involving the interpretation of the rules of the High Court has taken a contrary and narrow approach. 13. The Information TechnologyRules 2011 India’s first legal framework recognized the need to protect the privacy of personal data but it failed to capture the issue of the “Right to be forgotten”. The Hon’ble Supreme Court of India in the case of K.S. Puttaswamy v. Union of India held that purpose limitation is integral for executive projects involving data collection unless prior permission is provided third parties cannot be provided access to personal data.12This principle is embodied in S.5 of the yet to be implemented Personal Data Protection Bill 2019. Purpose Limitation enhances transparency in data processing and helps examine the proportionality of the mechanism used to collect data for a specific purpose. Moreover it prevents the emergence of permanent data ‘architectures’ based on interlinking databases without consent. In the present case the proposition of purpose limitation is not applicable as the 12See Para 166 of K.S. Puttaswamy Judgment question of seeking consent does not arise at all. No person much less a woman would want to create and display gray shades of her character. In most of the cases like the present one the women are the victims. It is their right to enforce the right to be forgotten as a right in rem. Capturing the images and videos with consent of the woman cannot justify the misuse of such content once the relation between the victim and accused gets strained as it happened in the present case. If the right to be forgotten is not recognized in matters like the present one any accused will surreptitiously outrage the modesty of the woman and misuse the same in the cyber space unhindered. Undoubtedly such an act will be contrary to the larger interest of the protection of the woman against exploitation and blackmailing as has happened in the present case. The sloganeering of “betibachao” and women safety concerns will be trampled. 14. Section 27 of the draft Personal Data Protection Bill 2018 contains the right to be forgotten. Under Section 27 a data principal has the right to prevent continuing disclosure of personal data by a data fiduciary. The aforesaid provision which falls under Chapter VIof the Bill distinctly carves out the "right to be forgotten" in no uncertain terms. In terms of this provision every data principal shall have the right to restrict or prevent continuing disclosure of personal databy any data fiduciary if such disclosure meets any one of the following three conditions namely if the disclosure of personal i) has served the purpose for which it was made or is no longer necessary or was made on the basis of the data principal s consent and such consent has since been withdrawn or was made contrary to the provisions of the bill or any other law in force. In addition to this Section 10 of the Bill provides that a data fiduciary shall retain personal data only as long as may be reasonably necessary to satisfy the purpose for which it is processed. Further it imposes an obligation on every data fiduciary to undertake periodic reviews in order to determine whether it is necessary to retain the personal data in its possession. If it is not necessary for personal data to be retained by a data fiduciary then such personal data must be deleted in a manner as may be specified. 20 15. In the instant case prima facie it appears that the petitioner has not only committed forcible sexual intercourse with the victim girl but has also deviously recorded the intimate sojourn and uploaded the same on a fake Facebook account. Statement recorded under Section 161 of Cr. P.C. of the victim girl is also clearly in sync with FIR version. Considering the heinousness of the crime the petitioner does not deserve any consideration for bail at this stage. However this Court is of the view that Indian Criminal Justice system is more of a sentence oriented system with little emphasis on the disgorgement of victim’s loss and suffering although the impact of crime on the victim may vary significantly for person(s) and case(s) for some the impact of crime is short and intense for others the impact is long lasting. Regardless many victims find the criminal justice system complex confusing and intimidating. Many do not know where to turn for help. As in the instant case the rights of the victim to get those uploaded photos videos erased from Facebook server still remain unaddressed for want of appropriate legislation. However allowing such objectionable photos and videos to remain on a social media platform without the consent of a woman is a direct affront on a woman’s modesty and more importantly her right to privacy. In such cases either the victim herself or the prosecution may if so advised seek appropriate orders to protect the victim’s fundamental right to privacy by seeking appropriate orders to have such offensive posts erased from the public platform irrespective of the ongoing criminal process. 16. In view of the foregoing discussion of the case this Court is not inclined to enlarge the petitioner on bail. Hence the present bail application stands dismissed. S.K.PANIGRAHI J.] Orissa High Court Cuttack The 23rd day of November 2020 AKK AKP

Nobody can enter into the mind of the accused and his intention has to be ascertained from the weapon used, part of the body chosen for assault and the nature of the injury caused: Supreme Court of India

When the deadly weapon – dagger has been used, there was a stab injury on the stomach and near the chest which can be said to be on the vital part of the body and the nature of injuries caused, it is rightly held that the appellants have committed the offence under Section 307 IPC. The aforesaid has been established by the supreme court of India while adjudicating the case of Sadakat Kotwar and Anr. v. The State of Jharkhand [CRIMINAL APPEAL No. 1316 of 2021] which was decided upon by a single judge bench comprising Justice M.R. Shah on 12th November 2021. The facts of the case are as follows. The prosecution has been successful in proving the case against the accused that Appellant No.2 – Refaz Kotwar stabbed PW8 – Mohd. Jamil Kotwar with a dagger on the right side of his stomach and on left ribs and that PW7 was also stabbed by Appellant No.1 – Sadakat Kotwar with a dagger in her ribs. It is to be noted that PW7 and PW8 are the injured eye-witnesses. Submissions on behalf of the appellants that at the most the case may fall under Section 323 of the IPC and therefore, the courts below have erred in convicting the accused for the offence under Section 307 IPC is concerned, it is the case on behalf of the appellants that it was a case of single blow/injury. However, it is required to be noted that the injury of a single blow was on the vital part of the body i.e. stomach and near chest. Nature of the injury is a grievous injury caused by a sharp cutting weapon. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 01.07.2019 passed by the High Court of Jharkhand at Ranchi in Criminal Appeal (SJ) No.393 of 2004 by which the High Court has upheld the conviction of the appellants herein for the offences under Section 307 read with Section 34 of the IPC, the original accused have preferred the present appeal. The Court perused the facts and arguments presented. it was of the opinion that “We are in complete agreement with the view taken by the learned Trial Court as well as the High Court. Now so far as the reliance placed upon the decision of this Court in Jai Narain Mishra and Ors. Vs. State of Bihar, (1971) 3 SCC 762 is concerned, on facts such decision shall not be applicable more particularly considering the subsequent decisions as well as the weapon used, nature of injuries caused on the vital part of the body. In view of the above and for the reasons stated hereinabove, the present appeal fails and the same deserves to be dismissed and is accordingly dismissed.”

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 13121 Sadakat Kotwar and Anr …Appellant(s JUDGMENT The State of Jharkhand …Respondent(s M. R. Shah J Feeling aggrieved and dissatisfied with the impugned judgment and order dated 01.07.2019 passed by the High Court of Jharkhand at Ranchi in Criminal AppealNo.3904 by which the High Court has upheld the conviction of the appellants herein for the offences under Section 307 read with Section 34 of the IPC the original accused have preferred the present appeal 2. We have gone through the impugned judgment and order passed by the High Court as well as the judgment and order passed by the learned Trial Court convicting the accused for the offences under Section 307 read with Section 34 of the IPC. The prosecution as such has examined in all 10 witnesses in support of the case of the prosecution out of which there are two injured eye witnesses PW7 and PW8. Both of them have supported the case of the prosecution. Even the other witnesses examined by the prosecution i.e. PW1 PW2 PW4 and PW10 are consistent in their statements and have fully supported the case of the prosecution The prosecution has been successful in proving the case against the accused that Appellant No.2 Refaz Kotwar stabbed PW8 Mohd. Jamil Kotwar with a dagger on the right side of his stomach and on left ribs and that PW7 was also stabbed by Appellant No.1 Sadakat Kotwar with a dagger in her ribs. We see no reason to doubt the testimony of the witnesses examined on behalf of the prosecution more particularly PW7 and PW8 who are the injured eye witnesses. It is required to be noted that PW7 and PW8 are the injured eye witnesses. As held by this Court in the case of State of M.P. vs. Mansingh 10 SCC 414 para 9 the evidence of an injured eye witness has great evidentiary value and unless compelling reasons exist their statements are not to be discarded lightly. There are concurrent findings recorded by the courts below holding the appellants original accused guilty which do not require any interference by this Court in exercise of powers under Article 136 of the Constitution of India. 3. Now so far as the submissions on behalf of the appellants that at the most the case may fall under Section 323 of the IPC and therefore the courts below have erred in convicting the accused for the offence under Section 307 IPC is concerned it is the case on behalf of the appellants that it was a case of single blow injury However it is required to be noted that the injury of a single blow was on the vital part of the body i.e. stomach and near chest Nature of the injury is a grievous injury caused by a sharp cutting weapon. The following injuries were found on Jamil Kotwar “Incised wound 1"x1"x muscle deep with Haematoma formation 4"x3" area in 4th and 5th inter costal space in mid axillary region of left The following injuries were found on Samsera Bibi “Incised wound 1"x1 2"x pleura deep in 8th inter costal space mid clericular line of left half of chest.” Thus the nature of injuries was found to be grievous caused by sharp cutting instrument In the case of Mahesh Balmiki vs. State of M.P. 1 SCC 319 in paragraph 9 it is held as under “9 . ... there is no principle that in all cases of a single blow Section 302 Indian Penal Code is not attracted. A single blow may in some cases entail conviction Under Section 302 Indian Penal Code in some cases Under Section 304 Indian Penal Code and in some other cases Under Section 326 Indian Penal Code. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury whether it is on the vital or non vital part of the body the weapon used the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him. In the instant case the deceased was disabled from saving himself because he was held by the associates of the Appellant who inflicted though a single yet a fatal blow of the description noted above. These facts clearly establish that the Appellant had the intention to kill the deceased. In any event he can safely be attributed the knowledge that the knife blow given by him was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death.” 4.1 It is not the case of the accused that the offence occurred out of a sudden quarrel. It also does not appear that the blow was stuck in the heat of the moment. On the contrary considering the depositions of PW7 and PW8 the accused persons pushed and took the husband of PW7 out of the house and thereafter the accused caused the injuries on PW7 and PW8 and stabbed dagger. Thus deadly weapons have been used and the injuries are found to be grievous in nature. As the deadly weapon has been used causing the injury near the chest and stomach which can be said to be on vital part of the body the appellants have been rightly convicted for the offence under Section 307 read with Section 34 of the IPC. As observed and held by this Court in catena of decisions nobody can enter into the mind of the accused and his intention has to be ascertained from the weapon used part of the body chosen for assault and the nature of the injury caused. Considering the case on hand on the aforesaid principles when the deadly weapon dagger has been used there was a stab injury on the stomach and near the chest which can be said to be on the vital part of the body and the nature of injuries caused it is rightly held that the appellants have committed the offence under Section 307 5. We are in complete agreement with the view taken by the learned Trial Court as well as the High Court. Now so far as the reliance placed upon the decision of this Court in Jai Narain Mishra and Ors Vs. State of Bihar 3 SCC 762 is concerned on facts such decision shall not be applicable more particularly considering the subsequent decisions as well as the weapon used nature of injuries caused on the vital part of the body In view of the above and for the reasons stated hereinabove the present appeal fails and the same deserves to be dismissed and is accordingly dismissed [M. R. Shah ….J. New Delhi November 12 2021

When an Arbitral Award exceeds the value of Rs.1,000/-, the stamp duty on the Award is payable only in terms of Clause (b) thereof; and Clause (a) would be applicable only when the Award does not exceed the value of Rs.1,000/- : Delhi High Court

There can really be no dispute to the fact that as per Article 12 of Schedule-1A, as amended vide the Indian Stamp (Delhi Amendment) Act, 2001, when an Arbitral Award exceeds the value of Rs.1,000/-, the stamp duty on the Award is payable only in terms of Clause (b) as upheld by the High Court of Delhi through the learned bench led by Hon’ble Ms. Justice Rekha Palli in the case of M/S. Indsao Construction Pvt. Ltd. V. The Collector of Stamp/ Sub-Divisional Magistrate (W.P.(C) 886/2021) The brief facts, leading to the filing of the present petition, are that an Arbitral Award, pertaining to a dispute between the petitioner company and M/s Baroda House NRGE CGHS, came to be passed on 11.10.2013. The Award was made on a non-judicial stamp paper of Rs.1,000/- with directions to the petitioner to have the amount of stamp duty payable thereon adjudicated by the Collector of Stamps. Consequently, on 07.11.2013, the petitioner filed an application before the respondent/Sub Divisional Magistrate, Dwarka for adjudication of stamp duty on the Arbitral Award. The said application came to decided vide the impugned order on 03.01.2020, whereunder the respondent has held that the petitioner was liable to pay stamp duty @ 2% on the awarded amount. While passing the impugned order, the respondent has placed reliance on a decision dated 03.02.2010 of a Co-ordinate Bench in OMP No. 78/2003 titled “Eider Pwi Paging Limited & Eider Pwi Communications Ltd. v. Union of India”. From a perusal of the facts and arguments, the Hon’ble Court held “I, therefore, have no hesitation in setting aside the impugned order and accepting the petitioner’s plea that it was liable to pay stamp duty only at @0.1% on the awarded amount, in accordance with Clause (b) of Article 12, Schedule 1-A. 11. The matter is, therefore, remanded back to the respondent for determining the stamp duty in accordance with the observations made hereinabove.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 08.11.2021 W.P.(C) 886 2021 M S. INDSAO CONSTRUCTION PVT. LTD. Petitioner Through Mr. Prashant Kumar Mittal Adv. SUB DIVISIONAL Respondent Through Mr. Anuj Aggarwal ASC with Mr. Vikrant Chawla Ms. Ayushi Bansal and Mr. Vishesh Jagga Advs. HON BLE MS. JUSTICE REKHA PALLI REKHA PALLI JEven though despite opportunity no counter affidavit has been filed the matter is taken up for disposal with the consent of the parties. The brief facts leading to the filing of the present petition are that an Arbitral Award pertaining to a dispute between the petitioner company and M s Baroda House NRGE CGHS came to be passed on 11.10.2013. The Award was made on a non judicial stamp paper of Rs.1 000 with directions to the petitioner to have the amount of stamp duty payable thereon adjudicated by the Collector of Stamps. Consequently on 07.11.2013 the petitioner filed an application before the respondent Sub Divisional Magistrate Dwarka for adjudication of stamp duty on the Arbitral Award. The said application came to decided W.P.(C) 886 2021 DigitallySigned By:AWANISHCHANDRA MISHRASigning Date:09.11.202112:22:39Signature Not Verified vide the impugned order on 03.01.2020 whereunder the respondent has held that the petitioner was liable to pay stamp duty @ 2% on the awarded amount. While passing the impugned order the respondent has placed reliance on a decision dated 03.02.2010 of a Co ordinate Bench in OMP No. 78 2003 titled “Eider Pwi Paging Limited & Eider Pwi Communications Ltd. v. Union of India”. In support of the petition Mr. Mittal learned counsel for the petitioner submits that the impugned order is wholly perverse as while determining the payable stamp duty the respondent has erroneously applied the provisions of Clauseof Article 12 of Schedule 1A as amended vide the Indian StampAct 2001 to the petitioner’s case as against Clause under which the petitioner’s case was covered. The Award in question is admittedly for an amount more than Rs.1 000 and therefore the respondent has erred in applying Clause of Article 12 without appreciating the fact that Clause would be only applicable in a case where the amount under the Award does not exceed Rs.1 000 . He therefore contends that the petitioner was liable to pay the stamp duty only 0.1% in terms of Clauseof Article 12 of Schedule 1A of the Act. Learned counsel for the respondent is not in a position to dispute either the fact that the Award is for a value of more than Rs.1 000 or that Clauseof Article 12 is applicable to such cases where the Award is for a sum exceeding Rs.1 000 . Even though learned counsel for the respondent has not disputed the petitioner’s plea that Clause of Article 12 would be applicable to the present case for the sake of clarity the said provision is reproduced hereinbelow: W.P.(C) 886 2021 DigitallySigned By:AWANISHCHANDRA MISHRASigning Date:09.11.202112:22:39Signature Not Verified Description of Instrument Proper Stamp Duty Award that is to say any decision in writing by an arbitrator or umpire not being an award directing a partition on a reference made otherwise than by an order of this Court in the course of a suit a) Where the amount or value of the property to which the award relates are set forth in such award does not exceed Rs.1 000. b) If it exceeds Rs.1 000 but does not exceed Rs.5 000 and for every additional Rs.1 000 or part thereof in excess of Rs.5 000. The same duty as a Bond No.15) for such amount. One rupee for every one thousand of the value of the property to which the award relates. From a perusal of the aforesaid provision there can really be no dispute to the fact that as per Article 12 of Schedule 1A as amended vide the Indian StampAct 2001 w.e.f. 28.03.2001 when an Arbitral Award exceeds the value of Rs.1 000 the stamp duty on the Award is payable only in terms of Clausethereof and Clausewould be applicable only when the Award does not exceed the value of Rs.1 000 . 8. Moreover the reliance placed by the respondent on a decision of the Co ordinate Bench in OMP No. 78 2003 titled “Eider Pwi Paging Limited Eider Pwi Communications Ltd. v. Union of India” is also wholly misplaced. It appears that the said decision has been applied mechanically without even appreciating the fact that the issue raised in the said decision was not regarding as to which Clause of Article 12 would be applicable in a case where the Award is of a value of more than Rs.1 000 . W.P.(C) 886 2021 DigitallySigned By:AWANISHCHANDRA MISHRASigning Date:09.11.202112:22:39Signature Not Verified At this stage the petitioner also points out that the respondent has erroneously determined the payable stamp duty by applying Clause on the basis of an internal circular issued by the Govt. of India NCT of Delhi directing all SDMs to calculate the stamp duty payable on Arbitral Awards 2%. He submits that though a copy of the said circular is not available with the petitioner appropriate directions be issued to the respondent to correctly apply Clauseof Article 12 in all such cases where the Award exceeds the value of Rs.1 000 . I therefore have no hesitation in setting aside the impugned order and accepting the petitioner’s plea that it was liable to pay stamp duty only at @0.1% on the awarded amount in accordance with Clauseof Article 11. The matter is therefore remanded back to the respondent for determining the stamp duty in accordance with the observations made 12 Schedule 1 A. hereinabove. 12. However before concluding this Court is constrained to express its anguish in the lethargic manner in which the petitioner’s application has been dealt with by the respondent. The record shows that application for adjudication of stamp duty was preferred by the petitioner way back on 07.11.2013 to decide which the respondent took more than six years vide its impugned order which too as already held hereinabove is contrary to the plain language of Article 12 of Schedule 1 A itself. The respondent is therefore directed to determine the stamp duty payable by the petitioner on the Award dated 11.10.2013 within two weeks from the receipt of this order. 13. A copy of this order be sent to the Chief Secretary Govt. of NCT of W.P.(C) 886 2021 DigitallySigned By:AWANISHCHANDRA MISHRASigning Date:09.11.202112:22:39Signature Not Verified Delhi for information and appropriate action so that other similarly placed persons do not have to approach this Court on account of erroneous determination of stamp duty. REKHA PALLI) NOVEMBER 08 2021 W.P.(C) 886 2021 DigitallySigned By:AWANISHCHANDRA MISHRASigning Date:09.11.202112:22:39Signature Not Verified

When there’s a reasonable apprehension of arrest then the person is entitled to approach the competent court of jurisdiction for relief : High Court of Meghalaya

When there’s a reasonable apprehension of arrest then the person is entitled to approach the competent court of jurisdiction for relief and if he/she abides by the guidelines, then an anticipatory bail can be granted as held by the High Court of Meghalaya by the learned bench lead by Justice W. Diengdohin the case of Mr. Hammed Balogun Vs. State of Meghalaya & Anr. (A.B No. 10 of 2021) The brief facts of the case are that the Petitioner received a notice in connection with the said Dawki PS Case and had accordingly reported before the Dawki PS. After being questioned, he was allowed to leave the police station in the evening but was again directed to report before the said police station after three days and was threatened that next time he would be arrested. The Petitioner stated that he had been willingly cooperating with the investigation in all possible manner but due to the threat of arrest, he is apprehensive that he may be falsely implicated and arrested in the said Dawki PS case. Mr. R. Gurung, learned counsel has submitted that the Petitioner was also involved in a case on an allegation that his visa was forged and that the trial in the said case is going on, however, he was since granted bail in the said case but all his documents such as passport and visa are in the custody of the Hon’ble Court. Petitioner keeps himself engaged by helping fellow Nigerians who are visiting Shillong with travel itinerary, etc. and gets paid for his services. In this manner, he had also helped one fellow Nigerian named Michael Okpeaifoh who had gone to Dawki. What the said Michael Okpeaifoh did at Dawki is not within his knowledge and has no connection with him and as such he cannot be implicated in any police case against Michael Okpeaifoh. Mr. H. Abraham, learned GA on behalf of the State Respondent submitted that the conduct of the Petitioner herein in not responding to the direction of the police to appear before them, the second time he was called after having appeared before the Police on receipt of the notice u/s 41 Cr.PC and also the fact that he had received money from the wife of the said Michael Okpeaifoh who is the main accused in the said Dawki PS Case No. 16(6)2021 would make him liable for prosecution under the relevant provisions of law and as such, it is prayed that this application may not be allowed. After hearing the learned counsel for the respective parties at length, the Hon’ble Court held, “While applying the above to the case of the Petitioner, it is apparent that he is not likely to abscond or flee from justice since he has his family at Shillong and that he has cooperated with the police by responding to the first notice issued to him u/s 41A Cr.PC also reflect on his antecedent. The nature and gravity of the allegation is also such that a heinous offence has not been committed by the Petitioner herein. This being the case, this Court is therefore inclined to allow the prayer of the Petitioner.”

Serial No. 14 Regular List HIGH COURT OF MEGHALAYA AT SHILLONG A.B No. 121 Date of Decision: 07.10.2021 Mr. Hammed Balogun Vs. State of Meghalaya & Anr. Hon’ble Mr. Justice W. Diengdoh Judge For the Petitioner Appellant(s) For the Respondent(s) i) Whether approved for reporting in Law journals etc.: Mr. R. Gurung Adv. Mr. H. Abraham GA. ii) Whether approved for publication in press: The Petitioner Mr. Hammed Balogun a Nigerian national residing at Demthring Shillong with his wife and child has approached this Court with an application u s 438 Cr.PC praying for grant of pre arrest bail in connection with Dawki PS Case No. 16(6)2021. It is the case of the Petitioner that he had received a notice u s 41 Cr.PC in connection with the said Dawki PS Case and had accordingly reported before the Dawki PS on 16.07.2021. After being questioned he was allowed to leave the police station in the evening but was again directed to report before the said police station after three days and was threatened that next time he would be arrested. The Petitioner has further stated that he had been willingly cooperating with the investigation in all possible manner but due to the threat of arrest he is apprehensive that he may be falsely implicated and arrested in the said Dawki PS caseof the Foreigners Act was duly registered against the said Michael Okpeaifoh however Michael Okpeaifoh was subsequently released on bail and investigation is still going on. 10. The fact that the Petitioner herein is known to Mr. Michael Okpeaifoh and that he has also admitted that he had helped him would apparently make him apprehensive of arrest in connection with the said Dawki PS case1 SCC 694 the Supreme Court laying down some guidelines as far as anticipatory bail is concerned at paragraph 112 has held as follows: “112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence iii) The possibility of the applicant to flee from justice iv) The possibility of the accused s likelihood to repeat similar or other v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern viii)While considering the prayer for grant of anticipatory bail a balance has to be struck between two factors namely no prejudice should be caused to the free fair and full investigation and there should be prevention of harassment humiliation and unjustified detention of the accused ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution in the normal course of events the accused is entitled to an order of bail”. While applying the above to the case of the Petitioner it is apparent that he is not likely to abscond or flee from justice since he has his family at Shillong and that he has cooperated with the police by responding to the first notice issued to him u s 41A Cr.PC also reflect on his antecedent. The nature and gravity of the allegation is also such that a heinous offence has not been committed by the Petitioner herein. This being the case this Court is therefore inclined to allow the prayer of the Petitioner. 13. Accordingly it is hereby directed that incase the Petitioner is arrested he is to be enlarged on bail on the following conditions: That he shall not abscond or tamper with the evidence or witnesses ii) That he shall not leave the jurisdiction of India without prior permission of the I.O or the court concerned and iii) That he shall produce a personal bond of ₹ 20 000 with one surety of like amount. 14. The Registry is directed to return the case diary. 15. Matter disposed of. No cost. Judge “N. Swer Stenographer”

A Judge does not preside over a criminal trial merely to see that no innocent man is punished: High Court of Orissa

The trial Court held the circumstances proved formed a continuous chain and pointed to the guilt of the Appellant and his innocence was inconsistent with the evidence. Such an opinion was held by The Hon’ble High Court of Orissa before The Hon’ble Mr. Chief Justice S. Muralidhar and The Hon’ble Mr. Justice Biswajit Mohanty in the matter of Sarathi Mahananda Vs. State of Odisha [CRLA No.445 of 2014].  The facts of the case were associated with an appeal under Section 374(2) of the Code of Criminal Procedure, 1973 which was directed against the judgment and order passed by the learned Additional Sessions Judge, Titilagarh in Sessions Case No.15 of 2011 dated 12th November 2013. It was stated that under Sections 302 IPC, the appellant was convicted and sentenced to rigorous imprisonment for life. Moreover, the present appellant and his parents faced a trial on offences under Sections 498A, 304B, 302 and 34 IPC. The appellant was convicted under Section 302 while he was acquitted from the offences under Section 498A, 304B/34.  It was submitted that the appellant married his deceased wife  Harabati Besra in 2005 but soon after, he and his family member ill-treated and tortured the deceased. After staying in her paternal home for 1 year, the deceased returned back to her husband’s home. In July 2010 Padu Mahananda informed the deceased’s father about her critical condition. The deceased’s father with his family upon reaching the house found the dead body of his daughter. Accordingly, he lodged an FIR against the in-laws. Likewise, the appellant was arrested. The appellant admitted that the tools used for the killing were concealed in his house. The post mortem report of the dead body revealed that the cause of death was asphyxia which normally happens when strangulated which was homicidal in nature.  After going through all the reports, submissions and the facts, The Hon’ble Court held that “… On an analysis of the evidence the Court is satisfied that each of the above links form a continuous chain of circumstances and each of them has been sufficiently proved, beyond reasonable doubt by the prosecution. Taken together, they unerringly point to the guilt of the Appellant and are inconsistent with his innocence… The Court finds no grounds made out for interfering with the impugned judgment and order of the trial Court. The appeal is accordingly dismissed.”

IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.4414 An appeal under Section 374(2) of the Code of Criminal Procedure 1973) Sarathi Mahananda versus Appellant State of Odisha Advocates appeared in this case: For Appellant For Respondent Mr. Nityananda Mohapatra Mrs. S. Patnaik Addl. Government Advocate THE CHIEF JUSTICE JUSTICE BISWAJIT MOHANTY 1. This appeal is directed against the judgment and order dated 12th November 2013 passed by the learned Additional Sessions Judge Titilagarh in Sessions Case No.15 of 2011 convicting the Appellant for the offence under Sections 302 IPC and sentencing him to rigorous imprisonment RI) for life and to pay a fine of Rs.25 000 and in default of payment of fine to further undergo RI for one year. CRLA No.4414 Dr. S. Muralidhar CJ 2. At the outset it must be noted that the present Appellant along with his parents faced trial having been charged for the offence under Sections 498A 304B 302 and 34 IPC. By the same impugned judgment of the trial Court Accused Nos.2 and 3 were acquitted from the charges. The present Appellant was acquitted of the offence under Section 498A 304B 34 IPC but was convicted for the offence under Section 302 IPC. 3. The case of the prosecution was that the Appellant was married to the deceased Harabati Besra in 2005 and soon thereafter the family members of the Appellant commenced ill treating and torturing the deceased. The deceased then came to her father s house and remained there for a period of one year. Thereafter the mother of the deceased left her in the house of the accused persons requesting them not to ill treat her in future. 4. Six seven months later on 22nd July 2010 one Padu Mahananda informed Lakhpati Besra father of the deceased over phone that his daughter was in a serious condition. On getting the said information Lakhpati Besra along with his other family members went to the house of the accused persons and found that his daughter was lying dead. The broken bangles and Mangal Sutra of the deceased were lying near her dead body. Accordingly Lakhpati Besra lodged an F.I.R. at Sindhekala Police Station where P.S. Case No.84 was registered for the offences under Section 498A 302 34 IPC. CRLA No.4414 5. After completion of the investigation a charge sheet was submitted against three accused persons for the offences under Sections 498A 304B 302 406 and 34 IPC read with Section 4 of Dowry Prohibition Act. The accused persons faced trial having been charged under Sections 498A 304B 302 and 34 IPC. 21 witnesses were examined by the prosecution whereas the defence adduced no evidence. Several witnesses turned hostile including PWs 1 and 2 who were supposed to have called the Police to the house of the accused and are supposed to have found the dead body of the deceased lying in the verandah of their house. Likewise PWs 3 4 5 6 10 and 18 were declared hostile and were cross examined by the prosecution. 6. Sri Satyanarayan Behera the then Officer in Charge of Sindhekala PS seized two plastic ropes after visiting the spot and prepared an inquest report. On 24th July 2010 he arrested the present Appellant. According to the prosecution the Appellant made a disclosure in the presence of the witnesses that the plastic ropes and kendu stick used in the killing had been kept concealed in his house and he offered to get them recovered. The aforementioned relevant portion of the disclosure statement of the Appellant was marked as Ext. 2 2. The Appellant led the I.O. and the witnesses to the place of concealment of the aforementioned objects which were then seized under Seizure List Ext. 3 2. The wearing apparels of the deceased were seized. 7. On 25th July 2010 PW 21 received the post mortem examination report and on 7th November 2010 he sent the seized CRLA No.4414 articles to the Regional Forensic Science Laboratory Sambalpur. Thereafter the charge sheet was submitted in the trial Court. 8. The medical officer who conducted the post mortem on 23rd July 2010 found inter alia one ligature mark in the neck which was transverse continuous low down in the neck below the thyroid extending from left side of the neck into right side of the neck. There were injuries found on larynx and trachea. Fracture of hyoid bone was present. The cause of death was opined to be asphyxia resulting from strangulation. The death was opined to be homicidal in nature. 9. On an analysis of the evidence the learned trial Court came to the conclusion that although PW 16 father of the deceased reported that the accused had subjected to his daughter torture PW 16 was completely silent regarding any demand of dowry by the accused at any point in time. Likewise mother of the deceased PW 15) and maternal unclespoke of the deceased being subjected to cruelty. However they were silent on cruelty or harassment by the accused persons soon before her death. It was held that the PWs 15 16 and 19 did not inspire confidence to prove that the deceased was subjected to cruelty and harassment by the accused in connection with any demand for dowry soon prior to her death. 10. The evidence of PW 11 regarding the death being homicidal went unchallenged. Although the prosecution successfully proved CRLA No.4414 that the death of the deceased had occurred in otherwise than normal circumstances and was homicidal in nature and within seven years of marriage yet the basic ingredients of the offence under Section 498A and 304B 34 IPC were held by the trial Court to be not fulfilled. Accordingly it was held that the prosecution had failed to prove the charge under the aforementioned provisions against the accused beyond all reasonable doubt. 11. As far as the charge under Section 302 34 IPC was concerned the trial Court held that although there were minor discrepancies in the evidence of the PWs 15 16 17 and 19 and they were related to each other their evidence could not be completely ignored. The credibility of their evidence regarding the death of the deceased inside the house of the accused persons could not be shaken. Apart from this the Appellant admitted in his examination under Section 313 Cr PC that the I.O. had conducted inquest on the dead body of the deceased. Accordingly it was proved that the death of the deceased took place in the house of the accused. From the evidence of PWs 1 4 6 7 and 18 it was held by the trial Court to be proved that the Appellant was alone present in the house where the death took place therefore the cause of the death of the deceased was within the special knowledge of the Appellant. 12. The trial Court held that the evidence regarding recovery of the weapon of offence was also proved. When it was put to the accused during his examination under Section 313 Cr PC except denying the seizure itself he had no satisfactory explanation as to CRLA No.4414 how the seized weapons came into his possession. That apart the chemical examination report of the Appellant contained faded patches of human blood. The explanation of the Appellant even in this regard in his statement under Section 313 Cr.P.C. was not found convincing. 13. In terms of Section 106 of the Evidence Act the fact of the death of the deceased which occurred in his house was within the knowledge of the Appellant and he was unable to offer a satisfactory explanation except a vague denial. For all of the aforesaid reasons the trial Court held the circumstances proved formed a continuous chain and pointed unerringly to the guilt of the Appellant and his innocence was inconsistent with the 14. This Court has heard the submissions of Mr. Nityananda Mohapatra learned counsel for the Appellant and Mrs. S. Patnaik learned Additional Government Advocate the State Respondent). 15. This was a case based on circumstantial evidence. The following circumstances have been convincingly proved by the 17 and 19. i) That the accused and his wife were not living a happy conjugal life. This stood proved from the evidence of PWs 15 16 CRLA No.4414 ii) That the death of the deceased took place in the dwelling house of the accused and he alone was present with the deceased. This stands proved by the evidence of PWs 1 4 6 7 and 18. iii) Prior to death of the deceased she was residing separately from her parents. iv) The death of the deceased was homicidal in nature and resulted from strangulation. This is proved by evidence of PW 11 the medical officer. v) The disclosures made by the Appellant while in custody about knowledge of the weapons of offence and their seizure pursuant to the statement made by him under Section 27 of the Evidence Act stood proved beyond reasonable doubt. vi) The accused could offer no satisfactory explanation as to how he came into possession of the weapon of offence and therefore an adverse inference could be drawn. The explanation offered while making statement under Section 313 Cr PC as to the human blood in his pant was unconvincing. vii) There was no evidence to indicate that other than the Appellant anyone else entered into the house at the relevant point in time. The Appellant also could not offer a satisfactory explanation as regards any of the incriminating circumstances against him. CRLA No.4414 16. As regards the deceased being found dead in the dwelling house of the Appellant and his not offering any convincing explanation as to the cause of the death the following observations in Trimukh Maroti Kirtan v. State of Maharashtra 2006) 10 SCC 681 are relevant: in such circumstances where If an offence takes place inside the privacy of a house and assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence as noticed above is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties." 17. On an analysis of the evidence the Court is satisfied that each of the above links form a continuous chain of circumstances and each of them has been sufficiently proved beyond reasonable doubt by the prosecution. Taken together they unerringly point to the guilt of the Appellant and are inconsistent with his innocence. 18. The Court finds no grounds made out for interfering with the impugned judgment and order of the trial Court. The appeal is accordingly dismissed. Chief Justice Judge CRLA No.4414

The courts are not justified in reducing the compensation without assigning any reason: Supreme court of India

An appeal is a valuable right of the appellant and at the stage of an appeal, all questions of fact and law decided by the Tribunal are open for reconsideration. Therefore, the appellate court is required to address all the questions before it and decide the case by giving reasons. Such an observation was made by the Hon’ble Supreme Court of India before Hon’ble Justice S. ABDUL NAZEER Hon’ble Justice KRISHNA MURARI in the matter of RASMITA BISWAL & ORS. vs DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY [CIVIL APPEAL NO. 7549 of 2021] The facts of the case were that the husband of the claimant, Manoj Kumar Biswal, died in a motor vehicle accident. The Motor Vehicle Accident Tribunal held the accident occurred due to the negligence and rash driving of the offending truck and held an award of Rs .12,90,064/- along with interest at the rate of 6% per annum. Aggrieved by the quantum of the award both the claimant and the insurer appealed before the High Court. The High Court set aside the award and remitted the matter back to the Tribunal for fresh disposal. The Tribunal once again considered the matter and awarded total compensation of Rs.22,60,000/-. Aggrieved, the insurer once again appeal before the High Court and the high court reduced the said award from Rs.22,60,000/- to Rs.17,00,000/-. with interest at the rate of 7.5% per year from the date of the claim petition till the date of realization. Aggrieved by such a reduction in the compensation award the claimant had filed the instant appeal. The Hon’ble Supreme Court observed that “the High Court, without assigning any reason whatsoever, has modified the award of the Tribunal and has awarded a compensation of Rs.17,00,000/-” Additionally, the Hon’ble Supreme Court observed that the monthly income of the deceased, as assessed by the Tribunal at the rate of Rs.15,000/- per month, is just and proper. It is also established that the deceased was 33 years at the time of his death. Therefore, the application of a multiplier of ‘16’ by the Tribunal is also proper. The annual salary of the deceased comes to Rs.1,80,000/- which has to be multiplied by ‘16’ which becomes Rs.28,80,000/- Further, an addition of 40% of the established income should be awarded where the deceased was below the age of 40 years as held in the case of Pranay Sethi  (2017) 16 SCC 680 by the constitutional bench. Finally, Hon’ble Supreme Court allowed the appeal and enhanced the compensation to Rs. 31,01,000/-. Furthermore, the Hon’ble Supreme Court suggested the formation of Motor Vehicle Appellate Tribunals for speedy disposal of the appeals concerning payment of compensation to the victims of road accidents. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The facts of the case were that the husband of the claimant, Manoj Kumar Biswal, died in a motor vehicle accident. The Motor Vehicle Accident Tribunal held the accident occurred due to the negligence and rash driving of the offending truck and held an award of Rs .12,90,064/- along with interest at the rate of 6% per annum. Aggrieved by the quantum of the award both the claimant and the insurer appealed before the High Court. The High Court set aside the award and remitted the matter back to the Tribunal for fresh disposal. The Tribunal once again considered the matter and awarded total compensation of Rs.22,60,000/-. Aggrieved, the insurer once again appeal before the High Court and the high court reduced the said award from Rs.22,60,000/- to Rs.17,00,000/-. with interest at the rate of 7.5% per year from the date of the claim petition till the date of realization. Aggrieved by such a reduction in the compensation award the claimant had filed the instant appeal. The Hon’ble Supreme Court observed that “the High Court, without assigning any reason whatsoever, has modified the award of the Tribunal and has awarded a compensation of Rs.17,00,000/-” Additionally, the Hon’ble Supreme Court observed that the monthly income of the deceased, as assessed by the Tribunal at the rate of Rs.15,000/- per month, is just and proper. It is also established that the deceased was 33 years at the time of his death. Therefore, the application of a multiplier of ‘16’ by the Tribunal is also proper. The annual salary of the deceased comes to Rs.1,80,000/- which has to be multiplied by ‘16’ which becomes Rs.28,80,000/- Further, an addition of 40% of the established income should be awarded where the deceased was below the age of 40 years as held in the case of Pranay Sethi  (2017) 16 SCC 680 by the constitutional bench. Finally, Hon’ble Supreme Court allowed the appeal and enhanced the compensation to Rs. 31,01,000/-. Furthermore, the Hon’ble Supreme Court suggested the formation of Motor Vehicle Appellate Tribunals for speedy disposal of the appeals concerning payment of compensation to the victims of road accidents. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble Supreme Court observed that “the High Court, without assigning any reason whatsoever, has modified the award of the Tribunal and has awarded a compensation of Rs.17,00,000/-” Additionally, the Hon’ble Supreme Court observed that the monthly income of the deceased, as assessed by the Tribunal at the rate of Rs.15,000/- per month, is just and proper. It is also established that the deceased was 33 years at the time of his death. Therefore, the application of a multiplier of ‘16’ by the Tribunal is also proper. The annual salary of the deceased comes to Rs.1,80,000/- which has to be multiplied by ‘16’ which becomes Rs.28,80,000/- Further, an addition of 40% of the established income should be awarded where the deceased was below the age of 40 years as held in the case of Pranay Sethi  (2017) 16 SCC 680 by the constitutional bench. Finally, Hon’ble Supreme Court allowed the appeal and enhanced the compensation to Rs. 31,01,000/-. Furthermore, the Hon’ble Supreme Court suggested the formation of Motor Vehicle Appellate Tribunals for speedy disposal of the appeals concerning payment of compensation to the victims of road accidents. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur Additionally, the Hon’ble Supreme Court observed that the monthly income of the deceased, as assessed by the Tribunal at the rate of Rs.15,000/- per month, is just and proper. It is also established that the deceased was 33 years at the time of his death. Therefore, the application of a multiplier of ‘16’ by the Tribunal is also proper. The annual salary of the deceased comes to Rs.1,80,000/- which has to be multiplied by ‘16’ which becomes Rs.28,80,000/- Further, an addition of 40% of the established income should be awarded where the deceased was below the age of 40 years as held in the case of Pranay Sethi  (2017) 16 SCC 680 by the constitutional bench. Finally, Hon’ble Supreme Court allowed the appeal and enhanced the compensation to Rs. 31,01,000/-. Furthermore, the Hon’ble Supreme Court suggested the formation of Motor Vehicle Appellate Tribunals for speedy disposal of the appeals concerning payment of compensation to the victims of road accidents. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur Finally, Hon’ble Supreme Court allowed the appeal and enhanced the compensation to Rs. 31,01,000/-. Furthermore, the Hon’ble Supreme Court suggested the formation of Motor Vehicle Appellate Tribunals for speedy disposal of the appeals concerning payment of compensation to the victims of road accidents.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7549 of 2021 Arising out of S.L.P.(C)No.231718 RASMITA BISWAL & ORS DIVISIONAL MANAGER NATIONAL INSURANCE COMPANY LTD. AND ANR JUDGMENT S. ABDUL NAZEER J This appeal is directed against the judgment and order dated 07.03.2018 passed by the High Court of Orissa at Cuttack in MACA No.965 of 2016 whereby the High Court has reduced the compensation payable to the appellants claimants from Rs.22 60 000 to Rs.17 00 000 The first appellant is the wife of one Manoj Kumar Biswal and the second and third appellants are their minor sons. Manoj Kumar Biswal died in a motor vehicle accident which occurred on 09.05.2013. The appellants filed claim petition bearing MAC No.46 2013 before the Additional District Judge cum Motor Accident Claims Tribunal Talcher District seeking compensation on account of the death of Manoj Kumar Biswal. The first respondent owner of the offending truck filed his written statement denying any negligence on the part of the driver of the offending truck Respondent no.2 is the insurer who also filed the written statement opposing the claim petition. The Tribunal on appreciation of the materials on record held that the cause for the accident was the rash and negligent driving of the offending truck by its driver. The Tribunal awarded a total compensation of Rs.12 90 064 along with interest at the rate of 6% per annum. The claimants as well as the insurer challenged the award of the Tribunal before the High Court vide MACA Nos.1134 and 11614. The High Court set aside the award and remitted the matter back to the Tribunal for fresh disposal. The Tribunal once again considered the matter and awarded a total compensation of Rs.22 60 000 . The insurer challenged the award of the Tribunal before the High Court by filing an appeal bearing MACA No.9616. In that appeal the High Court has modified the award of the Tribunal and awarded compensation of Rs.17 00 000 with interest at the rate of 7.5% per year from the date of claim petition till the date of realization. Learned counsel for the appellant would contend that the High Court was not justified in reducing the compensation without assigning any reason. It is contended that the appellant was earning Rs.15 000 and was aged about 28 years at the time of his death. The Courts below have taken his age as 33 years and has applied multiplier ‘16’ instead of ‘15’. It is further argued that the deceased had a permanent job. The Courts below have not awarded any compensation towards loss of future prospects. Even the compensation awarded under the conventional heads is not in accordance with the judgment of this Court in National Insurance Company Limited v. Pranay Sethi and On the other hand learned advocate appearing for the respondent insurer has supported the judgment of the High Court 7. We have carefully considered the submissions made at the Bar and perused the materials placed on record The finding of the Tribunal and that of the High Court with regard to the cause of the accident and the liability of the insurer to pay compensation is not disputed. Therefore the only question for consideration is whether compensation awarded by the High Court is adequate. The deceased was working as supervisor under one Kusha Samalproprietor of M s. Divine Construction. Exhibit P 8 is certificate issued by PW 3 shows that the deceased was a supervisor in the organisation and his salary 116 SCC 680 was Rs.15 000 per month. In his evidence PW 3 has also stated that the deceased was paid salary of Rs.15 000 per month. The first appellant wife of the deceased was examined as PW 1. She has stated that the income of the deceased at the time of his death was Rs.15 000 per month. Taking into account the evidence on record the Tribunal has assessed his income at Rs.15 000 . We do not find any error with the assessment of the salary as such by the Tribunal Though the appellants claim that the deceased was aged 28 years at the of his death no documents have been produced in support of the said contention On the contrary PAN cardof the deceased shows that he was aged 33 years at the time of his death. Even the post mortem report of the deceased suggests the same. Therefore the Tribunal held that the deceased was aged 33 years and multiplier ‘16’ was applied. After deducting ¼ of the income towards the personal expenses of the deceased the Tribunal awarded a total compensation of Rs.21 60 000 towards loss of dependency and a sum of Rs.1 00 000 under other conventional heads. Thus a total sum of Rs.22 60 000 was awarded by the Tribunal 11. However the High Court without assigning any reason whatsoever has modified the award of the Tribunal and has awarded a compensation of Rs.17 00 000 by holding as under “Considering the submissions made and keeping in view the quantum of compensation amount awarded and the basis on which the same has been arrived at I feel the interest of justice would be best served if the awarded compensation amount of Rs.22 60 000 is modified and reduced to Rs.17 00 000 Rupees Seventeen Lakhs) only which is payable to the claimants along with the awarded interest. The impugned award is modified to the said extent.” Section 173 of the Motor Vehicles Act 1988 provides for filing of an appeal against the award passed by the Claims Tribunal. It is settled law that an appeal is continuation of the proceedings of the original Court Tribunal. An appeal is a valuable right of the appellant and at the stage of an appeal all questions of fact and law decided by the Tribunal are open for the reconsideration. Therefore the appellate court is required to address all the questions before it and decide the case by giving reasons. 13. We have already held that the monthly income of the deceased as assessed by the Tribunal at the rate of Rs.15 000 per month is just and proper It is also established that the deceased was 33 years at the time of his death Therefore application of multiplier of ‘16’ by the Tribunal is also proper. The annual salary of the deceased comes to Rs.1 80 000 which has to be multiplied by ‘16’ which becomes Rs.28 80 000 In Pranay Sethi 1 the Constitution Bench of this Court has held that in case the deceased was self employed or on a fixed salary an addition of 40% of the established income should be awarded where the deceased was below the age of 40 years “In case the deceased was self employed or on a fixed salary an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.” 40% of the income of the deceased therefore has to be added towards loss of future prospects which comes to Rs.11 52 000 . Thus the total income of the deceased is Rs.40 32 000 . One fourth of the income i.e. 10 08 000 has to be deducted towards the personal expenses of the deceased as he has left behind three dependants. Therefore the total amount payable to the claimants towards loss of dependency comes to Rs.30 24 000 . In Pranay Sethi 1 this Court has awarded a total sum of Rs.70 000 under conventional heads namely loss of estate loss of consortium and funeral expenses. The said Judgment of the Constitution Bench was pronounced in the year 2017. Therefore the claimants are entitled to 10% enhancement Rs.16 500 is awarded towards loss of estate and conventional expenses and Rs.44 000 is awarded towards spousal consortium. Thus the total compensation payable to the claimants is as under Towards loss of dependency Towards loss of estate Rs.30 24 000 Rs.16 500 Rs.16 500 Rs.44 000 Rs.31 01 000 17. As noticed above the High Court has already awarded a sum of Rs.17 00 000 . Thus the balance sum payable to the appellants is Rs.14 01 000 . The second respondent Insurer is directed to deposit a sum of Rs.14 01 000 before the Tribunal along with interest at the rate of 7.5% per annum from the date of claim petition till the date of realization within eight weeks from today. On such deposit being made the same shall be disbursed to the claimants appellants in the same proportion as directed by the Tribunal in Award dated 27.02.2016 The appeal is accordingly disposed of. There shall be no order as to costs 19. Before parting with the judgment we may notice that a large number of claim petitions under the provisions of the Motor Vehicles Act 1988 are being filed before the various Claims Tribunals established thereunder throughout the country. Against the awards of the Tribunals appeals are filed under Section 173 of the Motor Vehicles Act 1988 before the relevant High Court either by the claimants or by the insurers and owners of the offending vehicles. Large number of such appeals are pending before the various High Courts. Having regard to the above we are of the view that in order to curtail the pendency before the High Courts and for speedy disposal of the appeals concerning payment of compensation to the victims of road accident it would be just and proper to consider constituting ‘Motor Vehicle Appellate Tribunals’ by amending Section 173 of the Motor Vehicles Act so that the appeals challenging the award of a Tribunal could be filed before the Appellate Tribunal so constituted. The various Benches of such an Appellate Tribunal could consist of two Senior District Judges. To ensure access to justice and to avoid pendency it is also proper to consider setting up Benches of the Appellate Tribunal in various regional cities in addition to the capital city of each State as may be indicated by the relevant High Court. For this purpose appropriate rules governing the procedure of the Appellate Tribunal may also be framed. No further appeal against the order of the Appellate Tribunal need be provided. If any of the party is aggrieved by the order of the Appellate Tribunal he can always invoke the writ jurisdiction of the concerned High Court for appropriate reliefs Department of Justice Ministry of Law and Justice is requested to examine this matter. The Registry is directed to send a copy of this Judgement to the Secretary Department of Justice Ministry of Law and Justice forthwith. (S. ABDUL NAZEER (KRISHNA MURARI New Delhi December 08 2021

Bail can be granted in lieu of performing last rites: Jharkhand High Court

Provisional bail can be granted to the accused for performing last rites by furnishing a personal bond as prescribed by the court. A single-judge bench comprising Justice Anubha Rawat Choudhary adjudicated in the matter of Amal Mandal v. The State of Jharkhand (CRIMINAL APPEAL (S.J.) No.68 of 2021) dealt with an issue of whether to grant bail to the accused or not. In the present case, the Appellant submits an appeal for bail for the offences u/s 341,323,325,326,307, 504,506/34 of the Indian Penal Code and Section 3(1) (X) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. He seeks provisional bail for 3 weeks in account of the death of his Father who died due to COVID-19 on 30.04.2021 to perform his last rites which is scheduled to be performed on 04.06.2021. The counsel on behalf of the Appellant submitted that the mother is ready to be the bailor of the Appellant. The Opposite Party did not make any serious objections to the Appeal of the Appellant but did submit that he should that the Appellant should surrender and file his surrender certificate before this court. Looking upon both sides, considering the facts and circumstances of the case, the court directed that the Appellant “to be released on Provisional bail till 25.06.2021 on furnishing bail bond of Rs. 10,000/- (Ten thousand) with two sureties of like amount each to the satisfaction of learned Special Judge, Jamtara, in connection with Mihijam P.S. Case No. 138 of 2018, and S.T/S.C. Case No. 29 of 2019 subject to the following conditions. (i) One of the bailor should be the mother of the appellant. (ii) The appellant would also furnish his copy of the Aadhar Card and furnish his mobile number before the learned court below which he will not change without prior permission of the court.”

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. AppealNo. 621 With I.A. No. 24321 Amal Mandal @ Gorain 1. The State of Jharkhand 2. Umesh Hembrom … … … Appellant … … Opp. Parties CORAM: HON BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY Mr. Jayant Kumar Pandey Advocate Mr. Suraj Verma A.P.P. Mr. V. S. Jha Advocate For the Appellant For the State For the O.P. No. 2 Through Video Conferencing 1. Heard Mr. Jayant Kumar Pandey learned counsel appearing 2. Heard Mr. Suraj Verma learned counsel appearing on behalf on behalf of the appellant. of the opposite party State. 3. Heard Mr. V.S. Jha learned counsel appearing on behalf of the opposite party No. 2 under the instruction of Mr. Nityanand Prasad Choudhary Advocate on record. 4. Learned counsel for the appellant submits that instant appeal has been filed for bail in connection with Mihijam P.S. Case No. 138 of 2018 and S.T S.C. Case No. 29 of 2019 for the offence under Sections 341 323 325 326 307 504 506 34 of the Indian Penal Code and Section 3(1)of the Scheduled Caste and Scheduled Tribe Act 1989 pending in the court of learned Special Judge Jamtara. 5. Learned counsel for the appellant submits that one I.A. No. 2431 of 2021 has been filed and dropped in the drop box on 28th May 2021 for grant of provisional bail to the appellant on account of death of the father of the appellant who died due to COVID 19 on 30.04.2021. Since he died due to COVID 19 the last rights could not be performed and the same is scheduled to be performed w.e.f. 04.06.2021. Learned counsel submits that provisional bail for three weeks may be granted and copy of the interlocutory application has already been served upon the learned counsel appearing on behalf of opposite party State Mr. Suraj Verma. Learned counsel submits that mother is ready to be one of the bailor of the appellant. 6. Learned counsel appearing on behalf of the State Mr. Suraj Verma on the other hand submits that he has received the copy of the interlocutory application and has also sent the copy of the same to this court during the court proceedings which is kept on record. Learned counsel appearing on behalf of the State has no serious objection to the grant of provisional bail to the appellant but he submits that immediately after three weeks the appellant should surrender and file his surrender certificate before this court. 7. Learned counsel appearing on behalf of the opposite party No. 2 has no serious objection to the grant of provisional bail. 8. After hearing the learned counsel for the parties and considering the facts and circumstances of the case the appellant is directed to be released on Provisional bail till 25.06.2021 on furnishing bail bond of Rs. 10 000 with two sureties of like amount each to the satisfaction of learned Special Judge Jamtara in connection with Mihijam P.S. Case No. 1318 and S.T S.C. Case No. 219 subject to the following conditions. i) One of the bailor should be the mother of the appellant. ii) The appellant would also furnish his copy of the Aadhar Card and furnish his mobile number before the learned court below which he will not change without prior permission of the court. 9. The appellant shall surrender before the learned court below by 25.06.2021 and file his surrender certificate before this court latest by 1st of July 2021. 3 10. I.A. No. 24321 stands disposed of. 11. The matter is directed to be posted on 05th of July 2021 before appropriate Bench under appropriate heading. 12. Let this order be communicated to the court concerned through FAX e mail. Anubha Rawat Choudhary J.) Binit

The latter part of the General Development Control Regulations has to be read ejusdem generis to the earlier part of that Regulation: Gujarat High Court

The residential use as per the meaning given under the regulations is kept in mind and as per the GDCR which permits public utility to be part of the residential zone which includes fueling stations, it cannot be said that the GDCR are contrary to the provisions of the statute as contended by the petitioner. This was said in the case of Farzanaben Alimamad Kasmani vs The District Collector Morbi [R/SPECIAL CIVIL APPLICATION NO. 11403 of 2020] by Mr. Justice Bhargav D. Karia in the High Court of Gujarat The facts of the case are that respondent No.6 started construction activity for establishing petrol pump and respondent   Nos.1 to 4   i.e. the Collector,   Deputy  Collector,   Morbi   Municipality, and Gujarat Pollution   Control Board granted requisite permissions as well as sanctioned the plan for construction. The petitioner, therefore, being aggrieved by the activity of establishing petrol pump in the residential  area   adjacent   to   the   house   of   the petitioner has preferred this petition The petitioner submitted that   Clause (xxiv)   of   Section   2   of the Gujarat Town   Planning and   Urban   Development   Act,   Act 1976   defines residence which includes use of human habitation of any land or building etc. Further, the discretion exercised by the   Municipality is in arbitrary manner because if the surrounding plots would have been open land it could have been exercised but when the surrounding plots are residence, it would cause threat to the life of the persons residing in the area.   The respondent submitted that permissions granted to respondent No.6 are legal and in accordance with the GDCR as well as the provisions of all applicable laws like Petroleum Act and   Rules and respondent authorities after complete investigation and inquiry have granted the permissions in exercise of their powers in a bona fide manner. It was further submitted that the petition has not been filed with clean hands as the petitioner has relied on the old GDCR to point out the defects in the permissions granted by the respondent authorities. The Court opined that “meaning of “residential use” under the Regulations is a restricted one and is incapable of being given a wide connotation. It means the use of any land or building or part thereof for human habitation and such other uses incidental to the residential use. The very language of Regulation 2(1)(k) of the Regulations clearly depicts the intent of the framers that the expression “residential use” is not to be understood in its wider sense, in fact, it would require strict construction because all other uses have been separately defined. The different kinds of uses, therefore, have to be understood only in terms of the explanation or meaning given to them under the Regulations. The expression “such other uses incidental to residential uses” in Regulation 2(1)(k) has to take its colour from the use of the building for human habitation”.

on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTIN THE HIGH COURT OF GUJARAT AT AHMEDABADR SPECIAL CIVIL APPLICATION NO. 114020With CIVIL APPLICATIONNO. 20 In R SPECIAL CIVIL APPLICATION NO. 114020 FOR APPROVAL AND SIGNATURE: HONOURABLE MR. JUSTICE BHARGAV D. KARIA ================================================================1 Whether Reporters of Local Papers may be allowed to see the judgment 2 To be referred to the Reporter or not 3 Whether their Lordships wish to see the fair copy of the judgment 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ================================================================FARZANABEN ALIMAMAD KASMANI VersusTHE DISTRICT COLLECTOR MORBI ===================================================================Appearance:MR Y N RAVANI(718) for the Petitioner(s) No. 1MR KANVA ANTANI AGPfor the Respondent(s) No. 1MR DEVANG VYAS(2794) for the Respondent(s) No. 2MR DEEPAK P SANCHELA(2696) for the Respondent(s) No. 3MR CHINTAN H DAVE(7193) for the Respondent(s) No. 4MR M I HAVA(348) with MR ANGAD VARMA for the Respondent(s) No. 5MR DEVEN PARIKH with MR S P MAJMUDAR(3456) for the Respondent(s) No. 6================================================================CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA Date : 07 05 2021 CAV JUDGMENT Order in Special Civil Application :Heard learned advocate Mr.Y.N.Ravani for the petitioner learned Assistant Government Pleader Page 1 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTMr.Kanva Antani for respondent No.1­State learned advocate Mr.Devang Vyas for respondent No.2 learned advocate Mr.Deepak Sanchela for respondent No.3 learned advocate Mr.Chintan Dave for respondent No.4 learned advocate Mr.M.I.Hava with learned advocate Mr.Angad Varma for respondent No.5 learned advocate Mr.Deven Parikh assisted by learned advocate Mr.S.P.Majmudar for respondent No.6 through video conference.1.Rule returnable forthwith. Learned advocates for the respective respondents waives service of notice of rule.2.Having regard to the controversy which is arising in this petition in narrow compass with the consent of the learned advocates for the respective parties the same is taken up for hearing.3.By this petition under Article 226 of the Constitution of India the petitioner has prayed for the following reliefs:“ A) Your Lordship may be pleased to admit and allow this petition.B) Your Lordship may be pleased to issue a writ of mandamus and or any other appropriate writ order or direction in the nature of mandamus directing the District Collector Morbi to place on record all the required permissions granted to respondent No.6 for initiating and starting petrol pump on the land in question and further be pleased to cancel such permission holding the same to be contrary to the provisions of Gujarat Town Planning and Urban Development Act 1976 and the Gujarat Comprehensive Development Regulations 2017 and also in violation of fundamental rights of the petitioner.C)Pending admission hearing and or final disposal of this petition Your Lordship may be pleased to direct the Page 2 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTrespondents more particularly respondent No.5 & 6 herein to maintain status­quo qua the land in question and not to continue with the work of initiating the site for petrol pump.D) Such other and further orders as Your Lordships may deem just fit and expedient be passed in favour of the petitioner.”4.The petitioner is a resident of Dawoodi Plot No.3 Ravapar Road Morbi and the plot of respondent No.6 is on the Ravapar Road side while residence of the petitioner is having common wall on the Dawoodi Plot side.5.The respondent No.6 started construction activity for establishing petrol pump having agency of respondent No.5­Shell India Marketing Private Limited. The respondent Nos.1 to 4 i.e. the Collector Deputy Collector Morbi Municipality and Gujarat Pollution Control Board granted requisite permissions as well as sanctioned the plan for construction. The petitioner therefore being aggrieved by the activity of establishing petrol pump in residential area adjacent to the house of the petitioner has preferred this petition. Submissions on behalf of the petitioner :6.Learned advocate for the petitioner Mr.Y.N.Ravani submitted that the proposed construction of the petrol pump in the residential area is contrary to the provisions of the Gujarat Town Planning and Urban Development Act 1976of Section 2 of the Act 1976 defines Page 3 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTresidence which includes use of human habitation of any land or building etc. and Section 5 of the Act 1976 deals with the Constitution of Area Development Authority and Section 12(2)(a) of the Act 1976 prescribes the content of the draft development plan for designating the use of the residential purpose commercial agriculture and recreation purpose. It was therefore submitted that the Area Development Authority is required to frame the Rules and Regulations by declaring the Zone as per the statutory provisions and therefore General Development Control Regulationscan only be declared in conformity with the statutory provisions.7.Learned advocate Mr.Ravani submitted that activity permissible in the residential area is required to be in relation to residence only like domestic shops or some consultancy services. It was therefore submitted that even if any provision of the GDCR provides any activity which is not in conformity with the provisions of the Act 1976 the same cannot be allowed to operate. It was therefore submitted that anything which is contrary to the residential use though permitted by GDCR cannot be allowed to operate.8.The learned advocate Mr.Ravani further submitted that the GDCR 2017 applicable for all major Cities and Towns of the State of Gujarat except Gandhinagar is declared by the State of Gujarat under Section 17 Page 4 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTof the Act 1976 and such GDCR is also applicable to the Morbi­Wankaner Urban Development Authority. It was pointed out that the plots allotted to the petitioner and the respondent No.6 out of the said land in question are from erstwhile Royal State and therefore they are of Gamtal land and contention raised by the respondent No.6 in the affidavit that the land in question is “A” tenure land which is not supported by the documents and hence undisputedly it is a residential area and not the commercial area. The attention of the Court is invited to the amended GDCR 2019 to point out that the construction of the petrol pump is not in accordance with law and the discretions used by the Authorities are in contravention of the guidelines issued by the Central Pollution Control Board and the judgment of the National Green Tribunal.9.The learned advocate Mr.Ravani relied upon the existing GDCR to demonstrate that the respondent No.6 is not entitled to utilize the residential plot for the fueling station on the following three counts :“(i)The distance from two junction of road is less than 50 mtr.The fuelling service station is not having distance of 30 mtrs. from the near by residence which should be at least 50 mtrs.”10.It was submitted that the size of the plot of the petitioner is 25.50X31.30 Sq.Mtrs and therefore Page 5 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTthere cannot be the distance of more than 50 Mtrs from any of the residence to that of petrol tank which is the minimum requirement. It was therefore submitted that the activities of construction of petrol pump at the site of the respondent No.6 is not legal and valid and contrary to the directions of the National Green Tribunal which are made applicable by the Central Pollution Control Board.11.It was submitted that the permissions given by the authorities under the Act 1976 are also subject to compliance of the Petroleum Rules 2007 and Petroleum Act 1934. It was pointed out that the Petroleum Rules provide that flash point is 23 degree and in such range of flash point there should be a fire. It was submitted that the residential premises having cooking range closer to the flash point of the Petrol Pump which is at 23 degree only and therefore there is likelihood of fire if the Petrol Pump is permitted to operate in residential area near to the residence of the petitioner. It was submitted that as per Rule 11 of the Petroleum Rules 2007 there is apprehension of smoke or fire in the area of petroleum storage place and in view of the closer of the cooking range of all surrounding residence including flats adjacent to the petrol pump there is likelihood of breach of Rule 11 of the Petroleum Rules 2007.12.The learned advocate Mr.Ravani further submitted that the apprehension of the petitioner is not Page 6 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTimaginary because in Morbi Town itself twice there was fire in petrol pump. Reliance was placed on the news paper reports dated 28th November 2007 and 24th January 2008. Reference was also made to the recent fire at Hospitals in Ahmedabad and Rajkot.13.The learned advocate Mr.Ravani submitted that the Municipality has filed an affidavit admitting the fact that the road size where permission is granted is less than width of 18 Mtrs. Though there is discretion for granting permissions when the road width is between 12 Mtrs and 18 Mtrs and Municipality has exercised its discretion but such discretion should uphold the object of the provision of the Act 1976 and not to defeat them. It was submitted that the discretion exercised by the Municipality is in arbitrary manner because if the surrounding plots would have been open land it could have been exercised but when the surrounding plots are residence it would cause threat to the life of the persons residing in the area. The learned advocate Mr.Ravani relied upon the following decisions in support of his submissions :“i.R.K.Mittal and Others Versus State of Uttar Pradesh and Others reported in 2012SCC 232.ii. M.C.Mehta Versus Union of India and Others reported in 2004SCC 588.iii.M.C.Mehta Versus Union of India and Others reported in 2006SCC 399.Page 7 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTiv. K. Ramdas Shenoy Versus The Chief Officers Town Municipal Counsel Udipi and Others reported in AIR 1974 SC 2177.v. K.K.Bhalla Versus State of M.P. and Others reported in AIR 2006 SC 898.vi. S.N.Chandrashekhar and Another Versus State of Karnataka and Others reported in AIR 2006 SC 1204.vii. Govindbhai Bhurabhai Borisagar and 1 versus Disc. Collector Amreli and 3 in SCA 186006.”14.The learned advocate Mr.Ravani submitted that the permissions issued by the respondent authorities are contrary to the statutory provisions in view of the Laws settled by the Supreme Court in case of R.K.Mittal and Others V s. State of Uttar Pradesh and Others reported in 2012 2 SCC 232. It was submitted that the law is well settled that activity contrary to the residential purpose cannot be allowed in the residential zone more particularly where permission of Explosives Act GPCB permissions for Environment Clearance and storage of Highly Inflammable and Explosive Materials are to be kept because such activity can never be said to be supporting domestic activity. Submissions on behalf of the respondents :15.The learned advocate Mr.S.P.Majmudar appearing for the respondent No.6 submitted that the petition is not maintainable and therefore should be rejected Page 8 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTas the prayers and pleadings are vague. It was submitted that the petition is in nature of seeking inquiry. It was submitted by learned advocate Mr.Majmudar that the petitioner has not made any averment in the petition that there is any collusion between the respondents or there is any mala­fide exercise of powers and therefore even if it is presumed that the petitioner has some grievance with regard to the permissions being issued the petitioner ought to have availed the remedy provided in concerned law. It was pointed out by learned advocate Mr.Majmudar that permissions granted to the respondent No.6 are legal and in accordance with the GDCR as well as the provisions of all applicable laws like Petroleum Act and Rules and respondent authorities after complete investigation and inquiry have granted the permissions in exercise of their powers in a bona­fide manner.16.In support of his submission the learned advocate Mr.Majmudar relied upon the decision of this Court in case of Sahajanand Flat Holders Association V s. Ahmedabad Municipal Corporation reported in 2012GLH8 wherein the Division Bench of this Court has held that the petition would not lie when there is a dispute between two private individuals whether the relevant Government Department ought to have granted permission or not. It was therefore submitted that the petition is liable to be dismissed as this Court is not a Forum for considering the veracity of the permissions Page 9 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTgranted by the respondent authorities at the instance of the petitioner.17.The learned advocate Mr.Majmudar submitted that this Court has entertained the petition by issuing the notice only because the petitioner brought to the notice of the Court the old GDCR and the old provision of law to point out that there was a breach of the GDCR however as per the amended GDCR the permission granted by the authorities after following due process and investigation in accordance with the rules and regulations. It was submitted that the petition has not been filed with clean hands as the petitioner has relied on the old GDCR to point out the defects in the permissions granted by the respondent authorities. It was submitted that the amended GDCR considers the petrol pump under the category “Public Utility” and permits that in any zone having plot size more than 500 Mtrs with frontage of 16.5 Mtrs and abutting road of more than 12 Mtrs the petrol pump can be permitted to be operated. It was submitted that such permissions have been granted to many others who have petrol pumps running on the same road. It was therefore pointed out that the contentions raised by the petitioner that there is a breach of the provisions of the GDCR is not true and correct.18.With regard to the contentions raised by the petitioner for breach of provisions of the Petroleum Act it was pointed out that the respondent Page 10 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTauthorities have carried out detailed investigation and the reports from Police Additional Magistrate Executive Magistrate etc. were obtained before granting the permissions for starting the petrol pump. With regard to the concern about the safety requirement raised by the petitioners it was submitted that the plans of the petrol pump have been scrutinized in detail and approved by the Petroleum and Explosive Ministry and the affidavits filed by the concerned officers clearly demonstrate how the permissions have been granted in bona­fide manner after detailed investigations. It was therefore submitted that in such circumstances the present petition is required to be dismissed. 19.With regard to the contentions raised by the petitioner of not following the directions issued by the National Green Tribunal and Central Pollution Control Board is concerned it was submitted by the learned advocate Mr.Majmudar that such guides lines and directions have no applications retrospectively. It was pointed out that in the facts of the case various necessary permissions have been granted by the respondent authorities and when it was granted there were no such guide lines and as such the respondent No.6 has invested huge amount to start the petrol pump. It was further submitted that the petitioners have approached this Court with a delay of more than six months after filing of representation before the Collector. It was submitted that the guide lines are not retrospective in Page 11 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENToperation otherwise it would create havoc to revoke the permissions which are already granted.20.The learned advocate Mr.Majmudar further submitted that the guide lines relied upon by the petitioners are also misinterpreted because the guidelines refers to 30 Mtrs distance only in cases where GDCR provides for exclusive residential areas. It was therefore submitted that guide lines cannot prevent the State Government to under take town planning as per the provisions of the Act 1976 which permits the petrol pump as public utility in the residential area subject to the safeguards and limitations which are duly complied by the respondent No.6 in the facts of the case. The learned advocate Mr.Majmudar further submitted that if the guide lines issued by the National Green Tribunal are not followed the petitioner is required to approach the Tribunal. It was therefore submitted that considering the facts arising from the pleadings the petitioner has shifted the focus on the veracity of the GDCR and therefore such broader issue cannot be the subject matter in the petition under Article 226 of the Constitution of India and at the best it can be subject of the Public Interest Litigation.21.It was submitted that the petrol pump is not intrinsically a dangerous activity as to install such unreasonable fears of right to life in the neighborhood. The learned advocate Mr.Majmudar therefore submitted that the respondent No.6 has a Page 12 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTright to use their property and to earn money therefrom and to exercise their fundamental rights under Article 19(1)(g) of the Constitution of India. The petitioner cannot prevent a citizen from using a property as per the wish of the owner of such property. It was therefore submitted that the petition being devoid of any merit and is require to be rejected with cost.22.The learned advocate for respondent No.5 adopted the submissions of learned advocate Mr.Majmudar for respondent No.6 and reiterated that writ­petition is an abuse of process of law as the petition is in nature of Public Interest Litigation without disclosing the names in details of any surrounding persons who are alleged to be affected. It was submitted that the petition is filed only with a mala­fide intention of redressing personal grievance against the respondent No.6 for fishing and roving inquiry.23.It was submitted that the petitioner cannot call upon the Court in the writ­jurisdiction to carry out an inquiry as per the settled legal position. It was submitted that the petitioner has alternative remedy for redressal of the grievance raised in the petition and has the adequate remedy provided under the Right to Information Act 2005 by preferring an appeal for not getting the information from the Public Information Officer. It was further submitted that the petitioner has suppressed material facts in the Page 13 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTpetition by not disclosing discussion negotiation between the petitioner and the respondent No.6 in August 2020 regarding the purchase of the petitioner’s land property which eventually did not fructify. It was further submitted that the grievance raised by the petitioner falls within the ambit of the National Green Tribunal and if the petitioner has any grievance against the breach of directions or guidelines issued by the Central Pollution Control Board the petitioner is required to approach to the Tribunal. It was pointed out that petrol pump is a public utility under the GDCR as table no.6.3 of the GDCR provides the category of uses which are permitted and at serial no.31 of the table clearly states that fueling station would come under public utility. It was pointed out that in point no.6.2 of the table it is stated that industrial use and public utility sectors cannot be regulated on the basis of road width. It was submitted that the construction of petrol pump is in accordance with the rules and regulations and the same is done after obtaining requisite permissions from the respondent authorities. Reliance was placed on the decision of the Delhi High Court in case of DLF Universal Ltd. v. Greater Kailash II Welfare Association 127 reported inDLT 131. It was therefore submitted that the petitioner has failed to discharge the burden to prove that the permissions granted by the respondent authorities are without conducting proper survey and without exercising all diligence and therefore the petition is liable to be Page 14 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTdismissed.24.Learned Assistant Government Pleader Mr.Antani relied upon the affidavit in reply filed on behalf of the respondent No.1­District Collector and submitted that the respondent authorities have issued the requisite permissions to the respondent No.6 after following due procedure and after making detailed inquiry by all the concerned authorities and after getting positive opinions the permissions were granted. Learned Assistant Government Pleader Mr.Antani relied upon the details of inquiry and opinions from various authorities referred in the affidavit­in­reply filed on behalf of the respondent No.1 which reads thus :“I.By letter dated 21.04.2018 The Executive Magistrate Morbi had granted positive opinion after considering the panchnamu the application of the respondent no. 5 statement of witnesses and other records. Copy of the opinion dated 21.04.2018 is annexed hereto and marked as Annexure­R1.ii.By letter dated 21.04.2018 the Sub Divisional Magistrate Morbi had granted positive opinion considering the Panchnamu application of respondent no.5 the layout plan statement of witnesses and other documents. Copy of the opinion dated 21.04.2018 is annexed hereto and marked as Annexure­R2.iii.By letter dated 07.06.2018 Office of Superintendent of Police Morbi had granted no objection certificate after verifying fulfillment of all conditions. Copy of the letter dated 07.06.2018 is annexed hereto and marked as Annexure­R3.iv.By letter dated 26.04.2018 Morbi Municipality had granted no objection upon fulfillment of condition of keeping open space for movement of traffic and fulfillment of conditions under Ribbon Development Act. Copy of the letter dated 26.04.2018 is annexed hereto and marked as Annexure R4. 8. It is humbly submitted that upon conducting inquiry and consideration of the opinion the office of answering respondent being competent authority issued No Objection Certificate in accordance with Rule 144 of the Petroleum Rules 2002 on 12.06.2018. Copy of the No objection certificate dated 12.06.2018 is annexed hereto and marked as Annexure R5.Page 15 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENT9.It is humbly submitted that as mandated by Rule 144(5) of the Petroleum Rules 2002 the respondent no.1 issued the no objection certificate within three months from the date of the receipt of the application. Thus the answering respondent has acted in accordance with law after following due Procedure as well as per the Petroleum Rules 2002.10. It is submitted that for operation of the petrol pump The Petroleum Act 1934 read with Petroleum Rules 2002 are made applicable and therefore any legality of grant or non­grant of the application will have to be teated from the lens of the Petroleum Act 1934. In instant case as far grant of no objection by District Authority is concerned the answering respondent has acted in accordance with the Rules. It is submitted that respondent no.2 is the appropriate authority for grant or rejection of the application and role of respondent no.1 is limited.”25.Learned advocate Mr.Deepak Sanchela appearing for the respondent No.3 submitted that the respondent No.3 Morbi Municipality has given the construction permission to the respondent No.6 considering the GDCR dated 19.10.2019. It was submitted that as per the latest and revised GDCR norms fueling station comes under the public utility and therefore starting of fueling stations can be permitted on the road having width of 12 Mtrs to 18 Mtrs. It was also pointed out that the word “shall be permitted” has been substituted with “may be permitted” and therefore discretionary power has been given to the sanctioning authority.26.Having considered the rival submissions of the learned advocates for the respective parties and having gone through the materials on record it appears that the prayers made by the petitioner in this petition are only with a view to see that the respondent No.6 is not able to operate the petrol Page 16 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTpump in spite of getting requisite permissions from the respondent authorities who have conducted detailed inquiry and due diligence prior to issuance of the requisite permissions for construction of petrol pump.27.Moreover on perusal of the averments made in the petition it refers to the old GDCR whereas the permissions are granted by the respondent authorities on the basis of the GDCR of 2017 and 2019 which provides that fueling station is a public utility which forms part of Sr.No.30 of Table 6.3 prescribing permissible use with respect to road width and Sub­clause 6.2 of the GDCR provides that the industrial uses and public utility structure shall not be regulated on the basis of the road width. Table 6.4 provides for use as per the road width and Sr.No.3 thereof provides that on the road width of 12 Mtr and less than 18 Mtrs the public utility structure can be permitted. Similarly Table No.10.1 prescribing area of fueling station and frontage of fueling and electric vehicle charging stations provides that minimum area of building units is 500 Sq.Mtrs and minimum frontage on road side is 16.5 Mtrs. Therefore the contentions raised on behalf of the petitioner that there is a violation of GDCR is contrary to the existing applicable GDCR which is considered by the respondent authorities for granting permission for operation of petrol pump by the respondent Nos.5 and 6.Page 17 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENT28.The petitioner has made hue and cry with regard to granting of permission as per GDCR without challenging such GDCR. The General Development Control Regulations are framed under Section 17 of the Act 1976 and therefore the same are binding upon the constructions being permitted under the provisions of the said Act.29.Reliance placed by the petitioner on the various decisions with regard to the discretion exercised by the authorities for granting permission and sanctioning the plan of construction for petrol pump are not applicable in the facts of the case as such decisions are pertaining to regularisation of illegal industrial activity and for the purpose of environment protection hence such decisions would not be applicable to the facts of the case and therefore the same are not referred to in detail. Decision in case of M.C. Mehta V s. Union of India reported in 2004 6 SCC 588 is with regard to regularization of illegal industrial activity and pertaining to the ecology in the town planning. Similarly the decision in case of R.K.Mittal and others V s. State of Uttar Pradesh and Others reported in 2012 2 SCC 232 is for misuse of land by use of premises in sectors earmarked as residential for commercial activity misuser by allottees whereas in the facts of the case as per the GDCR the permission is granted by the respondent authorities after due verification. The reliance was place on paragraph No.34 to 36 of the decision of the Supreme Page 18 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTCourt in case of R.K.Mittal and othersto point out that regulations are required to be made by the development authority. Paragraph No.34 to 37 are reads as under :“34. In the light of the contentions raised first of all it will be appropriate for this Court to examine the scheme of the Act and the Regulations in question. Under the provisions’ of the Act the Development Authority is obliged to notify an industrial development area. The very object of the Development Authority is to secure the planned development of the industrial development area and the first and foremost step in this direction is to prepare a plan for development of the industrial development area. This development plan is to demarcate and develop sites for industrial commercial and residential purposes. The land which falls within the jurisdiction of the Development Authority and is a part of the development plan can be transferred in terms of Section 7 of the Act by auction allotment or otherwise on such terms and conditions as the Development Authority may state and subject to any rules that may be made thereunder. No person can erect or occupy any building in an industrial development area in contravention of any building regulation. 35. Under Section 6(2) of the Act the Development Authority is empowered to make regulations to regulate the erection of the buildings and Section 6(2)(b) specifically authorises the Development Authority to make regulation providing for the layout plan of the building whether industrial commercial or residential. The transfer of the land has to be as per the terms and conditions contained in the lease deed executed by the Development Authority in favour of the transferee. But this all has to be subject to the provisions of the Act and the regulations framed thereunder. It has to be clearly understood that the lease deed has to be in consonance with law and cannot be in conflict with the provisions of the law. Section 14 of the Act empowers the Development Authority to resume the site or building so transferred and further forfeit whole or any part of the money paid in respect thereof if the lessee commits breach of the terms and conditions of the lease. 36. No provision of the Act has been brought to our notice which provides for the manner and method to be adopted by the Development Authority for preparation of the development plan in accordance with the provisions of the Act. This is where the Regulations come into play. Under Regulations 3 and 4 of the Regulations the draft plan has to be prepared by the Development Authority for development of an industrial area which will include a sector plan. 37. The meaning of “residential use” under the Regulations is a restricted one and is incapable of being given a wide connotation. It means the use of any land or building or part thereof for human habitation and such other uses incidental to Page 19 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTthe residential use. The very language of Regulation 2(1)(k) of the Regulations clearly depicts the intent of the framers that the expression “residential use” is not to be understood in its wider sense in fact it would require strict construction because all other uses have been separately defined. The different kinds of uses therefore have to be understood only in terms of the explanation or meaning given to them under the Regulations. If unduly wide meaning is given to the expression “residential use” then it is bound to cause overlap between the other uses. It would cause unnecessary confusion. Thus each use has to be understood as per its plain language and there is no need for the Development Authority or for that matter even for the courts to expand the meaning given to such expressions. The expression “such other uses incidental to residential uses” in Regulation 2(1)(k) has to take its colour from the use of the building for human habitation. In other words the latter part of the Regulation has to be read ejusdem generis to the earlier part of that Regulation.”30.From the above dictum of law when the authorities have considered the facts of the case while granting permission the residential use as per the meaning given under the regulations is kept in mind and as per the GDCR which permits public utility to be part of the residential zone which includes fueling stations it cannot be said that the GDCR are contrary to the provisions of the statute as contended by the petitioner.31.Moreover in the facts of the case the petition is nothing but an abuse of process of law more particularly when the petitioner has an alternative efficacious remedy under the various provisions of the Act and Rules and even if the reliance placed by the petitioner on old GDCR is not taken into consideration. There is no infirmity in the impugned permissions granted by the authority which would call for interference while exercising extraordinary jurisdiction under Article 226 of the Constitution of Page 20 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTIndia. The petition therefore being devoid of any merit is accordingly dismissed. Rule is discharged. Order in Civil Application No.20 :In view of the order passed in the Special Civil Application the Civil Application is accordingly dismissed.(BHARGAV D. KARIA J) PALAK Page 21 of 21

For appointment on compassionate ground, the policy prevalent at the time of death of the deceased employee only is required to be considered and not the subsequent policy: Supreme Court

It is observed and held that claim for compassionate appointment must be decided only on the basis of relevant scheme prevalent on date of demise of the employee and subsequent scheme cannot be looked into as upheld by the Hon’ble Supreme Court through the learned bench led by Justice M.R. Shah in the case of The State of Madhya Pradesh & Ors. v. Ashish Awasthi (CIVIL APPEAL NO. 6903 OF 2021) with The State of Madhya Pradesh & Ors. v. Baalendu Yadav (CIVIL APPEAL NO. 6904 OF 2021) The brief facts of the case are that the respondent’s father was working on the post of Chowkidar in the office of Assistant Engineer, Public Health Engineer, District Tikamgarh, Madhya Pradesh. The father of the respondent died on 08.10.2015. That at the time of death the deceased employee was serving as a work charge and he was paid salary from the contingency fund. That the respondent was provided a compensatory amount of Rs. 2 lakhs as per the policy prevalent at the time of death of the deceased employee. That after the death of the deceased employee, the policy for appointment on compassionate ground came to be amended and it was provided that even in case of death of the employee working on work charge, his one of the heirs/dependents shall be eligible for the appointment on compassionate ground. The respondent filed a writ petition before the High Court, which came to be disposed of by the learned Single Judge with a direction to the appellants to decide the representation preferred by the respondent in accordance with law. That thereafter the respondent filed an application for compassionate appointment and the same came to be rejected vide order dated 15.03.2017 on the ground that the policy/circular dated 31.08.2016 shall be applicable prospectively w.e.f. 22.12.2016 and as the deceased employee died on 08.10.2015, i.e., prior to the amended policy, the respondent shall not be entitled to any appointment on compassionate ground. That thereafter the respondent filed a fresh petition before the High Court. The learned Single Judge dismissed the said writ petition observing that considering the policy prevalent at the time of the death of the deceased work charge employee, his dependents/heirs shall not be entitled to appointment on compassionate ground and the subsequent policy/circular dated 31.08.2016 shall not be made applicable. The respondent preferred an appeal before the Division Bench, the Division Bench has allowed the appeal and has directed the appellants to consider the case of the respondent for appointment on compassionate ground relying upon and/or considering the subsequent policy/circular dated 31.08.2016. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Division Bench of the High Court, the State of Madhya Pradesh has preferred the present appeal. The Hon’ble Court held, “It is reported that the amount of Rs. 2 lakhs which was paid to the respondent as compensatory amount pursuant to the policy/scheme of 2014 has been given back by the respondent. If that be so, the same may be paid to the respondent. For the reasons stated in the judgment and order in Civil Appeal No.6903 of 2021, the impugned judgment and order passed by the Division Bench of the High Court in Writ Appeal No.2003 of 2019 also deserves to be quashed and set aside as in the present case also, the Division Bench of the High Court has directed the appellants to consider the case of the respondent for appointment on compassionate ground applying the subsequent scheme/circular and though under the scheme/circular prevalent on the date of death of the deceased employee, who at the relevant time was serving on work charge establishment, also deserves to be quashed and set aside and consequently, the present appeal is also allowed. The impugned judgment and order passed by the High Court of Madhya Pradesh, Jabalpur is hereby quashed and set aside.”

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6903 OF 2021 The State of Madhya Pradesh & Ors. …Appellant(s Ashish Awasthi CIVIL APPEAL NO. 6904 OF 2021 The State of Madhya Pradesh & Ors. …Appellant(s Baalendu Yadav JUDGMENT M.R. SHAH J Feeling aggrieved and dissatisfied with the impugned judgment and order dated 12.12.2018 passed by the Division Bench of the High Court of Madhya Pradesh Bench at Jabalpur in WA No. 15518 by which the Division Bench of the High Court has allowed the said appeal and has quashed and set aside the judgment and order passed by the learned Single Judge of the High Court and has directed that the Digitally signed by RNatarajanDate: 2021.11.1816:51:27 ISTReason:Signature Not Verified appellants herein original respondents to consider the claim of the respondent herein original writ petitioner for a compassionate appointment the State of Madhya Pradesh has preferred the present That the respondent’s father was working on the post of Chowkidar in the office of Assistant Engineer Public Health Engineer District Tikamgarh Madhya Pradesh. That the father of the respondent died on 08.10.2015. That at the time of death the deceased employee was serving as a work charge and he was paid salary from the contingency fund. That the respondent was provided a compensatory amount of Rs 2 lakhs as per the policy prevalent at the time of death of the deceased employee i.e. policy dated 29.09.2014. That after the death of the deceased employee the policy for appointment on compassionate ground came to be amended vide circular dated 31.08.2016 and it was provided that even in case of death of the employee working on work charge his one of the heirs dependents shall be eligible for the appointment on compassionate ground. 2.1 The respondent filed a writ petition before the High Court which came to be disposed of by the learned Single Judge with a direction to the appellants to decide the representation preferred by the respondent in accordance with law. That thereafter the respondent filed an application for compassionate appointment and the same came to be rejected vide order dated 15.03.2017 on the ground that the policy circular dated 31.08.2016 shall be applicable prospectively w.e.f 22.12.2016 and as the deceased employee died on 08.10.2015 i.e. prior to the amended policy the respondent shall not be entitled to any appointment on compassionate ground. That thereafter the respondent filed a fresh petition before the High Court being Writ Petition No.10903 of 2017. The learned Single Judge dismissed the said writ petition observing that considering the policy prevalent at the time of the death of the deceased work charge employee his dependents heirs shall not be entitled to appointment on compassionate ground and the subsequent policy circular dated 31.08.2016 shall not be made applicable. The respondent preferred an appeal before the Division Bench being WA No.15518 and relying upon the decision of the Full Bench of the Madhya Pradesh High Court in the case of Bank of Maharashtra Vs Manoj Kumar Deharia reported in 2010 MPHT 18 the Division Bench has allowed the appeal and has directed the appellants to consider the case of the respondent for appointment on compassionate ground relying upon and or considering the subsequent policy circular dated 31.08.2016. 2.2 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Division Bench of the High Court the State of Madhya Pradesh has preferred the present appeal. 3. We have heard the learned counsel for the respective parties at The deceased employee died on 08.10.2015. At the time of death he was working as a work charge employee who was paid the salary from the contingency fund. As per the policy circular prevalent at the time of the death of the deceased employee i.e. policy circular No.C 3 12 2013 1 3 dated 29.09.2014 in case of death of the employee working on work charge his dependents heirs were not entitled to the appointment on compassionate ground and were entitled to Rs. 2 lakhs as compensatory amount. Subsequently the policy came to be amended vide circular dated 31.08.2016 under which even in the case of death of the work charge employee his heirs dependents will be entitled to the appointment on compassionate ground. Relying upon the subsequent circular policy dated 31.08.2016 the Division Bench of the High Court has directed the appellants to consider the case of the respondent for appointment on compassionate ground. As per the settled preposition of law laid down by this Court for appointment on compassionate ground the policy prevalent at the time of death of the deceased employee only is required to be considered and not the subsequent policy. In the case of Indian Bank and Ors. Vs. Promila and Anr. 2020) 2 SCC 729 it is observed and held that claim for compassionate appointment must be decided only on the basis of relevant scheme prevalent on date of demise of the employee and subsequent scheme cannot be looked into. Similar view has been taken by this Court in the case of State of Madhya Pradesh and Ors. Vs. Amit Shrivas the very scheme applicable in the present case was under consideration and it was held that the scheme prevalent on the date of death of the deceased employee is only to be considered. In that view of the matter the impugned judgment and order passed by the Division Bench is unsustainable and deserves to be quashed and set aside. 4.2 The submission on behalf of the respondent that after the impugned judgment and order passed by the High Court the respondent has been appointed and therefore his appointment may not be disturbed deserves rejection. Once the judgment and order passed by the Division bench under which respondent is appointed is quashed and set aside necessary consequences shall follow and the appointment of the respondent which was pursuant to the impugned judgment and order passed by the Division Bench of the High Court cannot be protected. In view of the above and for the reasons stated above the present appeal succeeds the impugned judgment and order passed by the Division Bench of the High Court of Madhya Pradesh Bench at Jabalpur in WA No.15518 is hereby quashed and set aside by observing that the respondent shall not be entitled for appointment on compassionate ground on the basis of the subsequent circular policy dated 31.08.2016. It is reported that the amount of Rs. 2 lakhs which was paid to the respondent as compensatory amount pursuant to the policy scheme of 2014 has been given back by the respondent. If that be so the same may be paid to the respondent. Civil Appeal No.69021 For the reasons stated in the judgment and order in Civil Appeal No.6903 of 2021 the impugned judgment and order passed by the Division Bench of the High Court in Writ Appeal No.20019 also deserves to be quashed and set aside as in the present case also the Division Bench of the High Court has directed the appellants to consider the case of the respondent for appointment on compassionate ground applying the subsequent scheme circular and though under the scheme circular prevalent on the date of death of the deceased employee who at the relevant time was serving on work charge establishment also deserves to be quashed and set aside and consequently the present appeal is also allowed. The impugned judgment and order dated 16.12.2019 passed by the High Court of Madhya Pradesh Jabalpur in WA No. 20019 is hereby quashed and set aside. However in the facts and circumstances of the case there is no order as to costs. Pending applications if any also stand disposed of [M.R. SHAH NEW DELHI NOVEMBER 18 2021 ….J [SANJIV KHANNA

The appeal before the Executive Council must be decided only after hearing to both the parties.: Sikkim High Court

“An aggrieved party has a statutory right to prefer an appeal within thirty days from the date of recommendation.”, this remarkable stand was forwarded by Hon’ble Sikkim High Court, in a single judge bench chaired by Hon’ble Justice Mr Bhaskar Raj Pradhan, in the writ appeal case of Silajit Guha v. Sikkim University and ors., [WP(C) No. 30 of 2019]. Petitioner, a Professor, in a Department of the respondent no.1 [Sikkim University (University)]. Pursuant to a complaint of sexual harassment filed by respondent no.5 (a student of that Department), the respondent no.4 [the Internal Complaints Committee (ICC)], conducted an inquiry and forwarded the inquiry report dated 08.06.2019 to the Executive Council of the University, i.e., respondent no.3 (Executive Council). On 28.06.2019, the Registrar of the University issued office order bearing no. 201/2019 dated 28.06.2019, in which the petitioner was informed about the 33rd executive council’s meeting, where they concluded that, the petitioner was not fit to be retained in the service of the University and had imposed the major penalty of termination of service with immediate effect. On 01.07.2019, the petitioner preferred a statutory appeal. It is the petitioner‘s case that the impugned office order was received by him only on 03.07.2019. The writ petition seeks the quashing of the show cause notice dated 10.06.2019, the inquiry report dated 08.06.2019 and the order of termination dated 28.06.2019 and for various other consequential reliefs. After examining all the submissions, arguments and evidences forwarded by the councils, the Hon’ble HC observed that, “If the Executive Authority took the final step, as was done in the present case, before the expiry of the thirty days period, then prejudice would be writ large. Admittedly, the petitioner had preferred an appeal on 01.07.2019 and the facts disclose that he could have done so on or before 08.07.2019. Thus, the impugned order of termination dated 28.06.2019 could not have been issued. This court is, therefore, of the view that during the pendency of the appeal before the Executive Council, his termination order, bearing no. 201/2019 dated 28.06.2019, shall be kept in abeyance until the final decision in the pending appeal. The appeal before the Executive Council must be decided expeditiously after giving an opportunity of hearing to both the parties.”

THE HIGH COURT OF SIKKIM : GANGTOK CIVIL EXTRA ORDINARY JURISDICTION) SINGLE BENCH: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE WP(C) No. 319 Silajit Guha Son of late N.C. Guha Professor Department of xxxSikkim University. ….. Petitioner Sikkim University Represented by and through the Registrar 6th Mile Tadong Gangtok East Sikkim. The Vice Chancellor Sikkim University 6th Mile Tadong Gangtok East Sikkim. The Executive Council Represented by and through the Vice Chancellor Sikkim University 6th Mile Tadong Gangtok East Sikkim. The Internal Complaints Committee Sikkim University Represented by and through the Chairperson 6th Mile Tadong Gangtok East Sikkim. 5. Ms RxxxA student of xxxin xxxSikkim University Department 6th Mile Tadong Gangtok East Sikkim. ….. Respondents 2 WP(C) No. 319 Silajit Guha vs. Sikkim University and Others Mr. Kalol Basu Advocate with Mr. Suman Banerjee and Mr. Ranjit Prasad Advocate for the Applicant. Mr. Karma Thinlay Namgyal Senior Advocate with Mr. K.T. Gyatso Advocate for the Respondents No. 1 to 4. Mr. Karma Thinlay Namgyal Senior Advocate with Mr. K.T. Gyatso Advocate for the Respondent No. 5. Application under Article 226 of the Constitution of India. Date of hearing : 16.10.2020 17.10.2020 12.11.2020 & 13.11.2020 Date of judgment: 08.12.2020 JUDGMENT Bhaskar Raj Pradhan J. The present writ petition has been filed by the petitioner who was a Professor in a Department of the respondent no.1 the respondent no.4 conducted an inquiry and forwarded the inquiry report dated 08.06.2019 to the Executive Council of the University i.e. respondent no.3 No. 319 Silajit Guha vs. Sikkim University and Others was informed that the Executive Council in its 33rd Meeting held on 28.06.2019 considered the inquiry report of the ICC and the representation made by the petitioner under clause 8(6) of the University Grants Commission Regulations 2015 UGC Regulations) and that the Executive Council had come to the conclusion that the petitioner was not fit to be retained in the service of the University and had imposed the major penalty of termination of service with immediate effect. Thereafter on 01.07.2019 the petitioner preferred a statutory appeal. It is the petitioner‘s case that the impugned office order was received by him only on 03.07.2019. The writ petition seeks the quashing of the show cause notice dated 10.06.2019 the inquiry report dated 08.06.2019 and the order of termination dated 28.06.2019 and for various other consequential reliefs. Heard Mr. Kalol Basu learned Advocate for the petitioner and Mr. Karma Thinlay Namgyal learned Senior Advocate for the Respondents. Mr. Kalol Basu submitted that the facts would reveal that the alleged act complained of by the respondent no.5 was an act purportedly committed at a wedding reception in a hotel beyond the definition of ―workplace‖ under section 2(o) of the 4 WP(C) No. 319 Silajit Guha vs. Sikkim University and Others Sexual Harassment of Women at Workplace Prevention Prohibition and Redressal) Act 2013of the UGC Regulations provided that the Executive Authority of Higher Educational Institution HEI) shall act on the recommendations of the committee within a period of thirty days from the receipt of the inquiry report unless an appeal against the findings is filed within that time by either party. As admittedly the petitioner had preferred an appeal on 01.07.2019 before the expiry of the thirty days as provided in Regulation 8(4) of the UGC Regulations the termination order dated 28.06.2019 was illegal. Mr. Kalol Basu also submitted that since the Act of 2013 has penal consequences it must be strictly construed and for construction 16 SCC 1 211 SCC 668 311 SCC 642 4 2008 SCC Online Del 563 5 WP(C) No. 319 Silajit Guha vs. Sikkim University and Others of a penal statute if two views are possible then the one which supports the accused is to be adopted. For the said propositions he relied upon Tolaram Relumal and Another vs. State of Bombay5. Mr. Kalol Basu further submitted that the proceeding before the ICC was not conducted in the manner prescribed. To support his contention he relied upon Zuari Cement Limited vs. Regional Director Employees’ State Insurance Corporation Hyderabad and Others6. He relied upon Khem Chand vs. Union of India and Others7 to argue that in the inquiry before the ICC his right to cross examination had been denied and the principles of natural justice violated. He also referred to Dr. Vijayakumaran C.P.V. vs. Central University of Kerala and Others8 and Medha Kotwal Lele and Others vs. Union of India and Others9 to impress upon this court that in the present proceeding the UGC Regulations and CCS CCA Rules were Mr. Karma Thinlay Namgyal on the other hand submitted that since the Act of 2013 is a social and a beneficial legislation the definition of workplace must receive a wider interpretation and if it was so done then the act complained of by the respondent no.5 would fall within the definition of workplace and more specifically under section 2(o)(v) i.e ―any place visited by the employee arising out of or during the course of employment 51 SCR 158 AIR 1954 SC 496 67 SCC 690 7 AIR 1958 SC 300 8 2020 SCC Online SC 91 91 SCC 311 6 WP(C) No. 319 Silajit Guha vs. Sikkim University and Others including transportation provided by the employer for undertaking such journey‖. It was his submission that the legislature has purposely used the disjunctive word ―or‖ between the two set of words i.e. ―arising out of‖ and ―during the course of‖. Therefore while the meaning ascribed by the Supreme Court in Shakuntala Chandrakant Shresthiand Daya Kishan Joshiwould be applicable to interpret the two sets of words as used in section 2(o) the use of the word ―or‖ in between them would bring any place visited by the employee either ―arising out of‖ employment or ―during the course of‖ employment within the mischief of the provision. He further submitted that the complaint by the respondent no.5 was not only restricted to the incident of 05.05.2019 at the wedding reception but also for other similar instance where the petitioner had allegedly touched the respondent no.5 inappropriately. He therefore submitted that it would not be correct to nonsuit the complaint of the respondent no.5 on examining only the incident of 05.05.2019 at the wedding reception. He relied upon the judgment of the Supreme Court in Fakir Mohd.by LRS vs. Sita Ram10 and State of Uttar Pradesh vs. C. Tobit And Others11. Relying upon Gaurav Aseem Avtej vs. Uttar Pradesh State Sugar Corporation Limited and Others12 it was submitted that a statute is best interpreted when we know why it was enacted and therefore the definition of ―workplace‖ in 101 SCC 741 11 AIR 1958 SC 414 126 SCC 518 7 WP(C) No. 319 Silajit Guha vs. Sikkim University and Others the Act of 2013 ought to be interpreted not to defeat the very purpose of its enactment. Mr. Karma Thinlay Namgyal also drew the attention of this court to Regulation 8(6) of the UGC Regulations to submit that Regulation 8(4) must be read along with Regulation 8(6) of the UGC Regulations and if so done the termination would be legally justified. He further submitted relying upon State of U.P. vs. Harendra Arora and Another13 that Regulation 8(4) of the UGC Regulations was a procedural law and every infraction of statutory provisions would not make the consequent action void. He also relied on the judgments of the Supreme Court in General Manager B.E.S.T. Undertaking Bombay vs. Mrs. Agnes14 and M.V. Bijlani vs. Union of India and Others15. At the very outset it is pertinent to keep in mind that admittedly a statutory appeal is pending before the Executive Authority. Most of the issues which have been raised in the writ petition can very well be canvassed and pressed before the Appellate Authority. Therefore although the issues raised by the learned counsel for the parties were tempting this court is of the opinion that at this stage it would be better to exercise restraint. Any expression of opinion by this court on issues which have been or may be canvassed before the Executive Authority may prejudice the parties. Having said that Mr. Kalol Basu has also 136 SCC 392 143 SCR 930 155SCC 88 8 WP(C) No. 319 Silajit Guha vs. Sikkim University and Others pressed a jurisdictional issue before this court. In Zuari Cement Ltd. the Supreme Court held that want of jurisdiction renders orders passed by court tribunal a nullity. Mr. Kalol Basu submits that the ICC did not have the jurisdiction to take cognizance of the complaint as the alleged incident purportedly took place in a private hotel at the wedding reception beyond the definition of ―workplace‖. This point may have to be resolved in this writ petition since an appeal being an extension of the original proceeding the appellate authority may not also then have jurisdiction to decide the pending appeal if it were to be held that the ICC did not have the jurisdiction to hold the inquiry. Section 2(o) of the Act of 2013 reads as: ――2. Definitions.— In this Act unless the context otherwise requires — … o) ―workplace‖ includes— any institution department unit which organisation undertaking establishment enterprise office established owned controlled or wholly or substantially financed by indirectly by the appropriate Government or the local authority or a Government company or a co operative corporation or a society venture any private sector organisation or a undertaking institution enterprise establishment society trust non governmental organisation unit or professional commercial vocational educational entertainmental industrial health financial activities services or 9 WP(C) No. 319 Silajit Guha vs. Sikkim University and Others including production supply sale distribution or service iii) hospitals or nursing homes iv) any sports institute stadium sports complex or competition or games venue whether residential or not used for training sports or other activities relating thereto any place visited by the employee arising out of or during the course transportation provided by for undertaking such journey vi) a dwelling place or a house ‖ The definition of ―workplace‖ is an inclusive one and not an exhaustive one. The complaint dated 12.05.2019 alleged that the petitioner misbehaved with the respondent no.5 by touching her inappropriately and without her consent at a wedding reception of one of the faculty member‘s family on 05.05.2019. She further alleged that it was not the first time that the petitioner had tried to touch her inappropriately. The respondent no. 5 was examined on 15.05.2019 by the ICC in her statement. The respondent no. 5 gave a detailed account of what transpired on 05.05.2019 at the wedding reception. She along with the entire department had been invited by the Assistant Professor of the department for the wedding. She stated that the petitioner had put his hand on her back and stroked her bra strap and kept his hand there. According to her she was wearing a kurta slightly exposed at the back. The petitioner put his hand on the exposed part of her dress. She felt uneasy and tried to 10 WP(C) No. 319 Silajit Guha vs. Sikkim University and Others move his hand but he grabbed her hand and said don‘t you want a job …. I know you want a job. The petitioner then asked the respondent no.5 to sit down. She told him that she wanted to go to the bathroom but the petitioner insisted her to sit down. Then the respondent no.5 pushed away forcefully and walked off. She thereafter narrated the story to a friend ‗Nxxx‘ No. 319 Silajit Guha vs. Sikkim University and Others ―workplace‖ as defined in section 2(o) of the Act of 2013. Section 9 of the Act of 2013 provides that a complaint of sexual harassment at workplace can be made within a period of three months from the date of incident or in case of a series of incidents within a period of three months from the date of last incident. The last incident in the present case transpired on 05.05.2019 and the complaint was filed on 12.05.2019 within seven days after the date of the last incident. In such circumstances prima facie it cannot be said that the ICC did not have the jurisdiction to examine the complaint filed by the petitioner. It is noticed that the petitioner has taken the ground inter alia that the alleged incident of 05.05.2019 at the wedding reception would not come within the jurisdiction of ICC as it would not fall within the definition of ―workplace‖. Therefore it is felt necessary to leave the question as to whether the incident at the wedding reception would come within the meaning of ―sexual harassment at workplace‖ as provided in section 9 of the Act of 2013 to be decided by the Executive Authority in the pending appeal as well. The petitioner next contends that the respondents no.1 to 4 ought to have allowed the period of thirty days as provided in Regulation 8(4) of the UGC Regulations before acting on the recommendation of the ICC. It is contended that the Executive Council having issued the impugned termination order 12 WP(C) No. 319 Silajit Guha vs. Sikkim University and Others dated 28.06.2019 even before the expiry of the thirty days period has made its mala fide intention manifestly clear. In Harendra Arora the Supreme Court held while referring to its earlier judgment in Managing Director ECIL Hydrabad and Others vs B. Karunakar and Others16 that it is plain that in cases covered by the constitutional mandate i.e. Article 311(2) non furnishing of inquiry report would not be fatal to the order of punishment unless prejudice is shown. Therefore requirement in the statutory rules of furnishing copy of the inquiry report cannot be made to stand on a higher footing by laying down that questions of prejudice is not material therein. It was also held: “13. The matter may be examined from another viewpoint. There may be cases where there are infractions of statutory provisions rules and regulations. Can it be said that every such infraction would make the consequent action void and or invalid The statute may contain certain substantive provisions e.g. who is the competent authority to impose a particular punishment on a particular employee. Such provision must be strictly complied with as in these cases the theory of substantial compliance may not be available. For example where a rule specifically provides that the delinquent officer shall be given an opportunity to produce evidence in support of his case after the close of the evidence of the other side and if no such opportunity is given it would not be possible to say that the enquiry was not vitiated. But in respect of many procedural provisions it would be possible to apply the theory of substantial compliance or the test of prejudice as the case may be. Even amongst procedural provisions there may be some provisions of a fundamental nature which have to be complied with and in whose case the theory of substantial 164 SCC 727 13 WP(C) No. 319 Silajit Guha vs. Sikkim University and Others Regulation 8 of the UGC Regulations deals with the process of conducting inquiry and is quoted below: test would be whether compliance may not be available but the question of prejudice may be material. In respect of procedural provisions other than of a fundamental nature the theory of substantial compliance would be available and in such cases objections on this score have to be judged on the touchstone of prejudice. The delinquent officer had or did not have a fair the case of Russell v. Duke of Norfolk1 All ER 109it was laid down by the Court of Appeal that the principle of natural justice cannot be reduced to any hard and fast formulae and the same cannot be put in a straitjacket as its applicability depends upon the context and the facts and circumstances of each ―8. Process of conducting Inquiry The ICC shall upon receipt of the complaint send one copy of the complaint to the respondent within a period of seven days of such receipt. 2) Upon receipt of the copy of the complaint the respondent shall file his or her reply to the complaint along with the list of documents and names and addresses of witnesses within a period of ten days. the receipt of 3) The inquiry has to be completed within a period of ninety days report with recommendations if any has to be submitted within ten days from the completion of the inquiry to the Executive Authority of the HEI. Copy of the findings or recommendations shall also be served on both parties to the complaint. 4) The Executive Authority of the HEI shall act on the recommendations of the committee within a period of thirty days from the receipt of the inquiry report unless an appeal against the findings is filed within that time by either party. 5) An or recommendations of the ICC may be filed by either party before the Executive Authority of the HEI within a period of thirty days from the date of the recommendations. 6) If the Executive Authority of the HEI decides not to act as per the recommendations of the ICC then it shall record written reasons for the same to be conveyed to ICC and both the parties to the proceedings. If on the other hand 14 WP(C) No. 319 Silajit Guha vs. Sikkim University and Others it is decided to act as per the recommendations of the ICC then a show cause notice answerable within ten days shall be served on the party against whom action is decided to be taken. The Executive Authority of the HEI shall proceed only after considering the reply or hearing the aggrieved person. 7) The aggrieved party may seek conciliation in order to settle the matter. No monetary settlement should be made as a basis of facilitate a conciliation. The HEI shall conciliation process through ICC as the case may be once it is sought. The resolution of the conflict to the full satisfaction of the aggrieved party wherever possible is preferred to purely punitive intervention. 8) The identities of the aggrieved party or victim or the witness or the offender shall not be made public or kept in the public domain especially during the process of the inquiry.‖ Upon the receipt of the complaint by the ICC Regulation 8 contemplates an inquiry within a period of ninety days from the date of the complaint and thereafter the submission of the inquiry report within ten days from the completion of the inquiry to the Executive Authority. Regulation 8(4) provides that the Executive Authority shall act on the recommendation of the ICC within a period of thirty days from the receipt of inquiry report unless an appeal against the findings is filed within that time by either party. Time thus begins to run for the Executive Authority from the day it receives the inquiry report and stops only if an appeal is filed within the thirty days period. During the thirty days period as envisaged in Regulation 8(4) Regulation 8(6) provides for certain processes to be completed before acting on the recommendation of the ICC. A show cause notice answerable within ten days is mandated and 15 WP(C) No. 319 Silajit Guha vs. Sikkim University and Others the Executive Authority is required to proceed only after considering the reply or hearing the aggrieved person. Regulation 8(5) however provides that an appeal against recommendation of the ICC may be filed by either party before the Executive Authority within a period of thirty days from the recommendation of the ICC. Time for the aggrieved parties begins to run from the date of the recommendation of the ICC. Thus an aggrieved party has a statutory right to prefer an appeal within thirty days from the date of recommendation. A perusal of Regulation 8 makes it clear that the legislative intent was to ensure that the process of inquiry is not only done fairly but also speedily. The word ―act‖ used in Regulation 8(4) would mean to take all such steps to give effect to the recommendations including following the steps envisaged in Regulation 8(6). However a composite reading of all the sub clauses of Regulation 8 makes it evident that the Executive Authority could not have taken the final step of terminating the petitioner on the recommendation of the ICC before the thirty days period provided to him under Regulation 8(5) to prefer an appeal. It is noticed or recommendations of the ICC. If during the period of thirty days as provided in Regulation 8(4) the aggrieved person preferred an appeal then the Executive Authority must await the final outcome of the appeal before taking the final step as in the present case issuing the termination order dated 28.06.2019. An 16 WP(C) No. 319 Silajit Guha vs. Sikkim University and Others aggrieved person should also be given the opportunity to prefer an appeal within the time frame as contemplated in Regulation 8(5). If the Executive Authority took the final step as was done in the present case before the expiry of the thirty days period then prejudice would be writ large. Admittedly the petitioner had preferred an appeal on 01.07.2019 and the facts disclose that he could have done so on or before 08.07.2019. Thus the impugned order of termination dated 28.06.2019 could not have been issued. This court is therefore of the view that during the pendency of the appeal before the Executive Council his termination order bearing no. 201 2019 dated 28.06.2019 shall be kept in abeyance until the final decision in the pending appeal. The appeal before the Executive Council must be decided expeditiously after giving an opportunity of hearing to both the parties. The observations made on the facts of the case is only for the purpose of addressing the arguments made by the parties and it shall not influence the Executive Council before whom the appeal is pending. All issues and questions which are open to challenge under the law and taken in the appeal shall be decided by the Executive Council in its jurisdiction as the Appellate Authority. 17 WP(C) No. 319 Silajit Guha vs. Sikkim University and Others Considering the fact that the petitioner has preferred an appeal which is pending no further orders may be required to be passed in the present writ petition. The writ petition is disposed accordingly. No order as to costs. Bhaskar Raj Pradhan) Judge Approved for reporting : Yes No : Yes No Internet

Court has power to set aside ex-parte decree on the grounds of fraud: Calcutta High Court

Civil Courts can set aside an ex-parte decree on the grounds of fraud or abuse of court process under Section 151 of the Code of Civil Procedure. The provision allows the Court to pass such orders that may be necessary for the ends of justice or to prevent the abuse of the process of the Court. The Calcutta High Court presided over by J S.B. Saraf laid down this ratio in the case of Emars Mining and Construction Pvt. Ltd. Vs. Manjunath Hebbar,[C.S. No. 125 of 2014]. The facts of the case are that a civil dispute arose between the parties because the defendant failed to deliver good commensurate with the advance payments made by the plaintiff. The Plaintiff had obtained an ex-parte decree in his favor in March 2019. Aggrieved by this order Defendant moved to this court to set aside this decree on the ground that the ex-parte decree was obtained by misleading the Court about the payments made by the plaintiff totaling up to a sum of Rs. 3 crores. Under Order IX, Rule 13 of the Code of Civil Procedure an ex-parte decree can only be set aside if – i. the Court is satisfied that summons was not duly served upon the defendant or ii. there was some sufficient cause preventing the defendant from appearing for the court proceedings. However, the High Court was of the opinion that, “.. this Court does possess the power to invoke its inherent powers under Section 151 of the CPC to provide relief to the applicant/defendant in such a case where fraud and/or abuse of the process of the Court may have transpired.”

IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction Commercial Division The Hon’ble Justice Shekhar B. Saraf IA No. GA 19 Old G.A. No. 9119) C.S. No. 1214 Emars Mining and Construction Pvt. Ltd. Manjunath Hebbar For the Applicant Defendant For the Respondent Plaintiff Mr. Swatarup Banerjee Adv. Ms. Manju Bhuteria Adv. Mr. S. Mukherjee Adv. Mr. M. Mukherjee Adv. Ms. P. Sharma Adv. Heard on : September 16 2020 October 9 2020 November 18 2020 December 2 2020 and December 16 2020. Judgment on : 13.01.2021 Shekhar B. Saraf J.: 1. The applicant had filed this application bearing G.A. No. 9119 principally praying for the recall and or setting aside of the ex parte decree dated March 13 2019 rendered by this Court. The applicant defendant has filed this application seeking such recall and or setting aside of such ex parte decree under O. IX R. 13 of the Code of Civil Procedure 1908had made claims that they had made a series of advance payments to the tune of Rs. 15 66 50 000 on various dates through RTGS and electronic fund signed between respondent plaintiff applicant defendant had only supplied commensurate goods to the respondent plaintiff valued at Rs. 5 84 10 000 thereby leaving a balance amount payable to the respondent plaintiff assessed at Rs. 8 82 40 000 . 3. Accordingly the respondent plaintiff had instituted C.S. No. 125 of 2014 against the applicant defendant praying for the grant of a decree to the tune of Rs. 12 00 06 400 this decretal amount was evaluated based on the principal outstanding amount payable to the respondent plaintiff along with interest claimed @ 18% per annum calculated from January 2012 to December 2013. 4. Based on the perusal of the documents on record the examination of a sole witness on behalf of the respondent plaintiff and the fact that while the applicant defendant had entered appearance but had chosen to not file any written statement I had treated the afore stated suit as an undefended suit and granted an ex parte decree dated March 13 2019 directing the applicant defendant to ensure the payment of the decretal amount as stated above in favour of the respondent plaintiff. 5. Mr. Swatarup Banerjee appearing on behalf of the applicant defendant had averred that the respondent‟s plaintiff‟s contention that an advance payment to the tune of Rs. 15 66 50 000 on various dates through RTGS and electronic fund transfers was utterly misconceived and in page 14 of such application conspicuously drew my attention to the fact that a sum of Rs. 3 00 00 000 dated December 10 2010 by RTGS drawn through the State Bank of India bearing remarks “SBINH10344318588” was never transferred into the account of the applicant defendant. I have also perused the bank statement appended as „Annexure D‟ to the application by the applicant defendant which reflects such an averment. Accordingly the applicant defendant contended that such a brazen act of misleading the court by the in securing an ex parte decree against applicant defendant amounted to fraud and abuse of the process of this 2020. 6. Based on this revelation I had directed respondent plaintiff to justify the purported payment of Rs. 3 00 00 000 dated December 10 2010 by RTGS drawn through the State Bank of India bearing remarks “SBINH10344318588” to the applicant defendant by filing relevant documents as proof of such transaction by an order dated September 16 7. Mrs. Manju Bhuteria learned counsel appearing on behalf of the respondent plaintiff had chosen to rely on the purchase orderbearing no. PO SE 02 dated December 10 2010 wherein the recital “Terms of payment” records a distinct payment to the tune of Rs. Three Crores made to the applicant defendant. The relevant recital is reproduced hereinbelow: Terms of payment Payment would be released as below: 100% against Proforma Invoice to be paid to M S Menezes Shyam Enterprises as mutually agreed. Out of the total order value the following payments are already made: 1) Cost of materials =Rs. 3 00 00 000.00 2) Advance towards handling charges to M S Menezes Enterprises =Rs. 55 30 000.00 3) Customs Duty = Rs. 28 31 202.00 Total =Rs. 3 83 61 202.00 Balance PO Value =Rs. 1 20 38 798.00 Emphasis supplied. 8. Since Mr. Banerjee has prayed for the setting aside of the ex parte decree under O.IX R.13 read with Section 151 of the CPC it is prudent that the relevant provisions are reproduced. O.IX R. 13 provides as follows: 13. Setting aside decree ex parte against defendants.— In any case in which a decree is passed ex parte against a defendant he may apply to the Court by which the decree was passed for an order to set it aside and if he satisfies the Court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing the Court shall make an order setting aside the decree as against him upon such terms as to costs payment into Court or otherwise as it thinks fit and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: Provided further than no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff s claim. Explanation.—Where there has been an appeal against a decree passed ex parte under this rule and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal no application shall lie under this rule for setting aside that ex parte decree. 9. On the other hand Section 151 of the CPC saves the inherent powers of the Court which provides as follows: 151. Saving of inherent powers of Court. Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. 10. As is evident from a bare reading of the two provisions of law extracted above the grounds of fraud and or abuse of the process of the Court are not conditions which would merit the Court‟s interference specifically under O. IX R. 13. Rather O. IX R. 13 stricto sensu envisages two particular conditions either of which if fulfilled warrants an interference by the Court to set aside an ex parte decree these conditions are: a) Either the defendant satisfies the Court that the summons were not duly served upon him or b) The defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing. 11. The applicant defendant has not pressed either of these conditions before this Court. The predominant plea has been that of fraud and or abuse of the process of the Court. Therefore the natural progression would be to examine if the grounds of fraud and or abuse of the process of the Court are not covered under O. IX R.13 would it be statutorily permissible for the Court to rely on Section 151 and invoke its inherent powers to provide relief to the applicant defendant and set aside an ex parte decree that may have been so obtained by either resorting to fraud and or abuse of the process of this Court 12. The Supreme Court in Ram Prakash Agarwal v Gopi Krishnanreported in11 SCC 296 had held: “15. In exceptional circumstances the Court may exercise its inherent powers apart from Order 9 CPC to set aside an ex parte decree. An ex parte decree passed due to the non appearance of the counsel of a party owing to the fact that the party was not at fault can be set aside in an appeal preferred against it. So is the case where the absence of a defendant is caused on account of a mistake of the court. An application under Section 151 CPC will be maintainable in the event that an ex parte order has been obtained by fraud upon the court or by collusion. The provisions of Order 9 CPC may not be attracted and in such a case the court may either restore the case or set aside the ex parte order in the exercise of its inherent powers. There may be an order of dismissal of a suit for default of appearance of the plaintiff who was in fact dead at the time that the order was passed. Thus where a court employs a procedure to do something that it never intended to do and there is miscarriage of justice or an abuse of the process of Court the injustice so done must be remedied in accordance with the principle of actus curia neminem gravabit an act of the court shall prejudice no person. 19. In view of the above the law on this issue stands crystallised to the effect that the inherent powers enshrined under Section 151 CPC can be exercised only where no remedy has been provided for in any other provision of the CPC. In the event that a party has obtained a decree or order by playing a fraud upon the court or where an order has been passed by a mistake of the court the court may be justified in rectifying such mistake either by recalling the said order or by passing any other appropriate order. However inherent powers cannot be used in conflict of any other existing provision or in case a remedy has been provided for by any other provision of the CPC. Moreover in the event that a fraud has been played upon a party the same may not be a case where inherent powers can be exercised.” Emphasis supplied 13. Therefore this Court does possess the power to invoke its inherent powers under Section 151 of the CPC to provide relief to the applicant defendant in such a case where fraud and or abuse of the process of the Court may transpired. However whether the applicant defendant has successfully discharged his burden in proving the same by contending that the nature of payments made by the respondent plaintiff to M s. Lotus Enterprises purportedly on behalf of the applicant defendant merits a different consideration altogether. 14. On the question of the requirements of proving fraud the Supreme Court in A.C. Ananthaswamy v Boraiahby LRS. reported in8 SCC 588 had ruled: “5. We do not find any merit in this appeal. Firstly in the present case Patel Chikkahanumaiah had moved an application under Order 9 Rule 13 CPC for setting aside the ex parte decree on the ground of non service of summons in which fraud was not alleged. As stated above Patel Chikkahanumaiah had moved R.A. No.54 of 1977 in which there was no such allegation. Secondly the present suit has been instituted to set aside the ex parte decree on the fraud and the decree was obtained by misrepresentation. Fraud is to be pleaded and proved. To prove fraud it must be proved that representation made was false to the knowledge of the party making such representation or that the party could have no reasonable belief that it was true. The level of proof required in such cases is extremely higher. An ambiguous statement cannot per se make the representor guilty of fraud. To prove a case of fraud it must be proved that the representation made was false to the knowledge of the party making such representation.12th Edition page 489].” Emphasis supplied. 15. Mr. Banerjee counsel appearing on behalf of the applicant defendant has submitted that the Rs. Three Crores in question was never paid to his client but was paid to M s. Lotus Enterprises. He submits that there is no relationship of his client with M s. Lotus Enterprises. According to him this Three Crores payment that has been reflected in the plaint is a fraud on the Court and is an abuse of the process of Court. The above argument of Mr. Banerjee has been countered by Ms. Bhuteria appearing on behalf of the respondent plaintiff. She submits that this amount of Rs. Three Crores was paid to M s. Lotus Enterprises on instruction of the applicant defendant. According to her M s. Lotus Enterprises is a sister concern of the applicant defendant. She further relies on bank account details to show that this payment was made and on the purchase orders to show that the same reflect payments made to the defendant. In fact she relies on purchase order bearing no. PO SE 02 dated December 10 2010 to show that subsequent to the payment of Rs. Three Crores the same was in the purchase order as a payment received by the applicant defendant. In light of the same she submits that there is no question of any fraud having been played on the applicant defendant. 16. Mrs. Bhuteria has conspicuously relied on the purchase order bearing no. PO SE 02 dated December 10 2010 which manifestly indicates that an amount to the tune of Rs. Three Crores was indeed transferred into the account of the applicant defendant‟s proprietorship or its purported sister entity M s. Lotus Enterprises by the respondent plaintiff. However Mr. Banerjee strenuously contended that such a payment is disputed since no document had been produced by the respondent plaintiff to prove that the applicant‟s defendant‟s proprietorship is in any way connected to M s. Lotus Enterprises. Apropos this question of fact to my mind it would not be improper to state that had the applicant defendant been present before the Court to contest the suit such fact could have been controverted by placing their reliance upon a written statement as well as cogent evidence that could have been led by the applicant defendant such a fact accordingly could have been proved to the contrary. But that ship has sailed. 17. Upon an application of my mind as well as the yardstick laid down in A.C. Ananthaswamythis new factum as referred to in the immediately preceding paragraph does not appear to me to be a case of fraud and or abuse of the process of the Court. The degree of proving fraud is much higher. An ambiguous question of fact as in this case cannot be categorized as a case of fraud. 18. Moving forward as the options at the disposal of applicant defendant to set aside the ex parte decree dated March 13 2019 the applicant defendant could have: a) Either filed an application under O.IX R.13 of CPC whereupon if such an application is dismissed such an order of dismissal would be appealable under O. XLIII R. 1(d) or b) Filed an appeal under clauseof Section 96 of the CPC. 19. The nature and scope of both these remedies need to be reiterated. Dr. D.Y. Chandrachud J. speaking for a three judges bench of the Supreme Court in Neerja Realtors Pvt. Ltd. v Janglu through Legal Representative 2 SCC 649 had enunciated the „procedural scope‟ of both these remedies in the following terms: “17. A defendant against whom an ex parte decree is passed has two options: the first is to file an appeal. The second is to file an application under Order 9 Rule 13. The defendant can take recourse to both the proceedings simultaneously. The right of appeal is not taken away by filing an application under Order 9 Rule 13. But if the appeal is dismissed as a result of which the exparte decree merges with the order of the appellate court a petition under Order 9 Rule 13 would not be maintainable. When an application under Order 9 Rule 13 is dismissed the remedy of the defendant is under Order 43 Rule 1. However once such an appeal is dismissed the same contention cannot be raised in a first appeal under Section 96. The three Judge bench decision in Bhanu Kumar Jain has been followed by another bench of three Judges in Rabindra Singh v Financial Commissioner Cooperation Punjab and by a two Judge bench in Mahesh Yadav v Rajeshwar Singh. In the present case the original defendant chose a remedy of first appeal under Section 96 and was able to establish before the High Court adequate grounds for setting aside the judgment and decree.” Emphasis supplied. 20. However in a subsequent decision of the Supreme Court in Bhivchandra Shankar More v Balu Gangaram More reported in6 SCC 387 while also relying on the dictum of Bhanu Kumar Jain1 as was done in Neerja Realtorsthe Court had ruled on the „substantive scope‟ of both these remedies as follows: “11. It is to be pointed out that the scope of Order 9 Rule 13 CPC and Section 96(2) CPC are entirely different. In an application filed under Order 9 Rule 13 CPC the Court has to see whether the summons were duly served or not or whether the defendant was prevented by any ―sufficient cause‖ from appearing when the suit was called for hearing. If the Court is satisfied that the defendant was not duly served or that he was prevented for “sufficient cause” the court may set aside the exparte decree and restore the suit to its original position. In terms of Section 96(2) CPC the appeal lies from an original decree passed exparte. In the regular appeal filed under Section 96(2) CPC the appellate court has wide jurisdiction to go into the merits of the decree. The scope of enquiry under two provisions is entirely different. Merely because the defendant pursued the remedy under Order 9 Rule 13 CPC it does not prohibit the defendant from filing the appeal if his application under Order 9 Rule 13 CPC is dismissed. 1Bhanu Kumar Jain v Archana Kumar 1 SCC 787. 12. The right of appeal under Section 96(2) CPC is a statutory right and the defendant cannot be deprived of the statutory right of appeal merely on the ground that the application filed by him under Order 9 Rule 13 CPC has been Emphasis supplied. 21. The powers of the Court are guided controlled and circumscribed by the statutory limitations of the CPC. Hence while the scope of enquiry under O. IX R. 13 is severely constricted but well defined nonetheless it remains quite expansive in its scope under a regular appeal envisaged under clause 2) of Section 96 of the CPC wherein the appellate court can go into merits of the decree under challenge dated March 13 2019 which this Court cannot while exercising its powers under O. IX R. 13. 22. I have previously ruled that Mr. Banerjee had not pressed either of the conditions envisaged under O. IX R. 13 of the CPC. As far as the other limb of Mr. Banerjee‟s argument is concerned which had consistently focused on the facet of fraud and or abuse of the process of the Court such a limb also fails to pass the test as laid down in A.C. Ananthaswamyas discussed in paragraphs 15 to 17. 23. Accordingly for the reasons discussed above in detail this application bearing G.A. No. 9119 seeking the recalling setting aside of the ex parte order dated March 13 2019 is hereby dismissed. There shall be no orders as to costs. 24. Urgent photostat certified copy of this order if applied for should be made available to the parties upon compliance with the requisite formalities.

The maintenance includes the reasonable expenses and incident to her marriage apart from food, clothing, residence, education and medical attendance and treatment: Allahabad High Court

A daughter can claim maintenance from either of her parents, in case, she is unable to maintain herself or is unable to bear the expenses related to her marriage. Such an observation was made by the Hon’ble Allahabad High Court before Hon’ble Justice Mrs. Sunita Agarwal & Hon’ble Justice Krishan Pahal in the matter of Roshni Tiwari vs Balmukund Tiwar[FIRST APPEAL No. – 400 of 2021]. The facts of the case were that the applicant was a student of the “Post Basic Nursing Training course”  and she was not receiving any maintenance from her father. It was the contention of the petitioner that since her father has not contributed to her studies, it is the duty of her father to incur the expenses of her marriage at least. The Hon’ble High Court observed that the father has not contributed to her studies and her mother alone had incurred all the expenses. Though it was the responsibility of the father to bear expenses of education He only gave Rs. 1000/- as maintenance till she became major and after that, it was also stopped.  Additionally, the Hon’ble High Court stated that “No plausible explanation could be offered by the respondent father as to why he did not discharge his responsibility towards his children. He never looked after them nor offered any kind of financial support. When the claimant appellant has somehow managed to study, her claim for maintenance is being contested on the ground that she has started earning during pendency of the application. Such an argument is illegal in the eyes of law. ” Further, the Hon’ble High Court also stated that “The family court while rejecting the application under Section 20(3) of Hindu Adoption and Maintenance Act, 1956 has simply ignored that the applicant had incurred all expenditures towards her education, in pursuing the nursing course and at no point of time, during the entire period, till and after she attained majority, her education and living expenses were borne by the father. The family court had completely ignored that the appellant has a right to claim expenses towards the performance of her marriage from her father under the statute. ” Finally, the Hon’ble High Court allowed the application and directed the respondent to pay Rs. 10 Lacs by submitting the demand drafts before this Court in two installments. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur The facts of the case were that the applicant was a student of the “Post Basic Nursing Training course”  and she was not receiving any maintenance from her father. It was the contention of the petitioner that since her father has not contributed to her studies, it is the duty of her father to incur the expenses of her marriage at least. The Hon’ble High Court observed that the father has not contributed to her studies and her mother alone had incurred all the expenses. Though it was the responsibility of the father to bear expenses of education He only gave Rs. 1000/- as maintenance till she became major and after that, it was also stopped.  Additionally, the Hon’ble High Court stated that “No plausible explanation could be offered by the respondent father as to why he did not discharge his responsibility towards his children. He never looked after them nor offered any kind of financial support. When the claimant appellant has somehow managed to study, her claim for maintenance is being contested on the ground that she has started earning during pendency of the application. Such an argument is illegal in the eyes of law. ” Further, the Hon’ble High Court also stated that “The family court while rejecting the application under Section 20(3) of Hindu Adoption and Maintenance Act, 1956 has simply ignored that the applicant had incurred all expenditures towards her education, in pursuing the nursing course and at no point of time, during the entire period, till and after she attained majority, her education and living expenses were borne by the father. The family court had completely ignored that the appellant has a right to claim expenses towards the performance of her marriage from her father under the statute. ” Finally, the Hon’ble High Court allowed the application and directed the respondent to pay Rs. 10 Lacs by submitting the demand drafts before this Court in two installments. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble High Court observed that the father has not contributed to her studies and her mother alone had incurred all the expenses. Though it was the responsibility of the father to bear expenses of education He only gave Rs. 1000/- as maintenance till she became major and after that, it was also stopped.  Additionally, the Hon’ble High Court stated that “No plausible explanation could be offered by the respondent father as to why he did not discharge his responsibility towards his children. He never looked after them nor offered any kind of financial support. When the claimant appellant has somehow managed to study, her claim for maintenance is being contested on the ground that she has started earning during pendency of the application. Such an argument is illegal in the eyes of law. ” Further, the Hon’ble High Court also stated that “The family court while rejecting the application under Section 20(3) of Hindu Adoption and Maintenance Act, 1956 has simply ignored that the applicant had incurred all expenditures towards her education, in pursuing the nursing course and at no point of time, during the entire period, till and after she attained majority, her education and living expenses were borne by the father. The family court had completely ignored that the appellant has a right to claim expenses towards the performance of her marriage from her father under the statute. ” Finally, the Hon’ble High Court allowed the application and directed the respondent to pay Rs. 10 Lacs by submitting the demand drafts before this Court in two installments. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur Additionally, the Hon’ble High Court stated that “No plausible explanation could be offered by the respondent father as to why he did not discharge his responsibility towards his children. He never looked after them nor offered any kind of financial support. When the claimant appellant has somehow managed to study, her claim for maintenance is being contested on the ground that she has started earning during pendency of the application. Such an argument is illegal in the eyes of law. ” Further, the Hon’ble High Court also stated that “The family court while rejecting the application under Section 20(3) of Hindu Adoption and Maintenance Act, 1956 has simply ignored that the applicant had incurred all expenditures towards her education, in pursuing the nursing course and at no point of time, during the entire period, till and after she attained majority, her education and living expenses were borne by the father. The family court had completely ignored that the appellant has a right to claim expenses towards the performance of her marriage from her father under the statute. ” Finally, the Hon’ble High Court allowed the application and directed the respondent to pay Rs. 10 Lacs by submitting the demand drafts before this Court in two installments. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur Further, the Hon’ble High Court also stated that “The family court while rejecting the application under Section 20(3) of Hindu Adoption and Maintenance Act, 1956 has simply ignored that the applicant had incurred all expenditures towards her education, in pursuing the nursing course and at no point of time, during the entire period, till and after she attained majority, her education and living expenses were borne by the father. The family court had completely ignored that the appellant has a right to claim expenses towards the performance of her marriage from her father under the statute. ” Finally, the Hon’ble High Court allowed the application and directed the respondent to pay Rs. 10 Lacs by submitting the demand drafts before this Court in two installments.

Court No. 44 Case : FIRST APPEAL No. 4021 Appellant : Roshni Tiwari Respondent : Balmukund Tiwari Counsel for Appellant : Akanksha Sharma Counsel for Respondent : Rajendra Prasad Tiwari Vinay Kumar Hon ble Mrs. Sunita Agarwal J Hon ble Krishan Pahal J The present appeal is directed against the order of rejection of application of the daughter filed under Section 20(3) of the Hindu Adoptions and Maintenance Act 1956seeking maintenance from her father. In the said application she had claimed maintenance on two grounds firstly that she had been doing nursing course and her mother had incurred huge expenditures in educating her. She was paying Rs. 3500 per month towards fee and there was no other source of income. She therefore demanded the fee being paid by her for continuing the said course. Another ground to seek maintenance was that the applicant daughter was of marriageable age and she needed money towards marriage expenses which was the responsibility of her father. The said application filed on 7.5.2015 had been rejected vide order dated 6.10.2017 on the ground that the fee receipts which were submitted by the applicant for pursuing the nursing course were of the year 2012. By the time the case was decided she had completed the nursing course Further after completion of the said course the appellant got a job from which she was earning Rs. 4500 per month. It was also noted by the family court that an amount of Rs. 1000 per month was being paid to the appellant till she attained the age of majority on 25.2.2011. As regards the claim of the appellant for marriage expenses there is no whisper in the The respondent namely Sri Balmukund Tiwari father of the appellant is personally present in the Court. The personal presence of the appellant has been dispensed with by the order dated 20.10.2021 Ms. Akanksha Sharma learned Advocate for the appellant at the outset states that the appellant though is pursuing a higher study course namely "Post Basic Nursing Training course" in a college at Bhopal wherein she had taken admission in the Academic session 2017 18 but she has decided not to pursue her prayer for grant of expenditures fee incurred for the said course. The appellant however presses her claim for the marriage The contention is that the appellant is aged about 27 28 years and being of marriageable age her mother is looking to the suitable proposals but none of them could be materialized for want of financial resources The amount of Rs. 10 Lacs has been demanded by the appellant towards the expenditures to be incurred in her marriage On a query made by the Court Sri Rajendra Prasad Tiwari learned Advocate for the respondent father states that an amount of Rs. 1000 per month was being given towards maintenance to the appellant till she had attained majority on 25.2.2011. It is admitted that the respondent father had not paid a single penny towards education of his daughter who had completed Nursing Course and is pursuing a "Post Basic Nursing Training course" in a college at Bhopal from the finances initially arranged by her mother and now by herself. The contention of the learned counsel for the respondent father is that the appellant is self sufficient as she has started earning after completion of the Staff Nursing Course. However it is an admitted fact of the matter that the respondent is in the Government Department and he is working as Tube Well Operator in the Irrigation Department. As per own admission of the respondent father he is receiving salary of Rs. 42 506 per month after deduction of the P.F. and other amount towards compulsory deductions. Whereas the appellant has no other source of income than her own earning which according to the respondent itself is barely Rs. 4500 per month. Out of the said earning the appellant is also incurring expenditures for payment of fee for pursuing higher study Nursing course and also bearing her daily expenditures. As regards the decision of the family court there is no deliberation on the issue of demand of the appellant for marriage expenses. The claimant daughter is living with her mother for the last several years who has borne all her living expenses including education. The mother has managed to provide her daughter a good education. There was virtually no contribution of the father in the upbringing of his daughter Meagre amount of Rs. 1000 was paid under the order of the Court that too had been stopped as soon as she had attained majority though the father was under obligation to pay the said amount to the claimant being his unmarried daughter. The respondent though is a Government employee did not volunteer to raise the maintenance amount to meet the requirement of his own child. The daughter had been left to live on her own. Apart from the claimant daughter there are other male children of the respondent. The respondent though in his objection had alleged that the claimant is earning from the employment but he did not state that it was sufficient for her daughter. The maintenance does not mean the expenses sufficient for bare living or surviving but its object is to provide such means of sustenance with dignity which is befitting to the position and status of the parties. The living expenses is not the bare means of survival like food and clothings only. For a dignified living and to grow to become a responsible citizen a child has to receive proper education. To be able to earn his livelihood a child has to attain higher vocational On the maintainability of the application of the daughter to seek marriage expenses though there is no objection but we deem it fit and proper to consider the relevant provisions of the Act 1956 quoted hereunder: Section 3(b). Maintenance" includes—in all cases provision for food clothing residence education and medical attendance and treatment ii) in the case of an unmarried daughter also the reasonable expenses of an incident to her marriage Section 20. Maintenance of children and aged parents: Subject to the provisions of this section a Hindu is bound during his or her lifetime to maintain his or her legitimate or illegitimate children and his or her aged or infirm 2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor 3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends insofar as the parent or the unmarried daughter as the case may be is unable to maintain himself or herself out of his or her own earnings or other property Explanation: In this section "parent" includes a childless step Section 21. Dependants defined: For the purposes of this Chapter "dependants" means the following relatives of the i) his or her father ii) his or her mother iii) his widow so long as she does not re marry iv) his or her son or the son of his predeceased son or the son of predeceased son of his predeceased son so long as he is a minor provided and to the extent that he is unable to obtain maintenance in the case of a grandson from his father s or mother s estate and in the case of a great grand son from the estate of his father or mother or father s father or father s mother v) his or her unmarried daughter or the unmarried daughter of his predeceased son or the unmarried daughter of a predeceased son of his predeceased son so long as she remains unmarried: provided and to the extent that she is unable to obtain maintenance in the case of a grand daughter from her father s or mother s estate and in the case of a great grand daughter from the estate of her father or mother or father s father or father s vi) his widowed daughter: provided and to the extent that she is unable to obtain maintenance a) from the estate of her husband or b) from her son or daughter if any or his or her estate or c) from her father in law or his father or the estate of either of vii) any widow of his son or of a son of his predeceased son so long as she does not remarry: provided and to the extent that she is unable to obtain maintenance from her husband s estate or from her son or daughter if any or his or her estate or in the case of a grandson s widow also from her father in law s estate viii) his or her minor illegitimate son so long as he remains a ix) his or her illegitimate daughter so long as she remains Section 23. Amount of maintenance: It shall be in the discretion of the court to determine whether any and if so what maintenance shall be awarded under the provisions of this Act and in doing so the court shall have due regard to the considerations set out in sub sectionor sub sectionas the case may be so far as they are applicable 2) In determining the amount of maintenance if any to be awarded to a wife children or aged or infirm parents under this Act regard shall be had to a) the position and status of the parties b) the reasonable wants of the claimant c) if the claimant is living separately whether the claimant is justified in doing so d) the value of the claimant s property and any income derived from such property or from the claimant s own earnings or from any other source e) the number of persons entitled to maintenance under this Act 3) In determining the amount of maintenance if any to be awarded to a dependant under this Act regard shall be had to a) the net value of the estate of the deceased after providing for the payment of his debts b) the provision if any made under a will of the deceased in respect of the dependant c) the degree of relationship between the two d) the reasonable wants of the dependant e) the past relations between the dependant and the deceased f) the value of the property of the dependant and any income derived from such property or from his or her earnings or from any other source g) the number of dependants entitled to maintenance under this A conjoined reading of Section 3(b) and Section 20(3) of the Act 1956 indicates that an unmarried daughter is entitled for maintenance from her parents till she is unmarried in case she is unable to maintain herself out of her own earnings or other property. The maintenance includes the reasonable expenses and incident to her marriage apart from food clothing residence education and medical attendance and treatment. The obligation cast under Section 20 of the Act 1956 is on both the parents. A daughter can claim maintenance from either of her parents in case she is unable to maintain herself or is unable to bear the expenses related to her marriage. In the instant case the appellant daughter had been left on her own by the father as soon as she attained majority. Even prior to that only Rs 1000 was being paid to her by the father towards living expenses. The motherhad been awarded maintenance in the proceeding under Section 125 Cr.P.C. where she was getting a petty amount of maintenance for herself and her children. Apart from the appellant there were other two children of the respondent who were also looked after by his wife only The respondent admittedly did not bear the responsibility of education of his children including the appellant herein. Somehow the appellant had been able to educate herself with the help of her mother and completed vocational Nursing course. Though it was the responsibility of the father to bear expenses of education including higher education of his daughter but the appellant has given up the said claim. The only claim being pressed by the appellant is that at least the father should bear the expenses of her marriage as her mother has no such There is no denial of the said fact. The only reason given by the respondent to contest the petition under Section 20(3) moved by his daughter is that she got a job during the pendency of the said application and is earning Rs. 4500 12. No plausible explanation could be offered by the respondent father as to why he did not discharge his responsibility towards his children. He never looked after them nor offered any kind of financial support. When the claimant appellant has somehow managed to study her claim for maintenance is being contested on the ground that she has started earning during pendency of the application. Section 23 of the Act 1956 as extracted above provides the criteria for fixing the quantum of maintenance which shows that a comparison of income of both the parties has to be made by the Court while determining the amount of maintenance. The criteria which are required to be kept in mind are the position and status of the parties and the claimants own earnings or earning from any other source. The reasonableness of the demand of the claimant and the reason why the claimant is living separately is also to be seen while assessing whether the demand is justified or not 14. Having gone through the provisions of the Act 1956 as also the factual position with regard to income and the status of the parties we are of the considered view that petty amount of Rs. 4500 being earned by the appellant cannot be a reason to reject her prayer for grant of maintenance towards education expenses as also marriage expenses However noticing that the appellant has given up her claim for expenses towards her education and only demands marriage expenses we are of the considered view that the demand of the appellant is perfectly justified. We cannot oblivious of the fact that the respondent had never discharged his responsibility towards his unmarried daughter and did not borne her education expenses. The demand of Rs. 10 Lacs towards marriage expenses in the current scenario when the appellant is aged about 27 28 years cannot be said to unjustified or excessive. The family court while rejecting the application under Section 20(3) of Hindu Adoption and Maintenance Act 1956 has simply ignored that the applicant had incurred all expenditures towards her education in pursuing nursing course and at no point of time during the entire period till and after she attained majority her education and living expenses were borne by the father. The family court had completely ignored that the appellant has a right to claim expenses towards performance of her marriage from her father under the statute. For the aforesaid while setting aside the order dated 6.10.2017 being unjustifiable and unreasonable we direct the respondent father to pay Rs. 10 Lacs by submitting the demand drafts before this Court in two The first installment of Rs. 5 Lacs shall be paid by the respondent father within a period of one month from today i.e. on 22.11.2021 by presenting a demand draft before this Court The remaining second installment of Rs. 5 Lacs shall be paid within a further period of two months by presenting another demand draft before The disposal of the present appeal would be subject to the payment made by the respondent father as per the above schedule List this matter on 23.11.2021 in the additional cause list for compliance of the above directions (Sunita Agarwal J Order Date : 21.10.2021

Petitioners’ released on bail after being arrested under Sections 341, 323, 337, 354-B, 307, 504, and 506/34IPC: High court of Patna

The petitioner was arrested under Section 341 IPC,” Punishment for wrongful restraint”, section 323, “ Punishment for voluntarily causing hurt”, section 337, “ Causing hurt by act endangering life or personal safety of others”, section 354-B, “Assault or criminal force to woman with intent to outrage her modesty”, section 307, “Attempt to murder”, section 504, “Intentional insult with intent to provoke breach of the peace”, section 506 “Punishment for criminal intimidation”  and section 34IPC, “Acts done by several persons in furtherance of common intention”. This  is in connection with Shahpur PS Case No. 287 of 2019 dated 24.10.2019 This judgment was given in the high court of Judicature at Patna on the 23rd of July 2021 by Honorable Mr. Justice Ahsanuddin Amanullah in the case of Kasim Mansuri and others v/s the state of Bihar criminal miscellaneous No.4421 of 2021, Mr. Md Haque represented as the advocate for the petitioner and Mr. Upadhyay represented as the additional Public prosecutor for the state of Bihar, the proceedings of the court were held through video conference.   The following are the facts of the case. The petitioners were accused of assaulting the informant and other relatives. They had torn her clothes and snatched her nose ring, ear tops, and other ornaments worn by the informant. However the counsel for the petitioner held that this accusation has been falsely implicated and stated that this incident occurred due to some dispute of erection of an electric pole on the 22nd of December 2019 around 1:00 PM, the counsel held that the petitioner received a grievous injury and the petitioners have actually filed a case against the informant and her family in Shahpur PS Case No. 286 of 2019 on 24.10.2019 under Sections 341, 323, 307, 504 and 506/34 of the Indian Penal Code. and therefore this present case has been filed as a defense to that same incident. He also conceded there have been no specific allegations against the petitioner and all the injuries were simple in nature. The additional Public prosecutor submitted that even though the injuries were simple, the victim suffered from a fracture on her toe, he also submitted that all the cases relate to the same incident and the injuries suffered by both sides were simple except for the fracture. After considering the facts and circumstances of the case, the court held that the petitioners will be released on bail upon furnishing bail bonds of Rs. 25,000 each with two sureties of the like amount each to the satisfaction of the Additional Chief Judicial Magistrate, subject to the conditions laid down in Section 438(2) Cr. P.C.,1973 “(i) that one of the bailors shall be a close relative of the petitioners, (ii) that the petitioners and the bailors shall execute the bond and give undertaking concerning good behavior of the petitioners, and (iii) that they shall cooperate with the Court and the police/prosecution.” The court concluded that “Any violation of the terms and conditions of the bonds or undertaking or failure to cooperate shall lead to cancellation of their bail bonds. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the petitioners, to the notice of the Court concerned, which shall take immediate action on the same after giving the opportunity of hearing to the petitioners.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.44221 Arising Out of PS. Case No. 287 Year 2019 Thana SAHPUR District Bhojpur 1. Kasim Mansuri @ Md. Kasim Mansuri age 55 yrsS o Late Madhu 2. Md. Jubrail Mansuri @ Md. Zibrail Mansuri age 48 yrsS o Late 3. Gyasuddin Mansuri @ Md. Gyasuddin Mansuri age 22 yrsS o Late Sultan Mansuri Sultan Mansuri Firoz Mansuri @ Md. Firoz Mansuri age 35 yrsS o Late Sultan 5. Md. Aslam Mansuri age 42 yrsS o Late Sultan Mansuri All resident of village Ranisagar P.S. Shahpur District Bhojpur ... Petitioner s The State of Bihar For the Petitioner s For the Opposite Party s CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH Mr. Md. Ataul Haque Advocate Mr. Jharkhandi Upadhyay APP ... Opposite Party s Date : 23 07 2021 The matter has been heard via video conferencing 2. Heard Mr. Md. Ataul Haque learned counsel for the petitioners and Mr. Jharkhandi Upadhyay learned Additional Public Prosecutorfor the 3. The petitioners apprehend arrest in connection with Shahpur PS Case No. 2819 dated 24.10.2019 instituted under Sections 341 323 337 354 B 307 504 and 506 34 of the Indian Penal Code Patna High Court CR. MISC. No.44221 dt.23 07 2021 4. The allegation against the petitioners is of assault on the informant and other relatives and also of tearing her clothes and snatching of nose ring ear tops and other 5. Learned counsel for the petitioners submitted that they have been falsely implicated and the incident occurred with regard to dispute of erection of an electric pole on 22.10.2019 at 1:00 PM for which the petitioner no. 1 has lodged Shahpur PS Case No. 2819 on 24.10.2019 under Sections 341 323 307 504 and 506 34 of the Indian Penal Code against the informant and her family members and the present case has been filed after that by way of a defence for the same incident. It was submitted that the petitioners’ side has received grievous injury whereas in the instant case there is no specific allegation against the petitioners and all injuries are simple caused by hard and blunt substance 6. Earlier the Court had called for up to date legible photocopy of the entire case diaries of Sahpur PS Case No. 2819 i.e. the present case as well as the connected case i.e. Sahpur PS Case No. 2819 which also relates to the same 7. Learned APP from the case diaries submitted that Patna High Court CR. MISC. No.44221 dt.23 07 2021 in the present case the injuries are simple except for fracture on the toe of victim Priyanka. It was submitted that both the cases relate to the same incident and there has been injury suffered on both the sides and all are simple in nature except for aforesaid injury on Priyanka in the present case. 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties in the event of arrest or surrender before the Court below within six weeks from today the petitioners be released on bail upon furnishing bail bonds of Rs. 25 000 of the Code of Criminal Procedure 1973 and furtherthat one of the bailors shall be a close relative of the petitioners that the petitioners and the bailors shall execute bond and give undertaking with regard to good behaviour of the petitioners and that they shall cooperate with the Court and the police prosecution. Any violation of the terms and conditions of the bonds or undertaking or failure to cooperate shall lead to cancellation of their bail bonds. Patna High Court CR. MISC. No.44221 dt.23 07 2021 9. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the petitioners to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the petitioners 10. The petition stands disposed off in the (Ahsanuddin Amanullah J J. Alam

Residuary powers of one party to appoint arbitrator are limited: High Court of Delhi

Any clause in an agreement allowing a party in case of dispute to choose an arbitrator independently, when the other party failed to respond within a period of 30 days informing about their choice of arbitrator, is not unlimited and such residuary powers cannot be exercised absolutely. This was held in the case of C S Electric Ltd. v. JOP Power [ARB.P. 86/2021 and IA 851/2021] in the High Court of Delhi by Hon’ble Judge C. Hari Shankar. The facts of the case are that an Agreement was executed between the petitioner and the respondent, wherein the petitioner was required to supply Sandwich Bus Ducts to the respondent. Article 15.3.1 of the Agreement provided for resolution of the disputes by arbitrator. Disputes arose between the parties. Vide letter dated 14th June, 2014, the respondent appointed Mr. K. Sunil as the arbitrator to arbitrate on the disputes. However it was observed that he was not exercising his function with due diligence and he was unduly delaying the proceedings. He was terminated and a new arbitrator was to be appointed for which the respondent vide a mail addressed to the petitioner proposed three names of arbitrators to choose from. The respondent mailed after the period of 30 days and by then the respondent had already appointed an arbitrator. This petition was filed under Section 11(6) of the Arbitration and Conciliation Act, to refer the dispute, between the petitioner and the respondent, to arbitration and nullify the appointment made. The counsel for the petitioner argued that though the petitioner had not responded to the by selecting an arbitrator out of the three names within the period of 30 days stipulated in Clause 15.3.1 of the Agreement, the appointment, by the petitioner, of Mr. Bhatia as the arbitrator, as communicated to the respondent ought to be treated as valid 13.  For this the court sought reliance on U.O.I. v. PREMCO-DKSPL wherein was specifically held “the covenants of the arbitration agreement are sacrosanct and have to be strictly enforced”. Taking note of this precedent, the court further stated” the period of 30 days stipulated in Clause 15.3.1, therefore, unquestionably bound the parties and on the expiry of 30 days from the communication dated 26th 1 (2016) 14 SCC 651 November, 2020, addressed by the respondent to the petitioner, the petitioner’s right to select an arbitrator out of the panel proposed by the respondent, stood extinguished” At the same time, the court did not upheld the appointment of arbitrator made by the respondent as well citing that the law laid down by the Supreme Court in Perkins Eastman Architects DPC v. HSCC (India) Ltd. and TRF Limited v. Energo Engineering Projects Ltd. read with Section 12(5) and Schedule VII to the 1996 Act according to which the residuary powers conferred by the clause of the agreement cannot be sustained or be permitted to be enforced.

IN THE HIGH COURT OF DELHI AT NEW DELHI Decided on 29th J anuar y 2021 ARB.P. 86 2021 and IA 851 2021C S ELECTRIC LTD Through Mr. Rahul Malhotra Adv. ..... Petitioner JOP POWER Through Mr. Raman Kapur ..... Respondent Advocate with Mr. Varun Kapur Adv. HON BLE MR. JUSTICE C. HARI SHANKAR JUDGMENT29.01.2021 This is a petition under Section 11(6) of the Arbitration and Conciliation Act 1996to refer the dispute between the petitioner and the respondent to arbitration. Given the nature of the controversy a brief recital of facts would suffice. On 3rd December 2011 an Agreement was executed between the petitioner and the respondent whereunder the petitioner was required to supply Sandwich Bus Ducts to the respondent. Article 15.3.1 of the Agreement dated 3rd December 2011 provided for resolution of the disputes by arbitrator which read thus: ARB.P. 86 2021 “15.3.1 All disputes shall be resolved through Arbitration. The appointment of a sole arbitrator to be selected by the Supplier Manufacturer out of the names 3 such notable persons to be given by "JOP" within a period of 30 days from the notice of reference of unresolved disputes between the parties. The jurisdiction of holding the proceedings of such arbitration shall be the state of Delhi. The applicable law will be Arbitration and Conciliation Act 1996. In case the Supplier Manufacturer fails to choose the name of an Arbitrator from the 3 names of Arbitrators suggested by “JOP” BOARD reserves its right to appoint an Arbitrator of its choice and the Supplier Manufacturer shall be bound by such Arbitrator and his award.” Disputes arose between the parties. Vide letter dated 14th June 2014 the respondent appointed one Mr. K. Sunil as the arbitrator to arbitrate on the disputes. Contending that the learned arbitrator was not exercising its function with due diligence and he was unduly delaying the proceedings the petitioner filed OMP(T)(COMM) 1 2018 before the learned Additional District Judge under Sections 14(1) and 14(2) of the 1996 Act for termination of the mandate of Mr. K. Sunil. Vide order dated 29th September 2020 OMP(T)(COMM) 1 2018 was allowed by the learned ADJ and mandate of Mr. K. Sunil to arbitrate on the disputes between the petitioner and the respondent was terminated in terms of Section 14 of the 1996 Act. This order has admittedly attained Pursuant to the termination of the mandate of Mr. Sunil it became necessary to appoint a substitute arbitrator to arbitrate on the ARB.P. 86 2021 disputes between the petitioner and the respondent. The respondent acting in accordance with the afore extracted Clause 15.3.1 of the Agreement proposed vide letter dated 26th November 2020 addressed to the petitioner the names of three persons out of which the petitioner was requested to suggest one to appoint its arbitrator to arbitrate on the aforesaid disputes. The petitioner responded only on 4th January 2021 after the period of 30 days stipulated in Clause 15.3.1 of the Agreement had expired suggesting the name of Mr. O.P. Bhatia one of three names proposed by the respondent to act as an arbitrator to arbitrate on the disputes between the parties. On the same day the respondent wrote to the petitioner stating that it had already appointed Mr. G.K. Pharlia also one of the three names proposed by the respondent in its communication dated 26th November 2020 to arbitrate on the disputes. Apparently thereafter Mr. Pharlia accepted his nomination as arbitrator and fixed hearing in the matter. 10. The petitioner however vide email dated 9th January 2021 opposed the appointment of Mr. Pharlia as the arbitrator stating that it had already appointed Mr. Bhatia as arbitrator vide its communication January 2021. It is in these circumstances that the petitioner has moved the ARB.P. 86 2021 present petition requesting this Court to appoint an independent arbitrator in exercise of its powers conferred by Section 11 of the 1996 Act. 12. Mr. Rahul Malhotra learned counsel for the petitioner first sought to argue that though the petitioner had not responded to the communication dated 26th November 2020 of the respondent by selecting an arbitrator out of the three names proposed in the said communication within the period of 30 days stipulated in Clause 15.3.1 of the Agreement the appointment by the petitioner of Mr. Bhatia as the arbitrator as communicated to the respondent on 4th January 2021 ought to be treated as valid. For this purpose Mr. Malhotra submitted that the period of 30 days stipulated in Clause 15.3.1 of the Agreement should only be regarded as directory and not mandatory. He however acknowledged candidly on the last date of hearing that he could not lay hands on any judicial authority to support this submission. In my view the submission is not ex facie acceptable. The 1 specifically Supreme Court has in U.O.I. v. PREMCO DKSPL14 SCC 651 ARB.P. 86 2021 respondent stood extinguished. 14. The appointment of Mr. Bhatia as suggested by the petitioner January 2021 cannot therefore pass muster as it was effected beyond the period of 30 days as stipulated in Clause 15.3.1 of the Agreement and was therefore in violation of the terms of the Agreement between the parties. 15. Accordingly the prayer of the petitioner for approval of the appointment of Mr. Bhatia as the arbitrator to arbitrate on the disputes is rejected. 16. Equally however I am of the opinion that the appointment of Mr. Pharlia as the sole arbitrator as effected by the respondent also cannot pass legal muster. Mr. Raman Kapur learned Senior Counsel appearing for the respondent acknowledges that the appointment of Mr. Pharlia by the respondent was in exercise of the residuary authority conferred by Clause 15.3.1 on the respondent to select an arbitrator out of the panel suggested by the respondent to the petitioner consequent on default by the petitioner to select the arbitrator within 30 days of communication of the names by the respondent. 17. There is no gainsaying the fact that Clause 15.3.1 of the Agreement does authorize the respondent in the event of the petitioner failing to select an arbitrator out of the panel proposed by the respondent within 30 days of communication of such proposal to ARB.P. 86 2021 itself select one of the names from the panel as the arbitrator to arbitrate on the disputes. In my view however this residuary power as conferred by Clause 15.3.1 is in the teeth of the law laid down by the Supreme Court in Perkins Eastman Architects DPC v. HSCCLtd2 and TRF Limited v. Energo Engineering Projects Ltd3 read with Section 12(5) and Schedule VII to the 1996 Act. The Supreme Court has in these decisions clearly discountenanced conferment of any authority on either of the parties to the Agreement either to act as arbitrator or to appoint the arbitrator to arbitrate on the disputes. 19. As such the stipulation in Clause 15.3.1 of the Agreement that in the event of failure on the part of the supplier manufacturer i.e. the petitioner to select a name out the panel suggested by the respondent JOP within 30 days of the such suggestion the JOP could appoint an arbitrator of its choice out of the said panel cannot in my view be sustained or be permitted to be enforced. This part of Clause 15.3.1 is according to me clearly severable from the earlier part of the said clause and being contrary to the law laid down in Perkins Eastman2 supra) could not have been invoked or enforced by the respondent. 20. Mr. Kapur has sought to place reliance on the judgment of the Supreme Court in Central Organisation for Railway Electrification v. ECI SPIC SMO MCML8 SCC 377 4 2019 SCC OnLine SC 1635 ARB.P. 86 2021 clause was not invalid. Having gone through the decision in Central Organisation for Railway Electrification4 I am unable to find anything in the said decision which would validate such a residuary conferment of authority as contained in Clause 15.3.1 in the agreement between the petitioner and the respondent. The arbitration clause in Central Organisation for Railway Electrification4 provided for the proposal of a panel of the names by Central Organisation for Railway Electrification to the respondent before the Supreme Court out of which the respondent was authorised to select any two. Once the respondent had selected two names out of the panel of four proposed by CORE the Managing Director of CORE was authorised to pick one of the said two names as the contractor nominee to arbitrate on the disputes. There was no conferment of any residuary authority on CORE in the event of default by the respondent to suggest the names out of the panel of four to itself select an arbitrator of its own choice out of the said panel to arbitrate on the disputes. The situation that arises in the present case therefore was not before the Supreme Court in Central Organisation for Railway Electrification4 and therefore the said decision cannot be of any assistance to the respondent. In view thereof I am of the opinion that respondent could not 2 and TRF3 have in the face of law laid down in Perkins Eastman chosen an arbitrator out its choice even out of the panel of three proposed by the respondent to the petitioner to arbitrate on the disputes on the petitioner failing to exercise such choice within 30 days of suggestion of names by the respondent. The respondent could ARB.P. 86 2021 in such circumstances have approached this Court but did not choose to do so. 22. Resultantly the appointment of Mr. Pharlia as arbitrator to arbitrate on the disputes between the parties must also be treated as without authority of law. 23. The task of appointing arbitrator to arbitrate on the disputes between the parties therefore devolves on this Court. In view thereof this Court appoints Mr. Vijay Motwani retired ADG as arbitrator to arbitrate on the disputes between the 25. The contact details of the learned arbitrator are as under: CII 153 Satya Marg Chanakyapuri New Delhi 110 021 Phone No.9811793440 Email ID: motwanivijayg@gmail.com 26. The parties are directed to contact the learned arbitrator within one week of communication of email by the Registry of this Court the copy of this order. 27. The fees of the learned arbitrator shall be fixed by the learned arbitrator in consultation with the parties. ARB.P. 86 2021 28. The learned arbitrator shall furnish the requisite disclosure under Section 12(2) of the 1996 Act within a week of entering on 29. Subject to the aforesaid directions this petition stands disposed IA 851 2021stands disposed of. JANUARY 29 2021 r.bararias In view of the order passed in the petition this application C. HARI SHANKAR J. ARB.P. 86 2021

Reasonable opportunity to defend is the first principle of civilised jurisprudence: Supreme Court

Reasonable opportunity should be given to an individual to defend herself/himself in order to uphold the principles of natural justice. The Supreme Court bench consisting of J. Abdul Nazeer and J. B. R. Gavai, ruled against the Food Corporation of India, discussing about its authority in matters of blacklisting in the case of UMC Technologies Private Ltd. v. Food Corporation of India and Anr. [Civil Appeal No. 3687 of 2020].   The Food Corporation of India, herein the respondent, issued a Bid document inviting bids for the appointment of a recruitment agency to conduct the process of recruitment for hiring watchmen for the Corporation’s office. The appellant on submitting its bid, was declared as the successful bidder and was appointed for a period of 2 years for undertaking the tendered work of conducting the recruitment of watchmen for the Corporation. On the day of the written exam conducted by the appellant for eligible aspirants, a Special Task Force of Bhopal Polices arrested persons who were in possession of certain handwritten documents which prima facie  appeared to be the question papers to the examination. A charge sheet was filed by the police upon which the Corporation issued a show cause notice informing the appellant about the said arrest and alleging that the appellant had breached several clauses of the Bid document which rested the responsibility of confidentiality upon the appellant. The notice also stated that the appellant had acted in a negligent manner and gave the appellant 15 days to furnish an explanation, the default of which would call for an appropriate ex-parte decision by the Corporation. The appellant denied any negligence on its part and furnished several factual justifications  along with a forensic analysis which proved many dissimilarities between the documents seized and the actual examination papers. The Corporation concluded that the shortcomings on the part of appellant stood established beyond reasonable doubt and proceeded to terminate the contract and blacklisted the appellant from participating in any future tenders of the corporation  for a period of 5 years. The appellant’s security deposit was forfeited and it was asked to execute the unexpired portion of the contract at its own cost and risk. Aggrieved, the appellant approached the High Court, where the petition was dismissed. The Supreme Court observed that the appellants were only challenging the blacklisting for 5 years and not the termination of the contract. Relying on Nasir Ahmad v. Assistant Custodian General, Evacuee Property, Lucknow and Anr. [(1980) 3 SCC 1], the SC held that “ the first principle of civilised jurisprudence that a person against whom any action is sought to be taken or whose right or interests are being affected should be given a reasonable opportunity to defend himself. The basic principle of natural justice is that before adjudication starts, the authority concerned should give to the affected party a notice of the case against him so that he can defend himself. Such notice should be adequate and the grounds necessitating action and the penalty/action proposed should be mentioned specifically and unambiguously. An order travelling beyond the bounds of notice is impermissible and without jurisdiction to that extent”.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3687 OF 2020 Arising out of S.L.P.No. 142219 UMC TECHNOLOGIES PRIVATE LIMITED …APPELLANT(S FOOD CORPORATION OF INDIA AND ANR. …RESPONDENT(S JUDGMENT S. ABDUL NAZEER J This appeal is directed against the order dated 13.02.2019 passed by the High Court of Madhya Pradesh at Jabalpur in Writ Petition No. 27719. By the impugned order the High Court has dismissed the writ petition and has upheld the validity of the order dated 09.01.2019 passed by respondent no.1 namely Food Corporation of India through its Deputy General Manager who is respondent no. 2 herein to terminate a contract of service with the appellant and to blacklist the appellant from participating in any future tenders of the Corporation for a period of 5 years The Corporation had issued a Bid Document on 25.11.2016 inviting bids for appointment of a recruitment agency to conduct the process of recruitment for hiring watchmen for the Corporation’s office. The appellant submitted its bid on 21.12.2016 and was eventually declared as the successful bidder vide the Corporation’s letter dated 28.03.2017. After completion of the formalities the appellant was appointed for a period of 2 years w.e.f. 14.02.2017 for undertaking the tendered work of conducting recruitment of watchmen for the Corporation As part of its work on 01.04.2018 the appellant conducted a written exam for eligible aspirants for the post of watchman with the Corporation at various centres in Madhya Pradesh. On the same day a Special Task Force of Bhopal Police arrested 50 persons in Gwalior who were in possession of certain handwritten documents which prima facie appeared to be the question papers related to the examination conducted by the appellant. The police filed a charge sheet on 03.08.2018 against certain persons including an employee of the appellant. Upon receipt of the above information the Corporation issued a show cause notice dated 10.04.2018 to the appellant informing the appellant about the said arrest and seizure of documents which appeared to contain question papers related to the examination conducted by the appellant. This notice alleged that the appellant had breached various clauses of the Bid Document dated 25.11.2016 on the ground that it was the sole responsibility of the appellant to prepare and distribute the question papers as well as conduct the examination in a highly confidential manner. Several clauses of the Bid Document were listed in the said notice dated 10.04.2018 and the Corporation alleged that the appellant had violated the same due to its abject failure and clear negligence in ensuring smooth conduct of the examination. The said notice directed the appellant to furnish an explanation within 15 days failing which an appropriate ex parte decision would be taken by the The appellant replied to the aforesaid notice vide its letter dated 12.04.2018 denying any negligence or leak of question papers from its end. In its communication the appellant furnished several factual justifications in support of its position and also requested the Corporation to make the documents seized by the police available to the appellant for forensic analysis. These documents were provided to the appellant vide the Corporation’s letter dated 18.10.2018. The Corporation addressed another letter dated 22.10.2018 calling upon the appellant to submit its final reply explanation. Thereafter on 27.10.2018 the appellant submitted an Observation Report cum Reply Explanation which compared the seized documents with the original question papers and contended that there were many dissimilarities between the two and thus there had been no leakage or dissemination of the original question papers By its aforesaid order dated 09.01.2019 the Corporation concluded that the shortcomings negligence on part of the appellant stood established beyond any reasonable doubt and proceeded to terminate its contract with the appellant and also blacklisted the appellant from participating in any future tenders of the corporation for a period of 5 years. Further the appellant’s security deposit with the Corporation was forfeited and the appellant was directed to execute the unexpired portion of the contract at its own cost and risk Aggrieved by the above order of the Corporation the appellant after issuing a legal notice filed Writ Petition No. 27719 before the High Court. This petition came to be dismissed by the High Court’s aforesaid order dated 13.02.2019 which is under challenge before us At the outset it may be noted that Shri Gourab Banerji learned senior counsel for the appellant has submitted that the appellant only seeks to contest the issue of blacklisting and not the termination of the contract between the appellant and the Corporation. Thus the sole issue that falls for determination before us is whether the Corporation was entitled to and justified in blacklisting the appellant for 5 years from participating in its future tenders. Before delving into the contentions of the parties it would be useful to extract some of the provisions of the Corporation’s Bid Document dated 25.11.2016 which would be material to determining the validity of the blacklisting order dated “INSTRUCTIONS TO BIDDERS 10. DISQUALIFICATION CONDITIONS: Bidder who have been blacklisted or otherwise debarred by FCI or central state Govt. or any central State PSU Statutory Corporations will be ineligible during the period of such 10.1 Any Bidder whose contract with FCI or central state Govt. or any central State PSU Statutory Corporations has been terminated before the expiry of the contract period for breach of any terms and conditions at any point of time during the last five years shall be 10.2 Bidder whose Earnest Money Deposit and or Security Deposit have been forfeited by the FCI or central state Govt. or any central State PSU Statutory Corporations during the last five years for breach of any terms and conditions shall be ineligible XXX 25. CORRUPT PRACTICES 25.4 Any corrupt practice indulged by the agency or any of its employee at any of the stages of the recruitment including preparation of the question paper distribution of question paper conducting of the exams valuation of the answer sheets declaration of results etc. shall lead to immediate cancellation of the contact and the agency shall be liable for appropriate legal action without prejudice to any other clause in the contract 42. TERMINATION OF CONTRACT 42.1 By Corporation ii) The FCI shall also have without prejudice to other rights and remedies the right in the event of breach by the Bidder of any of the terms and conditions of the contract or failing to observe any of the provisions obligations governing the contract to terminate the contract forthwith and to get the work done for the unexpired period of the contract at the risk and cost of the Agency and to forfeit the Security Deposit or any part thereof for recovery of all losses damages costs and expenses which may be incurred by FCI consequent to such termination and or in completing the assignment FCI may also effect recovery from other sums then due to the Agency or which at any time thereafter may become due under this or any other contract with FCI. In case the sum is not sufficient to cover the full amounts recoverable the Agency shall pay FCI on demand the entire remaining balance due iii) FCI may at any time without assigning any reason terminate the contract without any liability by giving 7 working days’ notice to the bidder.” 10. On behalf of the appellant it was submitted by Shri Banerji that the Corporation had no power under the above quoted or any other provisions of the Bid Document dated 25.11.2016 to blacklist the appellant. It was argued that above quoted Clause 10 titled “Disqualifications Conditions” which has been relied upon by the Corporation merely lays down eligibility criteria and does not grant any power of future blacklisting. It was further alleged that the said clause was also not mentioned in the show cause notice dated 10.04.2018 issued by the Corporation. The said show cause notice was also impinged upon by the appellant by submitting that it failed to meet the requirements of natural justice as it neither mentioned the grounds necessitating action nor specified what actions were proposed to be taken. Thus Shri Banerji submitted that in the absence of a valid show cause notice the consequent blacklisting order cannot be sustained. He further highlighted the outsized impact of the Corporation’s impugned order on the appellant in as much as the Corporation’s branches in other States as well as other government corporations have now issued as many as 5 notices to the appellant to cancel contracts or prevent the appellant from participating in their tender process and have also forfeited or withheld outstanding payments and security deposits. He argued that due to the domino effect of the Corporation’s blacklisting of the appellant the appellant has unreasonably suffered 5 punishments at the hands of the Corporation which is disproportionate and tantamounts to the civil death of the 11. On the other hand Shri Ajit Pudussery the learned counsel appearing on behalf of the Corporation argued that due to the negligence of the appellant the entire recruitment process had to be scrapped and the same has deprived several applicants of employment and undermined the confidence of the public in the recruitment process of the Corporation. In relation to the issue of blacklisting he submitted that since the appellant had breached the terms of the contract by leaking the question papers for the examination it was not in public interest to permit it to participate in future tenders. He further submitted that the appellant must have been aware of the possibility of the punishment of blacklisting as the same was provided for in the Bid Document. Thus it was argued that since the blacklisting order was made as per the Bid Document and after issuance of a show cause notice to which the appellant was granted ample time to reply to the Corporation’s impugned blacklisting order dated 09.01.2019 cannot be challenged 12. We have given our anxious consideration to the submissions made by the learned counsel at the Bar on behalf of the parties In our opinion the validity of the impugned order of the Corporation dated 09.01.2019 so far as the blacklisting of the appellant thereunder is concerned would in turn be determined by the validity of the underlying show cause notice dated 10.04.2018 issued by the Corporation to the appellant. 13. At the outset it must be noted that it is the first principle of civilised jurisprudence that a person against whom any action is sought to be taken or whose right or interests are being affected should be given a reasonable opportunity to defend himself. The basic principle of natural justice is that before adjudication starts the authority concerned should give to the affected party a notice of the case against him so that he can defend himself. Such notice should be adequate and the grounds necessitating action and the penalty action proposed should be mentioned specifically and unambiguously. An order travelling beyond the bounds of notice is impermissible and without jurisdiction to that extent. This Court in Nasir Ahmad v. Assistant Custodian General Evacuee Property Lucknow and Anr. 1 has held that it is essential for the notice to specify the particular grounds on the basis of which an action is proposed to be taken so as to enable the noticee to answer the case against him. If these conditions are not satisfied the person cannot be said to have been granted any reasonable opportunity of being heard. 13 SCC 1 14. Specifically in the context of blacklisting of a person or an entity by the state or a state corporation the requirement of a valid particularized and unambiguous show cause notice is particularly crucial due to the severe consequences of blacklisting and the stigmatization that accrues to the person entity being blacklisted. Here it may be gainful to describe the concept of blacklisting and the graveness of the consequences occasioned by it. Blacklisting has the effect of denying a person or an entity the privileged opportunity of entering into government contracts This privilege arises because it is the State who is the counterparty in government contracts and as such every eligible person is to be afforded an equal opportunity to participate in such contracts without arbitrariness and discrimination. Not only does blacklisting takes away this privilege it also tarnishes the blacklisted person’s reputation and brings the person’s character into question. Blacklisting also has long lasting civil consequences for the future business prospects of the blacklisted person In the present case as well the appellant has submitted that serious prejudice has been caused to it due to the Corporation’s order of blacklisting as several other government corporations have now terminated their contracts with the appellant and or prevented the appellant from participating in future tenders even though the impugned blacklisting order was in fact limited to the Corporation’s Madhya Pradesh regional office. This domino effect which can effectively lead to the civil death of a person shows that the consequences of blacklisting travel far beyond the dealings of the blacklisted person with one particular government corporation and in view thereof this Court has consistently prescribed strict adherence to principles of natural justice whenever an entity is sought to be blacklisted 16. The severity of the effects of blacklisting and the resultant need for strict observance of the principles of natural justice before passing an order of blacklisting were highlighted by this Court in Erusian Equipment & Chemicals Ltd. v. State of West Bengal2 in the following terms “12. … The order of blacklisting has the effect of depriving a person of equality of opportunity in the matter of public contract. A person who is on the approved list is unable to enter into advantageous relations with the Government because of the order of blacklisting. A person who has been dealing with the Government in the matter of sale and purchase of materials has a legitimate interest or expectation. When the State acts to the prejudice of a person it has to be supported by legality 21 SCC 70 15. … The blacklisting order involves civil consequences It casts a slur. It creates a barrier between the persons blacklisted and the Government in the matter of transactions. The black lists are instruments of coercion 20. Blacklisting has the effect of preventing a person from the privilege and advantage of entering into lawful relationship with the Government for purposes of gains The fact that a disability is created by the order of blacklisting indicates that the relevant authority is to have an objective satisfaction. Fundamentals of fair play require that the person concerned should be given an opportunity to represent his case before he is put on the 17. Similarly this Court in Raghunath Thakur v. State of Bihar 3 struck down an order of blacklisting for future contracts on the ground of non observance of the principles of natural justice. The relevant extract of the judgement in that case is as “4. … and Ors.4 has described blacklisting as being 31 SCC 229 49 SCC 105 equivalent to the civil death of a person because blacklisting is stigmatic in nature and debars a person from participating in government tenders thereby precluding him from the award of government contracts. It has been held thus “16. It is a common case of the parties that the blacklisting has to be preceded by a show cause notice Law in this regard is firmly grounded and does not even demand much amplification. The necessity of compliance with the principles of natural justice by giving the opportunity to the person against whom action of blacklisting is sought to be taken has a valid and solid rationale behind it. With blacklisting many civil and or evil consequences follow. It is described as “civil death” of a person who is foisted with the order of blacklisting. Such an order is stigmatic in nature and debars such a person from participating in government tenders which means precluding him from the award of government contracts.” 19. In light of the above decisions it is clear that a prior show cause notice granting a reasonable opportunity of being heard is an essential element of all administrative decision making and particularly so in decisions pertaining to blacklisting which entail grave consequences for the entity being blacklisted. In these cases furnishing of a valid show cause notice is critical and a failure to do so would be fatal to any order of blacklisting 20. In the present case the factum of service of the show cause notice dated 10.04.2018 by the Corporation upon the appellant is not in dispute. Rather what Shri Banerji has argued on behalf of the appellant is that the contents of the said show cause notice were not such that the appellant could have anticipated that an order of blacklisting was being contemplated by the Corporation Gorkha Security Servicesis a case where this Court had to decide whether the action of blacklisting could have been taken without specifically proposing contemplating such an action in the show cause notice. For this purpose this Court laid down the below guidelines as to the contents of a show cause notice pursuant to which adverse action such as blacklisting may be “Contents of the show cause notice 21. The central issue however pertains to the requirement of stating the action which is proposed to be taken. The fundamental purpose behind the serving of show cause notice is to make the noticee understand the precise case set up against him which he has to meet This would require the statement of imputations detailing out the alleged breaches and defaults he has committed so that he gets an opportunity to rebut the same. Another requirement according to us is the nature of action which is proposed to be taken for such a breach. That should also be stated so that the noticee is able to point out that proposed action is not warranted in the given case even if the defaults breaches complained of are not satisfactorily explained. When it comes to blacklisting this requirement becomes all the more imperative having regard to the fact that it is harshest possible action 22. The High Court has simply stated that the purpose of show cause notice is primarily to enable the noticee to meet the grounds on which the action is proposed against him. No doubt the High Court is justified to this agent However it is equally important to mention as to what would be the consequence if the noticee does not satisfactorily meet the grounds on which an action is proposed. To put it otherwise we are of the opinion that in order fulfil the requirements of principles of natural justice a show cause notice should meet the following two requirements viz i) The material grounds to be stated which according to the department necessitates an action ii) Particular penalty action which is proposed to be taken. It is this second requirement which the High Court has failed to omit We may hasten to add that even if it is not specifically mentioned in the show cause notice but it can clearly and safely be discerned from the reading thereof that would be sufficient to meet this requirement.” 21. Thus from the above discussion a clear legal position emerges that for a show cause notice to constitute the valid basis of a blacklisting order such notice must spell out clearly or its contents be such that it can be clearly inferred therefrom that there is intention on the part of the issuer of the notice to blacklist the noticee. Such a clear notice is essential for ensuring that the person against whom the penalty of blacklisting is intended to be imposed has an adequate informed and meaningful opportunity to show cause against his possible blacklisting 22. To test whether the above stipulations as to the contents of the show cause have been satisfied in the present case it may be useful to extract the relevant portion of the said show cause notice dated 10.04.2018 wherein the Corporation specified the actions that it might adopt against the appellant “Whereas the above cited clauses are only indicative Whereas it is quite evident from the sequence of events that M s U.MC Technologies Pvt. Ltd Kolkata has violated the condition clauses governing the contract due to its abject failure & clear negligence in ensuring smooth conduct of examination. As it was the sole responsibility of the agency to keep the process of preparation distribution of question paper and conducting of exam in highly confidential manner the apparent leak point towards acts of omission & commission on the part of M S UMC Technologies Ltd. Kolkata Whereas M S UMC Technologies Pvt. Ltd. Kolkata is hereby provided an opportunity to explain its Position in the matter before suitable decision is taken as per T&C of MTF. The explanation if any should reach this office within a period of 15 days of receipt of this notice falling which appropriate decision shall be taken. ex parte as per terms and conditions mentioned in MTF without prejudice to any other legal rights & remedies available with the 23. It is also necessary to highlight the order dated 09.01.2019 passed by the Corporation in pursuant to the aforesaid notice the operative portion of which reads as under “After having examined the entire matter in detail the shortcomings negligence on the part of M s UMC Technologies Pvt. Ltd. stands established beyond any reasonable doubt. Now therefore in accordance with clause 42.1(II) of the governing MTF the competent authority hereby terminates the contract at the risk and cost of the Agency. As per Clause No. 10.1 & 10.2 the said M s UMC Technologies Pvt. Ltd. is hereby debarred from participating in any future tenders of the corporation for a period of Five years Further the Security Deposit too stands forfeited as per clause 15.6 of MTF. This order is issued without prejudice to any other legal remedy available with FCI to safeguard its interest.” 24. A plain reading of the notice makes it clear that the action of blacklisting was neither expressly proposed nor could it have been inferred from the language employed by the Corporation in its show cause notice. After listing 12 clauses of the “Instruction to Bidders” which were part of the Corporation’s Bid Document dated 25.11.2016 the notice merely contains a vague statement that in light of the alleged leakage of question papers by the appellant an appropriate decision will be taken by the Corporation. In fact Clause 10 of the same Instruction to Bidders section of the Bid Document which the Corporation has argued to be the source of its power to blacklist the appellant is not even mentioned in the show cause notice. While the notice clarified that the 12 clauses specified in the notice were only indicative and not exhaustive there was nothing in the notice which could have given the appellant the impression that the action of blacklisting was being proposed. This is especially true since the appellant was under the belief that the Corporation was not even empowered to take such an action against it and since the only clause which mentioned blacklisting was not referred to by the Corporation in its show cause notice. While the following paragraphs deal with whether or not the appellant’s said belief was well founded there can be no question that it was incumbent on the part of the Corporation to clarify in the show cause notice that it intended to blacklist the appellant so as to provide adequate and meaningful opportunity to the appellant to show cause against the same. 25. The mere existence of a clause in the Bid Document which mentions blacklisting as a bar against eligibility cannot satisfy the mandatory requirement of a clear mention of the proposed action in the show cause notice. The Corporation’s notice is completely silent about blacklisting and as such it could not have led the appellant to infer that such an action could be taken by the Corporation in pursuance of this notice. Had the Corporation expressed its mind in the show cause notice to black list the appellant could have filed a suitable reply for the same Therefore we are of the opinion that the show cause notice dated 10.04.2018 does not fulfil the requirements of a valid show cause notice for blacklisting. In our view the order of blacklisting the appellant clearly traversed beyond the bounds of the show cause notice which is impermissible in law. As a result the consequent blacklisting order dated 09.01.2019 cannot be sustained In view of our conclusion that the blacklisting order dated 09.01.2019 passed by the Corporation is contrary to the principles of natural justice it is unnecessary for us to consider the other contentions of the learned counsel for the appellant. Having regard to the peculiar facts and circumstances of the present case we deem it appropriate not to remit the matter to the Corporation for fresh consideration. 27. For the foregoing reasons the appeal succeeds and it is accordingly allowed. The order dated 13.02.2019 passed by the High Court is set aside. The Corporation’s order dated 09.01.2019 is hereby quashed only so far as it blacklists the appellant from participating in future tenders. The parties will bear their own 28. Pending application(s) if any shall stand disposed of (S. ABDUL NAZEER …. J (B. R. GAVAI New Delhi November 16 2020

The employer has the right to consider antecedents, and cannot be compelled to appoint the candidate: Sikkim High Court

If acquittal had already been recorded in a case involving moral turpitude or offence of heinous nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents and may take an appropriate decision as to the continuance of the employee. In a case where the employee has made a declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate. The judgement was passed by the High Court of Sikkim in the case of Mr Tara Prasad Sharma vs. State of Sikkim & Ors. [WP(C) No.02 of 2019] by Single Bench consisting of Hon’ble Justice Jitendra Kumar Maheshwari. The petitioner has filed this petition under Article 226 of the Constitution of India, challenging the resolution of Full Court of the High Court of Sikkim recommending to withdraw the appointment of the petitioner made by previous resolution of the Full Court on the post of Civil Judge-cum-Judicial Magistrate and to challenge the appointment of the respondent made in place of the petitioner based on the same resolution and on the same post, this petition has been filed. The petitioner contended that he was acquitted from the charge levelled against him under Section 468 of the. On receiving the offer of appointment vide Memorandum, he submitted his attestation form specifying the details of the criminal case and its result. He has urged, it is not a case of concealment of material facts, as he has disclosed the details of the criminal case and its result of acquitting him in the attestation form. Being the candidate of merit as per the resolution of the Full Court. He had rightly been appointed by the State Government. Merely registering a criminal case in which he was acquitted by the Court, may not debar him from the appointment as Civil Judge, he contended. Learned Counsel for the respondent has inter alia contended that it is a case in which petitioner was not acquitted honourably but acquitted giving the benefit of the doubt. After taking note of the same, the appointing authority has rightly exercised its discretion to discontinue the petitioner and to appoint Respondent on the said vacant post. The court observed that “even acquittal of the petitioner giving the benefit of the doubt, in a case involving moral turpitude, is not sufficient to grant employment until he is acquitted clearly. The employer is having the right to consider all relevant facts available and as to antecedents and may take an appropriate decision as to the continuation of the employee in the employer looking to the standard of propriety and probity. The employer cannot be compelled to appoint the candidate for holding the civil post, if not acquitted clearly.”

IN THE HIGH COURT OF SIKKIM : GANGTOK Civil Extraordinary Jurisdiction) WPNo. 019 Mr. Tara Prasad Sharma Aged about 33 years Son of Shri Bhagirath Sharma Resident of Village Deythang P.O. Sribadam P.S. Soreng West Sikkim. At present residing at Gyalshing C o Mrs. Sabita Sharma Advocate District Court Gyalshing West Sikkim. The State of Sikkim Through Chief Secretary Manan Kendra Development Area East Sikkim at Gangtok. … Petitioner Department of Personnel Administrative Reforms Training and Public GrievancesGovernment of Sikkim Gangtok Through the Commissioner cum Secretary. The Registrar General Hon‟ble High Court of Sikkim. Shri Jabyang Dorjee Sherpa S o Nawang Rapgay Sherpa Resident of Angel Lodge Holding No.10Chota kak Jhora Darjeeling West Bengal Ld. Judicial Magistrate under Sikkim Judicial Service. … Respondents HON’BLE MR. JUSTICE JITENDRA KUMAR MAHESHWARI CJ. For the Petitioner For Respondents No. : 1 and 2 For Respondent No. 3 : For Respondent No.4 Petitioner in person. Dr. Doma T. Bhutia Addl. Advocate General with Mr. S.K. Chettri Govt. Advocate. Mr. A. Moulik Sr. Advocate assisted by Mr. Ranjit Prasad Advocate. Mr. A.K. Upadhyaya Sr. Advocate assisted by Mr. Thupden Bhutia and Mr. Sonam R. Lepcha Advocate. WP(C) No.019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors. Date of hearing Date of judgment Invoking the jurisdiction under Article 226 of the Constitution of India challenging the resolution dated 11.08.2017 of Full Court of the High Court of Sikkim recommending to withdraw the appointment of the petitioner made by previous resolution of the Full Court dated 05.07.2017 on the post of Civil Judge cum Judicial Magistrate and to challenge the appointment of respondent no.4 made in place of the petitioner based on the same resolution and vide Office Order dated 08.02.2018 on the same post this petition has been filed. The facts unfolded of the case are that an advertisement was issued by the High Court of Sikkim on 24.02.2017 inviting applications from the eligible and interested candidates to fill up three vacant posts of Civil Judge cum Judicial Magistratein the Cadre of Sikkim Judicial Service as per Annexure P 9. The petitioner submitted his application form and appeared in the written test. He found place in the list of successful candidates as per notification dated 14.06.2017 and called for the interview. The petitioner appeared in the Viva Voce Test and found place in the Merit List at Sl.No.2 of the selected candidates published on 05.07.2017. As per the resolution dated 05.07.2017 of Full Court of the High Court of Sikkim the name of the petitioner and others were recommended for appointment to the State Government for the post of Civil Judge cum Judicial Magistrate. After appointment the Joint Secretary Department of Personnel Administrative Reforms Training Public Grievances Government of Sikkim vide letter dated 10.08.2017 informed to the Registrar General High Court of Sikkim that WP(C) No.019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors. one of the selected candidates Shri Tara Prasad Sharmawas found involved in Police Case No. 24 2012 registered by P.S. Sadar on 28.02.2012 under Section 420 468 471 of IPC though acquitted by the Court of Judicial Magistrate East Gangtok vide judgment dated 30.04.2016. The letter of DoPART was placed before the Full Court. The Full Court in its Meeting held on 11.08.2017 after examining all materials unanimously resolved that the conduct of the petitioner is not free from the element of doubt thus he may not be given the assignment of administration of justice and recommended to withdraw the previous resolution dated 05.07.2017 with respect to appointment of the petitioner to the post of Civil Judge cum Judicial Magistrate. In furtherance thereto his services has been dispensed with and vide Office Order dated 08.02.2018 the respondent no.4 was directed to be appointed on the said post. The petitioner present in person contended that he was acquitted from the charge levelled against him under Section 468 of the IPC vide judgment dated 30.04.2016. On receiving the offer of appointment vide Memorandum dated 03.08.2017 he submitted his attestation form on 04.08.2017 specifying the details of the criminal case and its result. He has urged it is not a case of concealment of material facts as he has disclosed the details of criminal case and its result acquitting him in the attestation form. Being candidate of merit as per the resolution of the Full Court dated 05.07.2017 he had rightly been appointed by the State Government. Merely registering a criminal case in which he was acquitted by the Court may not debar him from the appointment as Civil Judge. The referred resolution dated 11.08.2017 recommending to withdraw his appointment is unjust arbitrary that too without affording due opportunity of hearing and also contrary to the law laid down by the Hon‟ble Apex WP(C) No.019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors. Court. Reliance has been placed by him on the judgments of Joginder Singh vs. Union Territory of Chandigarh and Others reported in 2015) 2 SCC 377 Avtar Singh vs. Union of India and Others reported in 8 SCC 471 Mohammed Imran vs. State of Maharashtra and Others reported in 17 SCC 696 to substantiate the contentions. On the other hand respondent no.3 has filed the counter affidavit inter alia stating that in furtherance to the notice inviting application to fill up the post of Civil Judge cum Judicial Magistrate First Class in the Cadre of Sikkim Judicial Service the petitioner submitted his application. In the Column 11 of the application form other relevant information which applicant deems fit were required to be furnished. In the said column petitioner has not furnished the information regarding registration of the criminal case and his acquittal. In absence of the said information at the time of scrutiny the Registry permitted the petitioner to appear in the written examination and called for Viva Voce Test on qualifying written test. It is said even before the Selection Committee information regarding criminal case has not been furnished by the petitioner. In case the said information would have made available the application form itself might be rejected in limine at the time of scrutiny by the High Court. In absence of having the material information by the previous resolution of the Full Court dated 05.07.2017 the name of petitioner with others was recommended for appointment. In furtherance to the said resolution vide Office Memorandum dated 03.08.2017 he was appointed subject to the Police Verification and suitability on the post of Civil Judge. As the petitioner divulged the fact of registration of FIR and acquittal which came to the knowledge by the letter of DoPART dated 10.08.2017 however the Full Court vide resolution dated 11.08.2017 withdrawn the previous WP(C) No.019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors. recommendation dated 05.07.2017 because the conduct of the petitioner was not found free from element of doubt. It is opined by the Full Court that such a person may not be assigned the work of administration of justice. On submitting the representation by the petitioner it was rejected by the Full Court on 20.02.2018. In the above mentioned fact all the adverse allegations made in the writ petition are denied for all practical purposes and submitted no relief as prayed can be granted. Learned Sr. Counsel placed reliance on the judgments of State of M.P. and Others vs. Nandlal Jaiswal and Others reported in 4 SCC 566 C. Ravichandran Iyer vs. Justice A.M. Bhattacharjee and Others reported in5 SCC 457 Syed T.A. Naqshbandi and Others vs. State of Jammu & Kashmir and Others reported in 9 SCC 592 Rajendra Singh Verma(Dead) Through Lrs. and Others vs. Lieutenant Governor and Others reported in 10 SCC 1 R.C. Chandel vs. High Court of Madhya Pradesh and Another reported in 8 SCC 58 Deputy Inspector General of Police and Another vs. S. Samuthiram reported in1 SCC 598 Commissioner of Police New Delhi and Another vs. Mehar Singh reported in 7 SCC 685 Union Territory Chandigarh Administration and Others vs. Pradeep Kumar and Another reported in 1 SCC 797 and Ram Murti Yadev vs. State of Uttar Pradesh and Another reported in1 SCC 801. Learned Senior Counsel appearing on behalf of respondent no.4 has inter alia contended that it is a case in which petitioner was not acquitted honourably but acquitted giving benefit of doubt. After taking note of the same the appointing authority has rightly exercised its discretion to discontinue the petitioner and to appoint Respondent No.4 on the said vacant post. If the High Court has applied its mind on the materials placed WP(C) No.019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors. and opined that the conduct of the petitioner is not free from doubt and resolved to discontinue the petitioner from the work of administration of justice. Such discretion is not assailable until questioned on the ground of mala fide ther.efore interference in exercise of power under Article 226 of the Constitution of India is not warranted. In reply respondent no.4 has made similar contentions as raised by respondent no.3 in addition that he was already appointed in State Judicial Services West Bengal. But due to his appointment he joined his duties in the State of Sikkim leaving his job in the State of West Bengal. Thus in alternative looking to the hardship prayer is made that if the petitioner succeeded and allowed to continue one post may be created or may be accommodated against the existing vacant posts. Learned Sr. Counsel placed reliance on the judgments of P.S. Sadasivaswamy vs. State of Tamil Nadu reported in 1975) 1 SCC 152 Ramana Dayaram Shetty vs. International Airport Authority of India and Others reported in3 SCC 489 Ashok Kumar Mishra and Others vs. Collector Raipur and Others reported in1 SCC 180 Smt. Sudama Devi vs. Commissioner and Others reported in 2 SCC 1 R & M Trust vs. Koramangala Residents Vigilance Group and Others reported in 2005) 3 SCC 91 Shankara Cooperative Housing Society Ltd. vs. M. Prabhakar and Others reported in 5 SCC 607 Vijay Kumar Kaul and Others vs. Union of India and Others reported in7 SCC 610 Commissioner of Police vs. Mehar SinghState of Madhya Pradesh and Others vs. Parvez Khan reported in 2 SCC 591 Avtar Singh Union Territory Chandigarh Administration and others vs. Pradeep Kumar and Anotherand State of Madhya Pradesh and Others vs. Abhijit Singh Pawar reported in18 SCC 733. WP(C) No.019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors. Learned Additional Advocate General appearing on behalf of respondents no. 1 and 2 contended that the petitioner has been acquitted from the charge however at this stage it is the discretion of the recommending authority to appoint him on the post of Civil Judge cum Judicial Magistrate or not. The State Government has only acted upon the recommendation of the High Court therefore they have not much to say in the present case except awaiting the verdict of the Court for Upon hearing the petitioner and learned counsels representing the parties on the basis of the submissions made in the opinion of this court following questions arises for consideration in the present case. i) Whether acquittal vide judgment dated 30.04.2016 in a criminal case bearing G.R. Case No. 644 2013 may lead to the conclusion that petitioner is entitled to continue on the post of Civil Judge cum Judicial Magistrate ii) Whether in the facts and circumstances of the case the Full Court resolution of the High Court of Sikkim dated 11.08.2017 withdrawing the previous recommendations of appointment of the petitioner from the post of Civil Judge cum Judicial Magistrate is justified or can it be interfered with in the facts of the case in exercise of power under Article 226 of the Constitution of India Reference Question No.No.019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors. Court. The elucidation of the aforesaid issue may have material bearing to reference Q. No.1 which can be understand by various precedents of Hon‟ble the Apex Court and High Courts. The issue regarding „honourable acquittal‟ „acquitted of blame‟ and „fully acquitted‟ are unknown to the Code of Criminal Procedure or the Indian Penal Code. It has been developed by judicial pronouncements. It is difficult to define what is mean by the expression „honourably acquitted‟. The guidance may be taken from the case of State of Assam vs. Raghava Rajgoplalachari reported in MANU SC 0460 1967. In the said case the employee was dismissed on account of his conviction under Sections 161 467 120B of IPC and under Rule 81(4) read with Rule 121 of the Defence of India Rules. The issue regarding his continuation in service and payment of subsistence allowance during the period of suspension brought under consideration in the context of Assam Fundament Rules FR) 54. As per FR 54(a) if the employee is honourably acquitted he would be entitled to full pay and allowances in case he had not been dismissed removed or otherwise it may be payable in such proportion as revising and appellate authority may prescribe. In the said case Hon‟ble the Apex Court has referred the judgment of Robert Stuart Wauchope vs. Emperor reported in 61 ILR Cal. 168 in the context of expression „honourably acquitted‟ Lord Williams J. observed as thus: “The expression "honourably acquitted" is one which is unknown to courts of justice. Apparently it is a form of order used in courts martial and other extra judicial tribunals. We said in our judgment that we accepted the explanation given by the Appellant believed it to be true and considered that it ought to have been accepted by the Government authorities and by the magistrate. Further we decided that the Appellant had not misappropriated the monies referred to in the charge. It is thus clear that the effect of our judgment was that the Appellant was acquitted as fully and completely as it was possible for him to be acquitted. Presumably this is equivalent to what Government authorities term "honourably acquitted.” The reference to the case of R.P. Kapur vs. Union of India reported in AIR 1964 SC 787 has also made referring the observations of Hon‟ble Wanchoo J. as he then was reproduced as thus: WP(C) No.019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors. “Even in case of acquittal proceedings may follow where the acquittal is other than honourable.” Therefore in conclusions where the acquittal is not “honourably” ordered by the Court such acquittal is other than “honourable” and may follow the proceedings. In the case of S. Samuthiramthe Hon‟ble Apex Court has considered the judgment of Reserve Bank of India vs. Bhopal Singh Panchaland also the judgment of R.P. KapurRaghava Rajagopalachari and referred the expression “honourably acquitted” as used in the case of Robert Stuart Wanchopeit is observed that the standard of proof required for holding a person guilty by a criminal court and enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case the onus of establishing guilt to the accused is on the prosecution until proved beyond reasonable doubt. The Court observed that the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile thus acquittal of the accused is by giving benefit of doubt. In that situation the respondent was not honourably acquitted by the criminal court. While in a case of departmental proceedings the guilt may be proved on the basis of preponderance and probabilities. It is observed that there may be cases where the service rules provide that in spite of domestic enquiry if criminal court acquits an employee honourably he could be reinstated. It is said that an employee has to be reinstated in service or not depends upon the question whether the service rules contain any such provision for reinstatement as a matter of right otherwise on acquittal giving benefit of doubt would not automatically lead to a conclusion for the reinstatement of the candidate. WP(C) No.019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors. 11. Recently the Apex Court in the case of Union Territory Chandigarh Administration and others vs. Pradeep Kumar and Another relying upon the judgment of S. Samuthiramheld that acquittal in a criminal case is not conclusive of the suitability of the candidates on the post concerned the acquittal or discharge of a person cannot always be inferred that he was falsely involved or he had no criminal antecedent. The issue of honourable acquittal was further considered by the Apex Court in the case of Mehar Singhrelying upon the judgment of S. Samuthiram Bhopal Singh Panchal supra) observed that the acquittal because of non examination of key witnesses is not honourable in fact it is by giving benefit of doubt. 12. Hon‟ble the Apex Court in the case of Parvez Khan has observed that on the ground of criminal antecedents of candidate who was acquitted for want of evidence or was discharged shall not be allowed to presume that he was completely exonerated. In the case of Mehar Singh supra) the Court observed that the nature of acquittal is necessary for core consideration whether acquittal is on technical ground or honourable. It is held that the candidates whose acquittal is not honourable are not suitable for Government service and are to be avoided. The relevant factors and the nature of offence the extent of his involvement whether acquittal was a clean acquittal or acquittal by giving benefit of doubt propensity of such person to indulge in similar activities in future are the aspects relevant to consider by the Screening Committee who is competent to decide all these issues. In view of the forgoing legal position the expression „honourably acquitted‟ may lead to the conclusion when all the material evidence has been duly considered even charge as alleged against the accused could not prove holding him guilty. Otherwise on account of technical flow or WP(C) No.019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors. due to non production of important witnesses or the witnesses turned hostile or due to settlement between the parties or otherwise prosecution has failed to prove the charge beyond reasonable doubt may not come within the purview of „honourably acquitted‟ and such acquittal is otherwise than “honourable” to which the proceedings may be followed. The discretion of such proceedings would lay on the appointing authority to take decision looking to the nature of job and suitability of propriety and probity of the candidate. In the context of the above legal position if we see the judgment of acquittal passed by the Judicial Magistrate East Sikkim Gangtok in G.R. Case No. 6413 decided on 30.04.2016 then it reveal that petitioner approached to the office of the Directorate of Fisheries to check the file pertaining to appointment of the Fisheries Block Officers. As alleged with criminal intent to tamper the marks awarded to his sister Narmada Sharma who was one of the participants for the post of Fisheries Block Officer he had fraudulently tampered with the public document converting numerical 1 into numerical 9 by adding an oval part in the original mark. The sister of the accused demanded document in RTI however on coming to know the fact the notice was send to the petitioner and the report of forensic experts were called. The offence was registered against him under Section 420 468 471 34 of the IPC and filed the Challan. The trial court had framed the charge only under Section 468 of the IPC but not of other offences. After trial the court acquitted the accused because the plausible explanation of belated FIR is not brought on record. It is not explained why the document Exhibit A 19 was alleged to have been made on 27.01.2011 and signed by PW 3 though he was promoted on the said post on 11.03.2011. Why the specimen of the handwritings or signature of the accused was not taken by the I.O. for WP(C) No.019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors. examination though it is required to deal with the accused for the purpose of cheating. As per the report of CFSL Kolkata it is found prove that interpolation in the marks awarded by PW 3 is there but it is not sufficient to convict the accused looking to the above lacunas of the prosecution. Therefore said prosecution has failed to prove the case against accused beyond reasonable doubt however acquitted the petitioner. Thus looking to the reasoning of the trial court it is clear the acquittal of accused petitioner) is not honourable but giving him benefit of doubt. 15. On analyzing the case of prosecution and the reason of acquittal as recorded vide judgment dated 30.04.2016 it is luculent like a day light that petitioner has not been honourably acquitted but his acquittal is giving benefit of doubt. In the light of the legal and factual position as discussed hereinabove as the acquittal of petitioner is other than honourable the proceedings of the Department may follow to judge his suitability looking to the credibility of the post meaning thereby the petitioner would not ipso facto entitled to continue to hold the post of Civil Judge cum Judicial Magistrate merely because he was acquitted. The question no.1 is answered accordingly. Reference Question No.In the present case the applications were invited to fill up the post of Civil Judge cum Judicial Magistratein the cadre of Sikkim Judicial Service vide Employment Notice dated 24.02.2017. The petitioner applied for the post and appeared in the written examination. On declaring him successful he was called for the oral interview. The Final Merit List was prepared and placed before the Full Court on 05.07.2017. The Full Court on the same date passed a resolution making recommendation for appointment in absence of the details of the criminal WP(C) No.019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors. case of the petitioner. The offer for appointment was issued vide Memorandum dated 03 08 2017 subject to Police Verification with regard to suitability asking Attestation Form in duplicate. In the said Attestation Form in Column No.12 the details of criminal case and the date of acquittal was mentioned by the petitioner. On Police Verification vide letter Ref. No.14900 G DOP dated 10.08.2017 addressed to the Registrar General it was reported that the Sadar Police registered a case against petitioner at Crime No.24 2012 dated 28.02.2012 U s 420 468 471 34 of the IPC and tried for the charge U s 468 of the IPC in which he has been acquitted on 30.04.2016 by the Judicial Magistrate East Gangtok. On receiving the said information the matter was placed before the Full Court alongwith relevant material. The Full Court on consideration passed the resolution dated 11.08.2017 and decided to withdraw the previous resolution dated 05.07.2017. The decision of the Full Court is relevant however reproduced as thus: “1. To further consider the letter bearing No.14900 G DOP dated 10.08.2017 received from the Department of Personnel Government of Sikkim in regard to the matter of appointment of Mr. Tara Prasad Sharma in the post of Civil Judge cum Judicial Magistrate in response to this Registry letter No. V(13)Confdl 3467 dated 05.07.2017. 1. On verification it was found that Mr. Tara Prasad Sharma was charge sheeted for interpolation with official records. However he was acquitted on the ground that the prosecution has failed to prove the case beyond reasonable doubt. We have examined all the materials and are of the considered view that as the conduct of the candidate is not free from an element of doubt he may not be given the assignment of administration of justice. Thus it is unanimously resolved to withdraw the recommendation made in favour of the above candidate on 05th July 2017 to the State Government for appointment in the post of Civil Judge cum Judicial Magistrate. Further the fourth candidate namely Mr. Jabyang Dorjee Sherpa in the merit list be recommended for appointment on the post of Civil Judge cum Judicial Magistrate.” In view of the aforesaid it is clear that the Full Court unanimously was of the opinion that the acquittal of the petitioner was giving him benefit of doubt as the prosecution has failed to prove the case beyond reasonable doubt. The Full Court has examined all the material and of the view that the conduct of the petitioner is not free from an element of WP(C) No.019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors. doubt therefore he may not be given the assignment relating to administration of justice. Thus resolved to withdraw the recommendation made earlier in favour of the petitioner on 05.07.2017 for his appointment as Civil Judge cum Judicial Magistrate. It was further resolved that the next candidate in the Merit List Mr. Jabyang Dorjee Sherpa be recommended for appointment on the said post. Thus it is clear that withdrawal of the previous recommendation is because his acquittal other than honourable and his conduct was found under cloud to assign the work of judicial administration or as a Judge. From the above and in conspectus of undisputed fact that High Court of Sikkim is the only competent to make the recommendation for appointment to the post of Civil Judge but the discretion has not exercised in favour of petitioner looking to the conduct and probity of petitioner for holding the post of Judicial Officer. In the said sequel of facts the arguments advanced by the petitioner in person and the counsel for the respondents are required to be adverted to. The petitioner has placed reliance on the judgments of Joginder Singh Avtar Singh and Mohammed Imran supra) while the counsel for the respondent no.3 has relied upon the judgments of Nandlal Jaiswal C. Ravichandra Iyer Syed T.A. Naqshbandi Rajendra Singh Verma(Dead) Through Lrs. R.C. Chandel S. Samuthiram Mehar Singh Pradeep Kumar and Ram Murti Yadev supra) and the counsel for respondent no.4 has relied upon the judgments of P.S. SadasivaswamyRamana Dayaram Shetty supra) Ashok Kumar Mishra Smt. Sudama Devi R M Trust Shankara Co op. Housing Society Ltd. Vijay Kumar KaulMehar SinghParvez KhanWP(C) No.019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors. Avtar SinghPradeep Kumarand Abhijit Singh Pawar supra). 19. The legal position in the matter of appointment of a Judicial Officer on acquittal from a criminal case may be considered in the said facts and the law laid down by Hon‟ble the Apex Court. The two Judge Bench of Hon‟ble the Apex Court in the case of Joginder Singhas relied by the petitioner has considered the issue in the context of the post of a Constable in the Police Department. In the said case a criminal case was registered against the Constable under Sections 148 149 323 325 307 of the IPC in which he was honourably acquitted because the prosecution had miserably failed to prove the charges leveled against the complainant as the injured eyewitness had failed to identify the assailants. Therefore Hon‟ble the Apex Court has upheld the judgment of the Central Administrative Tribunal setting aside the order of the High Court directing to issue the order of appointment. In the facts of the present case the judgment of Joginder Singh having no application because the petitioner was not honourably acquitted in fact he was acquitted giving benefit of doubt therefore the said judgment is of no avail to him. 20. The petitioner and respondent both have relied upon the judgment of Avtar Singh No.019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors. is not a case of clean acquittal or benefit of reasonable doubt has been given the employer may consider all relevant facts available as to antecedents and may take appropriate decision as to the continuance of the employee. 38.5 In a case where the employee has made declaration truthfully of a concluded criminal case the employer still has the right to consider antecedents and cannot be compelled to appoint the candidate.” From the above it is clear that on recording acquittal in a case involving moral turpitude on technical ground in absence of clean acquittal the employer may consider all relevant facts as to antecedents and may take appropriate decision as to continuance of the employee. It is further clear that even on giving truthful declaration by the employee regarding a concluded criminal case the employer still has the right to consider the antecedents and cannot be compelled to appoint the candidate. 21. The petitioner has placed heavy reliance on the judgment of Mohammed Imranis the law on the subject and holds the field. The said judgment has been considered by the Full Bench of the Madhya Pradesh High Court in the case of Ashutosh Pawar vs. High Court of Madhya Pradesh and Another reported in 2018 MPLJ 419 No.019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors. who seeks appointment as Civil Judge. The personal conduct of a candidate who may be appointed as Judicial Officer has to be free from any taint. The same must be in tune with highest standard of propriety and probity. The standard of conduct is higher than that expected of an ordinary citizen and also higher than that expected of a professional in law as well. It is stated that mere acquittal in a criminal case would not be sufficient to infer that candidate possess a good character. The Competent Authority has to take a decision in respect of the suitability of candidate to discharge the function to a civil post. 23. Hon‟ble the Apex Court in the case of Anil Bhardwaj vs. High Court of Madhya Pradesh and Others reported in 2020 SCC Online SC 832 decided on 13.10.2020 observed that a candidate wishing to join the police force must be a person having impeccable character and integrity. The said principle applies with greater force to the judicial service. Even in case of acquittal it ought to be examined as to whether the person was completely exonerated in the case. The acquittal in criminal case did not furnish sufficient ground to the appellant for appointment. Hon‟ble the Apex Court in the case of State of Odisha and Others vs. Gobinda Behera reported in 2020 SCC Online SC 199 also rely upon the judgment of Avtar Singh and in paragraph 7 observed that the employer can legitimately conclude that a person who has suppressed material facts does not deserve to be in its employment. 24. Recently Hon‟ble the Supreme Court in the case of State of Rajasthan and Others vs. Love Kush Meena reported in 2021 SCC Online SC 252 has considered all the aforementioned judgments including the judgment of Mohammed Imran relied by the petitioner and in paragraph 23 the court observed as thus: WP(C) No.019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors. “23. Examining the controversy in the present case in the conspectus of the aforesaid legal position what is important to note is the fact that the view of this Court has depended on the nature of offence charged and the result of the same. The mere fact of an acquittal would not suffice but rather it would depend on whether it is a clean acquittal based on total absence of evidence or in the criminal jurisprudence requiring the case to be proved beyond reasonable doubt that parameter having not been met benefit of doubt has been granted to the accused. No doubt in that facts of the present case the person who ran the tractor over the deceased lady was one of the other co accused but the role assigned to the others including the respondent herein was not of a mere bystander or being present at site. The attack with knives was alleged against all the other co accused including the respondent.” In view of the above concepteurs it is important to note that the view of the Court may be depend on the nature of offence charged and its result. Mere acquittal would not sufficient but rather it would depend on whether it is a clean acquittal based on total absence of evidence or in the criminal jurisprudence requiring the case to be proved beyond reasonable doubt that parameter having not been met and the accused granted benefit of doubt but the role assigned to the accused may be relevant to consider. The Apex Court in reference to the relevant parameters extracted in the judgment of Avtar Singhobserved where in respect of a heinous or serious nature of crime the acquittal is based on a benefit of doubt cannot make the candidate eligible for appointment. While dealing the case of police personnel it is held that even circular issued by the Department contrary to the ratio of Avtar Singhcannot give any benefit to the respondent and accordingly the judgment of the High Court directing to appoint the respondent was set aside. In view of the forgoing discussions it is clear that even acquittal of the petitioner giving benefit of doubt in a case involving moral turpitude is not sufficient to grant employment until he is acquitted clearly. The employer is having right to consider all relevant facts available and as to antecedents and may take appropriate decision as to continuation of the employee in the employment looking to the standard of propriety and probity. The employer cannot be compelled to appoint the candidate for holding the civil post if not acquitted clearly. WP(C) No.019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors. In the present case as noted above and on reading the resolution of the Full Court it is crystal clear that the Full Court has considered the interpolation of marks pertaining to appointment of the Fisheries Block Officer in the official record. As per judgment petitioner was acquitted giving benefit of doubt because the prosecution has failed to prove the case beyond reasonable doubt. On examination of the material the Full Court was unanimously of the view that the conduct of the petitioner is not free from an element of doubt therefore he may not be given the assignment of administration of justice to continue on the post of Judicial Officer. The said decision was on due considerations of the material placed with a view that petitioner is not suitable for the post of Civil Judge cum Judicial Magistrate. The conduct of the petitioner was not found of impeccable character looking to the standard of the propriety and probity for the post. In such a decision the scope of interference is limited to the extent if it is aspired by mala fide or suffer from bias of arbitrariness or established that the decision taken by the appointing authority is based on perversity or irrationality. It is not a case of the petitioner that the decision taken by the Full Court is mala fide or on any extraneous consideration or on irrationality. In absence of the above said grounds the scope of interference by the High Court is very limited to which the guidance may be taken from various pronouncements of Hon‟ble the Supreme Court i.e. Raghava Rajgoplalachari Robert Stuart Wauchope(supra) R.P. KapurBhopal Singh PanchalJoginder Singh Avtar Singh Mohammed Imran supra) S. Samuthiram Mehar Singh Pradeep Kumar Parvez Khan Ashutosh Pawar Anil Bhardwaj Govind Behra and Love Kush Meena supra). As the petitioner has failed to make out a case within the WP(C) No.019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors. parameters set out in the above cases therefore interference to the decision of the Full Court of Sikkim dated 11.08.2017 is not warranted. In view of the forgoing discussions it is abundantly clear that against the petitioner an offence was registered in Sadar Police Case No. 24 2012 dated 28.02.2012 for an offence under Sections 420 468 471 34 of the IPC and the Challan was filed. He was tried for the charge under Section 468 of the IPC by the Court of Judicial Magistrate East Sikkim Gangtok and vide judgment dated 30.04.2016 acquitted giving him benefit of doubt. His acquittal was not honorable but other than honourable. It cannot be doubted that the charged offence involve moral turpitude. The Full Court while recommending to withdraw appointment of the petitioner has considered the conduct which is not free from an element of doubt however decided that he may not be given the assignment of administration of justice and accordingly passed the resolution. The said resolution has not been challenged either on the basis of mala fide or on extraneous considerations or irrationality of the findings. In absence thereto in the opinion of this court interference to the resolution of the Full Court dated 11.08.2017 is not warranted. It is to be noted that upon receiving the representation of the petitioner dated 29.12.2017 it was considered by the Full Court again on 20.02.2018 and rejected the same. Thus resolution passed by the Full Court is on consideration of the character of the petitioner which was not found impeccable and suited to the post of Civil Judge cum Judicial Magistrate. In such a case High Court cannnot be compelled to issue the writ in the nature of mandamus and to grant the relief as prayed by petitioner. The Question no.is answered accordingly. It is to observe that this petition is bereft of any merit therefore alternative argument advanced by the respondent no.4 is not required to WP(C) No.019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors. be dealt with in detail. Similarly the judgments cited by learned counsel for the parties dealing the issue of compulsory retirement is also not being referred to burden the judgment as not having much relevance to the issue discussed hereinabove. Therefore other judgments cited by the respondents have not been discussed in detail. In view of the discussions made hereinabove the inescapable conclusion is that the petition filed by the petitioner is meritless and not entitled to the relief as prayed. Accordingly the Writ Petition is dismissed. In the facts of the case parties to bear their own costs. Chief Justice Approved for Reporting : Yes

Even if a transaction covers the small extent of land compared to the land acquired, it can be relied on to determine the market value of the land in issue: Telangana High Court

In assessing a sale transaction, what is paramount to assess is, whether it was the price offered by a willing purchaser to pay to the willing seller for a property, having due regard to its existing conditions, with all its existing advantages and its potential possibilities. Such an observation was made by the Hon’ble Telangana High Court before Hon’ble Justice P.NAVEEN RAO & Hon’ble Justice P.SREE SUDHA in the matter of The Land Acquisition Officer-cum Revenue Divisional Office vs S.V. Jagannatha Rao, rep., by the General Power of Attorney [L.A.A.S.No.418 OF 2008]. The facts of the matter were that 11.20 guntas of land of Waridyal village of Kollapur Mandal, Mahabubnagar District, was acquired for the purpose of relocating temples submerged in the Srisailam Irrigation Project. The Land Acquisition Officer determined the market value as Rs.5,000/- per acre. Not satisfied with the compensation determined by the Land Acquisition Officer, the claimant sought reference under Section 18 of the Land Acquisition Act, 1894 for enhancement of the compensation. The reference was registered as L.A.O.P.No.308 of 1996 in the Court of Senior Civil Judge at Nagarkurnool. By order dated 30.09.2005, learned Senior Civil Judge enhanced the market value to Rs.15,000/- per acre. Aggrieved by the said order the instant appeal is preferred by the Land Acquisition Officer. The Hon’ble High Court referred to the case of Administrator General of West Bengal vs. Collector, Varanasi ((1988) 2 SCC 150) in which it was held by the Hon’ble Supreme Court that “Prices fetched for similar lands with similar advantages and potentialities under bona fide transactions of sale at or about the time of the preliminary notification are the usual, and indeed the best, evidence of market value. Other methods of valuation are resorted to if the evidence of the sale of similar lands is not available” Furthermore, the Hon’ble High Court observed that it is safe to assume that even if a transaction covers a small extent of land compared to the land acquired, in a given case, it can be relied on to determine the market value of the land in issue. But when reliance is on a sale of land covering a small extent, the Reference Court or the High Court has to consider all aspects carefully to make a realistic assessment of the value of the land acquired. The assessment is to ensure that the landowner gets fair compensation and his claim is not fanciful or imaginary.  Finally, the Hon’ble High Court upheld the judgment of the reference court and dismissed the instant appeal. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The facts of the matter were that 11.20 guntas of land of Waridyal village of Kollapur Mandal, Mahabubnagar District, was acquired for the purpose of relocating temples submerged in the Srisailam Irrigation Project. The Land Acquisition Officer determined the market value as Rs.5,000/- per acre. Not satisfied with the compensation determined by the Land Acquisition Officer, the claimant sought reference under Section 18 of the Land Acquisition Act, 1894 for enhancement of the compensation. The reference was registered as L.A.O.P.No.308 of 1996 in the Court of Senior Civil Judge at Nagarkurnool. By order dated 30.09.2005, learned Senior Civil Judge enhanced the market value to Rs.15,000/- per acre. Aggrieved by the said order the instant appeal is preferred by the Land Acquisition Officer. The Hon’ble High Court referred to the case of Administrator General of West Bengal vs. Collector, Varanasi ((1988) 2 SCC 150) in which it was held by the Hon’ble Supreme Court that “Prices fetched for similar lands with similar advantages and potentialities under bona fide transactions of sale at or about the time of the preliminary notification are the usual, and indeed the best, evidence of market value. Other methods of valuation are resorted to if the evidence of the sale of similar lands is not available” Furthermore, the Hon’ble High Court observed that it is safe to assume that even if a transaction covers a small extent of land compared to the land acquired, in a given case, it can be relied on to determine the market value of the land in issue. But when reliance is on a sale of land covering a small extent, the Reference Court or the High Court has to consider all aspects carefully to make a realistic assessment of the value of the land acquired. The assessment is to ensure that the landowner gets fair compensation and his claim is not fanciful or imaginary.  Finally, the Hon’ble High Court upheld the judgment of the reference court and dismissed the instant appeal. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble High Court referred to the case of Administrator General of West Bengal vs. Collector, Varanasi ((1988) 2 SCC 150) in which it was held by the Hon’ble Supreme Court that “Prices fetched for similar lands with similar advantages and potentialities under bona fide transactions of sale at or about the time of the preliminary notification are the usual, and indeed the best, evidence of market value. Other methods of valuation are resorted to if the evidence of the sale of similar lands is not available” Furthermore, the Hon’ble High Court observed that it is safe to assume that even if a transaction covers a small extent of land compared to the land acquired, in a given case, it can be relied on to determine the market value of the land in issue. But when reliance is on a sale of land covering a small extent, the Reference Court or the High Court has to consider all aspects carefully to make a realistic assessment of the value of the land acquired. The assessment is to ensure that the landowner gets fair compensation and his claim is not fanciful or imaginary.  Finally, the Hon’ble High Court upheld the judgment of the reference court and dismissed the instant appeal. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur Furthermore, the Hon’ble High Court observed that it is safe to assume that even if a transaction covers a small extent of land compared to the land acquired, in a given case, it can be relied on to determine the market value of the land in issue. But when reliance is on a sale of land covering a small extent, the Reference Court or the High Court has to consider all aspects carefully to make a realistic assessment of the value of the land acquired. The assessment is to ensure that the landowner gets fair compensation and his claim is not fanciful or imaginary.  Finally, the Hon’ble High Court upheld the judgment of the reference court and dismissed the instant appeal. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur Finally, the Hon’ble High Court upheld the judgment of the reference court and dismissed the instant appeal.

IN THE HIGH COURT OF JUDICATURE FOR THE STATE OF TELANGANA L.A.A.S.No.418 OF 2008 The Land Acquisition Officer cum Revenue Divisional Officer Nagarkurnool Mahabubnagar District And S.V. Jagannatha Rao rep. by the General Power of Attorney Sri K. Ramachanderand others Officer Appellant Referring Respondents claimants DATE OF JUDGMENT PRONOUNCED 28.10.2021 THE HON’BLE SRI JUSTICE P.NAVEEN RAO THE HON’BLE SMT JUSTICE P.SREE SUDHA 1. Whether Reporters of Local Newspapers : YES may be allowed to see the Judgments 2. Whether the copies of judgment may be : YES marked to Law Reporters Journals 3. Whether Their Lordships wish to see the fair copy of the Judgment : YES 2 THE HON’BLE SRI JUSTICE P.NAVEEN RAO THE HON’BLE SMT JUSTICE P.SREE SUDHA L.A.A.S.No.4108 28.10.2021 The Land Acquisition Officer cum Revenue Divisional Officer Nagarkurnool Mahabubnagar District And S.V. Jagannatha Rao rep. by the General Power of Attorney Sri K. Ramachanderand others Officer Appellant Referring Respondents claimants Counsel for the appellant : Sri Raja Sreepathi Rao Government Pleader for Appeals Counsel for the Respondents : Sri T.L. Krishna Prasad Learned counsel appearing for respondents 2 and 3 Gist : Head Note: Cases referred: 1988) 2 SCC 150) 2015) 15 SCC 343 2017) 4 SCC 717 2014) 11 SCC 307 2014 SCC Online SC 1699 3 THE HON’BLE SRI JUSTICE P.NAVEEN RAO THE HON’BLE SMT JUSTICE P.SREE SUDHA L.A.A.S.No.4108 Officer Appellant Referring Respondents claimants The Land Acquisition Officer cum Revenue Divisional Officer Nagarkurnool Mahabubnagar District And S.V. Jagannatha Rao rep. by the General Power of Attorney Sri K. Ramachanderand others The Court made the following: and 3. 4 THE HON’BLE SRI JUSTICE P.NAVEEN RAO THE HON’BLE SMT JUSTICE P.SREE SUDHA L.A.A.S. No.4108 JUDGMENT:learned Government Pleader for Appeals and Sri T.L. Krishna Prasad learned counsel appearing for respondents 2 Acs.11.20 guntas of land in Survey No.257 1 of Waridyal village of Kollapur Mandal Mahabubnagar District was acquired for the purpose of relocating temples submerged in Srisailam Irrigation Project. The Land Acquisition Officer determined the market value as Rs.5 000 per acre. Not satisfied with the compensation determined by the Land Acquisition Officer claimant sought reference under Section 18 of the Land Acquisition Act 1894 for enhancement of the compensation. The reference was registered as L.A.O.P.No.308 of 1996 in the Court of Senior Civil Judge at Nagarkurnool. By order dated 30.09.2005 learned Senior Civil Judge enhanced the market value to Rs.15 000 per acre awarded solatium at 30% on the enhanced amount interest @ 4% per annum from the date of taking possession of land for a period of one year and thereafter @ 15% per annum on the enhanced compensation amount and solatium till the enhanced compensation amount is paid or deposited into the Court. Aggrieved thereby the present appeal is preferred. According to learned Government Pleader on due assessment of the potentiality prevailing market rate and the transactions that were made in and around the land in issue the Land Acquisition 5 Officer has correctly arrived at the market value as Rs.5 000 per acre and therefore there is no justification for the reference Court to enhance the market value. He further submits that on a solitary transaction showing higher market value the reference Court ought not to have held that the value of the land is more than what was determined by the Land Acquisition Officer having discarded several other transactions relied upon by the claimants. The transaction on which reliance was placed was covering a small piece of land and cannot correctly reflect the actual land value in the surrounding area. The reference Court observed that the transactions covered by Exs.A25 to A29 took place in the year 1977 where the value of the land transacted ranged between Rs.11 200 and 30 000 per acre. In view of the location status of land as BAGANA potentiality compared to land covered by those transactions the reference Court opined that in the year 1979 the market value of the subject land ought to be more. The reference Court observed that the land covered by Ex.A25 was found to be proximate to the land in issue compared to the transactions covered by Exs.A26 to A29. The reference Court assessed the evidence of P.W.8. The reference Court opined that the land covered by the transaction in Ex.A25 is nearer has similar potentiality with that of the land under acquisition and the said transaction was true and valid transaction. The reference court has taken the transaction value covered by Ex.A25 as basis to arrive at just compensation. In his deposition the Land Acquisition Officer also accepted the status of land as BAGANA. In Ex.A25 the value determined was Rs.11 200 per acre. This transaction took place on 27.06.1977. It was one year eight 6 months prior to the notification under which the land in issue was acquired. Therefore the reference Court added 15% to the then value and arrived at the market value rounded off to Rs.15 000 per acre and accordingly the compensation was determined. The contention of learned Government Pleader that one solitary transaction that too covering small extent of land cannot reflect true market value of the land is stated to be rejected in the facts of this case. In land acquisition proceedings paramount consideration is to determine just compensation to a land owner whose land was compulsorily acquired. In determining just compensation it is permissible to do guess work. The Court is required to look into various aspects to arrive at just compensation. One of them is contemporaneous transactions in near by land. As long as the transaction of land adjacent to land covered by the acquisition is found to be genuine and supported by evidence reliance on said transaction cannot be held as invalid only because the extent covered by the said transaction is small. Further no other evidence is brought on record by Land Acquisition Officer to discard the opinion expressed by the reference Court. However when a solitary transaction covering a small extent of land is relied to claim higher compensation the reference Court has to be cautious in assessing the evidence. In Administrator General of West Bengal vs. Collector Varanasi1 though a case dealing with urban land the view expressed therein is of immense help in determining market value of any land. Hon’ble Supreme Court observed that: 12 SCC 150) 7 “8. The determination of market value of a piece of land with potentialities for urban use is an intricate exercise which calls for collection and collation of diverse economic criteria. The market value of a piece of property for purposes of Section 23 of the Act is stated to be the price at which the property changes hands from a willing seller to a willing but not too anxious a buyer dealing at arms length. The determination of market value as one author put it is the prediction of an economic event viz. the price outcome of a hypothetical sale expressed in terms of probabilities. Prices fetched for similar lands with similar advantages and potentialities under bona fide transactions of sale at or about the time of the preliminary notification are the usual and indeed the best evidences of market value. Other methods of valuation are resorted to if the evidence of sale of similar lands is not available.” In Chandra Bhan vs. Ghaziabad Development Authority and others2 the Hon’ble Supreme Court observed that as long as sale is an arm’s length transaction it would merit consideration paragraph No.25). Hon’ble Supreme Court upheld determination of higher market value by placing reliance on sale transactions on adjacent land though covering small parcels when they were at arm’s length and accepted by the reference court15 SCC 343 34 SCC 717 411 SCC 307 8 guesswork though allowed is permissible only to a limited extent. The market value of the land is to be determined taking into consideration the existing use of the land geographical situation location of the land along with the advantages disadvantages i.e. distance from the national or State highway or a road situated within a developed area etc. In urban area even a small distance makes a considerable difference in the price of land. However the court should not take into consideration the use for which the land is sought to be acquired and its remote potential value in future. In arriving at the market value it is the duty of the party to lead evidence in support of its case in absence of which the court is not under a legal obligation to determine the market value merely as per the prayer of the claimant. 17. There may be a case where a huge tract of land is acquired which runs though continuous but to the whole revenue estate of a village or to various revenue villages or even in two or more States. Someone s land may be adjacent to the main road others land may be far away there may be persons having land abounding the main road but the frontage may be varied. Therefore the market value of the land is to be determined taking into consideration the geographical situation and in such cases belting system may be applied. In such a fact situation every claimant cannot claim the same rate of compensation.” In Ram Kanwar vs. State of Haryana5 the Hon’ble Supreme Court held as under: “12. It is settled law that prices fetched for similar lands with similar advantages and potentialities under bona fide transactions of sale at or about the time of the preliminary notification are the usual and indeed the best evidences of market value of lands. 15. The Reference Court therefore was not justified in ignoring the best piece of evidence the sale deeds and instead relying on the comparable award which would otherwise be the best evidence should such sale deeds not been bona fide or be for lands that did not lay proximate to the acquired lands. The High Court in our considered opinion has rightly rejected the reasoning of Reference Court and considered the un assailed sale deeds as true estimate of market value of acquired lands.” 12. Having regard to the view expressed by the Hon’ble Supreme Court in the above decisions it is safe to assume that even if a transaction covers small extent of land compared to the land acquired in a given case it can be relied on to determine the market 5 2014 SCC Online SC 1699 9 value of the land in issue. But when reliance is on a sale of land covering small extent the Reference Court or the High Court has to consider all aspects carefully to make a realistic assessment of value of land acquired. The assessment is to ensure that land owner gets fair compensation and his claim is not fanciful or imaginary. In assessing a sale transaction what is paramount to assess is whether it was the price offered by a willing purchaser to pay to the willing seller for a property having due regard to its existing conditions with all its existing advantages and its potential In the case on hand the transaction covered by Ex.A25 is supported by deposition of PW.8. The reference Court noted that it was a fair transaction. The reference Court also noted the sale transactions covered by Exs.A26 to A29. We are satisfied that the reference Court has considered all aspects thoroughly examined the evidence brought on record and evaluated the transactions that took place in and around the land in issue to arrive at just compensation and to award higher compensation than the one determined by the Land Acquisition Officer. We do not see any error committed by the reference Court in arriving at the market value as Rs.15 000 per acre warranting interference by this Court. The Appeal fails and is petition if any pending in this appeal shall stand closed. P.NAVEEN RAO J P.SREE SUDHA J Note: L.R. Copy be marked KH THE HON’BLE SRI JUSTICE P.NAVEEN RAO THE HON’BLE SMT JUSTICE P.SREE SUDHA 10 L.A.A.S.No.4108

Initiation and Commencement of the CIRP are different: Supreme Court of India

The initiation and the commencement of the Corporate Insolvency Resolution Process are two different things. The ‘initiation date’ is referred to as the filing of application by the eligible applicant, whereas the ‘commencement date’ refers to passing of order of admission of application by the Adjudicating Authority. This assertion was made by the Supreme Court of India presided over by J. Dr Dhananjaya Y Chandrachud and J. M. R. Shah in the case of Ramesh Kymal vs. M/s Siemens Gamesa Renewable Power Pvt Ltd. [Civil Appeal No. 4050 of 2020]. The appellant claimed that a sum of INR 104,11,76,479 was due and payable to him pursuant to his resignation “from all capacities held by him in the respondent in accordance with the various Employment Agreements/Incentive Agreements” entered into by him with the respondent during his tenure as Chairman and Managing Director. The appellant entered into an Employment Agreement with the respondent and signed another Employment Agreement coupled with an Incentive Agreement which superseded it. The new Employment Agreement was amended after which the appellant submitted his resignation to the respondent. The respondent acknowledged receipt of the letter of resignation and requested the appellant to continue in employment beyond the 60 days’ notice period. They communicated via mail, the respondent confirmed the payments which were due and payable to him under the letter of resignation. Finally, a termination letter was addressed to the appellant. The appellant issued a demand notice which specified that the date of default was 30th April and filed an application under Section 9 of the IBC for default in the payment of his operational dues on May 11th. During the pendency of the application, an Ordinance was promulgated by the President by which Section 10A was inserted into the IBC. The respondent filed an application seeking the dismissal of the appellant’s application on the basis of the newly inserted provisions of Section 10A. The NCLT upheld the submission of the respondent, holding that a bar had been created by the newly inserted provisions of Section 10A. This decision was upheld in appeal by the NCLAT.

Reportable IN THE CIVIL APPELLATE JURISDICTION Civil Appeal No. 40520 Ramesh Kymal .... Appellant M s Siemens Gamesa Renewable Power Pvt Ltd. .... Respondent JUDGMENT Dr Dhananjaya Y Chandrachud J The appellate jurisdiction of this Court under Section 62 of the Insolvency and Bankruptcy Code 2016 has been invoked to challenge the judgement and order of the National Company Law Appellate Tribunal dated 19 October 2020. The NCLAT affirmed the decision of the National Company Law Tribunal dated 9 July 2020 holding that in view of the provisions of Section 10A which have been inserted by Act 120with retrospective effect from 5 June 2020 the application filed by the appellant as an operational creditor under Section 9 was not Some of the salient facts set out in the appeal are being adverted to in order to indicate the broad contours of the controversy. The issue involved raises a question of law. Hence while setting out the facts as set up in the appeal we need to clarify that the factual dispute has not arisen for adjudication. The appellant claims that a sum of INR 104 11 76 479 is due and payable to him pursuant to his resignation “from all capacities held by him in the respondent in accordance with the various Employment Agreements Incentive Agreements” entered into by him with the respondent during his tenure as Chairman and Managing Director. The appellant entered into an Employment Agreement with the respondent on 16 July 2009. Another Employment Agreement was entered into on 16 December 2013 effective from 1 January 2014 which superseded the previous agreement. The Employment Agreement dated 16 December 2013 was coupled with an Incentive Agreement signed on the same date. The Incentive Agreement is stated to have been amended and restated on 17 April 2015 along with a further amendment through a Side Letter dated 20 April 2015. Further the new Employment Agreement was amended through a Letter Amendment No. 1 dated 17 April 2015. On 21 January 2020 the appellant submitted his resignation to the respondent and its parent entity detailing the entitlements which he claimed under the Employment and Incentive Agreements. On 28 January 2020 the respondent acknowledged receipt of the letter of resignation and requested the appellant to continue in employment beyond the 60 days’ notice period stipulated in the Employment Agreement. According to the appellant he agreed to continue to provide his services to the respondent till 30 April 2020. There was an exchange of communications between the parties and according to the appellant by an email dated 27 March 2020 the respondent confirmed the payments which were due and payable to him under the letter of resignation3 IA 3920 8 The issue which falls for determination in this appeal is whether the provisions of Section 10A stand attracted to an application under Section 9 which was filed before 5 June 2020in respect of a default which has occurred after 25 March 2020. Before proceeding to discuss the rival submissions it is necessary to preface the discussion with reference to three significant dates which have a bearing on the present proceedings: • 30 April 2020 date of default as set up in Form 3 • 11 May 2020 date of institution of the application under Section 9 and 5 June 2020 date on which Section 10A was inserted in the IBC. The date of default is crystalized as 30 April 2020 in the demand notice issued by the appellant in Form 3 which is prescribed under Rule 5 of the Insolvency and BankruptcyRules 2016. The statutory form provides for a disclosure of the particulars of the operational debt. The disclosure which has been made by the appellant includes the amount claimed in default and the date of default as tabulated below: AMOUNT CLAIMED TO BE INR 104 28 76 479 as ATTACH THE WORKINGS FOR on 30.04.2020 along with interest @ 18%p.a. till the date of realisation of entire TABULAR FORM] 10 Sub Sectionof Section 8 of IBC stipulates: “8. Insolvency resolution by operational creditor.—(1) an operational creditor may on the occurrence of a default deliver a demand notice of the unpaid operational debt or a copy of an invoice demanding payment of the amount involved in the default to the corporate debtor in such form and manner as may be prescribed.” Under Section 9(1) the operational creditor may file an application before the Adjudicating Authority for initiating the Corporate Insolvency Resolution Process “CIRP”) after the expiry of a period of ten days from the date of delivery of the notice under sub Section of Section 8 if the operational creditor does not receive payment from the corporate debtor or a notice of the dispute under sub Sectionof Section 8. The appellant having specified 30 April 2020 as the date of default this appeal must proceed on that basis. It is necessary to make this clear at the outset because an attempt has been made during the course of the submissions by Mr Neeraj Kishan Kaul learned Senior Counsel appearing on behalf of the appellant to submit that though the demand notice mentions the date of default as 30 April 2020 the "actual first date of default" was 21 January 2020 when the letter of resignation was tendered and that the “second date of default was 23 March 2020 when the sixty days’ notice period from the letter of resignation submitted by the appellant concluded. This attempt to set back the date of default to either 21 January 2020 or 23 March 2020 is plainly untenable for the reason that it is contrary to the disclosure made by the appellant in the demand notice which has been issued in pursuance of the provisions of Section 8(1) and Section 9 of the IBC. The demand notice triggers further actions which are adopted towards the initiation of the insolvency resolution process. The question which needs to be resolved is whether Section 10A would stand attracted to a situation such as the present where the application under Section 9 was filed prior to 5 June 2020 when Section 10A was inserted and in respect of a default which has taken place after 25 March 2020. 11 Mr Neeraj Kishan Kaul submits that: Section 10A creates a bar to the filing of applications under Sections 7 9 and 10 in relation to defaults committed on or after 25 March 2020 for a period of six months which can be extended up to one year The Ordinance and the Act which replaced it do not provide for the retrospective application of Section 10A either expressly or by necessary implication to applications which had already been filed and were pending on 5 June 2020 after 5 June 2020) iii) Section 10A prohibits the filing of a fresh application in relation to defaults occurring on or after 25 March 2020 once Section 10A has been notifiedSection 10A uses the expressions "shall be filed" and "shall ever filed" which are indicative of the prospective nature of the statutory provision in its application to proceedings which were initiated after 5 June 2020 and The IBC makes a clear distinction between the "initiation date" under Section 5(11) and the "insolvency commencement date" under Section 5(12). 12 On the above premises it has been submitted that Section 10A will have no application. Mr Kaul also urged that in each case it is necessary for the Court and the tribunals to deduce as to whether the cause of financial distress is or is not attributable to the Covid 19 pandemic. In the present case it was asserted that the onset of Covid 19 which was the reason for the insertion of Section 10A has nothing to do with the default of the respondent to pay the outstanding operational debt of the appellant which owes its existence even before the onset of the pandemic. Hence it has been submitted that the event of defaultin the notice of demand cannot be read in isolation. 13 Opposing the above submissions it has been urged by Mr Gopal Jain learned Senior Counsel on behalf of the respondent that: The legislative intent in the insertion of Section 10A was to deal with an extraordinary event the outbreak of Covid 19 pandemic which led to financial distress faced by corporate entities Section 10A is prefaced with a non obstante clause which overrides Sections 7 9 and 10 and Section 10A provides a cut off date of 25 March 2020 and it is evident from the substantive part of the provision as well as from the proviso and the explanation that no application can be filed for the initiation of the CIRP for a default occurring on and after 25 March 2020 for a period of six months or as extended upon a notification. The rival submissions can now be considered. The financial distress caused by the outbreak of Covid 19 provides the backdrop to the insertion of Section 10A. The underlying rationale for the insertion of Section 10A has been explained in the recitals to the Ordinance which are extracted below: AND WHEREAS COVID 19 pandemic has business financial markets and economy all over the world including India and created uncertainty and stress for business for reasons beyond their control AND WHEREAS a nationwide lockdown is in force since 25th March 2020 to combat the spread of COVID 19 which has added to disruption of normal business operations AND WHEREAS it is difficult to find adequate number of resolution applicants to rescue the corporate person who may default in discharge of their debt obligation AND WHEREAS it is considered expedient to suspend under sections 7 9 and I 0 of the Insolvency and Bankruptcy Code 2016 to prevent corporate persons which are experiencing distress on account of unprecedented situation. being pushed into insolvency proceedings under the Court for some time AND WHEREAS it is considered expedient to exclude the defaults arising on account of unprecedented situation for the purposes of insolvency proceeding under this Code ” emphasis supplied) Section 10A is prefaced with a non obstante provision which has the effect of overriding Sections 7 9 and 10. Section 10A provides that: no application for the initiation of the CIRP by a corporate debtor shall be filed ii) for any default arising on or after 25 March 2020 and for a period of six months or such further period not exceeding one year from such date as may be notified in this behalf. The proviso to Section 10A stipulates that "no application shall ever be filed" for the initiation of the CIRP of a corporate debtor "for the said default occurring during the said period". The explanation which has been inserted for the removal of doubts clarifies that Section 10A shall not apply to any default which has been committed under Sections 7 9 and 10 before 25 March 2020. Section 10A makes a reference to the initiation of the CIRP. Clausesand 12) of Section 5 of the IBC define two distinct concepts namely: the initiation date and the insolvency commencement date. The “initiation date” is defined in Section 5(11) in the following terms: 5(11) "initiation date" means the date on which a financial creditor corporate applicant or operational creditor as the case may be makes an application to the Adjudicating process " initiating corporate The expression "insolvency commencement date" is defined in Section 5(12) in the following terms: “5(12) "insolvency commencement date" means the date of admission of an application for initiating corporate insolvency resolution process by the Adjudicating Authority under sections 7 9 or section 10 as the case may be:” Section 5(11) stipulates that the date on which a financial creditor corporate applicant or operational creditor makes an application to the adjudicating authority for initiating the CIRP is the “initiation date”. Distinguished from this is the “insolvency commencement date” which is the date on which the application for initiating the CIRP under Sections 7 9 or 10 as the case may be is admitted by the Adjudicating Authority. The substantive part of Section 10A adverts to an application for the initiation of the CIRP. It stipulates that for any default arising on or after 25 March 2020 no application for initiating the CIRP of a corporate debtor shall be filed for a period of six months or such further period not exceeding one year "from such date" as may be notified in this behalf. The expression "from such date” is evidently intended to refer to 25 March 2020 so that for a period of six monthsno application for the initiation of the CIRP can be filed. The submission of the appellant is that the expression "shall be filed" is indicative of a legislative intent to make the provision prospective so as to apply only to those applications which were filed after 5 June 2020 when the provision was inserted. Such a construction cannot be accepted. The date of 25 March 2020 has consciously been provided by the legislature in the recitals to the Ordinance and Section 10A since it coincides with the date on which the national lockdown was declared in India due to the onset of the Covid 19 pandemic. In Sardar Inder Singh vs State of Rajasthan 4 the Rajpramukh promulgated the Rajasthan Ordinance on 21 June 1949 which inter alia provided for the reinstatement of tenants who had been in occupation on 1 April 1948 but had been subsequently dispossessed. When it was challenged before the Supreme Court the Constitution bench speaking through Justice T L Venkatarama Ayyar relied on the recital in its preamble5 while interpreting its provisions. The Court held that: 4 1957 SCR 605 5 “Whereas with a view to putting a check on the growing tendency of landholders to eject or dispossess tenants from their holdings and in the wider national interest of increasing the production of foodgrains it is expedient to make provisions for the protection of tenants in Rajasthan from ejectment or dispossession from their holdings.” “11. In the present case the preamble to the Ordinance clearly recites the state of facts which necessitated the enactment of the law in question and Section 3 fixed the duration of the Act as two years on an understanding of the situation as it then existed. At the same time it conferred a power on the Rajpramukh to extend the life of the Ordinance beyond that period if the state of affairs then should require it. When such extension is decided by the Rajpramukh and notified the law that will operate is the law which was enacted by the legislative authority in respect of “place person laws powers” and it is clearly conditional and not delegated legislation as laid down in Queen v. Burah5 IA 178 180 194 195] and must in consequence be held to be to Article 14 of the Ordinance are repugnant this contention. The preamble 4) We shall next consider the contention that the provisions Constitution and that it must therefore be held to have become void. In the argument before us the attack was mainly directed against Sections 7(1) and 15 of Ordinance. The contention with reference to Section 7(1) is that under that section landlords who had tenants on their lands on April 1 1948 were subjected to various restrictions in the enjoyment of their rights as owners while other landlords were free from similar restrictions. There is no Ordinance recites that there was a growing tendency on the part of the landholders to eject tenants and that it was therefore expedient to enact a law for giving them protection and for granting relief to them the Legislature had necessarily to decide from what date the law should be given operation and it decided that it should be from April 1 1948. That is a matter exclusively for the Legislature to determine and the propriety of that determination is not open to question in courts. We should add that the petitioners sought to dispute the correctness of the recitals in the preamble. This they clearly cannot do. Vide the observations of Holmes J. in Block v. Hirsh65 LEd 865 :256 US 135]. 12. A more substantial contention is the one based on Section 15 which authorises the Government to exempt any person or class of persons from the operation of the Act. It is argued that that section does not lay down the principles on which exemption could be granted and that the decision of the matter is left to the unfettered and uncanalised discretion of the Government and is therefore repugnant to Article 14. It is true that that section does not itself indicate the grounds on which exemption could be granted but the preamble to the Ordinance sets out with sufficient clearness the policy of the legislature and as that governs Section 15 of the Ordinance the decision of the Government thereunder cannot be said to be unguided…” emphasis supplied) The language of the provision is not always decisive to arrive at a determination whether the provision if applicable prospectively or retrospectively. Justice G.P. Singh in his authoritative commentary on the interpretation of statutes Principles of Statutory Interpretation6 has stated that: “In deciding the question of applicability of a particular statute to past events the language used is no doubt the most important factor to be taken into account but it cannot be stated as an inflexible rule that use of present tense or present perfect tense is decisive of the matter that the statute does not draw upon past events for its operation. Thus the words “a debtor commits an act of bankruptcy” were held to apply to acts of bankruptcy committed before the operation of the Act. The words “if a person has been convicted” were construed to include anterior convictions. The words “has made” “has ceased” “has failed” and “has become” may denote events happening before or after coming into force of the statute and all that is necessary is that the event must have taken place at the time when action on that account is taken under the statute And the word “is” though normally referring to the present often has a future meaning and may also have a past signification in the sense of “has been. The real issue in each case is as to the dominant intention of the Legislature to be gathered from the language used the object indicated the nature of rights affected and the circumstances under which the statute is passed.” 6. G.P. Singh Principles of Statutory Interpretationemphasis supplied) 23 Adopting the construction which has been suggested by the appellant would defeat the object and intent underlying the insertion of Section 10A. The onset of the Covid 19 pandemic is a cataclysmic event which has serious repercussions on the financial health of corporate enterprises. The Ordinance and the Amending Act enacted by Parliament adopt 25 March 2020 as the cut off date. The proviso to Section 10A stipulates that "no application shall ever be filed" for the initiation of the CIRP "for the said default occurring during the said period”. The expression "shall ever be filed" is a clear indicator that the intent of the legislature is to bar the institution of any application for the commencement of the CIRP in respect of a default which has occurred on or after 25 March 2020 for a period of six months extendable up to one year as notified. The explanation which has been introduced to remove doubts places the matter beyond doubt by clarifying that the statutory provision shall not apply to any default before 25 March 2020. The substantive part of Section 10A is to be construed harmoniously with the first proviso and the explanation. Reading the provisions together it is evident that Parliament intended to impose a bar on the filing of applications for the commencement of the CIRP in respect of a corporate debtor for a default occurring on or after 25 March 2020 the embargo remaining in force for a period of six months extendable to one year. Acceptance of the submission of the appellant would defeat the very purpose and object underlying the insertion of Section 10A. For it would leave a whole class of corporate debtors where the default has occurred on or after 25 March 2020 outside the pale of protection because the application was filed before 5 June 2020. 24 We have already clarified that the correct interpretation of Section 10A cannot be merely based on the language of the provision rather it must take into account the object of the Ordinance and the extraordinary circumstances in which it was promulgated. It must be noted however that the retrospective bar on the filing of applications for the commencement of CIRP during the stipulated period does not extinguish the debt owed by the corporate debtor or the right of creditors to recover it. Section 10A does not contain any requirement that the Adjudicating Authority must launch into an enquiry into whether and if so to what extent the financial health of the corporate debtor was affected by the onset of the Covid 19 pandemic. Parliament has stepped in legislatively because of the widespread distress caused by an unheralded public health crisis. It was cognizant of the fact that resolution applicants may not come forth to take up the process of the resolution of insolvencieswhich would lead to instances of the corporate debtors going under liquidation and no longer remaining a going concern. This would go against the very object of the IBC as has been noted by a two Judge bench of this Court in its judgment in Swiss RibbonsLtd. v. Union of India7. Speaking through Justice Rohinton F Nariman the Court held as follows: “27. As is discernible the Preamble gives an insight into what is sought to be achieved by the Code. The Code is first and 74 SCC 17 foremost a Code for reorganisation and insolvency resolution of corporate debtors. Unless such reorganisation is effected in a time bound manner the value of the assets of such persons will deplete. Therefore maximisation of value of the assets of such persons so that they are efficiently run as going concerns is another very important objective of the Code. This in turn will promote entrepreneurship as the persons in management of the corporate debtor are removed and replaced by entrepreneurs. When therefore a resolution plan takes off and the corporate debtor is brought back into the economic mainstream it is able to repay its debts which in turn enhances the viability of credit in the hands of banks and financial institutions. Above all ultimately the interests of all stakeholders are looked after as the corporate debtor itself becomes a beneficiary of the resolution scheme—workers are paid the creditors in the long run will be repaid in full and shareholders investors are able to maximise their investment. Timely resolution of a corporate debtor who is in the red by an effective legal framework would go a long way to support the development of credit markets. Since more investment can be made with funds that have come back into the economy business then eases up which leads overall to higher economic growth and development of the Indian economy. What is interesting to note is that the Preamble does not in any manner refer to liquidation which is only availed of as a last resort if there is either no resolution plan or the resolution plans submitted are not up to the mark. Even in liquidation the liquidator can sell the business of the corporate debtor as a going concern. (P) Ltd. v. Satish Kumar Gupta 2 SCC 1] at para 83 fn 3).” Hence the embargo contained in Section 10A must receive a purposive construction which will advance the object which was sought to be achieved by enacting the provision. We are therefore unable to accept the contention of the appellant. 26 The date of the initiation of the CIRP is the date on which a financial creditor operational creditor or corporate applicant makes an application to the adjudicating the process. On the other hand commencement date is the date of the admission of the application. This distinction is also evident from the provisions of sub sectionof Section 7 sub sectionof Section 9 and sub sectionof Section 10. Section 7 deals with the initiation of the CIRP by a financial creditor Section 8 provides for the insolvency resolution by an operational creditor Section 9 provides for the application for initiation of the CIRP by an operational creditor and Section 10 provides for the initiation of the CIRP by a corporate applicant. NCLAT has explained the difference between the initiation of the CIRP and its commencement succinctly when it observed: “13. Reading the two definition clauses in juxtaposition it emerges that while the first viz. initiation date is referable to filing of application by the eligible applicant the later viz. commencement date refers to passing of order of admission of application by the Adjudicating Authority. The initiation date ascribes a role to the eligible applicant whereas the commencement date rests upon exercise of power vested in the Adjudicating Authority. Adopting this interpretation would leave no scope for initiation of CIRP of a Corporate Debtor at the instance of eligible applicant in respect of Default arising on or after 25th March 2020 as the provision engrafted in Section 10A clearly bars filing of such application by the eligible applicant for initiation of CIRP of Corporate Debtor in respect of such default. The bar created is retrospective as the cut off date has been fixed as 25th March 2020 while the newly inserted Section 10A introduced through the Ordinance has come into effect on 5th June 2020. The object of the legislation has been to suspend operation of Sections 7 9 & 10 in respect of defaults arising on or after 25th March 2020 i.e. the date on which Nationwide lockdown was enforced disrupting normal business operations and impacting the economy globally. Indeed the explanation removes the doubt by clarifying that such bar shall not operate in respect of any default committed prior to 25th March 2020.” 27 We are in agreement with the view which has been taken by the NCLAT for the reasons which have been set out earlier in the course of this judgment. We affirm the conclusion of the NCLAT. The appeal is accordingly dismissed. There shall be no order as to costs. Pending application(s) if any stand disposed of. [MR Shah] New Delhi February 9 2021.

High Court cannot re-appreciate the evidence and come to the other conclusion merely because on the basis of same evidence the other view is possible: High Court of J&K and Ladakh

Once the learned trial court has acquitted the respondent for the commission of offence after appreciating the evidence, High Court cannot re-appreciate the evidence and come to the other conclusion merely because on the basis of same evidence the other view is possible as held by the Hon’ble High Court of J&K through a learned bench of Justice Rajnesh Oswal in the case of Bachan Singh Vs State of J&K and others [CRMC No. 249/2016]. The petition was been filed by the petitioner under section 561- A Cr.P.C. (now 482 Cr.P.C) for quashing the judgment/order, by virtue of which, Court of learned JMIC, Bishnah (hereinafter referred to as the trial court), has acquitted the respondent No. 2 from the charges for commission of offences under sections 279/337/304A RPC, on the grounds that the learned trial court has not appreciated the evidence in its right perspective and has acquitted the respondent No. 2 erroneously. The brief facts are that FIR bearing No. 1/2008 was registered on 02.01.2008 on information received about an accident from the reliable sources. Initially FIR bearing No. 1/2008 was registered under section 297/337 RPC. However, the injured expired and thereafter Section 304-A was also added. After the conclusion of investigation, the challan for commission of offences under sections 279/337/304A RPC was filed against the respondent No:2. The respondent No:2 did not plead guilty and the prosecution was directed to lead evidence. The Court after a perusal of the facts observed and stated that “The learned trial court after considering the evidence of these witnesses has come to the conclusion that the prosecution has miserably failed to connect the accused with the commission of the offence. Statement of PW Kuldeep Singh too does not connect the petitioner with the crime as he was neither aware about the parentage of respondent No:2 nor his name. Learned counsel appearing for the petitioner could not bring to the notice of the Court that any vital piece of evidence that has been overlooked by the learned trial court while appreciating the evidence. Once the learned trial court has acquitted the respondent No. 2 for the commission of offence after appreciating the evidence, this Court cannot re-appreciate the evidence and come to the other conclusion merely because on the basis of same evidence the other view is possible. Needless to say, even no other view is possible on the basis of evidence led by the prosecution.”

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Reserved on: 27.10.2021 Pronounced on: 29.10.2021 CRMC No. 249 2016 Bachan Singh …..Appellant(s) Petitioner(s) Through: Mr. K. Nirmal Kotwal Advocate. State of J&K and others …. Respondent(s) Through: Mr. M. K. Bhardwaj Sr. Advocate with Mr. Gagan Kohli Advocate. Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL JUDGE The present petition has been filed by the petitioner under section 561 A Cr.P.C. for quashing the judgment order dated 08.02.2016 by virtue of which Court of learned JMIC Bishnah hereinafter referred to as the trial court) has acquitted the respondent No. 2 from the charges for commission of offences under sections 279 337 304A RPC on the grounds that the learned trial court has not appreciated the evidence in its right perspective and has acquitted the respondent No. 2 erroneously. Mr. K. Nirmal Kotwal learned counsel for the petitioner reiterated the grounds taken in the memo of the petition. 2 CRMC No. 249 2016 Mr. M. K. Bhardwaj learned Sr. Advocate submitted that there is no error in the appreciation of evidence by the learned trial court and the present petition is misconceived. Heard and perused the record. The brief facts are that FIR bearing No. 1 2008 was registered on 02.01.2008 on an information received from the reliable sources that one person who was driving a Maruti Car No. 2231 JKD in a rash and negligent manner was coming from R S Pura towards Kherian and when it reached near Petrol Pump at Kherian the same hit one motor cycle bearing No. JK02AC 4274 that was also coming from R S Pura towards Jammu and caused an accident. Due to the said accident the motorcyclist got injured and was taken to hospital. Initially FIR bearing No. 1 2008 was registered under section 297 337 RPC. However the injured expired and thereafter Section 304 A was also added. After the conclusion of investigation the challan for commission of offences under sections 279 337 304A RPC was filed against the respondent No:2. The respondent No:2 did not plead guilty and the prosecution was directed to lead evidence. The prosecution has examined PW Kaim Din PW Bachan Singh PW Ranjit Singh PW Bachan Singh PW Surinder Singh PW Kuldeep Singh PW Rajinder Singh PW Raj Mohd. PW Shanker Singh PW Dilip singh PW Arjun Singh PW Baldev Singh and PW Jeet Singh as witnesses in support of charges. No witness was examined by respondent No. 2 in support of his defence. The trial court after 3 CRMC No. 249 2016 respondent No. 2. considering the evidence led by the prosecution acquitted the A perusal of the challan reveals that only PW Rajinder Singh PW Ranjit Singh and PW Kuldeep Singh have been cited as eye witnesses. A perusal of the statement of Rajinder Singh reveals that during the course of trial he turned hostile and did not support the prosecution case as he categorically stated that the accident was not caused by the respondent No. 2. He was cross examined by the SPO. However nothing incriminating against the respondent No. 2 could be elicited even during cross examination. A perusal of the statement of PW Ranjit Singh reveals that when he reached on spot accident had already taken place. So far as PW Kuldeep Singh is concerned he had stated that he was going along with his cousin on a motorcycle and when they reached at TCP Kherian near Petrol Pump one Maruti Car bearing No. JK02V 3303 came from wrong side and hit the motorcycle. Due to this accident the right leg of his cousin Harvinder Singh got amputated and he got injuries on his right leg. He further stated that the accused ran away from the spot and no one came on the spot at the time of accident and some people came after the accident but nobody came for their help. He further stated that he came to know about the parentage of the accused from some people and the Police told him the name of Paramjit The learned trial court after considering the evidence of these witnesses has come to the conclusion that the prosecution has miserably failed to connect the accused with the commission of the offence. Statement of 4 CRMC No. 249 2016 PW Kuldeep Singh too does not connect the petitioner with the crime as he was neither aware about the parentage of respondent No:2 nor his name. Learned counsel appearing for the petitioner could not bring to the notice of the Court that any vital piece of evidence that has been overlooked by the learned trial court while appreciating the evidence. Once the learned trial court has acquitted the respondent No. 2 for the commission of offence after appreciating the evidence this Court cannot re appreciate the evidence and come to the other conclusion merely because on the basis of same evidence the other view is possible. Needless to say even no other view is possible on the basis of evidence Viewed thus there is no merit in the petition. The same is accordingly led by the prosecution. JUDGE Sahil Padha Whether the case is speaking: Whether the case is reportable:

Application for Appointment of Arbitrator filed under Section 11 of the Arbitration and Conciliation Act, 1996 not admissible only on basis that Landlord-Tenant disputes allow for Arbitrator: Calcutta High Court

The landlord-tenant disputes are arbitrable but landlord-tenant disputes covered and governed by rent control legislation would not be arbitrable when specific court or forum has been given exclusive jurisdiction to apply and decide special rights and obligations as was provided by the Supreme Court in the case of Vidya Drolia and Other’s case. But it was not applicable in the case of Swaroop Sen v. Ajay Kumar Boral & Anr.[AP/512/2019] through the Hon’ble Court of Calcutta through the single bench led by Hon’ble Mr Justice Rajesh Bindal. The facts of the concerned case are that the application was filed under section 11(6) of the Arbitration and Conciliation Act,1996 for the appointment of an arbitrator in a tenant-landlord matter. The counsel from the applicant side argued that there was an arbitration clause in the lease and license agreement dated August 10, 1987 between both the parties. Further, the albatross proceedings could not be commenced as both the parties fail to appoint an umpire. Thus, an application was filed for the appointment of arbitrator. It had been greatly argued through the Vidya Drolia and Others vs. Durga Trading Corporation, (2021) [2 SCC 1], that landlord/tenant disputes or arbitrable, and resend that through the readings in the Vidya Drolia and Other’s case, any issue regarding the arbitrability of a dispute was also to be decided by an arbitrator, the counsel for the applicant pleaded. The counsel for the respondent side submitted that the arguments raised by the applicant’s counsel were not applicable in this hand as the 1997 act had come after the signing of the lease agreement also that the present agreement was a mere Leave and License agreement rather a lease agreement. The court after a perusal of Section 3(c) of the Arbitration and Conciliation Act, 1996, decided that for exemption from application the provisions of the 1997 Act, the lease deed has to be registered after the commencement of the 1997 Act, which came into force w.e.f. July 10, 2001. In the case in hand, neither the agreement in question is lease agreement nor the same was signed after the coming into force of the 1997 Act as the agreement is dated August 10, 1987. The court also took notice, “the Vidhya Drolia and Other’s case also does not come to the rescue of the applicant for the reason that long drawn complicated arguments are not required to be addressed and considered in dealing with the arguments raised regarding non-arbitrability of the dispute in question. Once it is found that the dispute is non-arbitrable, it will be waste of time to refer the same for arbitration.” The High Court of Calcutta dismissed the application for the appointment of the arbitrator.

IN THE HIGH COURT AT CALCUTTA ORIGINAL CIVIL JURISDICTION Original Side) Reserved on: 29.09.2021 Pronounced on: 01.10.2021 A.P. No. 5119 … .Applicant(s) SWAROOP SEN Through : Mr. Sanjib Dawn Advocate AJAY KUMAR BORAL AND ANOTHER Through : Mr. Swatarup BanerjeeMr. Manik Lal De Mr. Ratul Biswas Coram : HON’BLE MR. JUSTICE RAJESH BINDAL CHIEF JUSTICEO R D E R The present application has been filed under Section 11(6) of the Arbitration and Conciliation Act 1996 for appointment of an arbitrator. The learned Counsel for the applicant submitted that there is an arbitration Clause in the lease and license agreement dated August 10 1987 signed between the parties. In terms thereof both the parties had appointed one arbitrator each. However they failed to appointed an umpire. As a result the arbitral proceeding could not commence. The applicant has filed the present petition seeking direction for appointment of arbitrator. A.P. No. 5119 The judgment of Hon’ble the Supreme Court in Vidya Drolia and Others vs. Durga Trading Corporation 2 SCC 1 was referred to in support of the argument that landlord tenants disputes are arbitrable. The case in hand does not fall in the exception clause. Section 105 of the Transfer of Property Act defines ‘lease’. Whereas in terms of Section 3(c) of the West Bengal Premises Tenancy Act 1997the dispute in the present case is not governed by the aforesaid Act. Hence the present application may be accepted and an arbitrator be appointed for resolution of the dispute. On the other hand learned Counsel for the respondent submitted that the argument raised by the learned Counsel for the applicant that the 1997 Act is not applicable in the case in hand is misconceived as the agreement in the case in hand was signed before coming into force of the aforesaid Act. He further submitted that it is not a lease agreement rather it is merely a Leave and Licence agreement. In response the learned Counsel for the applicant submitted that in terms of findings recorded in para 154.4 in Vidya Drolia and Others’s casethe issue regarding arbitrability of a dispute is also to Heard the learned Counsel for the parties and perused the be decided by an arbitrator. The clause of the agreement on which reliance was placed by the learned Counsel for the applicant is extracted below: In the event of any dispute between the parties to these presents in connection with the observant of the terms and conditions of this Agreement the matter shall be referred to A.P. No. 5119 the Arbitration of two Arbitrators one to be appointed by each of the parties to these presents with the power to such Arbitrators to appoint an Umpire and the decision of the majority of the Arbitrators shall be binding on both the parties to these presents and all the provisions of Indian Arbitration Act shall apply.” The aforesaid agreement which is termed to be a Leave and Licence agreement was signed on August 10 1987. The aforesaid facts are not in dispute. Hon’ble the Supreme Court in Vidya Drolia and Others’s case while dealing with the issue regarding arbitrability of a landlord tenant dispute while overruling the earlier judgment in Himangni Enterprises v. Kamaljeet Singh Ahluwalia 10 SCC 706 held that landlord tenant’s dispute which are covered and governed by the rent control legislation would not be arbitrable. Para 80 thereof is extracted below: In view of the aforesaid we overrule the ratio laid down in Himangni Enterprises and hold that landlord tenant disputes are arbitrable as the Transfer of Property Act does not forbid or foreclose arbitration. However landlord tenant disputes covered and governed by rent control legislation would not be arbitrable when specific court or forum has been given exclusive jurisdiction to apply and decide special rights and obligations. Such rights and obligations can only be adjudicated and enforced by the specified court forum and not through arbitration.” Argument raised by the learned Counsel for the applicant that the provision of the 1997 Act are not applicable is with reference to the Leave and Licence agreement in question is merely to be noticed and A.P. No. 5119 reproduced hereunder: to— rejected. Section 3(c) thereof on which reliance was placed upon is “3. Exemption.—Nothing contained in this Act shall apply a) b) c) any tenancy where the lease with due consent of the tenant x x x x x x x x has been registered under the Registration Act 1908 after the commencement of this Act and the fact of such consent has been recorded instrument so registered ” A perusal of the aforesaid clause shows that for exemption from application the provisions of the 1997 Act the lease deed has to be registered after the commencement of the 1997 Act which came into force w.e.f. July 10 2001. In the case in hand neither the agreement in question is lease agreement nor the same was signed after the coming into force of the 1997 Act as the agreement is dated August 10 1987. Para 154.4 in the Vidya Drolia and Others’ casealso does not come to the rescue of the applicant for the reason that long drawn complicated arguments are not required to be addressed and considered in dealing with the arguments raised regarding non arbitrability of the dispute in question. Once it is found that the dispute is non arbitrable it will be waste of time to refer the same for arbitration. Para 154.4 is extracted below: “154.4. Rarely as a demurrer the court may interfere at Section 8 or 11 stage when it is manifestly and ex facie certain that the arbitration agreement is non existent invalid or the disputes are non arbitrable though the nature and facet of non arbitrability would to some extent determine the level and A.P. No. 5119 nature of judicial scrutiny. The restricted and limited review is to check and protect parties from being forced to arbitrate when the matter is demonstrably “non arbitrable” and to cut off the deadwood. The court by default would refer the matter when contentions relating to non arbitrability are plainly arguable when consideration in summary proceedings would be insufficient and inconclusive when facts are contested when the party opposing arbitration adopts delaying tactics or impairs conduct of arbitration proceedings. This is not the stage for the court to enter into a mini trial or elaborate review so as to usurp the jurisdiction of the Arbitral Tribunal but to affirm and uphold integrity and efficacy of arbitration as an alternative dispute resolution mechanism.” For the reasons mentioned above I do not find any merit in the present application. The same is accordingly dismissed. RAJESH BINDAL Chief JusticeKOLKATA

The allowance of an appeal depends on the merits of each case: Supreme Court of India

Appeals against a judgment or decree are a major right of the parties to the suit. The rules to deal with and decide the first appeal has been enunciated in order XLI rule 31 of the Code of Civil Procedure, 1908. Any judgment or decree which flout the provisions of Order XLI Rule 31 CPC is ultra vires. There cannot be an automatic allowing of the appeal and quashing and setting aside the judgment and decree passed by the trial court without any further entering into the merits of the appeal and/or expressing anything on merits in the appeal on an impleadment of a party in an appeal. Such an observation was made by the Hon’ble Supreme Court before Hon’ble Justice M.R. SHAH & Hon’ble Justice B.V. NAGARATHNA in the matter of IL and FS Engineering and Constructions Company Ltd vs M/s. Bhargavarama Constructions & Ors [CIVIL APPEAL NO.7639 OF 2021]. The facts that gave rise present case were that the appellate instituted a suit for the recovery of Rs. 47,90,088/- along with 18% from the respondent 1 & 2. The said suit came to be decreed by the trial court in favor of the appellate. Aggrieved by the said judgment the defendants preferred an appeal before the High Court. In the meanwhile, the respondents also moved a miscellaneous application seeking impleadment of A.P. Transco and MAYTAS Infra Pvt. Ltd. as party respondents to the first appeal on the ground that the subject work, which was given to defendant No.1 by the appellant, was originally given by A.P. Transco to the appellant. The High court by the impugned order without assigning any reasons allowed the said application for the impleadment of A.P. Transco and also directed to implead A.P. Transco in the original suit. By virtue of the said order of impleadment, the High Court set aside and quashed the judgment and order of the Trial Court. Aggrieved by the said order of the High Court the appellate had preferred the instant appeal. The Hon’ble Supreme Court observed that nothing has been observed and/or decided on merits. Even no reasoning has been given why the A.P. Transco was required to be impleaded as a party to the appeal. This is not the manner in which the High Court was required to deal with the first appeal arising out of the judgment and decree passed by the trial court. Additionally, the Hon’ble Supreme Court held that “The High Court has not only directed to implead the A.P. Transco as a party to the appeal but has also directed to implead the A.P. Transco in the original suit also. It is required to be noted that as such the suit was filed by the appellant – original plaintiff and as per the settled proposition of law, the plaintiff is the dominus litis. No issue was raised before the trial court on the nonjoinder of parties. Therefore, as such whether in the appeal preferred by the original defendants against the judgment and decree passed by the trial court, such an application would be maintainable or not, that itself is a question, which was required to be first considered and decided by the High Court. ” Furthermore, the Hon’ble Supreme Court referred to the case of K. Karuppuraj Vs. M. Ganesan, Civil Appeal Nos.6014-6015 of 2021 wherein it was held that “without framing points for determination and considering both facts and law; without proper discussion and assigning the reasons, the First Appellate Court cannot dispose of the first appeal under Section 96 CPC and that too without raising the points for a determination as provided under Order XLI Rule 31 CPC” Finally, the Hon’ble Supreme Court allowed the instant appeal consecutively setting aside the impugned orders and remanded the matter back to the High Court to dispose of according to law and merits. Additionally, an exemplary cost of Rs. 25000/- was levied on respondents no. 1 & 2. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur The facts that gave rise present case were that the appellate instituted a suit for the recovery of Rs. 47,90,088/- along with 18% from the respondent 1 & 2. The said suit came to be decreed by the trial court in favor of the appellate. Aggrieved by the said judgment the defendants preferred an appeal before the High Court. In the meanwhile, the respondents also moved a miscellaneous application seeking impleadment of A.P. Transco and MAYTAS Infra Pvt. Ltd. as party respondents to the first appeal on the ground that the subject work, which was given to defendant No.1 by the appellant, was originally given by A.P. Transco to the appellant. The High court by the impugned order without assigning any reasons allowed the said application for the impleadment of A.P. Transco and also directed to implead A.P. Transco in the original suit. By virtue of the said order of impleadment, the High Court set aside and quashed the judgment and order of the Trial Court. Aggrieved by the said order of the High Court the appellate had preferred the instant appeal. The Hon’ble Supreme Court observed that nothing has been observed and/or decided on merits. Even no reasoning has been given why the A.P. Transco was required to be impleaded as a party to the appeal. This is not the manner in which the High Court was required to deal with the first appeal arising out of the judgment and decree passed by the trial court. Additionally, the Hon’ble Supreme Court held that “The High Court has not only directed to implead the A.P. Transco as a party to the appeal but has also directed to implead the A.P. Transco in the original suit also. It is required to be noted that as such the suit was filed by the appellant – original plaintiff and as per the settled proposition of law, the plaintiff is the dominus litis. No issue was raised before the trial court on the nonjoinder of parties. Therefore, as such whether in the appeal preferred by the original defendants against the judgment and decree passed by the trial court, such an application would be maintainable or not, that itself is a question, which was required to be first considered and decided by the High Court. ” Furthermore, the Hon’ble Supreme Court referred to the case of K. Karuppuraj Vs. M. Ganesan, Civil Appeal Nos.6014-6015 of 2021 wherein it was held that “without framing points for determination and considering both facts and law; without proper discussion and assigning the reasons, the First Appellate Court cannot dispose of the first appeal under Section 96 CPC and that too without raising the points for a determination as provided under Order XLI Rule 31 CPC” Finally, the Hon’ble Supreme Court allowed the instant appeal consecutively setting aside the impugned orders and remanded the matter back to the High Court to dispose of according to law and merits. Additionally, an exemplary cost of Rs. 25000/- was levied on respondents no. 1 & 2. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble Supreme Court observed that nothing has been observed and/or decided on merits. Even no reasoning has been given why the A.P. Transco was required to be impleaded as a party to the appeal. This is not the manner in which the High Court was required to deal with the first appeal arising out of the judgment and decree passed by the trial court. Additionally, the Hon’ble Supreme Court held that “The High Court has not only directed to implead the A.P. Transco as a party to the appeal but has also directed to implead the A.P. Transco in the original suit also. It is required to be noted that as such the suit was filed by the appellant – original plaintiff and as per the settled proposition of law, the plaintiff is the dominus litis. No issue was raised before the trial court on the nonjoinder of parties. Therefore, as such whether in the appeal preferred by the original defendants against the judgment and decree passed by the trial court, such an application would be maintainable or not, that itself is a question, which was required to be first considered and decided by the High Court. ” Furthermore, the Hon’ble Supreme Court referred to the case of K. Karuppuraj Vs. M. Ganesan, Civil Appeal Nos.6014-6015 of 2021 wherein it was held that “without framing points for determination and considering both facts and law; without proper discussion and assigning the reasons, the First Appellate Court cannot dispose of the first appeal under Section 96 CPC and that too without raising the points for a determination as provided under Order XLI Rule 31 CPC” Finally, the Hon’ble Supreme Court allowed the instant appeal consecutively setting aside the impugned orders and remanded the matter back to the High Court to dispose of according to law and merits. Additionally, an exemplary cost of Rs. 25000/- was levied on respondents no. 1 & 2. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur Additionally, the Hon’ble Supreme Court held that “The High Court has not only directed to implead the A.P. Transco as a party to the appeal but has also directed to implead the A.P. Transco in the original suit also. It is required to be noted that as such the suit was filed by the appellant – original plaintiff and as per the settled proposition of law, the plaintiff is the dominus litis. No issue was raised before the trial court on the nonjoinder of parties. Therefore, as such whether in the appeal preferred by the original defendants against the judgment and decree passed by the trial court, such an application would be maintainable or not, that itself is a question, which was required to be first considered and decided by the High Court. ” Furthermore, the Hon’ble Supreme Court referred to the case of K. Karuppuraj Vs. M. Ganesan, Civil Appeal Nos.6014-6015 of 2021 wherein it was held that “without framing points for determination and considering both facts and law; without proper discussion and assigning the reasons, the First Appellate Court cannot dispose of the first appeal under Section 96 CPC and that too without raising the points for a determination as provided under Order XLI Rule 31 CPC” Finally, the Hon’ble Supreme Court allowed the instant appeal consecutively setting aside the impugned orders and remanded the matter back to the High Court to dispose of according to law and merits. Additionally, an exemplary cost of Rs. 25000/- was levied on respondents no. 1 & 2. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur Furthermore, the Hon’ble Supreme Court referred to the case of K. Karuppuraj Vs. M. Ganesan, Civil Appeal Nos.6014-6015 of 2021 wherein it was held that “without framing points for determination and considering both facts and law; without proper discussion and assigning the reasons, the First Appellate Court cannot dispose of the first appeal under Section 96 CPC and that too without raising the points for a determination as provided under Order XLI Rule 31 CPC” Finally, the Hon’ble Supreme Court allowed the instant appeal consecutively setting aside the impugned orders and remanded the matter back to the High Court to dispose of according to law and merits. Additionally, an exemplary cost of Rs. 25000/- was levied on respondents no. 1 & 2.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.7639 OF 2021 IL and FS Engineering and Constructions Company Ltd JUDGMENT M s. Bhargavarama Constructions & Ors M.R. SHAH J Feeling aggrieved and dissatisfied with the impugned judgment and order dated 11.09.2017 passed by the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh passed in CCCA No.917 by which the High Court has allowed the said appeal and has quashed and set aside the judgment and decree passed by the trial court and has remanded the matter to the trial court the original plaintiff has preferred the present appeal. That the appellant herein original plaintiff filed a suit for recovery of Rs.47 90 088 along with interest of 18% from the respondent Nos. 1 and 2 herein original defendants. The said suit came to be decreed by the trial court. The judgment and decree passed by the trial court came to be challenged by the original defendants respondent Nos. 1 and 2 before the High Court by way of CCCA No. 917. In the said appeal respondent Nos. 1 and 2 herein original defendants moved a miscellaneous application seeking impleadment of A.P. Transco and MAYTAS Infra Pvt. Ltd. as party respondents to the first appeal on the ground that the subject work which was given to the defendant No.1 by the appellant was originally given by A.P. Transco to the appellant. The High Court by the impugned order without assigning any reasons as to why the proposed respondents have to be impleaded in the first appeal allowed the said application and directed to implead A.P. Transco as party to the appeal as well as to the original suit. Not only that while allowing the said application for impleadment thereafter without further entering into the merits and or expressing anything on merits and solely on the ground that as the application for impleadment was allowed the High Court set aside the judgment and decree passed by the trial court and remanded the matter to the trial court with a direction to the trial court to decide the suit afresh after affording an opportunity to the impleaded party to lead evidence in the suit. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court the original plaintiff has preferred 4. We have heard the learned Advocates appearing for the respective the present appeal. parties at length. 5. We have gone through the impugned order passed by the High Court. By the impugned judgment and order the High Court has set aside the judgment and decree passed by the trial court which was in favour of the appellant herein original plaintiff solely on the ground that the application for impleadment filed by the respondent Nos. 1 and 2 original defendants appellants before the High Court to implead A.P Transco has been allowed and therefore the judgment and decree is set aside. This is not the manner in which the High Court was required to deal with the first appeal arising out of the judgment and decree passed by the trial court. Nothing has been observed and or decided on merits. Even no reasoning has been given why the A.P. Transco was required to be impleaded as a party to the appeal. The High Court has not only directed to implead the A.P. Transco as party to the appeal but has also directed to implead the A.P. Transco in the original suit also. It is required to be noted that as such the suit was filed by the appellant original plaintiff and as per the settled proposition of law the plaintiff is the dominus litis. No issue was raised before the trial court on non joinder of parties. Therefore as such whether in the appeal preferred by the original defendants against the judgment and decree passed by the trial court such an application would be maintainable or not that itself is a question which was required to be first considered and decided by the Even otherwise assuming that the application to implead the A.P Transco as a party to the appeal on an application filed by the respondent Nos.1 and 2 original defendants was maintainable and was to be allowed is not discussed. There cannot be an automatic allowing of the appeal and quashing and setting aside the judgment and decree passed by the trial court without any further entering into the merits of the appeal and or expressing anything on merits in the appeal on an impleadment of a party in an appeal. We strongly disapprove the manner in which the High Court has disposed of the appeal. How to deal with and decide a first appeal under Section 96 and Order XLI Rule 31 of the CPC has been dealt with by this Court in a catena of decisions As observed and held by this Court in the case of K. Karuppuraj Vs. M Ganesan Civil Appeal Nos.6014 60121 decided on 04.10.2021 “without framing points for determination and considering both facts and law without proper discussion and assigning the reasons the First Appellate Court cannot dispose of the first appeal under Section 96 CPC and that too without raising the points for determination as provided under Order XLI Rule 31 CPC.” In view of the above discussion and for the reasons stated above the present appeal is allowed. We set aside the order passed by the High Court in CCCAMP No.2417 impleading the A.P. Transco as party to the appeal as well as to the original suit. Consequently we also set aside the impugned judgment and order passed by the High Court quashing and setting aside the judgment and decree passed by the trial court. We remand the matter to the High Court to decide and dispose of the CCCAMP No. 2417 and the first appeal in accordance with law and on its own merits. While deciding the CCCAMP No.2417 filed by the original appellants respondent Nos. 1 and 2 herein original defendants to implead the A.P. Transco in the appeal as well as the original suit. The High Court shall consider whether such an application in the appeal preferred by the original defendants would be maintainable or not and if so under which provision of Code of Civil Procedure it would be maintainable Present Appeal is Allowed accordingly with exemplary cost which is quantified at Rs.25 000 to be deposited by respondent Nos. 1 and 2 herein with the State Legal Services Authority of the concerned High Court within a period of four weeks from today. [M.R. SHAH NEW DELHI DECEMBER 16 2021 ….J [B.V. NAGARATHNA

University norms should be synonymous to the PCI Rules and recognition of degrees and diplomas of Pharmacy Education shall be governed by the Pharmacy Act, 1948: Supreme Court

In matter pertaining to university administration, the Supreme Court bench comprising B.R. Gavai J. opined in the matter of VIIT Pharmacy College & Anr. v Dr. A.P.J. Abdul Kalam Technical University & Anr [WP(C) NO.390 OF 2021].; that if a certain college has been permitted by the Pharmacy Council of India (hereinafter referred to as the ‘PCI’) to initiate a course, then the affiliated University norms should take cognizance of the approval and accordingly take measures to conduct the examinations. The respondent University invited applications for grant of affiliation for the year 2020-21. In response thereto, the petitioners submitted applications in the month of February 2020 seeking affiliation for B. Pharma course for the year 2020-21. The PCI granted its approval to the petitioner VIIT Pharmacy College vide order dated 10th April 2020 for conduct of first year B. Pharma course for the academic year 2020-21 with intake capacity of 100 admissions/students. In the meantime, the respondent State of Uttar Pradesh came up with the policy dated 15th May 2020 for restricting the number of pharmacy colleges to only two per district. The said policy came to be challenged before the High Court of Allahabad in bunch of petitions. The Allahabad High Court vide judgment and order dated 2nd November 2020 set aside the policy dated 15th May 2020, only insofar as the petitioners who had approached the High Court. The petitioner institutions therein were permitted to participate in the counselling being conducted for admission to Bachelors of Pharmacy course for the academic year 2020-21. It was contented by the petitioners, that in March 2021, though the students of the petitioner colleges were invited to the examination centre, they were not permitted to participate in the exam at the last moment. The court relied on the judgment of Pharmacy Council of India v. Dr. S.K. Toshiwal Educational Trusts Vidarbha Institute of Pharmacy and Others Etc (2020 SCC OnLine SC 296) wherein it was held that in the field of Pharmacy Education and more particularly so far as the recognition of degrees and diplomas of Pharmacy Education is concerned, the Pharmacy Act, 1948 shall prevail. The norms and regulations set by the PCI and other specified authorities under the Pharmacy Act would have to be followed by the concerned institutions imparting education for degrees and diplomas in Pharmacy. The Court observed that “Indisputably, in the present case, the PCI has granted approval to both the petitioners vide order dated 10th April 2020, with intake capacity of 100 and 60 admissions/students respectively. Not only that, the petitions filed by the petitioners challenging the policy decision of the State Government dated 15th May 2020, have been allowed by the High Court vide judgment and order dated 9th November 2020. Indisputably, the State Government also vide notification dated 19th March 2021, has granted conditional affiliation.”

IN THE CIVIL ORIGINAL JURISDICTION WRIT PETITIONNO.390 OF 2021 VIIT PHARMACY COLLEGE AND ANOTHER DR. A.P.J. ABDUL KALAM TECHNICAL UNIVERSITY AND ANOTHER ...RESPONDENT(S O R D E R B.R. GAVAI J The petitioners have approached this Court seeking a direction to the respondent No.1 Dr. A.P.J. Abdul Kalam Technical University hereinafter referred to as the ‘University’) to grant affiliation for B Pharma course to the petitioner colleges for the academic year 2020 21 with further direction to respondent No.1 University to organize special examinations for B. Pharma students for academic year 2020 21 in view of the notification dated 19th March 2021 The facts in brief giving rise to the petition are as under: On 28th January 2020 the respondent No.1 University invited applications for grant of affiliation for the year 2020 21. In response thereto the petitioners submitted applications in the month of February 2020 seeking affiliation for B. Pharma course for the year 2020 21. It is pertinent to note that the Pharmacy Council of India granted its approval to the petitioner No.1 VIIT Pharmacy College vide order dated 10th April 2020 for conduct of first year B. Pharma course for the academic year 2020 21 with intake capacity of 100 admissions students. Insofar as the petitioner No.2 RV Institute of Pharmacy is concerned a similar approval was also granted however with the intake capacity of 60 admissions students The same was subject to submission of consent of affiliation of Examining Authority and NOC of the State Government In the meantime the respondent No.2 State of Uttar Pradesh came up with the policy dated 15th May 2020 for restricting the number of pharmacy colleges to only two per district. The said policy came to be challenged before the High Court of Allahabad in bunch of petitions being Misc. Single No. 12536 of 2020 filed by Zee College of Pharmacy with companion matters. The Allahabad High Court vide judgment and order dated 2nd November 2020 relying on the judgment of this Court in the case of Pharmacy Council of India v. Dr. S.K Toshiwal Educational Trusts Vidarbha Institute of Pharmacy and Others Etc.1 set aside the policy dated 15th May 2020 only insofar as the petitioners who had approached the High Court. The petitioner institutions therein were permitted to participate in the counselling being conducted for admission to Bachelors of Pharmacy course for the academic year 2020 21 The petitioner No.1 relying on the order of the High Court dated 2nd November 2020 also filed writ petition being Misc. Single No 195120 before the Allahabad High Court. The said petition was also allowed and the policy dated 15th May 2020 was set aside with respect to the petitioner therein and the respondents were directed to take a decision on the application of the petitioner for affiliation in accordance with law. A similar petition being Misc. Single No. 195020 came to be filed by petitioner No.2 which too was allowed on like terms. Likewise one S.D. College of Sciences had also filed a writ petition being Misc. Single No. 19568 of 2020 which was similarly allowed. All the above three petitions were allowed by the High Court vide order dated 9th November 2020 However the respondent No.1 University vide impugned order dated 7th December 2020 rejected the application of S.D. College of Sciences for grant of affiliation. The present petitioners along with one 1 2020 SCC OnLine SC 296 another institution thereafter filed Writ PetitionNo. 14620 before this Court in the month of December 2020. This Court vide order dated 12th January 2021 stayed the operation of the order dated 7th December 2020 passed by respondent No.1 University and tagged the said petition along with Writ PetitionNo. 14320 filed by Rakshpal Bahadur Pharmacy Institute It is the contention of the petitioners that in March 2021 though the students of the petitioner colleges were invited to the examination centre they were not permitted to participate in the exam at the last moment. It is also the contention of the petitioners that in view of the order dated 5th March 2021 passed by this Court in I.A. No.332721 in Writ Petition No. 1433 of 2020 students of one Zee College of Pharmacy were permitted to participate in the examination In the meantime vide order dated 19th March 2021 the State Government after considering the recommendations made by the Affiliation Committee has granted conditional affiliation for admission in B. Pharma course in compliance of the order of the High Court passed in Writ PetitionNo. 125320. Since the respondent No.1 University refused to grant affiliation to the petitioners and has refused to permit their students to appear for the first year B. Pharma examination the petitioners have approached This Court in the case of Dr. S.K. Toshiwal Educational Trusts Vidarbha Institute of Pharmacyhas held as under: “87. In view of the above and for the reasons stated above it is held that in the field of Pharmacy Education and more particularly so far as the recognition of degrees and diplomas of Pharmacy Education is concerned the Pharmacy Act 1948 shall prevail. The norms and regulations set by the PCI and other specified authorities under the Pharmacy Act would have to be followed by the concerned institutions imparting education for degrees and diplomas in Pharmacy including the norms and regulations with respect to increase and or decrease in intake capacity of the students and the decisions of the PCI shall only be followed by the institutions imparting degrees and diplomas in Pharmacy. The questions are answered accordingly.” Indisputably in the present case the PCI has granted approval to both the petitioners vide order dated 10th April 2020 with intake capacity of 100 and 60 admissions students respectively. Not only that the petitions filed by the petitioners challenging the policy decision of the State Government dated 15th May 2020 have been allowed by the High Court vide judgment and order dated 9 th November 2020. Indisputably the State Government also vide notification dated 19th March 2021 has granted conditional affiliation after considering the recommendations made by the Affiliation Committee. In the peculiar facts and circumstances of the case and particularly taking into consideration that the averments made on affidavit by the petitioners are not controverted by the respondent No.1 University we find that the petition deserves to be allowed 11. The respondent No.1 University is therefore directed to grant affiliation to the petitioner colleges for the academic year 2020 21 and also permit the students of the petitioner colleges to participate in the special examinations to be organized by the respondent No.1 University for the academic year 2020 21 in view of the notification dated 19th March 2021 12. The petition is allowed in the aforesaid terms [HRISHIKESH ROY NEW DELHI APRIL 15 2021

Once the documents were produced before passing the seizure order, it cannot be said that the revisionist had any intention to evade payment of tax: Allahabad High Court.

The revisionist along with a reply to show cause notice has filed the relevant documents before the seizure authorities but the same was paid no weightage, in such a case it cannot be said that the revisionist was trying to evade tax. Such an observation was made by the Hon’ble Allahabad High Court before Hon’ble Justice Piyush Agrawal in the matter of M/S Colgate Palmolive India Ltd vs  Commissioner Of Commercial/Entry Tax Lucknow [SALES/TRADE TAX REVISION No. – 191 of 2009] on 22.10.2021. The facts of the case revolved around a seizure of goods which was been transported as stock transfer and seized at the entry check post of State of U.P. (Raksha) (Jhansi). It was the contention of the revisionist that despite the production of all relevant documents before the seizure authority no heed was paid and a penalty of Rs. 4 Lacs was imposed. On the other hand, it was the contention of the standing council that at the time of submission of trip sheet (Behti), no documents whatsoever were produced. Thus, the penalty imposed is completely justified and bonafide in law. The Hon’ble High Court referred to the judgment given in the case of Sarvashri Ramesh Chand Santosh Kumar Vs. Commissioner of Trade Tax, U.P. Lucknow (2010 U.P.T.C.-1113) in which it was held that “t the penalty under Section 15-A(1)(o) of the Act, 1948 could not be imposed if the dealer not found to have contravened the provision of Section 28-A of the Act, 1948. The Court has further held that if the documents have produced along with the reply to the show-cause notice, there is no attempt to evade tax and imposed the penalty is bad.” Additionally, the Hon’ble High Court observed that it is on record that the revisionist had duly submitted all the documents before the authorities along with a reply of the show-cause notice. Therefore, it cannot be said that the revisionist had any intention to evade payment of tax or has made any contravention of the Act. Finally, the Hon’ble High Court allowed the revision and set aside the impugned order. Click Here To Read The Judgment. Judgment Reviewed By: Rohan Kumar Thakur The facts of the case revolved around a seizure of goods which was been transported as stock transfer and seized at the entry check post of State of U.P. (Raksha) (Jhansi). It was the contention of the revisionist that despite the production of all relevant documents before the seizure authority no heed was paid and a penalty of Rs. 4 Lacs was imposed. On the other hand, it was the contention of the standing council that at the time of submission of trip sheet (Behti), no documents whatsoever were produced. Thus, the penalty imposed is completely justified and bonafide in law. The Hon’ble High Court referred to the judgment given in the case of Sarvashri Ramesh Chand Santosh Kumar Vs. Commissioner of Trade Tax, U.P. Lucknow (2010 U.P.T.C.-1113) in which it was held that “t the penalty under Section 15-A(1)(o) of the Act, 1948 could not be imposed if the dealer not found to have contravened the provision of Section 28-A of the Act, 1948. The Court has further held that if the documents have produced along with the reply to the show-cause notice, there is no attempt to evade tax and imposed the penalty is bad.” Additionally, the Hon’ble High Court observed that it is on record that the revisionist had duly submitted all the documents before the authorities along with a reply of the show-cause notice. Therefore, it cannot be said that the revisionist had any intention to evade payment of tax or has made any contravention of the Act. Finally, the Hon’ble High Court allowed the revision and set aside the impugned order. Click Here To Read The Judgment. Judgment Reviewed By: Rohan Kumar Thakur The Hon’ble High Court referred to the judgment given in the case of Sarvashri Ramesh Chand Santosh Kumar Vs. Commissioner of Trade Tax, U.P. Lucknow (2010 U.P.T.C.-1113) in which it was held that “t the penalty under Section 15-A(1)(o) of the Act, 1948 could not be imposed if the dealer not found to have contravened the provision of Section 28-A of the Act, 1948. The Court has further held that if the documents have produced along with the reply to the show-cause notice, there is no attempt to evade tax and imposed the penalty is bad.” Additionally, the Hon’ble High Court observed that it is on record that the revisionist had duly submitted all the documents before the authorities along with a reply of the show-cause notice. Therefore, it cannot be said that the revisionist had any intention to evade payment of tax or has made any contravention of the Act. Finally, the Hon’ble High Court allowed the revision and set aside the impugned order. Click Here To Read The Judgment. Judgment Reviewed By: Rohan Kumar Thakur Additionally, the Hon’ble High Court observed that it is on record that the revisionist had duly submitted all the documents before the authorities along with a reply of the show-cause notice. Therefore, it cannot be said that the revisionist had any intention to evade payment of tax or has made any contravention of the Act. Finally, the Hon’ble High Court allowed the revision and set aside the impugned order. Click Here To Read The Judgment. Judgment Reviewed By: Rohan Kumar Thakur Finally, the Hon’ble High Court allowed the revision and set aside the impugned order.

Court No. 1 Case : SALES TRADE TAX REVISION No. 191 of Revisionist : M S Colgagte Palmolive India Ltd Opposite Party : Commissioner Of Commercial Entry Tax Lucknow Counsel for Revisionist : S.D. Singh Aditya Counsel for Opposite Party : C.S.C Hon ble Piyush Agrawal J 1. Heard Sri Aditya Pandey counsel for the revisionist and Sri Manu Ghildyal Standing Counsel for the State. 2. The present revision has been filed against the order dated 7.11.2008 passed by Commercial Tax Tribunal Kanpur Bench 1 Kanpur in Second Appeal No. 238 of 2006 for the assessment year 2004 2005 arising out of penalty proceedings initiated under Section 15 A(1)(o) of U.P. Trade Tax Act 1948 in which following questions of law have been raised 1) Whether the penalty of Rs. 4.00 lacs imposed and sustained against the applicant is wholly illegal and contrary to the provisions of Section 15 A(1)(o) of the Act 1948 2) Whether the penalty imposed on the applicant under Section 15 A(1)(o) of the Act 1948 is wholly perverse arbitrary and excessive 3. Sri Aditya Pandey counsel for the revisionist submits that the revisionist is a Public Limited Company and engaged in the business of manufacturing and trading of tooth paste tooth powder tooth brush and cosmetics etc. The revisionist used to send its goods from the place of factory to its various branches situated all over the country. He further submits that 926 cartoons of colgate tooth powder were dispatched from Aurangabad Warehouse to its Kanpur Warehouse as a stock transfer along with which all requisite documents were accompanied. The goods while coming to Kanpur passed through various States and before passing the State of Madhya Pradesh all documents were produced at the entry exit check post and were duly endorsed. When the goods reached the State of Uttar Pradesh at Raksa check post at Jhansi the driver of the truck in question handed over all the documents for filling up the trip sheet in accordance with Section 28 A of the Act 1948 to the agent. In the truck some goods of M s LML Limited Kanpur was also there. Due to the inadvertent mistake of the broker munshi dalal at the check post only details of goods of M s LML Limited Kanpur was filled. On the said basis the check post authorities detained the goods and issued the show cause notice Immediately on being noticed all documents of the revisionist goods such as Invoice Form 31 Transport G.R. Way Bill etc. were produced before passing of seizure penalty order but the same was not accepted and the seizure order was passed estimating the value of goods of Rs. 10 lacs and demanded the security for the release of the goods of Rs. 3 lacs. The security amount was reduced to Rs. 1.5 lacs by order dated 10.02.2005 Thereafter the penalty proceedings were initiated against the revisionist under Section 15 A(1)(o) of the Act 1948 and by order dated 4.8.2005 the penalty of Rs. 4 lacs was imposed. Against the said order the revisionist preferred a first appeal and by order dated 21.06.2006 the same was confirmed and the same was affirmed by the impugned tribunal order 4. Sri Aditya Pandey counsel for the revisionist submits that action to impose penalty is not justified as the goods in question were duly accompanying all relevant documents as mentioned in Section 28 A of the Act 1948 Moreover the same was produced before passing of the seizure order along with the reply to the show cause notice. He further submits that if the documents are produced before passing of the seizure there was no contravention of the provision of Section 28A of the Act. Hence the prayers for quashing of the penalty 5. Learned Standing Counsel supports the order passed by the authorities below. He further submits that at the time of submission of trip sheet no documents whatsoever were produced. On the physical verification the goods of the revisionist were found in Truck No HR 55B7590 and in the trip sheet only goods of M s LML Limited Kanpur were disclosed and therefore the seizure as well as penalty order were justified. 6. The Court has perused the record 7. Admittedly the goods in question were coming as a stock transfer from Aurangabad to Kanpur. On its journey to Kanpur the goods have passed through the State of Madhya Pradesh and the Sales Tax check post at Saidhna M.P. checked all the papers produced by the revisionist and was duly stamped. Thereafter when the goods reached at the entry check post of State of U.P.the driver produced all documents of the revisionist as well as of M s LML Limited Kanpur only for filling up the trip sheetwas produced only documents of M s LML Limited Kanpur was found and on physical verification of the truck in question the goods of the revisionist company i.e. 926 cartoons of colgate tooth powder were also found. On coming to the discrepancy found a show cause notice was issued. On the receipt of the show cause notice a reply was submitted along with the documents such as Invoice Form 31 Transport G.R. and Way Bill but the same was rejected as an after thought and the seizure order was passed and demanded security of Rs. 3 lacs for release of the goods that was modified by the order dated 10.02.2005 and was reduced to Rs. 1.5 lacs. 8. Thereafter the penalty proceedings under Section 15 A(1)(o) of the Act 1948 was initiated against the revisionist which was confirmed upto the tribunal. The penalty proceedings have been initiated only on the ground that the revisionist have contravented the provision of Section 28 A of the Act 1948 who intends to import goods in the State of U.P. from outside the State of U.P. without obtaining prescribed form of declaration and with the intention to evade payment of tax. The record reveals that before passing of the seizure order all the relevant documents were produced i.e Invoice Form 31 Transport G.R. as well as the documents also stamped of Madhya Pradesh. 9. This Hon ble Court in the case of Sarvashri Ramesh Chand Santosh Kumar Vs Commissioner of Trade Tax U.P. Lucknow 2010 U.P.T.C. 1113) held that the penalty under Section 15 A(1)(o) of the Act 1948 could not be imposed if the dealer not found to have contravented the provision of Section 28 A of the Act 1948. The Court has further held that if the documents have produced along with the reply to the show cause notice there is no attempt to evade tax and imposed the penalty is bad Paragraph 9 to 17 are being reproduced herein 9. The penalty provision of Section 15 A(1)(o) of the Act is attracted where the assessing officer is satisfied that the dealer has imported or transported or has attempted to import or transport any goods in contravention of the provisions of Section 28 A of the Act with an attempt to evade tax. 10. In M s. Ashish Trading Company Agra Vs. Commissioner of Trade Tax U.P. Lucknow 45 STR 294 this Court in considering penalty provisions of Section 15 A(1)(o) read with Section 28 A of the Act vis a vis non obtaining the declaration in Form 31 held that levy of penalty merely because no declaration form was produced cannot be sustained. 11. In ITI Limited Vs. The Commissioner of Trade Tax U.P Lucknow 2010 UPTC 643 the Court has laid down that where Form 31 was not initially produced but was subsequently furnished before the seizure the imposition of penalty under Section 15 A(1 o) of the Act is not justified. 12. A similar view was expressed in another decision of this Court reported in 2010 UPTC 503 M s Interarch Building Produce Ltd. Vs The Commissioner of Trade Tax. In this case the Form 31 was produced by assessee dealer before passing seizure order and the Court held in the circumstances that intention to evade tax was not reflected so as to attract the penalty provision 13. In 2009 NTN389 Multitex Filtration Engineering Ltd. Vs Commissioner of Commercial Tax U.P. Lucknow his Lordship of this Court relying upon a Division Bench decision in Jain Shudh Vanaspati Ltd. Ghaziabad and others Vs. State of U.P. and others 1983 UPTC 183 held that the attempt to evade tax is a mandatory pre condition for seizure of goods and for levy of penalty and the intention to evade tax cannot be inferred merely for the reason that the goods are not accompanied by the requisite declaration or that certain columns in the form have not been filled up 14. In the case in hand the basic ground for levying penalty is that the Form 31 was not available with the goods and in the bilti the name of the parties were subsequently filled up. It was on the basis of the aforesaid that an inference was drawn that the assessee dealer attempted to evade tax. It is admitted on record that before the seizure when the show cause notice was given Form 31 was produced by the assessee dealer along with the reply. The said production of Form 31 and other documents was voluntarily. Therefore when such documents were produced voluntarily before actual order of seizure being passed it cannot be inferred that the assessee dealer attempted to evade the tax. 15. Accordingly the inference so drawn and the finding that there was an attempt to evade tax has no legs to stand specially in the light of above referred various decisions. 16. In view of aforesaid facts and circumstances the question raised in this revision as to whether the levy of penalty under Section 15 A(1)(o) was justified is answered in favour of the assessee dealer and against the revenue and it is held that as there was no attempt to evade payment of tax the penalty could not have been imposed 17. Accordingly the revision is allowed. The impugned orders dated 3.3.2003 passed by the tribunal 21.9.2002 passed by Deputy Commissioner and 22.3.2002 passed by Assistant Commissionerare set aside." 10. The case in hand revisionist along with reply to show cause notice has filed the documents but no weightage was given to it and the seizure order was passed. Once the documents were produced before passing of the seizure order it cannot be said that the revisionist had any intention to evade payment of tax or made any contravention of the 11. Therefore in view of the above facts the revision is allowed and the impugned order is hereby set aside and the questions of law are answered accordingly in favour of revisionist 12. It is made clear that if any amount has been deposited in compliance with the penalty order the same shall be refunded in accordance with law within a period of two months from the date of production of a copy of this order. Order Date : 22.10.2021 SA

In absence of contributory negligence, all the fully dependent claimants would be entitled to claim under MVA: High Court of Delhi

When there is no material whatsoever to suggest that the deceased was negligent so as to apply the principle of contributory negligence then all the claimants fully dependent upon the income of the deceased as the sole bread earner of the family would be entitled to claim under the Motor Vehicle Act and the same was upheld by High Court of Delhi through the learned bench led by Justice Sanjeev Sachdeva in the case of THE ORIENTAL INSURANCE CO LTD. vs. SMT SARITA NAYAK MUKHERJEE & ORS. [MAC.APP. 29/2022] on 02.03.2022. The facts of the case are that the petition is filed contending that the husband of claimant was going on his motor cycle at a normal speed wearing a helmet and on the correct side of the road. A Trolla (a long body truck) which was being driven by its driver at a very high speed rash negligently in a zig-zag manner and without applying proper lookouts and without giving any horn came from the ack side and hit the motor cycle with a great force as a result of which the deceased fell on the road along with his motor cycle and the back wheel of the offending trolla passed over his head on account of which he sustained fatal crush injuries and expired on the spot. The appellant’s counsel submitted that the Tribunal has erred in not appreciating that the deceased was himself contributory negligent and further the Tribunal has erred in not discussing the manner in which the accident has taken place in the impugned judgment. It was further submitted that the Tribunal has erred in taking the father of the deceased as a dependent and accordingly has erred in not reducing the salary appropriately for personal expenses. The respondent’s counsel submitted that the testimony of the eyewitness, who had appeared was also accompanying the deceased on another motor cycle has been unrebutted. He submits that there was no effective cross-examination to the said eyewitness, said eyewitness had taken the photographs at the site and duly proved the same in evidence. It was further submitted that the father of the deceased was a senior citizen and physically handicapped and completely. The Court held that all the claimants were fully dependent upon the income of the deceased as he was the sole bread earner of the family. There is no rebuttal or cross-examination on the said aspect and also ground of ‘loss of consortium’ does not warrant any interference. The Court observed that “when there is no material whatsoever to even suggest that the deceased was negligent so as to apply the principle of contributory negligence then all the claimants fully dependent upon the income of the deceased as the sole bread earner of the family would be entitled to claim under the Motor Vehicle Act.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 02.03.2022 MAC.APP. 29 2022 THE ORIENTAL INSURANCE CO LTD Appellant Respondents SMT SARITA NAYAK MUKHERJEE & ORS. Advocates who appeared in this case: For the Petitioner: Mr. A.K.Soni AdvocateFor the Respondent: Mr. S.N.Parashar AdvocateAppellant impugns award dated 11.10.2021 whereby the claim petition has been allowed and compensation awarded. Subject claim petition was filed contending that the husband of claimant No. 1 father of claimant No. 2 and the son of claimant No. 3 4 was going towards Shadipur Chowk from Hero Honda Chowk on his motor cycle at a normal speed wearing a helmet and on the correct side of the road. When the motor cycle crossed Hero Honda Chowk a Trolla which was being driven by its driver at a very high speed rash negligently in a zig zag manner and without applying proper lookouts and without giving any horn came from the MAC.APP.29 2022 1 back side and hit the motor cycle with a great force as a result of which the deceased fell on the road along with his motor cycle and the back wheel of the offending trolla passed over his head on account of which he sustained fatal crush injuries and expired on the spot. Learned counsel for the appellant insurance company submits that the Tribunal has erred in not appreciating that the deceased was himself contributory negligent and further the Tribunal has erred in not discussing the manner in which the accident has taken place in the impugned judgment. Learned counsel further submits that the Tribunal has erred in taking the father of the deceased as a dependent and accordingly has erred in not reducing the salary appropriately for personal expenses. Learned counsel for the appellant further contends that Tribunal has erred in awarding a sum of Rs.1 60 000 towards ‘loss of Learned counsel appearing for the respondent claimants submits that the testimony of the eyewitness who had appeared as PW 2 and who was also accompanying the deceased on another motor cycle has been unrebutted. He submits that there was no effective cross examination to the said eyewitness said eyewitness had taken the photographs at the site and duly proved the same in evidence. Learned counsel further submits that the father of the deceased was a senior citizen and physically handicapped and completely MAC.APP.29 2022 2 dependent on the deceased and there is no cross examination or rebuttal to the evidence led by the claimants. Perusal to the testimony of PW 2 who was an eyewitness shows that he had categorically and explicitly explained the manner in which the accident had taken place and there is virtually no cross examination to the mode and manner of the accident. The eyewitness has categorically stated that the motor cycle was being driven in the middle lane and which shows that the Trolla which was supposed to be kept in the extreme left lane had crossed over to the middle lane which is meant for motor cycles and slow moving vehicles. There is also no other evidence produced by the Insurance Company to rebut the testimony of the eyewitness and further the testimony has remained unshaken in the cross examination. In so far as the finding of dependency of the father is concerned the wife of the deceased in her evidence has categorically stated that the mother of the deceased is a housewife and has been suffering from diabetic hypertension thyroid and is a heart patient and the father of the deceased is a senior citizen physically handicapped and suffering from other physical ailments and has no other source of income whatsoever. It is specifically deposed that all the claimants were fully dependent upon the income of the deceased as he was the sole bread earner of the family. There is no rebuttal or cross examination on the said aspect. MAC.APP.29 2022 3 11. Further in view of the judgment of the United India Insurance Co. Ltd. vs Satinder Kaur @ Satwinder Kaur 2020 SCC OnLine SC 410 the award of sum of Rs. 1 60 000 on the ground of ‘loss of consortium’ also does not warrant any interference. 12. On perusal of the evidence which had been brought on record particularly the testimony of the eye witness PW 2 and the documents exhibited I am of the view that the Tribunal has not committed any error in returning a finding of negligence on the part of the driver of the Trolla which was insured with the appellant insurance company and also with regard to the computation of income of the deceased and the dependency. Further there is no material whatsoever to even suggest that the deceased was negligent so as to apply the principle of contributory negligence. In view of the above I find no infirmity in the impugned award and consequently no merit in the appeal. 14. The appeal is accordingly dismissed. 15. Tribunal is accordingly directed to disburse the amount as per the scheme of disbursal. SANJEEV SACHDEVA J. MARCH 02 2022 MAC.APP.29 2022 4

An employee needs to have at least five full years of service with the current employer To be eligible for gratuity under the Gratuity Act: High Court Of New Delhi

The present petition challenges the impugned order dated 7th October 2021, passed by the Authority under the Payment of Gratuity Act, 1972, and the same issue was held in the judgement passed by a single bench judge comprising  JUSTICE PRATHIBA M. SINGH, in the M/S SHARAT DASS AND ASSOCIATES  V. RAMESHWAR SINGH AND ANR dealt with an issue mentioned above. In the present case, the Petitioner stated that once the affidavit of evidence was filed by the Claimant witness, and the cross-examination was already taking place, such permission and liberty could not have been granted by the Authority under the Act. Whereas Mr Manan,  Counsel for the Petitioner, submitted that the claim of the Respondent was earlier even decreed in his favour on W.P.(C) 12292/2021 the basis of the said affidavit, which is now sought to be withdrawn, and now a fresh affidavit of evidence has been permitted to be tendered, which is contrary to law. But Ms Richa Sharma, the counsel appearing for the Respondent submits that during cross-examination, some questions were put in respect of certain records and the claimant wished to file certain documents in response to those questions. It is due to the said fact that a further affidavit has been permitted by the Authority under the Act. There was an implied order which was passed and it says as such:                     “Present Sh. Bhumi Solanki Counsel of respondent filed moved an application Under Section 151 of CPC to take off the record the documents filed by the workman along with its Evidence affidavit. The evidence/documents along with the affidavit were supplied by the claimant on 20/02/2020 and the copy of the same was also received physically by the respondent on 20/09/2021. Heard both parties on the application filed today. The application does not carry any merit same is dismissed. The cross-examination of the claimant to continue. Cross-examination was done and the witness was deferred. The claimant witness withdraws its evidence affidavit and wants to file fresh evidence. The counsel for the respondent objects to the same. In the interest of justice, one opportunity is granted to the claimant to rely upon relevant documents by filing a fresh affidavit of evidence. Next date fixed for 11/10/2021 at 10:30 A.M.”  Meanwhile the Claimant  W.P.(C) 12292/2021 made a statement that he wishes to withdraw the evidence and file a fresh affidavit, while the affidavit filed by the Claimant was on record and the cross-examination had commenced, While the cross-examination was continuing they prayed to withdraw and file a new affidavit has mentioned above. They also looked into a case called Banganga Cooperative Housing Society Ltd. and Ors. v. Vasanti Gajanan Nerurkar and Ors. [2015 (5) Bom CR813]. Later, the impugned order was set aside, and few directions were given which as supposed to be followed, At this particular stage, Mr Manan, Counsel submits that the cross-examination was concluded on 7th October 2021, but the Authority has recorded to the contrary that the same was deferred and is to be continued. The court perused the facts and argument’s presented, it thought that- “Because of the same, the above directions shall be complied with, following the law. The present writ petition, and all pending applications are disposed of in the above terms”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 28th October 2021 W.P.(C) 12292 2021 and CM APPLs. 38585 2021 38587 2021 M S SHARAT DASS AND ASSOCIATES ..... Petitioner Through: Mr. Sarthak Manan Mr. Bhumit Solanki Mr. Onkareshwar Kandpal & Mr. Ayush Bhist Advocates. RAMESHWAR SINGH AND ANR ..... Respondents Through: Mr. Manoj Joshi Advocate for R 1. Ms. Richa Sharma present in person. Mr. Shadan Farasat ASC with Ms. Hafsa Advocate for GNCTD. JUSTICE PRATHIBA M. SINGH Prathiba M. Singh J.(Oral) This hearing has been done through hybrid mode. The present petition challenges the impugned order dated 7th October 2021 passed by the Authority under the Payment of Gratuity Act 1972 hereinafter “Act”)by which the witness of the Claimant Respondent who was under cross examination has been permitted to withdraw his affidavit of evidence and file a fresh affidavit of evidence. The case of the Petitioner in the present petition is that once the affidavit of evidence was filed by the Claimant Respondent’s witness and the cross examination was also taking place such permission and liberty could not have been granted by the Authority under the Act. 4. Mr. Manan ld. Counsel for the Petitioner submits that in fact the claim of the Claimant Respondent was earlier even decreed in his favour on W.P.(C) 12292 2021 the basis of the said affidavit which is now sought to be withdrawn and now a fresh affidavit of evidence has been permitted to be tendered which is contrary to law. 5. Ms. Richa Sharma ld. Counsel appearing for the Claimant Respondent submits that during cross examination some questions were put in respect of certain records and the claimant wished to file certain documents in response to those questions. It is due to the said fact that a further affidavit has been permitted by the Authority under the Act. Heard ld. Counsel for the parties and perused the record. The impugned order reads as under: “Present Sh. Bhumit Solanki Counsel of respondent filed moved an application Under Section 151 of CPC to take off the record the documents filed by the workman alongwith its Evidence affidavit. The evidence documents alongwith affidavit was supplied by the claimant on 20 02 2020 and the copy of the same was also received physically by the respondent on 20 09 2021. Heard both parties on the application filed today. The application does not carry any merit same is dismissed. The cross examination of the claimant to continue. Cross examination was done and the witness was deferred. The claimant witness withdraws its evidence affidavit and wants to file fresh evidence. The counsel for the respondent objects to the same. In the interest of justice one opportunity is granted to claimant to rely upon relevant documents by filing a fresh affidavit of evidence. Next date fixed for 11 10 2021 at 10:30 As per the above order it is clear that the evidence by way of affidavit filed by the Claimant was on record and the cross examination had commenced. While the cross examination was continuing the Claimant had W.P.(C) 12292 2021 made a statement that he wishes to withdraw the evidence and file a fresh affidavit. The same has been permitted by the Authority under the Act vide the impugned order. In the opinion of this Court this would not be permissible. The Bombay High Court in Banganga Cooperative Housing Society Ltd. and Ors. v. Vasanti Gajanan Nerurkar and Ors. Bom CR813] has categorically held as under: What is not in doubt is that there can never be a withdrawal of an evidence affidavit just as there can never be a withdrawal of an examination in chief conducted directly in Court.” Accordingly once an affidavit is filed and the witness is being cross examined on the same the Court or the authority concerned cannot permit the witness to withdraw his affidavit of evidence in this manner. If in response to any questions put in cross examination in respect of any documents the witness wishes to produce any documents the witness can say so when the cross examination commences on the next date of hearing. directions are issued: 11. Accordingly the impugned order is set aside and the following i) The original affidavit by way of evidence on which the cross examination was taking place shall be brought back on record. ii) The part cross examination already recorded shall also be considered as being part of the record. iii) Further cross examination shall continue on the basis of the old affidavit itself. W.P.(C) 12292 2021 iv) If the witness wishes to rely on any documents in response to any questions put in cross examination he shall say so at the outset on the next date when the cross examination is to recommence. v) The Authority shall consider the said statement of the witness and if the documents are relevant in context of the question asked the said documents shall be taken on record as per law. 12. At this stage Mr. Manan ld. Counsel submits that cross examination was in fact concluded on 7th October 2021 but the Authority has recorded to the contrary that the same was deferred and is to be continued. 13. This Court has perused the cross examination conducted before the Authority under the Act which has been filed before this Court. After perusing the same it is clear that the cross examination has not concluded and various questions relating to various records have in fact been put to the In view of the same the above directions shall be complied with in 15. The present writ petition and all pending applications are disposed of PRATHIBA M. SINGH Workman. accordance with law. in the above terms. OCTOBER 28 2021 W.P.(C) 12292 2021

The sole testimony of the victim cannot be relied upon: Sikkim High Court

A five-year delay in filing the FIR and discrepancies noted in witness testimonies gave the benefit of doubt to a man charged with rape. This decision was taken by the Sikkim High Court in the case of Makraj Limboo vs. State of Sikkim [Cr.A.No. 17 of 2019] led by the single bench of Hon’ble Justice Bhaskar Raj Pradhan. In the above cited case, Victim had lodged a FIR in 2018 alleging that she was being raped twice by the appellant in 2013, in result of which she got pregnant and had to abort her child. She further alleged that appellant had made false promises of marrying her post- abortion but brutally raped her again after the miscarriage/abortion. As a result, Fast-track court of Sikkim had convicted the appellant and sentenced him for Rigorous imprisonment of 7 years and fine U/s 376(1) of Indian Penal Code. But senior counsel of the appellant argued that victim filed the complaint because appellant didn’t marry her and not because she was raped. Delay of 5 years in filing the FIR couldn’t be explained properly by the victim. The Court was also apprised that the victim was diagnosed with acute and transient psychotic disorder, schizophrenia like with associated stress, following the termination of the pregnancy. When the verdict of the trial court was being challenged, High Court stated that there are chances that the evidence of the rape must have lost in the span of 5 years. High court stated that “Rape is a violent offence. Penetration is a sine qua non. Due to the inordinate delay, medical evidence like injuries would have healed and material evidence would be lost”. While giving the judgment, HC cited the reasons that although the evidence lead to grave suspicion that appellant must have raped the victim but it wouldn’t be judicially prudent to convict the appellant on suspicion alone. And in fact, none of what the victim had said was corroborated even by her family members. HC court stated that there was enough evidence to give rise to a grave suspicion that the man had raped the victim, but it was not enough to prudentially convict him, as the victim’s statement was not sufficiently corroborated. HC said “The victim’s version of rape is not corroborated, so is her version of pregnancy and abortion and in some cases, the sole testimony of a rape victim can be relied upon, if it is safe, reliable and worthy of acceptance to convict the accused”. However, it was emphasized that the burden would still remain to prove the case beyond reasonable doubt. HC later added that “The possibility of a relationship gone sour cannot be ruled out”.

THE HIGH COURT OF SIKKIM : GANGTOK Criminal Appellate Jurisdiction) SINGLE BENCH: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE Crl. A. No. 119 Makraj Limboo Aged about 45 years Son of Shri Mangal Singh Limboo Resident of Ralap Busty P.O. & P. S. Phodong Mangshila North Sikkim. Presently lodged at Central Prisons Rongyek East Sikkim. ….. Appellant State of Sikkim ….. Respondent Appeal under section 374(2) of the Code of Criminal Procedure 1973. Mr. N. Rai Senior Advocatewith Mr. Sushant Subba Advocate and Ms Sushmita Gurung Advocate. Mr. Yadev Sharma Additional Public Prosecutor for the Date of hearing : 8.12.2020 & 9.12.2020 Date of judgment : 07.01.2021 Bhaskar Raj Pradhan J. On 10.01.2018 the victim lodged the First Information Report (Exhibit 3) at Sadar Police Station 2 Crl. A. No. 119 Makraj Limboo vs. State of Sikkim Gangtok alleging that she was raped by the appellant on 17.08.2013 due to which she became pregnant and had to abort the baby on his advice. It was alleged that thereafter the appellant assured the victim that he would marry her. She further alleged that the appellant had taken her to his house after a month of the miscarriage in the pretext of changing his clothes and raped her again. In Sessions Trial Case No. 15 of 2018 the learned Judge Fast Track Court East and North Sikkim at Gangtok on 30.07.2019 convicted the appellant and sentenced him on 31.07.2019 under section 376(1) of the Indian Penal Code 1860 IPC) to undergo seven years rigorous imprisonment and a fine of Rs.50 000 . It was held that the case of repeatedly committing rape on the same woman under section 376(2)(n) IPC had not been made out. The learned Judge concluded that the appellant having committed rape upon the victim could not be ruled out. The learned Judge also held that the victim had explained the delay in lodging the FIR in detail. Mr. N. Rai learned Senior Counsel for the appellant challenges both the findings of the learned Judge. He further submits that even if this court were to believe the version of the victim it would be seen that the act complained of may have been consensual and the FIR was lodged only because the 3 Crl. A. No. 119 Makraj Limboo vs. State of Sikkim appellant did not marry the victim. According to Mr. N. Rai the delay of five years in lodging the FIR have not been explained sufficiently. He drew the attention of this court to the judgment of the Supreme Court in Sudhansu Sekhar Sahoo vs. State of Orissa1 to impress that the sole testimony of the victim can be the basis for conviction provided it is safe reliable and worthy of acceptance. It was held that the evidence of the prosecution should be cogent and convincing and if there is any supporting material likely to be available then the rule of prudence requires that evidence of the victim may be supported by such corroborative material. Court should be strict and vigilant to protect society from such evils and in the interest of society serious crimes like rape should be effectively investigated. It is equally important that there must be fairness to all sides and in a criminal case a court has to consider the triangulation of interest. It involves taking into account the position of the accused the victim and his or her family and the public. Mr. N. Rai relied upon Ramdas and Others vs. State of Maharashtra2 in which the Supreme Court found that the delay of eight days in lodging the FIR has not been satisfactorily 110 SCC 743 22 SCC 170 4 Crl. A. No. 119 Makraj Limboo vs. State of Sikkim explained and the appellant therein was given the benefit of doubt. It was held: that mere delay “24. Counsel for the State submitted that the delay in lodging the first information report in such cases is immaterial. The proposition is too broadly stated to merit acceptance. It is no doubt information report is not necessarily fatal to the case of the prosecution. However the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case and in a given case the court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of the totality of the evidence the court of fact has to consider whether the delay in lodging the report adversely affects the case of the prosecution. That is a matter of appreciation of evidence. There may be cases where there is direct evidence to explain the delay. Even the absence of direct explanation there may be circumstances appearing on record which provide a reasonable explanation for the delay. There are cases where much time is consumed in taking the injured to the hospital for medical aid and therefore the witnesses find no time to lodge the report promptly. There may also be cases where on account of fear and threats witnesses may avoid going to the police station immediately. The time of occurrence the distance to the police station mode of conveyance available are all factors which have a bearing on the question of delay in lodging of the report. It is also possible to conceive of cases where the victim and the members of his or her family belong to such a strata of society that they may not even be aware of their right to report the matter to the police and seek legal action nor was any such advice available to them. In the case of sexual offences there is another consideration which may weigh in the mind of the court i.e. the initial hesitation of the victim to report the matter to the police which may affect her family life and family s reputation. Very often in such cases only after considerable persuasion the prosecutrix may be persuaded to disclose the true facts. There are also cases where the victim may choose to suffer the ignominy rather than to disclose the true facts which may cast a stigma on her for the rest of her life. These are cases where the initial hesitation of the prosecutrix to disclose the true facts may provide a good explanation for the delay in lodging the report. In the ultimate analysis what is the effect of delay in lodging the report with the police is a matter of appreciation of evidence and the court must consider the delay in the background of the 5 Crl. A. No. 119 Makraj Limboo vs. State of Sikkim facts and circumstances of each case. Different cases have different facts and it is the totality of evidence and the impact that it has on the mind of the court that is important. No straitjacket formula can be evolved in such matters and each case must rest on its own facts. It is settled law that however similar the circumstances facts in one case cannot be used as a precedent to determine the conclusion on in another. See Pandurang v. State of Hyderabad1 SCR 1083 : AIR 1955 SC 216] .) Thus mere delay in lodging of the report may not by itself be fatal to the case of the prosecution but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact.” He also relied upon Vijayan vs. State of Kerala3 in which the Supreme Court had considered a case solely based on the evidence of the prosecutrix. The complaint had been made after seven months after the alleged commission of rape. It was held that in cases where the sole testimony of the prosecutrix is only available it is very dangerous to convict the accused especially when the prosecutrix could venture to wait for seven months for filing the FIR for rape leaving the accused totally defenceless. Had the prosecutrix lodged the complaint soon after the incident there would have been some supporting evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. If the prosecutrix had willingly submitted herself to sexual intercourse and waited for seven months for filing the FIR it would be very hazardous to convict on such sole oral testimony. 314 SCC 763 6 Crl. A. No. 119 Makraj Limboo vs. State of Sikkim Mr. Yadev Sharma learned Additional Public Prosecutor on the other hand vociferously supported the judgment of conviction and order on sentence passed by the learned Judge. It was his contention that the FIRthe statement of the victim recorded under section 164 of the Code of Criminal Procedure 1973(Exhibit 5) and her deposition in court had elaborately detailed the circumstances of how when and why the victim had been raped by the appellant which could not be demolished inspite of the exhaustive cross examination. It was therefore contended that the judgment of conviction and order on sentence need not be interfered. The prosecution has examined 18 witnesses including Shekhar Basnett the Investigating Officer and San Bdr. Limboo DW 2) raising a plea of alibi that on the date of the incident i.e. 17.08.2013 the appellant was in Nepal with them. The learned Judge disbelieved the plea of alibi as it was not cogently proved. The defence plea of alibi would be relevant if the prosecution discharged its burden of proof. The only direct evidence relating to the alleged rape by the appellant is that of the victim. The victim has in her FIR dated 10.01.2018 statement recorded under section 164 Cr.P.C dated 26.02.2018 and her deposition dated 13.02.2019 given a detailed account of what transpired 7 Crl. A. No. 119 Makraj Limboo vs. State of Sikkim with her before during the two incidents of alleged rape and thereafter. According to her deposition she knew the appellant whose wife used to be her teacher in her school. Sometimes in the year 2013 she had met the appellant at a funeral in the village where he had asked her about her future and promised to help her secure a government job. The victim was aware that the appellant had good political contacts and was an influential person. She was aware that he had helped other people of their village to secure government jobs. At the funeral the appellant told her that he would take her to Gangtok to get her a government job. He took her mobile number and told her that he would contact her in a few days regarding the job. The victim deposed that after two three months on 17.08.2013 the appellant called her over the phone and told her that he would take her to Gangtok for the job. Thereafter the victim along with her brother who also had to go to Ramthang North Sikkim went with the appellant in his vehiclewas the learned Judicial Magistrate who recorded the statement of the victim under section 164 Cr.P.C. on 26.02.2018. Bijay Subba was the Officer in Charge of the Police Station who registered the FIR and Shekhar Basnett was the Investigating Officer of the case. Dr. Samrat Singh Bhandariwas the Associate Professor in Psychiatry at the Central Referral Hospital Manipal who examined the victim in August 2017 and January 2018 just before she lodged the FIRwas the Gynaecologist at the STNM Hospital who examined the victim on 11.01.2018 a day after she lodged the FIR. 13. Amongst the prosecution witnesses who spoke about the settlement talks PW 4 PW 7 and PW 8 were not related to the victim but lived in the same village as that of the victim and the appellant. PW 5 was the victim’s niece and classmate. PW 9 14 Crl. A. No. 119 Makraj Limboo vs. State of Sikkim was the victim’s uncle. PW 10 was the victim’s elder brother. PW 15 was the victim’s distant relative and PW 16 the victim’s cousin. PW 12 was the appellant’s cousin. Their evidence reflects that the appellant and his wife were also involved in those settlement talks. The evidence suggests that at least two such meetings took place in the victim’s house. It is also apparent that two documents were prepared during these meetings. PW 12 the appellant’s cousin was the scribe of “Lena Dena Patra” Exhibit 2) and Exhibit 10). PW 4 who accompanied the appellant’s wife to the meeting deposed about their preparations. Some amount of money seems to have been offered during the settlement talks and a promise to pay more seem to have been made. PW 5 the victim’s niece PW 8 PW 9 the victim’s uncle and PW 10 the victim’s elder brother all spoke about it. PW 10 the victim’s elder brother admitted having received an amount of Rs.1 00 000 from the appellant’s wife. Some of the witnesses also deposed about the demand of the victim’s family members for the appellant to marry the victim. Besides the victim PW 8 PW 9 and PW 10 deposed about the appellant himself offering to marry the victim. PW 16 the victim’s cousin seems to have prepared a video on his mobile phone recording the execution of an agreement during one of the meetings. This video was transferred into a compact disk at Digital Color Lab in the presence of PW 2 and PW 3 and handed over to the Investigating Officer. The involvement of the 15 Crl. A. No. 119 Makraj Limboo vs. State of Sikkim appellant’s wife during these settlement talks have been deposed by PW 4 PW 5 PW 8 PW 9 PW 10 PW 12 PW 15 and PW 16. The fact that the appellant himself was also involved in at least one of the meetings has been deposed by PW 8 PW 9 PW 10 and PW 16. 14. Although the victim and her niece deposed that the victim had disclosed about the two incidents of rape to the victim’s family members after her treatment at the Central Referral Hospital in the year 2017 none of them deposed that she had in fact disclosed to them about the rape on two occasions in the year 2013. PW 9 the victim’s uncle deposed about the appellant having admitted about the physical relationship he had with the victim and promising to marry her only. Even the victim’s brother did not depose that the victim had disclosed about the two incidents of rape. In fact he admitted that even in his statement to the police he had not stated that the appellant had raped his sister. PW 15 the victim’s distant relative admitted during cross examination that the victim used to admire the appellant since the time she was studying in Class XI. According to him the victim used to say that she wanted to marry the appellant. He also admitted that initially the family of the victim and the appellant shared a cordial relation. However after the appellant physically assaulted the brother of the victim their relationship strained. The victim’s 16 Crl. A. No. 119 Makraj Limboo vs. State of Sikkim cousin deposed that the victim had confided to PW 5 her relative about the sexual relationship between the victim and the appellant following which the victim had to abort the child. According to PW 4 the victim’s brother told him that the victim was suffering from depression due to the sexual relationship between the appellant and the victim. PW 8 also deposed that he learnt about the physical relationship between them from the family members. According to PW 12 she had heard about the love affair between the two. She also admitted during cross examination that she had gone to the appellant’s house in the year 2017 when he had met with an accident and found the victim along with PW 5 and another girl from their village there. The victim and PW 5 had gone to see the appellant. PW 7 deposed that he had learnt about the affair between the appellant and the victim during the meeting. He also admitted that he had heard few years ago about the altercation between the victim’s brother and the appellant. 15. PW 5 admitted during her cross examination that she and the victim had studied together in Class X in the year 2010. According to her the victim had to drop her Class X examination due to her serious skin infection. She also admitted that the father of the victim was suffering from hypertension and the victim was bearing all the expenses of her parents for the past four five years. PW 8 and PW 9 also 17 Crl. A. No. 119 Makraj Limboo vs. State of Sikkim corroborated these facts. The victim’s brother admitted that both their parents remained sick due to old age and the school expenses of their younger sister was borne by the victim as well. He admitted that his brother in law had expired two three years ago. He admitted that the victim had nerve problems for which she had undergone operation. He also admitted that during her school days the victim had skin allergy due to which she had to drop one year from school. PW 5 admitted that the brother in law of the victim had died three four years ago. She also admitted that the victim had become sad due to his death. 16. Dr. Mani Gurung a Gynaecologist at the STNM Hospital examined the victim on 11.01.2018. This was five years after the alleged two incidents of rape. According to Dr. Mani Gurung the victim gave a history of two assaults by the appellant. She gave history of pregnancy and abortion. On local external genital examination he noticed old healed hymenal tear suggesting of blunt force injury of the hymen in the past. However during his cross examination he admitted that injury to the vagina could have been caused due to the impact of some material objects examined the victim on 10.08.2017 for the first time at Central Referral 18 Crl. A. No. 119 Makraj Limboo vs. State of Sikkim Hospital Manipal Tadong. The victim was brought by her family members with the complaint of sleep disturbance reduced interaction with family members irrelevant talks at times and crying spells. She was also making some gestures indicating hallucinatory behaviour. All the symptoms were since the past four to five days. On mental status examination of the patient he found that there was decreased psychomotor activity. There was decrease in rate volume and productivity of speech. Her affect was blunt with decrease intensity and restricted range. They were not able to elicit any disturbance in thought and perception at that time. The victim was provisionally diagnosed with acute and transient psychotic disorder schizophrenia like with associated stress. The victim was put on antipsychotic olanzapine. The victim was again brought for review on 08.01.2018. At that time she had improved and had stopped taking her medicine. On mental status examination there were no significant findings except ideas of reference. During his cross examination Dr. Samrat Singh Bhandariaccepted that the symptoms he had noticed on the victim was multifactorial and could be a result of bereavement in the family skin allergy family responsibility etc. The FIR was lodged on 10.01.2018 just two days after the victim was reviewed at the Central Referral Hospital. Exhibit 1 was the medical paper prepared by Dr. Samrat Singh Bhandari at the Central Referral Hospital on 08.01.2018 and exhibited by him. Although 19 Crl. A. No. 119 Makraj Limboo vs. State of Sikkim not deposed to by him it is important to note as per Exhibit 1 he had advised the victim to have tablet olanzapine 2.5 mg for two weeks and to follow up after two weeks. 18. learned Judge may have been correct concluding that the appellant having committed rape upon the victim could not be ruled out. The victim’s vivid description of the two incidents does lead one to understand that it may have been so. However while it is important to be conscious about the trauma of the victim a victim of alleged sexual assault it is also important to be conscious about the well settled principle of criminal jurisprudence that more serious the offence the stricter the degree of proof. What happened on 17.08.2013 in the confines of the appellant’s room at Development Area and thereafter in his house would be known only to the victim and the appellant. The victim did not report the matter to the police immediately thereafter although she was fairly educated and a woman who wanted to stand on her own feet. The victim has given a detailed account of what happened five years ago in great detail about the two alleged incidents. However her deposition is conspicuously silent about the period thereafter till the year 2017 when she went into depression. There is a serious discrepancy in the FIR and the statement recorded under section 164 Cr.P.C on the one side and the deposition on the other. While she had alleged that in between the two rapes 20 Crl. A. No. 119 Makraj Limboo vs. State of Sikkim she had aborted the child in the statement recorded by the police and the magistrate in her deposition she alleged that she aborted her pregnancy after the second rape. The FIRwas lodged on 10.01.2018 after several deliberations between the victim’s family and the appellant’s well wishers. Although no definite date of the meetings has been given by the prosecution witnesses from the evidence of the victim and her brother it seems these meetings were held after she was discharged from Central Referral Hospital in September 2017 and just before she lodged the FIR on 10.01.2018. The FIR was lodged by the victim too close to the time of her depression when admittedly she had been suffering from transient psychotic disorder and schizophrenia and hallucinating and making irrelevant talks. Although the victim deposed as if she was aware of the meetings and what transpired there PW 4 on being questioned by the learned Judge deposed that she was in fact present during the meeting but was sick and unable to understand what was going on. PW 5 the victim’s niece and classmate also corroborated this fact. PW 10 the victim’s elder brother deposed that the victim was in his house a little above the main house where the meeting was held. According to PW 9 the victim’s uncle who had visited the victim at Central Referral Hospital and thereafter in her house the victim was very weak and frail and not in a normal state. He deposed that during the meeting the victim was bedridden in the next room. 21 Crl. A. No. 119 Makraj Limboo vs. State of Sikkim PW 16 also deposed that the victim was not in a proper state of 19. In the circumstances this court is of the considered view that although the evidence led by the prosecution leads to grave suspicion that the appellant had in fact raped the victim it would not be judiciously prudent to convict the appellant on suspicion alone. None of what the victim deposed have been corroborated even by her family members. The victim s version of rape is not corroborated so is her version of pregnancy and abortion. There is evidence to suggest that the victim had been infatuated by the appellant and had expressed her desire to marry him. Some of the prosecution witnesses have deposed about their love affair. There is evidence to suggest that the victim had herself visited the appellant when he had an accident. The possibility of a relationship gone sour cannot be ruled out. Several of the prosecution witnesses had deposed hearing about their “physical relationship” and “sexual relationship” both of which would not amount to rape. In such circumstances this court is also of the considered view that the appellant must be given the benefit of doubt. 20. The judgment of conviction dated 30.07.2019 and the order on sentence dated 31.07.2019 are set aside. He shall be released forthwith if not required in any other case. Fine if any 22 Crl. A. No. 119 Makraj Limboo vs. State of Sikkim deposited by him in terms of the impugned order on sentence shall be refunded to him. 21. The appeal is allowed. 22. Crl. A. No. 119 stands disposed of as also the pending Interlocutory Application. Copy of this judgment be sent to the learned trial court for information and records be returned forthwith. Judge Approved for reporting: Yes No : Yes No Internet

The employer acts only in the role of administrative function and not quasi-judicial function : High Court of Delhi

An employer cannot function in a judicial or a quasi-judicial function with respect to the regulation of its employees irrespective of whether the employer can be classified as an industry or not. This was held in the judgement passed by a single-member bench of the High Court of Delhi consisting of Justice Prathiba M. Singh in the case of Sapna v The Government of India [W.P. (C) 8235/2020 & CM Appl. 26694/2020]. The petitioner, Sapna was working as a sweeper and a peon on a daily wage basis for the Ministry of Labour and Employment, Government of India in Rafi Marg, Delhi since 12th May 2007. She was initially performing her duties continuously as an unskilled labourer in the Group-D category. However, after the implementation of the 6th Pay Commission, she was classified as Multi-tasking staff and merged with the Group-C category.  The petitioner’s services were terminated after which she filed a statement of claim before the Deputy Labour Commissioner to be referred to the labour court under Section 10 of the Industrial Disputes Act. The petitioner requested the court that she be reinstated with the back wages and continuity of services. However, the Ministry of Labour and Employment submitted that they were executing a sovereign function with the Union of India and could not be classified as an Industry under the Industrial Disputes Act. The petitioner’s counsel cited the case of All India General Mazdoor Union v GNCTD [106 (2003) DLT 208] where the High Court of Delhi held that an administrative authority does not have the power to reject a claim and that can only be done by the labour court under Section 10 of the Industrial Disputes Act. The court noted that it was irrelevant whether the Ministry of Labour or Employment was an industry or not as it was not a legal question related to the immediate case at hand. It was further held that the defence that Ministry was of sovereign nature could not be accepted since this sovereign function can anyhow not be stretched to the extent of employment of a sweeper or a peon.

16 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 23rd July 2021 W.P.(C) 8235 2020 & CM APPL. 26694 2020 Through: Mr. Anuj Aggarwal Advocate. ..... Petitioner JUSTICE PRATHIBA M. SINGH GOVERNMENT OF INDIA & ORS. Through: Ms. Arti Bansal Advocate. ..... Respondents Prathiba M. Singh J.This hearing has been done through video conferencing. The Petitioner in the present petition has challenged the impugned order dated 10th June 2019 passed by the Section Officer Ministry of Labour Government of India by which it has been held that an industrial dispute of a contractual employee working with the Ministry of Labour is not covered under the Industrial Disputes Act 1947as the Ministry of Labour executing a sovereign function for the Union of India is not an “industry” under the ID Act. The reference moved by the Petitioner under Section 10 of the ID Act has been rejected by the Respondent in the following terms: “Sir Conciliation Report No. ALC III 8(95)17 I am directed to refer to the Failure of W.P.(C) 8235 2020 01 03 2018 from the ALC(Delhi) received in this Ministry on 31 01 2018 on the above mentioned subject and to say that prima facie this Ministry does not consider this dispute fit for adjudication for the following reasons: “Industrial dispute of a contractual employee working in the Ministry of Labour is not converted under ID Act as Ministry of Labour executing sovereign function for the Union of India is not an industry as defined under the ID Act 1947.” The brief background of the petition is that she was working as a sweeper peon etc. on daily wage basis from 12th May 2007 up to August 2014 in the Ministry of Labour and Employment Govt. of India located at Shram Sakti Bhawan Rafi Marg Delhi. She claimed to be performing her duties continuously and was an unskilled labourer in the Group D category. She claimed that her position was thereafter designated as MTS i.e. Multi Tasking Staff after implementation of the 6th Pay Commission and was merged with the Group C category. She claimed that the salary etc. were paid to her directly from the Social Security Division of the management. According to the Petitioner her services were terminated on 31st August 2014. Thereafter she filed a statement of claim before the Deputy Labour Commissionerfor being referred to the labour court under Section 10 of the ID Act. The prayer in the said statement of claim was for reinstatement with full back wages and continuity of service with consequential benefits. In the written statement filed before the Labour Commissioner the Ministry took a possession that it is executing a sovereign function with the Union of India and it does not constitute an “industry” under the ID Act. The conciliation proceedings also resulted in a failure and thereafter the impugned order came to passed on 10th June 2019. W.P.(C) 8235 2020 5. Mr. Anuj Aggarwal ld. Counsel appearing for the Petitioner submits that the issue at the time of reference under Section 10 of the ID Act is purely administrative. He submits that the legal question as to whether the Ministry of Labour would constitute an “industry” or not is not an issue which is to be determined at the stage of reference by the said Ministry itself. He submits that this is an issue which would have to be adjudicated upon on merits by the labour court. He thus relies upon the judgment of the Delhi High Court in All India and General Mazdoor Union v. GNCTD 106 2003) DLT 208 to urge that the Ministry cannot by itself decide on merits on question of reference under section 10 of ID Act and not refer the claim to a labour court by holding that the Ministry itself is not an “industry”. This according to him would be completely contrary to law as a determination of an administrative authority cannot result in the rejection of a claim. If the said issue as to whether the Ministry of Labour is an “industry” or not has to be considered it could have only been considered by the appropriate labour court and not by the Government at the time of making a reference to the labour court under section 10 of the ID Act. On the other hand Ms. Bansal ld. Counsel submits that as per the definition of an “industry” under section 2(j) of the ID Act the Ministry itself does not indulge in any manufacturing activity and hence it could not qualify to be an “industry” under the said Act. She accordingly defends the rejection of the reference by the ministry. Heard ld. counsels for the parties and perused the record. This Court has considered the definition of an “industry” under Section 2(j) of the ID Act and has also considered section 10 of the ID Act. W.P.(C) 8235 2020 A perusal of the said definition of “industry” under section 2(j) of the ID Act shows that the definition includes any kind of trade undertaking manufacture or industrial occupation. The role of the Ministry i.e. the employer at the stage of a reference under section 10 of the ID Act is merely refer the dispute to the concerned Court. However the rejection of this reference due to the reason given above is in effect an adjudication which cannot be permissible. Hence the determination as to whether the ministry is an industry or not is a legal question which would have to be decided by a judicial authority. This Court has perused the judgment in All India and General Mazdoor Union referred to by the Petitioner wherein it has been clearly held that the role of the employer at the stage of reference is only administrative and the referring Authority cannot exercise a quasi judicial or a judicial function. The relevant portion of the said judgment is set out below: 4. In my view the above order declining the reference for the aforesaid reasons is not sustainable because by the said order the Secretaryhas proceeded to adjudicate the plea as to whether the circuit House can be treated as an industry as per Section 2(j) of the Act. In my view the aforesaid finding adjudicating the dispute on merits between the parties can only be done by an adjudication under the Industrial Disputes Act and not at the stage of making a reference by the jurisdiction. The Labour Secretary has thus delved into a jurisdiction not vested with him in law. The plea whether the activities of Punjab Bhawan fall within the definition of Industry under S.2(j) of the Act is a plea which can only be raised and adjudicated in a Labour Court Industrial Tribunal. Secretary W.P.(C) 8235 2020 5. In Telco Convoy Drivers Mazdoor Sangh and MANU SC 0605 1989 : IILLJ 558 SC the Hon ble Supreme Court has held a follows: Though in considering the question of making a reference under Section 10(1) the government is entitled to form an opinion as to whether an industrial dispute "exists or is apprehended" but it is not entitled to adjudicate the dispute itself on merits. While exercising power under Section 10(1) of the Act the function of the appropriate government is an administrative function and not judicial or quasi judicial this administrative government cannot delve into the merits of the dispute and take upon itself the determination of the lis which would certainly be in excess of the power conferred on it by Section 10 of the Act." 6. The impugned order adjudicating the question of whether Punjab Bhawan activities were Industry thus clearly runs contrary to the position of law laid down in the aforesaid judgment which view has also been reiterated in Sharad Kumar Vs . Govt. of NCT of Deihi Ors. MANU SC 0313 2002 :8235 2020 8. In the aforesaid judgment in Telco Convoy Drivers Mazdoor Sangh and another Vs. State of Bihar and othersthe Hon ble Supreme Court also held as follows: In several instances this Court had to direct the government to make a reference under Section 10(1) when the government had declined to make such a reference and this Court was of the view that such a reference should have been made. See Sankari Cement Alai Thozhilalar Munnetra Sangam V. Government of Tamil Nadu Ram Avtar Sharma V. State of Haryana MP. Irrigation Karamchari Sangh V. State of M.P. Nirmal Singh V. State of Punjab." 10. Moreover the defence taken in the written statement that the function is sovereign in nature is also quite puzzling inasmuch as sovereign function cannot be stretched to employment of a sweeper or a peon in the Shram Sakti Bhawan where the Ministry of Labour is located. 11. Therefore the impugned order which upholds the defence of the Ministry that it is executing a sovereign function and hence the dispute need not be referred to a labour court is completely untenable. The same is accordingly set aside. 12. Accordingly the Secretary Ministry of Labour and Employment Government of India is directed to make a reference of the disputes raised by the Petitioner to the concerned labour court within a period of four weeks from today. 13. The petition is allowed in the above terms. It is made clear that the observations made in this order would not bind the labour court in any manner which would adjudicate the claim of the Petitioner and the defence taken if any on merits in accordance with law. W.P.(C) 8235 2020 14. The digitally signed copy of this order duly uploaded on the official website of the Delhi High Court www.delhihighcourt.nic.in shall be treated as the certified copy of the order for the purpose of ensuring compliance. No physical copy of orders shall be insisted by any authority entity or litigant. PRATHIBA M. SINGH JUDGE JULY 23 2021 W.P.(C) 8235 2020

Government cannot arbitrarily choose not to fill up vacancies: Himachal Pradesh High Court

Applications for the post of Radiographers which were previously rejected by the H.P. Staff Selection Committee, were directed to be accepted by the High Court of Madhya Pradesh. The bench consisting of J. Tarlok Singh Chauhan and J. Jyotsna Rewal Dua in the matter of Robin Singh Mehta and Ors. v.State of H.P. and Ors. [CWP No. 3371/2019], shed light upon the matters of notional seniority and State arbitrariness. The H.P. Staff Selection Commissioner, Hamirpur issued an advertisement in 2017 for filling up 154 posts of Radiographers, wherein the eligibility prescribed was as per the Recruitment and Promotion Rules. Direct evaluation process was conducted and the results were declared wherein all the candidates of the petitioners were rejected by the Commission. All the petitioners challenged the rejection order before the H.P Administrative Tribunal by filing various applications. The Tribunal passed an interim order holding the petitioners to be eligible for the post and directing their results to be prepared by the Commission. All the petitioners were disposed of vide a common order directing the State Government to constitute a committee of experts to examine qualifications of the petitioner and proceed with the report as assessed by the experts. The committee of experts on being constituted reported that the petitioners were qualified for recruitment. However, since the State failed to further act on these findings, the petitioners approached the High Court with the present petitions. The claims raised by the petitioners were broadly of three categories. The first category included petitioners who had been appointed and their only claim was in regards to seniority; the second category was where the petitioners had not been selected owing to limited seats but had been placed in the waiting list due to the overall merit; and the final category consisted of petitioners who did not fulfilment the eligibility criteria. Allowing the claims of the petitioners in the first category, the HC, relying on the Supreme Court judgement in C. Jayachandran v. State of Kerala and ors. [(2005) 5 SCC 230], held that “if a candidate has been wrongly excluded from the process of the appointment on account of illegal and arbitrary action on behalf of the State, then he is entitled to notional seniority from the date, the similarly situated persons have been appointed”. In regards to the second category, the HC noticed that in the letter of Director Health Services to the Additional Chief Secretary (Health) dated 28.08.2018, and as per the advertisement that 67 posts were still vacant. Relying on Miss Neelima Shangla v. State of Haryana and ors. [(1986) 4 SCC 268], the court held that “it is always open to the Government not to fill up all the vacancies for a valid reason, but the selection cannot arbitrarily be restricted to a few candidates, notwithstanding the number of vacancies and the availability of qualified candidates”. The court observed that in the present matter the respondent-State had failed to provide with a cogent and convincing reasons as to why the posts were reduced, and hence, the claims in the second category were allowed as well. The third category was rejected based on the finding that “these petitioners did not possess the requisite essential educational qualification as per the Recruitment and Promotion Rules…”

Hig h C o urt of H.P on 15 11 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLACWP No. 3371 2019 a w CWP Nos.1864 1995 2020 2096 2100 2103to 2106 3558 3579 3712 3854 &3867 2019Reserved on: 3.11.2020Decided on : 12.11.20201. CWP No. 3371 2019Robin Singh Mehta & ors.…..PetitionersVersusState of H.P. and ors. ….Respondents2. CWP No. 1864 2019Opender Sharma & ors.…..PetitionersVersusState of H.P. and ors. ….Respondents3. CWP No. 1995 2019Pushpender Kumar …..PetitionerVersusState of H.P. and ors. ….Respondents4. CWP No. 2020 2019Vipin Kumar…..PetitionerVersusState of H.P. and ors. ….Respondents5. CWP No. 2096 2019Rajesh Kumar …..PetitionerVersusState of H.P. and ors. ….Respondents6. CWP No. 2100 2019Manoj Kumar …..PetitionerVersusState of H.P. and ors. ….Respondents Hig h C o urt of H.P on 15 11 HCHP 27. CWP No. 2103 2019Vinod Kumar …..PetitionerVersusState of H.P. and ors. ….Respondents8. CWP No. 2104 2019Dharmender Singh…..PetitionerVersusState of H.P. and ors. ….Respondents9. CWP No. 2105 2019Anita Devi …..PetitionerVersusState of H.P. and ors. ….Respondents10. CWP No. 2106 2019Urmila Devi …..PetitionerVersusState of H.P. and ors. ….Respondents11. CWP No. 3558 2019Ritambhara Sharma & anr.…..PetitionersVersusState of H.P. and ors. ….Respondents12. CWP No. 3579 2019Happy Thakur & ors.…..PetitionersVersusState of H.P. and ors. ….Respondents13. CWP No. 3712 2019Puneet Kashyap & ors.…..PetitionersVersusState of H.P. and ors. ….Respondents Hig h C o urt of H.P on 15 11 HCHP 314. CWP No. 3854 2019Nirmala Devi…..PetitionerVersusState of H.P. and ors. ….Respondents15. CWP No. 3867 2019Dinesh & ors.…..PetitionersVersusState of H.P. and ors. ….RespondentsCoram:The Hon’ble Mr. Justice Tarlok Singh Chauhan Judge.The Hon’ble Ms. Justice Jyotsna Rewal Dua Judge.Whether approved for reporting 1 YesFor the Petitioner:Mr. Yogesh Kumar Chandel & Mr.Dinesh K. Thakur Advocates for therespective petitioners.For the Respondents: Mr. Ajay Vaidya Senior AdditionalAdvocate General for therespondent­State.Mr. Sanjeev Kumar Motta and Mr.Angrez Kapoor Advocates forrespondent­HPSSC.Mr. Neel Kamal Sharma Advocate for respondent­HPU.Mr. Dalip K. Sharma Advocate forrespondent­HP Para MedicalCouncil Shimla.Dr. Lalit K. Sharma Advocate forrespondents No.7 and 8 in CWPNo.3371 1864 3712 3867 2019 respondents No.6 and 7 in CWP No.3558 2019 and respondents No.8and 9 in CWP No. 3579 2019. Mr. Surender Sharma Advocate forrespondent­Technical EducationBoard.1 Whether reporters of the local papers may be allowed to see the judgment Yes. Hig h C o urt of H.P on 15 11 HCHP 4Justice Tarlok Singh Chauhan JudgeSince all these petitions relate to the selection andappointment to the posts of Radiographers therefore the samewere taken up together for hearing and are being disposed of bycommon judgment.2These cases have a chequered history. 3For the sake of convenience and in order to maintainclarity facts of CWP No. 3371 2019 are being referred to.4The H.P. Staff Selection Commissioner Hamirpurin September 2017 issued anadvertisement for filling­up 154 posts of Radiographers whereinessential educational qualification prescribed was as per theRecruitment and Promotion Rules i.e.(i) 10+2 pass in Sciencefrom a recognized Board of School Education Universitymust be registered with H.P. ParaMedical Council Shimla. 5In July 2018 the Commission conducted directevaluation process for these advertised posts of Radiographers. Hig h C o urt of H.P on 15 11 HCHP 56Thereafter on 15.12.2018 the Commission declaredthe result wherein two candidates Beli Ram and YogitaChauhan respondents No. 7 and 8 in CWP No. 3371 2019 wereselected whereas candidatures of the petitioners were rejectedby the Commission which compelled the petitioners andsimilarly situated persons to challenge the rejection order beforethe erstwhile H.P Administrative Tribunal by filing various O.As.These original applications were listed in the month of December2018 and the learned Tribunal passed interim directions holdingthe petitioners to be eligible for the post in question and directedtheir results to be prepared by the Commission. 7All these petitions were eventually disposed of videcommon order dated 22.5.2019 by directing the StateGovernment to constitute a committee of experts to examineequivalence of the academic technical qualifications possessedby the petitioners and recognition thereof and the Commission was directed to proceed with the matter in light of the report ofthe committee of experts. 8The State in turn vide notification dated 16.8.2019constituted an expert committee as was directed. The expertcommittee had conveyed its report dated 25.9.2019 holding the Hig h C o urt of H.P on 15 11 HCHP 6degrees possessed by the petitioners to be valid for the purpose ofrecruitment appointment and such findings have attainedfinality. However since the State failed to act even on the basisof the expert committee the petitioners were constrained toapproach this Court by filing instant petitions.9The claims raised in all these petitions can becategorized in three broad categories.10In the first category all the petitioners(exceptpetitioner No.16) in CWP No. 3371 2019 petitioner(s) in CWP No.1864 19 1995 19 2104 19 2105 19 petitioner No.2 in CWPNo. 3558 19 petitioners No. 2 3 5 7 8 and 11 in CWP No.3579 19 petitioners No.2 and 3 in CWP No. 3867 19 standappointed during the pendency of these petitions and now theonly subsisting and surviving claim in their cases is with regardto their seniority.11In the second category petitioner No.16 in CWP No.3371 2019 petitioners in CWP No. 1864 19 2105 19 petitioners No. 2 3 5 7 8 and 11 in CWP No. 3579 19 thoughwere considered but could not find place in the final selectionlist because of limited seats however on the basis of overall merit Hig h C o urt of H.P on 15 11 HCHP 7they succeeded to find place in the waiting list and have thusbeen kept in waiting panel.12In the third category petitioners in CWP No.2104 2019 and petitioners No. 2 &3 in CWP No. 3867 19 did notfulfill the eligibility criteria for want of essential educationqualification or their names had not been registered with H.P.Para Medical Council Shimla on the last date of submission ofonline recruitment application form(s). 13As regards first category as observed above there isno dispute with regard to their eligibility and educationalqualification and the only question relates to determination theirseniority. 14It is more than settled that if a candidate has beenwrongly excluded from the process of the appointment onaccount of illegal and arbitrary action on behalf of the State then he is entitled to notional seniority from the date thesimilarly situated persons have been appointed. Reference in thisregard can conveniently be made to a recent judgment of theHon ble Supreme Court in C. Jayachandran vs. State of Keralaand ors. 5 SCC 230 wherein it was observed as under:­ Hig h C o urt of H.P on 15 11 HCHP 835. The earlier writ petition filed by the appellant wasallowed on 13 th September 2010. The Division Bench ofthe High Court has directed to re­cast the seniorityamongst the seven shortlisted candidates. The appellantwas one of them. The challenge to the said order by threeaffected candidates remained unsuccessful when SLP wasdismissed by this Court on 8th October 2010. The SLPwas filed by the candidates who were granted benefit ofmoderation of marks. Once the direction of the DivisionBench has attained finality the appellant was entitled toseniority as per the select list to be revised as per merit ofthe candidates. In terms of Rule 6(2) the seniority is to bedetermined by the serial order in which the nameappeared in the appointment order. The argument oflearned counsel appearing for respondent No. 5 that theappellant was not appointed by the same appointmentorder therefore the appellant cannot claim seniority isnot tenable. The appellant was entitled to be appointedalong with other three candidates but because of theaction of the High Court in adopting moderation of marks the appellant was excluded from appointment. Theexclusion of appellant from appointment was on accountof an illegal act by the High Court which has been sofound by the judgment dated 13th September 2010. Sincethe select list has to be revised the appellant would bedeemed to be the part of the appointment along with othercandidates in the same select list. As the actual date ofappointment was on 24 th February 2011 the appellantcannot actually be treated to be appointed on 30 th Hig h C o urt of H.P on 15 11 HCHP 9March 2009 but is entitled to notional appointment fromthat date and consequential seniority.36. In Sanjay Dhar a three­Judge Bench of this Courtheld as under:“16. For the foregoing reasons the appeal is allowed. Thejudgment under appeal is set aside. It is directed that theappellant shall be deemed to have been appointed alongwith other appointees under the appointment order dated6­3­1995 and assigned a place of seniority consistentlywith his placement in the order of merit in the select listprepared by J&K PSC and later forwarded to the LawDepartment…” 37. In Lakshmana Rao Yadavalli this Court held asunder:“13. For the reasons recorded in Lakshmana Rao Yadavalliv. State of A.P. the present appeals are allowed and it isdirected that the High Court as well as the respondentState will do the needful for giving appointment to theappellant with retrospective effect i.e. from the date onwhich she ought to have been appointed however sheshall not be paid salary for the period during which shehas not worked as a District and Sessions Judge. We aresure that the respondents will do the needful for theappointment of the appellant at an early date.” 15This otherwise has been consistent view of this Courtin Balak Ram vs. State of H.P. 2015(1) SLC 504 PoonamKumari vs. State of H.P. & anr. 2015(4) HP LR 827 and Hig h C o urt of H.P on 15 11 HCHP 10Monica Sharma vs. Dr. Y. S. Parmar University ofHorticulture and Forestry Nauni & ors. 2015(5) ILR HP 491. 16Accordingly the claims of the petitioners in firstcategory are allowed and consequently these petitioners are heldentitled for grant of seniority from the date when respondentsNo. 7 and 8 Beli Ram and Yogita Chauhan were appointed i.e.15.12.2018.17Adverting to the second category we may notice thatit has come on record in the letter of Director Health Services tothe Additional Chief Secretarydated 28.8.18 that as perthe total cadre strength of 283 Radiographers only 91 are inposition.18As per advertisement 154 posts of Radiographerswere advertised whereas as per the result notifications dated15.12.2018 and 19.6.2020 the respondent­Commissiondeclared result against 115 posts against which only 87candidates were selected i.e. 2 candidates as per resultnotification dated 15.12.2018 and 85 vide result notificationdated 19.6.2020. In this manner as many as 67 posts are stillvacant. Hig h C o urt of H.P on 15 11 HCHP 1119There is no reason whatsoever given as to why therequisition of posts advertised was withdrawn vide letter dated16.12.2018 relevant portion whereof reads as under:“I have the honour to submit that the requisitions forfilling up the post of Radiographers were sent your goodoffices vide this Directorate requisition letter No.Swa­Ni(1)Kh(2)27 91 dated 20.08.2015 15.07.2016 03.10.2016may be treated aswithdrawn & recommends the names of eligiblecandidate as per requisition letter dated 01.05.2017 &31.08.20174 SCC 268 the Hon ble Supreme Court observedthat it is always open to the Government not to fill up all the Hig h C o urt of H.P on 15 11 HCHP 13vacancies for a valid reason but the selection cannot arbitrarilybe restricted to a few candidates notwithstanding the number ofvacancies and the availability of qualified candidates. 25The ratio laid down in this judgment was affirmed byConstitution Bench of the Hon ble Supreme Court inShankarsan Dash vs. Union of India 1991SCC 47 whereinit was held that if a number of vacancies are notified forappointment and adequate number of candidates are found fit still the successful candidates acquire an indefeasible right to beappointed. According to the Hon ble Supreme Court notificationmerely amounts to an invitation to qualified candidates to applyfor recruitment and on their selection they do not acquire anyright to the post. Unless the relevant recruitment rules soindicate the State is under no legal duty to fill up all or any ofthe vacancies. However the Hon ble Supreme Court also statedthat it does not mean that the State has the licence of acting inan arbitrary manner and the decision not to fill up the vacancieshas to be taken bona fide for appropriate reasons. It wasdeclared that if the vacancies or any of them are filled up theState is bound to respect the comparative merit of the Hig h C o urt of H.P on 15 11 HCHP 14candidates as reflected at the recruitment test and nodiscrimination can be permitted. 26In Mrs. Asha Kaul vs. State of Jammu andKashmir 1993 SCC573 the Hon ble Supreme Court againreiterated that mere inclusion in the select list does not conferupon the candidates included therein an indefeasible right toappointment. The Hon ble Supreme Court also stated that thereis obligation of the Government to act fairly and the wholeexercise cannot be reduced to a mere farce. It was furtherobserved that having sent a requisition request to the PublicService Commission to select a particular number of candidatesfor a particular category in pursuance of which the commissionissues a notification holds a written test conductsinterviews prepares a select list and then communicates tothe Government the Government cannot quietly and withoutgood and valid reasons nullify the whole exercise and tell thecandidates when they complain that they have no legal right toappointment.27In view of the aforesaid exposition of law it canlegitimately be concluded that even though the selectedcandidate has no vested right in the qualifying examination for Hig h C o urt of H.P on 15 11 HCHP 15getting appointed against the posts advertised notified yet theState cannot withdraw the seats arbitrarily without there beingany bona fide or appropriate reasons and the selection cannotarbitrarily be restricted to a few candidates notwithstanding thenumber of vacancies and the availability of qualified candidates.28Discussion in this regard would be incomplete in casewe do not take note of the recent judgment of the Hon bleSupreme Court in Dinesh Kumar Kashyap and ors. Vs. SouthEast Central Railway and ors.12 SCC 798. 29In this case the facts were ­ respondent No.1 SouthEast Central Railwayissued anadvertisement on 15.12.2010 inviting applications for filling up 5798 posts in the pay scale of Rs.5200­Rs. 20 200 + Grade Payof Rs.1800 in Raipur Bilaspur and Nagpur divisions andworkshops. The claim of the original writ petitioners who filedapplications before the Central Administrative Tribunalwas that as per the existing instructions the select list wasprepared with 20% extra candidates. Therefore the result of6995 candidates was declared who were successful. Theappellants fell in the category of extra 20%. The SECR did notmake the appointments from these 20% extra candidates though Hig h C o urt of H.P on 15 11 HCHP 16624 posts remained unfilled in the general category itself. Theappellants who fell in the 20% category of extra candidates filedapplications before the CAT praying that the SECR be directed tofill in the unfilled vacancies from this list of 20% candidates. Thisapplication was rejected by the Tribunal. Allowing the appeal theHon ble Supreme Court observed as under:­5. The main issue which arises before us is whether theSECR could have ignored the 20% extra panel despite theletter dated 02.07.2008 without giving any cogent reasonfor the same. No doubt it is true that mere selectiondoes not give any vested right to the selected candidate tobe appointed. At the same time when a large number ofposts are lying vacant and selection process has been followed then the employer must satisfy the court as towhy it did not resort to and appoint the selectedcandidates even if they are from the replacement panel. Just because discretion is vested in the authority itdoes not mean that this discretion can be exercisedarbitrarily. No doubt it is not incumbent upon theemployer to fill all the posts but it must give reasons andsatisfy the court that it had some grounds for notappointing the candidates who found place in thereplacement panel. In this behalf we may makereference to the judgment of this Court in R.S. Mittal vs.Union of IndiaSuppl.2 SCC 230 Hig h C o urt of H.P on 15 11 HCHP 1710. .....It is no doubt correct that a person on the select­panel has no vested right to be appointed to the post forwhich he has been selected. He has a right to beconsidered for appointment. But at the same time theappointing authority cannot ignore the select­panel ordecline to make the appointment on its whims. When aperson has been selected by the Selection Board and thereis a vacancy which can be offered to him keeping in viewhis merit position then ordinarily there is nojustification to ignore him for appointment. There has tobe a justifiable reason to decline to appoint a person whois on the select­panel. In the present case there has beena mere inaction on the part of the Government. No reasonwhatsoever not to talk of a justifiable reason was givenas to why the appointments were not offered to thecandidates expeditiously and in accordance with law. Theappointment should have been offered to Mr. Murgodwithin a reasonable time of availability of the vacancy andthereafter to the next candidate. The CentralGovernment s approach in this case was whollyunjustified.6. Our country is governed by the rule of law.Arbitrariness is an anathema to the rule of law. When anemployer invites applications for filling up a large numberof posts a large number of unemployed youth apply forthe same. They spend time in filling the form and paythe application fees. Thereafter they spend time toprepare for the examination. They spend time and moneyto travel to the place where written test is held. If they qualify the written test they have to again travel to Hig h C o urt of H.P on 15 11 HCHP 18appear for the interview and medical examination etc. Those who are successful and declared to be passed have a reasonable expectation that they will beappointed. No doubt as pointed out above this is not avested right. However the State must give somejustifiable non­arbitrary reason for not filling up thepost. When the employer is the State it is bound to actaccording to Article 14 of the Constitution. It cannotwithout any rhyme or reason decide not to fill up the post. It must give some plausible reason for not filling up the posts. The courts would normally not question thejustification but the justification must be reasonable andshould not be an arbitrary capricious or whimsicalexercise of discretion vested in the State. It is in the lightof these principles that we need to examine thecontentions of the SECR.30Judged in light of the aforesaid exposition of law andas observed above it would be noticed that the respondent­Statehas failed to spell out any cogent and convincing reasons as towhy number of posts were reduced and why the candidates whoare otherwise eligible and whose names figure in the waiting list cannot be appointed. 31Accordingly the claims of the petitioners in secondcategory are allowed and consequently the State is directed tooffer appointment to these petitioners along with seniority from Hig h C o urt of H.P on 15 11 HCHP 19the date when respondents No. 7 and 8 Beli Ram and YogitaChauhan were appointed i.e. 15.12.2018.32Adverting to the third category comprising ofpetitioners in CWP No. 2104 2019 and petitioners No. 2 &3 inCWP No. 3867 19 we find that these petitioners did not possessthe requisite essential educational qualification as per theRecruitment and Promotion Rules and had not been registeredwith H.P. Para Medical Council Shimla on the last date ofsubmission of online recruitment application form. Thus theirclaims are not at all sustainable and have therefore rightly beenrejected.33Having said so all these petitions are disposed of inthe aforesaid terms so also the pending application(s) if any leaving the parties to bear their own costs. Judge 12.11.2020 Judge

Application under Section 17 of the SARFAESI act is not an automatic stay: Madras High Court

Merely on the ground that an application filed by the petitioner under Section 17 of the Act challenging the auction sale is pending, it cannot be a ground to stay all further proceedings. This was held by the Hon’ble justice Sri V. Bharathidasan in the case of M/s.V.K.S.Agro Foods Hi Tech Rice Industry Vs. The Tahsildar and Ors. on the 29th of July before the Hon’ble High Court of Judicature at Madras. The brief facts of the case are, the petitioner availed loan from the second respondent Bank and created a secured interest by way of deposit of title deeds. Thereafter, the petitioner committed default in payment and hence notice under Section 13(2) of the SARFAESI Act was issued by the second respondent on 18.02.2016. Thereafter, possession notice was also issued under Section 13(4) of the Act on 14.07.2016. Challenging these notices, the petitioner filed applications under Section 17 of the Act in S.A.Nos.259 and 498 of 2018 before the Debts Recovery tribunal and the DRT also granted interim order with certain conditions. As the conditions were not complied with, the property was brought for auction sale and the third respondent was the successful bidder and auction was also confirmed in its favour. Challenging the auction sale proceedings, petitioner filed another application under Section 17 of the Act in S.A.No.250 of 2020 on the file of the DRT, Coimbatore and the same is pending. Thereafter, in a writ petition seeking a direction to desist the bank from confirming the same pursuant to the notice dated 19.06.2020, this Court directed the DRT, Coimbatore, to dispose of the application within a period of eight weeks and the said application is also still pending. In the meantime, based on the sale certificate issued by the second respondent, the third respondent approached the first respondent Tahsildar seeking mutation of revenue records in its favour and the first respondent is also taking steps to pass an order in favour of the third respondent. Thus, the present petition is filed seeking a stay on the matter. The counsel for the petitioner submits that, he application filed by the petitioner under Section 17 of the Act is yet to reach finality and the second respondent has only taken symbolic possession and actual possession is with the petitioner. It is further stated that if mutation in the revenue records is permitted before the disposal of the application filed by the petitioner to set aside the auction sale, serious prejudice will be caused to the petitioner. It is further stated that serious irregularities have been committed in the conduct of the auction sale, and the petitioner is having valid grounds to set aside the auction sale before the DRT, the petitioner also has a fair chance in succeeding in the proceedings before the DRT. The counsel for the respondent submitted that, based on the sale certificate issued by the second respondent, the third respondent approached the first respondent seeking transfer of patta and considering the pendency of the application filed by the petitioner before the DRT, Coimbatore, the application filed by the third respondent was not considered and it is still pending with the first respondent. It is further stated that earlier in the application filed by the petitioner before the DRT, interim stay was granted with condition to deposit some amount, since the petitioner failed to comply with the condition, interim order was vacated and as on date, there is no order staying the auction sale, therefore the petitioner cannot prevent the statutory authorities from discharging their duties only on the ground of pendency of proceedings before the DRT. The learned judge heard both the counsels and observed that The law is well settled in this aspect that, unless any interim order is passed by the DRT, the secured creditor can take recourse to any measure to recover its secured debts and the borrower or any other person may file an application under Section 17 of the Act, at any stage including the management of business is taken over or possession of the secured asset of the borrower, including right to transfer is taken over by the secured creditor. The court relied on the judgement in Lakshmi Shankar Mills (P) Ltd. and Ors Vs. The Authorised Officer/Chief Manager, Indian Bank and Ors reported in 2008-2-L.W-381 wherein it was  held that “there will not be any automatic stay of proceedings on filing of an application under Section 17 of the Act.”

W.P.No.194320IN THE HIGH COURT OF JUDICATURE AT MADRASRESERVED ON : 15.07.2021 DELIVERED ON : 29.07.2021CORAM:THE HONOURABLE MR.JUSTICE V.BHARATHIDASANW.P.No. 19433 of 2020 and W.M.P.No. 24018 of 2020 M s.V.K.S.Agro Foods Hi Tech Rice Industry Represented by its Partner S.Dhanavel Vellottamparapu Nadupalayam Erode 648 154... PetitionerVs.1. The Tahsildar Erode Taluk Erode District 638 011.2. IDBI Bank Ltd. Represented by its Authorized Officer No.66 Aanoor Amman Complex Sathy Main Road Erode 638 003.3. SKM Animal Feeds and FoodsPrivate Limited Represented by its Managing Director Dr.M.Chandrasekar SKM Corporate Office No.101 Inarniyan Street Karur Bypass Road Erode 638 002.4. Mr.D.Arun Sakthi of the SARFAESI Actwas issued by the second respondent on 18.02.2016. Thereafter possession notice was also issued under Section 13(4) of the Act on 14.07.2016. Challenging these notices the petitioner filed applications under Section 17 of the Act in S.A.Nos.259 and 4918 before the Debts Recovery TribunalMadurai and the DRT also granted interim order with certain conditions. As the conditions were not complied with the property was brought for auction sale and the third respondent was the successful bidder and auction was also confirmed in its favour. Challenging the auction sale proceedings petitioner filed another application under Section 17 of the Act in S.A.No.2520 on the file of the DRT Coimbatore and the same is pending. Thereafter in a writ petition seeking a direction to desist the bank from confirming the same pursuant to the notice dated 19.06.2020 this Court directed the DRT Coimbatore to dispose of the application within a period of eight weeks and the said application is also still pending. In the 3 10 https: www.mhc.tn.gov.in judis W.P.No.194320meantime based on the sale certificate issued by the second respondent the third respondent approached the first respondent Tahsildar seeking mutation of revenue records in its favour and the first respondent is also taking steps to pass an order in favour of the third respondent. In such circumstance the present writ petition has been filed with the above said prayer.3. According to the petitioner the application filed by the petitioner under Section 17 of the Act is yet to reach finality and the second respondent has only taken symbolic possession and actual possession is with the petitioner. It is further stated that if mutation in the revenue records is permitted before the disposal of the application filed by the petitioner to set aside the auction sale serious prejudice will be caused to the petitioner. It is further stated that serious irregularities have been committed in the conduct of the auction sale and the petitioner is having valid grounds to set aside the auction sale before the DRT the petitioner also has a fair chance in succeeding in the proceedings before the DRT. In such circumstance it is prayed that till the applications of the petitioner is disposed of by the DRT the proceedings before the first respondent Tahsildar seeking mutation of revenue records should be kept pending.4 10 https: www.mhc.tn.gov.in judis W.P.No.1943204. The first respondent Tahsildar filed a counter affidavit stating that based on the sale certificate issued by the second respondent the third respondent approached the first respondent seeking transfer of patta and considering the pendency of the application filed by the petitioner before the DRT Coimbatore the application filed by the third respondent was not considered and it is still pending with the first respondent. 5. The third respondent auction purchaser filed a counter affidavit stating that after following the procedure contemplated under the Act the property was brought for auction sale by the second respondent and the third respondent was declared as the successful bidder and paid the entire sale consideration of Rs.4 80 10 000 on 08.07.2020 and the sale was also confirmed in its favour. Subsequently the sale certificate was also issued on 09.07.2020 which was also duly registered on the file of the Sub Registrar Erode on 13.07.2020 and the second respondent Authorized Officer also handed over a request letter to the first respondent to change the revenue records in the name of the third respondent. While registering the sale certificate necessary charges were paid for sub division and also for transfer of patta out of abundant caution the third respondent also filed an application before the first respondent on 23.11.2020 for transfer of patta 5 10 https: www.mhc.tn.gov.in judis W.P.No.194320and the said application was not considered. In the meantime the petitioner also filed a writ petition and obtained an interim order of status quo. Due to the above said order mutation proceedings is still pending. 6. It is further stated that earlier in the application filed by the petitioner before the DRT interim stay was granted with condition to deposit some amount since the petitioner failed to comply with the condition interim order was vacated and as on date there is no order staying the auction sale therefore the petitioner cannot prevent the statutory authorities from discharging their duties only on the ground of pendency of proceedings before the DRT.7. I have heard the learned counsel appearing for the petitioner and the respondents and also considered the entire materials. 8. Admitted facts in the writ petition are that the petitioner s property was brought for sale under the SARFAESI Act by the second respondent bank and after issuance of notice under Sections 13(2) and 13(4) of the Act. The third respondent was declared as successful bidder and sale certificate was also issued in its favour the same was also duly registered with the Sub 6 10 https: www.mhc.tn.gov.in judis W.P.No.194320Registrar Erode however there is a dispute regarding actual possession of the property between the parties. Challenging the auction sale notice and subsequent auction the petitioner has filed two applications under Section 17 of the Act before the DRT and the same is pending and as on today auction sale was not stayed by DRT.9. On the strength of the sale certificate issued by the second respondent now the third respondent auction purchaser approached the first respondent Tahsildar seeking for transfer of patta which was resisted by the petitioner on the ground that applications filed under Section 17 of the Act are pending and till its disposal by the DRT the application of the third respondent should not be considered by the first respondent.10. The law is well settled in this aspect that unless any interim order is passed by the DRT the secured creditor can take recourse to any measure to recover its secured debts and the borrower or any other person may file an application under Section 17 of the Act at any stage including the management of business is taken over or possession of the secured asset of the borrower including right to transfer is taken over by the secured creditor. Further the DRT also has power to restore possession to the borrower in the 7 10 https: www.mhc.tn.gov.in judis W.P.No.194320event the DRT finds that the secured creditor has not acted in accordance with the Act and the Rules framed thereunder and consequently declare the auction as invalid. A Full Bench of this Court in Lakshmi Shankar MillsLtd. and Ors Vs. The Authorised Officer Chief Manager Indian Bank and Ors reported in 2008 2 L.W 381 has held that there will not be any automatic stay of proceedings on filing of an application under Section 17 of the Act. 11. Merely on the ground that an application filed by the petitioner under Section 17 of the Act challenging the auction sale is pending it cannot be a ground to stay all further proceedings pursuant to the sale certificate issued by the second respondent. The transfer of patta is dealt with under the Tamil Nadu Patta Pass Book Act 1983. The first respondent Tahsildar is bound by the above said Act and there is no prohibition under the Tamil Nadu Patta Pass Book Act restraining the Revenue Authorities from transferring the patta based on the pendency of proceedings before a Civil Court or Tribunal. 12. In such circumstance this Court cannot issue a Mandamus restraining the first respondent Tahsildar from processing the application 8 10 https: www.mhc.tn.gov.in judis W.P.No.194320filed by the third respondent for transfer of patta. Hence I find no merit in the writ petition filed by the petitioner and the writ petition is liable to be dismissed and accordingly dismissed. Consequently the connected miscellaneous petition is closed. No costs.29.07.2021Index : Yes Internet: Yes kkToThe Tahsildar Erode Taluk Erode District 638 011.9 10 https: www.mhc.tn.gov.in judis W.P.No.194320V.BHARATHIDASAN J.kkPRE DELIVERY ORDER INW.P.No.194320 andand W.M.P.No.240120RESERVED ON : 15.07.2021 DELIVERED ON : 29.07.2021 10 10

All the Elements which are capable of restoring the Victim to the original position should be part of ‘Just Compensation’ [Road Accident Cases]

The Hon’ble Supreme Court of India in Pappu Dev Yadav v. Naresh Kumar and ors. [ Civil Appeal No. 2567 of 2020] held that in Road Accident cases “just compensation” should include all elements that would go to place the victim in as near a position as she or he was in, before the occurrence of the accident. The three-judge bench comprising of Hon’ble Justices L. Nageshwara Rao, Krishna Murari and S. Ravindra Bhat while examining a Catena of judgements observed that “The principle consistently followed by this court in assessing motor vehicle compensation claims, is to place the victim in as near a position as she or he was in before the accident, with other compensatory directions for loss of amenities and other payments. These general principles have been stated and reiterated in several decisions. Two questions arise for consideration: one, whether in cases of permanent disablement incurred as a result of a motor accident, the claimant can seek, apart from compensation for future loss of income, amounts for future prospects too; and two, the extent of disability.” It was further observed by the Hon’ble court that “Courts should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities of life, both in the assessment of the extent of disabilities, and compensation under various heads. In the present case, the loss of an arm, in the opinion of the court, resulted in severe income earning impairment upon the appellant.” As a typist/data entry operator, full functioning of his hands was essential to his livelihood. The extent of his permanent disablement was assessed at 89%; however, the High Court halved it to 45% on an entirely wrong application of some ‘proportionate’ principle, which was illogical and is unsupportable in law. What is to be seen, as emphasized by decision after decision, is the impact of the injury upon the income generating capacity of the victim. The loss of a limb (a leg or arm) and its severity on that account is to be judged in relation to the profession, vocation or business of the victim; there cannot be a blind arithmetic formula for ready application. On an overview of the principles outlined in the previous decisions, it is apparent that the income generating capacity of the appellant was undoubtedly severely affected. Maybe, it is not to the extent of 89%, given that he still has the use of one arm, is young and as yet, hopefully training (and rehabilitating) himself adequately for some other calling. Nevertheless, the assessment of disability cannot be 45%; it is assessed at 65% in the circumstances of this case. While allowing the appeal against the Judgement of High Court in this regard, the Hon’ble court observed that “In parting, it needs to be underlined that Courts should be mindful that a serious injury not only permanently imposes physical limitations and disabilities but too often inflicts deep mental and emotional scars upon the victim. The attendant trauma of the victim’s having to live in a world entirely different from the one she or he is born into, as an invalid, and with degrees of dependence on others, robbed of complete personal choice or autonomy, should forever be in the judge’s mind, whenever tasked to adjudge compensation claims. Severe limitations inflicted due to such injuries undermine the dignity (which is now recognized as an intrinsic component of the right to life under Article 21) of the individual, thus depriving the person of the essence of the right to a wholesome life which she or he had lived, hitherto. From the world of the able bodied, the victim is thrust into the world of the disabled, itself most discomfiting and unsettling. If courts nit-pick and award niggardly amounts oblivious of these circumstances, there is resultant affront to the injured victim.” Click to Read Judgement The three-judge bench comprising of Hon’ble Justices L. Nageshwara Rao, Krishna Murari and S. Ravindra Bhat while examining a Catena of judgements observed that “The principle consistently followed by this court in assessing motor vehicle compensation claims, is to place the victim in as near a position as she or he was in before the accident, with other compensatory directions for loss of amenities and other payments. These general principles have been stated and reiterated in several decisions. Two questions arise for consideration: one, whether in cases of permanent disablement incurred as a result of a motor accident, the claimant can seek, apart from compensation for future loss of income, amounts for future prospects too; and two, the extent of disability.” It was further observed by the Hon’ble court that “Courts should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities of life, both in the assessment of the extent of disabilities, and compensation under various heads. In the present case, the loss of an arm, in the opinion of the court, resulted in severe income earning impairment upon the appellant.” As a typist/data entry operator, full functioning of his hands was essential to his livelihood. The extent of his permanent disablement was assessed at 89%; however, the High Court halved it to 45% on an entirely wrong application of some ‘proportionate’ principle, which was illogical and is unsupportable in law. What is to be seen, as emphasized by decision after decision, is the impact of the injury upon the income generating capacity of the victim. The loss of a limb (a leg or arm) and its severity on that account is to be judged in relation to the profession, vocation or business of the victim; there cannot be a blind arithmetic formula for ready application. On an overview of the principles outlined in the previous decisions, it is apparent that the income generating capacity of the appellant was undoubtedly severely affected. Maybe, it is not to the extent of 89%, given that he still has the use of one arm, is young and as yet, hopefully training (and rehabilitating) himself adequately for some other calling. Nevertheless, the assessment of disability cannot be 45%; it is assessed at 65% in the circumstances of this case. While allowing the appeal against the Judgement of High Court in this regard, the Hon’ble court observed that “In parting, it needs to be underlined that Courts should be mindful that a serious injury not only permanently imposes physical limitations and disabilities but too often inflicts deep mental and emotional scars upon the victim. The attendant trauma of the victim’s having to live in a world entirely different from the one she or he is born into, as an invalid, and with degrees of dependence on others, robbed of complete personal choice or autonomy, should forever be in the judge’s mind, whenever tasked to adjudge compensation claims. Severe limitations inflicted due to such injuries undermine the dignity (which is now recognized as an intrinsic component of the right to life under Article 21) of the individual, thus depriving the person of the essence of the right to a wholesome life which she or he had lived, hitherto. From the world of the able bodied, the victim is thrust into the world of the disabled, itself most discomfiting and unsettling. If courts nit-pick and award niggardly amounts oblivious of these circumstances, there is resultant affront to the injured victim.” Click to Read Judgement It was further observed by the Hon’ble court that “Courts should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities of life, both in the assessment of the extent of disabilities, and compensation under various heads. In the present case, the loss of an arm, in the opinion of the court, resulted in severe income earning impairment upon the appellant.” As a typist/data entry operator, full functioning of his hands was essential to his livelihood. The extent of his permanent disablement was assessed at 89%; however, the High Court halved it to 45% on an entirely wrong application of some ‘proportionate’ principle, which was illogical and is unsupportable in law. What is to be seen, as emphasized by decision after decision, is the impact of the injury upon the income generating capacity of the victim. The loss of a limb (a leg or arm) and its severity on that account is to be judged in relation to the profession, vocation or business of the victim; there cannot be a blind arithmetic formula for ready application. On an overview of the principles outlined in the previous decisions, it is apparent that the income generating capacity of the appellant was undoubtedly severely affected. Maybe, it is not to the extent of 89%, given that he still has the use of one arm, is young and as yet, hopefully training (and rehabilitating) himself adequately for some other calling. Nevertheless, the assessment of disability cannot be 45%; it is assessed at 65% in the circumstances of this case. While allowing the appeal against the Judgement of High Court in this regard, the Hon’ble court observed that “In parting, it needs to be underlined that Courts should be mindful that a serious injury not only permanently imposes physical limitations and disabilities but too often inflicts deep mental and emotional scars upon the victim. The attendant trauma of the victim’s having to live in a world entirely different from the one she or he is born into, as an invalid, and with degrees of dependence on others, robbed of complete personal choice or autonomy, should forever be in the judge’s mind, whenever tasked to adjudge compensation claims. Severe limitations inflicted due to such injuries undermine the dignity (which is now recognized as an intrinsic component of the right to life under Article 21) of the individual, thus depriving the person of the essence of the right to a wholesome life which she or he had lived, hitherto. From the world of the able bodied, the victim is thrust into the world of the disabled, itself most discomfiting and unsettling. If courts nit-pick and award niggardly amounts oblivious of these circumstances, there is resultant affront to the injured victim.” Click to Read Judgement

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2567 OF 2020 PAPPU DEO YADAV NARESH KUMAR AND ORS. JUDGMENT S. RAVINDRA BHAT J. The appellant questions a decision of the High Court of Delhi1. On 18.05.2012 the appellant was injured in a motor accident while travelling to Hapur as a passenger in a bus having paid the requisite fare. At about 1.30 pm when the bus reached village Sadikpur PS Hafizpur Hapur Uttar Pradesh the driver of the offending bussought to overtake the bus in which the appellant was travelling from the wrong side and zipped the appellant’s bus scratching it. This rash and negligent act caused a dent in the bus where the appellant was seated as a result of which he suffered injuries. The appellant was removed to Dr. Khan’s Rehan hospital and thereafter AIIMS Trauma Center. The appellant claimed compensation impleading the owner the driver of the vehicle and the insurer. During the course of proceedings before the Motor Accident Claims Tribunal he applied for ascertainment of his disability. The disability reportshowed that he suffered 89% disability in relation to his right upper limb which had to be amputated. The report also went on to say that the condition was “non progressive not likely to improve. Reassessment is not recommended”. A first information report regarding the accident was registeredas case Crime No. 255 12 Hazifpur Police Station Hapur Uttar Pradesh under Sections 279 and 338 of the Indian Penal Code 1860. The appellant at that time unmarried was working as a data entry operator typist at Tis Hazari Courts. Prior to the injury he earned an amount of ₹ 12 000 per month. He had applied for grant of compensation under Sections 166 and 140 of the Motor Vehicles Act 1988 claiming a sum of ₹ 50 lakhs with interest at the rate of 12% per annum against the first respondent the second respondentand third respondentrejected the insurer’s objection regarding its jurisdiction and further held that the appellant had suffered serious injuries due to rash and negligent driving of the respondent. It awarded compensation in the following terms: 1. Compensation for medical expenses 11 000 2. Compensation for pain and suffering 30 000 3. Compensation for special diet attendant 30 000 and conveyance charges 4. Loss of future earning capacity income 11 66 400 5. Loss of amenities and enjoyment of life 15 000 3 6. Compensation for disfigurement 7. Loss of income during treatment 8. Future medical expenses 9. TOTAL 25 000 48 000 1 00 000 14 25 400 3. While assessing loss of earning capacity the Tribunal took the appellant’s income to be ₹ 8000 per month and added 50% towards future prospects. At the time of the accident the appellant was only 20 years of age. Therefore a multiplier of 18 was applied. The physical disability was assessed to be 45% by the Tribunal. The High Court to which the claimant appealed and the insurer cross appealed) revised this head of compensation by doing away with the addition of 50% towards future prospects and reassessed the compensation for loss of earning capacity as ₹ 7 77 60016 SCC 860. 3 4 SCC 571 4 Supra n.2 4 followed in Jagdish5 by a three judge Bench which had ruled that the benefit of future prospects should not be confined only to those who have a permanent job and would extend to self employed individuals and in case of self employed persons an addition of 40% of established income should be made where the age of the victim at the time of the accident was below 40 years. It was urged that the decision in Anant s o of Sidheshwar Dukre v. Pratap s o Zhamnnappa Lamzane & Anr.6 relied on by the High Court did not assess future prospects. However that per se did not preclude claims by persons incurring permanent disablement as a consequence of motor accidents from seeking such heads of compensation. It is urged that the High Court misread and created a distinct category of cases where addition in income towards "future prospects" can only be given in case of death and not for injury which cannot be the intention of this court as no such observation is made. It was argued that the High Court should have reassessed and not reduced the loss of future earning capacity of the appellant from ₹ 11 66 400 to ₹ 7 77 600 on the wrongly depressed income of ₹ 8000 . Learned counsel submitted that the assessment of monthly income should have been Rs.12 000 and not Rs.8 000 . It was submitted that the courts below ignored the fact that in 2012 persons earning Rs.12 000 per month did not have to file income tax returns or pay tax. The High Court further erred in assessment of physical permanent disability of injured as 45% even though it was 100%. Counsel for the insurer who contested the appeal urged this court not to interfere with the impugned judgment and stated that the assessment of compensation was made by the High Court in conformity with this Court’s decisions. It was highlighted that permanent disability of loss of one arm 5 Supra n.3 6 2018SCC 450 5 cannot lead to loss of earning capacity of up to 90% and consequently the assessment of compensation on the head of loss of earning capacity was correctly fixed at 45%. He also argued that as far as income is concerned although the appellant relied on the independent testimony of a lawyer there was no proof of payment of income tax to support the claim that the appellant earned ₹ 12 000 per month. The production of the PAN card ipso facto did not establish income at the level claimed. Further the counsel urged that the impugned judgment correctly appreciated the law and loss of alleged future earning capacity was turned down. The principle consistently followed by this court in assessing motor vehicle compensation claims is to place the victim in as near a position as she or he was in before the accident with other compensatory directions for loss of amenities and other payments. These general principles have been stated and reiterated in several decisions.7 Two questions arise for consideration: one whether in cases of permanent disablement incurred as a result of a motor accident the claimant can seek apart from compensation for future loss of income amounts for future 7 Govind Yadav v. New India Insurance Co. Ltd.10 SCC 683. This court referred to the pronouncements in R.D. Hattangadi v. Pest Control(P) Ltd. 1995) 1 SCC 551 Nizam s Institute of Medical Sciences v. Prasanth S. Dhananka6 SCC 1 Reshma Kumari v. Madan Mohan13 SCC 422 Raj Kumar v. Ajay Kumar 1 SCC 343. Govind Yadav spelt out these principles by stating that the courts should “in determining the quantum of compensation payable to the victims of accident who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability then efforts should always be made to award adequate compensation not only for the physical injury and treatment but also for the loss of earning and his inability to lead a normal life and enjoy amenities which he would have enjoyed but for the disability caused due to the These decisions were also followed in ICICI Lombard General Insurance Co. Ltd. v. Ajay Kumar Mohanty 2018) 3 SCC 686. prospects too and two the extent of disability. On the first question the High Court no doubt is technically correct in holding that Pranay Sethi8 involved assessment of compensation in a case where the victim died. However it went wrong in saying that later the three judge bench decision in Jagdish9 was not binding but rather that the subsequent decision in Anant10 to the extent that it did not award compensation for future prospects was binding. This court is of the opinion that there was no justification for the High Court to have read the previous rulings of this court to exclude the possibility of compensation for future prospects in accident cases involving serious injuries resulting in permanent disablement. Such a narrow reading of Pranay Sethi11 is illogical because it denies altogether the possibility of the living victim progressing further in life in accident cases and admits such possibility of future prospects in case of the victim’s death. This court has emphasized time and again that “just compensation” should include all elements that would go to place the victim in as near a position as she or he was in before the occurrence of the accident. Whilst no amount of money or other material compensation can erase the trauma pain and suffering that a victim undergoes after a serious accident monetary compensation is the manner known to law whereby society assures some measure of restitution to those who survive and the victims who have to face their lives. In Santosh Devi v. National Insurance Company Limited12 this Court held that: 8 Supra n.2 9 Supra n.3 10 Supra n.6 11 Supra n.2 12 6 SCC 421 2012) 6 SCC 421. “14. We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma s case that where the deceased was self employed or was on a fixed salary without provision for annual increment etc. the Courts will usually take only the actual income at the time of death and a departure from this rule should be made only in rare and exceptional cases involving special circumstances. In our view emoluments income of a person who is self employed or who is employed on a fixed salary without provision for annual increment etc. would remain the same throughout his life. it will be nave the wages or to say 15. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who income emoluments. They are the worst affected people. Therefore they put extra efforts to generate additional income necessary for sustaining their families. self employed or who 16. The salaries of those employed under the Central and State Governments and their agencies instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac. those employed the wages income of 17. Although unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self employed and even those engaged on daily basis monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living the persons falling in the latter category periodically increase the cost of their labour. In this context it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour like barber blacksmith cobbler mason etc. that while making 18. Therefore we do not observations in the last three lines of paragraph 24 of Sarla Verma s judgment the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self employed or who is paid fixed wages. Rather it would be reasonable to say that a person who is self employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation.” In Jagdish13 the victim a carpenter suffered permanent disablement and his claim for compensation including for loss of future prospects was considered by a three judge bench16 SCC 680] this Court has held that the benefit of future prospects should not be confined only to those who have a permanent job and would extend to self employed individuals. In the case of a self employed person an addition of 40% of the established income should be made where the age of the victim at the time of the accident was below 40 years. Hence in the present case the appellant would be entitled to an enhancement of Rs 2400 towards loss of future prospects. 13 Supra.n.3 14 Supra n.2 14. In making the computation in the present case the court must be mindful of the fact that the appellant has suffered a serious disability in which he has suffered a loss of the use of both his hands. For a person engaged in manual activities it requires no stretch of imagination to understand that a loss of hands is a complete deprivation of the ability to earn. Nothing—at least in the facts of this case—can restore lost hands. But the measure of compensation must reflect a genuine attempt of the law to restore the dignity of the being. Our yardsticks of compensation should not be so abysmal as to lead one to question whether our law values human life. If it does as it must it must provide a realistic recompense for the pain of loss and the trauma of suffering. Awards of compensation are not law s doles. In a discourse of rights they constitute entitlements under law. Our conversations about law must shift from a paternalistic subordination of the individual to an assertion of enforceable rights as intrinsic to human dignity. 15. The Tribunal has noted that the appellant is unable to even eat or to attend to a visit to the toilet without the assistance of an attendant. In this background it would be a denial of justice to compute the disability at 90%. The disability is indeed total. Having regard to the age of the appellant the Tribunal applied a multiplier of 18. In the circumstances the compensation payable to the appellant on account of the loss of income including future prospects would be Rs 18 14 400. In addition to this amount the appellant should be granted an amount of Rs 2 lakhs on account of pain suffering and loss of amenities. The amount awarded by the Tribunal towards medical expensesfor extra nourishment and for attendant s expenses Rs 1 lakh) is maintained. The Tribunal has declined to award any amount towards future treatment. The appellant should be allowed an amount of Rs 3 lakhs towards future medical expenses. The appellant is thus awarded a total sum of Rs 25 38 308 by way of compensation. The appellant would be entitled to interest at the rate of 9% p.a. on the compensation from the date of the filing of the claim petition. The liability to pay compensation has been fastened by the Tribunal and by the High Court on the insurer owner and driver jointly and severally which is affirmed. The amount shall be deposited before the Tribunal within a period of 6 weeks from today and shall be paid over to the appellant upon proper identification.” 10. The recent decision in Parminder Singh v. New India Assurance Co. Ltd15 involved an accident victim who underwent surgery for hemiplegia16. According to the treating medic he could not work as a labourer or perform any agricultural work or work as a driverthe assessment of his disability was at 75% and of a permanent nature. The court held that: “5.2. On the basis of the affidavit filed by the employer of the appellant we accept that the income of the appellant was Rs 10 000 p.m. at the time of the accident for the purpose of computing the compensation payable to him. 5.1. The appellant has however produced an affidavit by his employer in this Court. As per the said affidavit the appellant was earning Rs 10 000 p.m. at the time of the accident. 5.3. Taking the income of the appellant as Rs 10 000 p.m. with future prospects @ 50% as awarded by the High Court the total income of the appellant would come to Rs 15 000 p.m. 5.4. The appellant was 23 years old at the time when the accident occurred. Applying the multiplier of 18 the loss of future earnings suffered by the appellant would work out to Rs 15 000 × 12 × 18 = Rs 32 40 000. 5.7. In K. Suresh v. New India Assurance Co. Ltd12 SCC 274 this Court held that17: is noteworthy that an adjudicating to state “10. It authority while compensation has to keep in view the sufferings of the injured person which would include his inability to lead a full life his incapacity to enjoy the normal amenities which he would have enjoyed but for the injuries and his ability to earn as much as he used to earn or could have 15 7 SCC 217 17 at page 279 para 10 16 Weakness of one half of the body on the left side in this case caused by an accident. earned. Hence while computing compensation approach of the Tribunal or a court has to be broad based. Needless to say it would involve some guesswork as there cannot be any mathematical exactitude or a the quantum of to determine compensation. In determination of compensation the fundamental criterion of “just compensation” should be 5.9. In the present case it is an admitted position that it is not possible for the appellant to get employed as a driver or do any kind of manual labour or engage in any agricultural operations whatsoever for his sustenance. In such circumstances the High Court has rightly assessed the appellant s functional disability at 100% insofar as his loss of earning capacity is concerned. The appellant is therefore awarded Rs 32 40 000 towards loss of earning capacity.” 11. Yet later and more recently in an accident case which tragically left in its wake a young girl in a life long state of paraplegia this court in Kajal v. Jagdish Chand 18 reiterated that in addition to loss of earnings compensation for future prospects too could be factored in and observed that: “14. In Concord of India Insurance Co. Ltd. v. Nirmala Devi4 SCC 365 : 1979 SCC996 : 1980 ACJ 55] this Court held :“2. … the determination of the quantum must be liberal not niggardly since the law values life and limb in a free country in generous scales.” 15. In R.D. Hattangadi v. Pest Control P) Ltd.(P) Ltd. 1 SCC 551 : 1995 SCC250] dealing with the different heads of compensation in injury cases this Court held thus :18 4 SCC 413. speaking while the amount of “9. Broadly compensation payable to a victim of an accident the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money whereas non pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant:medical attendance loss of earning of profit up to the date of trial other material loss. So far as non pecuniary damages are concerned they may include : damages for mental and physical shock pain and suffering already suffered or likely to be suffered in the future damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk run or sit damages for loss of expectation of life i.e. on account of injury the normal longevity of the person inconvenience hardship discomfort disappointment frustration and mental stress in is shortened 16. In Raj Kumar v. Ajay Kumar1 SCC 343 :1 SCC164 :1 SCC1161] this Court laid down the heads under which compensation is to be awarded for personal injuries :“6. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damagesi) Expenses relating to treatment hospitalisation medicines and miscellaneous transportation ii) Loss of earningswhich the injured would have made had he not been injured comprising: a) Loss of earning during the period of treatment b) Loss of future earnings on account of permanent disability. iii) Future medical expenses. Non pecuniary damagesfood iv) Damages for pain suffering and trauma as a consequence of the injuries. v) Loss of amenitiesLoss of expectation of life (ii)(a) and iii) andrelating to loss of future earnings on account of permanent disability future medical expenses loss of amenities and loss of expectation of life.” 17. In K. Suresh v. New India Assurance Co. Ltd.12 SCC 274 :2 SCC279 :4 SCC638] this Court held as follows :“2. … There cannot be actual compensation for anguish of the heart or for mental tribulations. The quintessentiality lies in the pragmatic computation of the loss sustained which has to be in the realm of realistic approximation. Therefore Section 168 of the Motor Vehicles Act 1988 stipulates that there should be grant of “just compensation”. Thus it becomes a challenge for a court of law to determine “just compensation” which is neither a bonanza nor a windfall and simultaneously should not be a pittance.” Loss of earnings 20. Both the courts below have held that since the girl was a young child of 12 years only notional income of Rs 15 000 p.a. can be taken into consideration. We do not think this is a proper way of assessing the future loss of income. This young girl after studying could have worked and would have earned much more than Rs 15 000 p.a. Each case has to be decided on its own evidence but taking notional income to be Rs 15 000 p.a. is not at all justified. The appellant has placed before us material to show that the minimum wages payable 14 to a skilled workman is Rs 4846 per month. In our opinion this would be the minimum amount which she would have earned on becoming a major. Adding 40% for the future prospects it works to be Rs 6784.40 per month i.e. 81 412.80 p.a. Applying the multiplier of 18 it works out to Rs 14 65 430.40 which is rounded off to Rs 14 66 000.” In view of the above decisive rulings of this court the High Court clearly erred in holding that compensation for loss of future prospects could not be awarded. In addition to loss of future earningsthe appellant is also entitled to compensation for loss of future prospects @ 40%incurred permanent disability i.e. loss of his right handleads to near extinction of income generation. If the age of the victim is beyond 40 the scope of rehabilitation too diminishes. These individual factors are of crucial importance which are to be borne in mind while determining the 15 earning capacity. extent of permanent disablement for the purpose of assessment of loss of In Neerupam Mohan Mathur v. New India Assurance Company19 this court considered the case of a victim whose injury was assessed to 70% as loss of earning capacity for amputation of the arm he was a postgraduate diploma holder in mechanical engineering 32 years of age and earning about ₹ 3000 per month. This court held approving the High Court’s order as follows: “12. In the present case the percentage of permanent disability has not been expressed by the doctors with reference to the full body or with reference to a particular limb. However it is not in dispute that the claimant suffered such a permanent disability as a result of injuries that he is not in a position of doing the specialised job of designing refrigeration and air conditioning. For the said reason the claimant s services were terminated by his employer but that does not mean that the claimant is not capable to do any other job including the desk job. Having qualification of BSc degree and postgraduate diploma in Mechanical Engineering he can perform any job where application of mind is required than any physical work. 13. In view of the forgoing discussion we find no grounds made out to interfere with the finding of the High Court which determined the percentage of loss of earning capacity to 70% adopting the percentage of loss of earning capacity as per the Workmen s Compensation Act. The total loss of income was thus rightly calculated by the High Court at Rs 6 04 800.” 15. Later in another judgment i.e. Jakir Hussein v. Sabir20 this court had to consider the correctness of a compensation assessment based on the High Court’s analysis of the injury to the victim 14 SCC 15 20 7 SCC 252 incapable of driving any vehicle). The High Court had assessed permanent disablement at 30% though the doctor had certified it to be 55%. This court reversing the High Court order observed inter alia that: “… Due to this injury the doctor has stated that the appellant had great difficulty to move his shoulder wrist and elbow and pus was coming out of the injury even two years after the accident and the treatment was taken by him. The doctor further stated in his evidence that the appellant got delayed joined fracture in the humerus bone of his right hand with wiring and nailing and that he had suffered 55% disability and cannot drive any motor vehicle in future due to the same. He was once again operated upon during the pendency of the appeal before the High Court and he was hospitalised for 10 days. The appellant was present in person in the High Court and it was observed and noticed by the High Court that the right hand of the appellant was completely crushed and deformed. In view of the doctor s evidence in this case the Tribunal and the High Court have erroneously taken the extent of permanent disability at 30% and 55% respectively for the calculation of amount towards the loss of future earning capacity. No doubt the doctor has assessed the permanent disability of the appellant at 55%. However it is important to consider the relevant fact namely that the appellant is a driver and driving the motor vehicle is the only means of livelihood for himself as well as the members of his family. Further it is very crucial to note that the High Court has clearly observed that his right hand was completely crushed and deformed. 16. In Raj Kumar v. Ajay Kumar1 SCC 343 this Court specifically gave the illustration of a driver who has permanent disablement of hand and stated that the loss of future earnings capacity would be virtually 100%. Therefore clearly when it comes to loss of earning due to permanent disability the same may be treated as 100% loss caused to the appellant since he will never be able to work as a driver again. The contention of the respondent Insurance Company that the appellant could take up any other alternative employment is no justification to avoid their vicarious liability. Hence the loss of earning is determined by us at Rs 54 000 per annum. Thus by applying the appropriate multiplier as per the principles laid down by this Court in Sarla Verma v. DTC6 SCC 121 :2 SCC770 :2 SCC1002] the 17 total loss of future earnings of the appellant will be at Rs 54 000 × 16 = Rs 8 64 000.” 16. Recently in Anthony Alias Anthony Swamy v. Managing Director K.S.R.T.C21 where the victim was a painter by profession a three judge bench had followed Raj Kumar v. Ajay Kumar22 and Nagarajappa v. Divisional Manager Oriental Insurance Company Limited23. The High Court had assessed the injury to be 25% permanent disability although the treating doctor had said that the injury incurred by the bus passenger was 75% of the left leg and 37.5% for the whole body. In Raj Kumar24 the physical disability of the upper limb was determined as 68% in proportion to 22 23% of the whole body. The High Court had assessed the injury as 25% and granted compensation. However this court assessed the injury on the basis that the disability was 75% stating as follows: to assess it proper this reduction in percentage much “9. PW.3 had assessed the physical functional disability of the left leg of the appellant at 75% and total body disability at 37.5%. The High Court has physical disability at 25% of the whole body only. There is no less any permanent functional disability suffered by the appellant. The extent of physical functional disability in the facts of the case has to be considered in a manner so as to grant just and proper compensation to the appellant towards loss of future earning. The earning capacity of the appellant as on the date of the accident stands completely negated and not reduced. He has been rendered permanently incapable of working as a painter or do any manual work. Compensation for loss of future earning therefore has to be proper and just to enable him to live a life of dignity and not compensation which is elusive. If the 75% physical disability has rendered the appellant permanently disabled from pursuing his normal vocation 21 SCC OnLine SC 493. 22 1 SCC 343 23 13 SCC 323. 24 Supra n.22 or any similar work it is difficult to comprehend the grant of compensation to him in ratio to the disability to the whole body. The appellant is therefore held entitled to compensation for loss of future permanent physical earning based functional disability recalculated with the salary of Rs. 5 500 with multiplier of 14 at Rs. 6 93 000 .” 17. The question of amount of compensation payable to one suffering injury as a result of motor vehicle accident was considered in Syed Sadiq & Ors. v. Divisional Manager United Insurance Company Limited 25 when this Court had to apply the correct standard for awarding compensation for loss of future prospects for a vegetable vendor whose right leg had to be amputated as a result of a motor accident. The High Court had considered the disability to be 65%. This court held as follows: “7. Further the appellant claims that he was working as a vegetable vendor. It is true that a vegetable vendor might not require mobility to the extent that he sells vegetables at one place. However the occupation of vegetable vending is not confined to selling vegetables from a particular location. It rather involves procuring vegetables from the whole sale market or the farmers and then selling it off in the retail market. This often involves selling vegetables in the cart which requires 100% mobility. But even by conservative approach if we presume that the vegetable vending by the appellant claimant involved selling vegetables from one place the claimant would require assistance with his mobility in bringing vegetables to the market place which otherwise would be extremely difficult for him with an amputated leg. We are required to be sensitive while dealing with manual labour cases where loss of limb is often equivalent to loss of livelihood. Yet considering that the appellant claimant is still capable to fend for his livelihood once he is brought in the market place we determine the disability at 85% to determine the loss of 8. The appellant claimant in his appeal further claimed that he had been earning 2 SCC 735 19 document to establish his loss of income. It is difficult for us to convince ourselves as to how a labour involved in an unorganized sector doing his own business is expected to produce documents to prove his monthly income.” In Arvind Kumar Mishra v. New India Assurance Co. Ltd26 the appellant at the time of accident was a final year engineeringdegree student in a reputed college. He was a brilliant student and had passed all his semester examinations with distinction. He suffered grievous injuries and remained in a coma for about two months his studies were disrupted as he was moved to different hospitals for surgeries. For many months his condition remained serious his right hand was amputated and vision seriously affected. This court accepted his claim and held that he was permanently disabled to the extent of 70%. In Mohan Soni v. Ram Avtar Tomar27 again a case of injury entailing loss of a leg the court held that medical evidence of the extent of disability should not be mechanically scaled down: “8. On hearing the counsel for the parties and on going through the materials on record we are of the view that both the Tribunal and the High Court were in error in pegging down the disability of the appellant to 50% with reference to Schedule I of the Workmen s Compensation Act 1923. In the context of loss of future earning any physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the person suffering the disability. This is the basic premise and once that is grasped it clearly follows that the same injury or loss may affect two different persons in different ways. Take the case of a marginal farmer who does his cultivation work himself and ploughs his land with his own two hands or the puller of a cycle rickshaw one of the main means of transport in hundreds of small towns all over the country. The loss of one of the legs either to the marginal farmer or the cycle rickshaw puller would be the end of the road insofar as their earning capacity is concerned. But in case of a person engaged 26 10 SCC 254 27 2 SCC 267 at page 272 in some kind of desk work in an office the loss of a leg may not have the same effect. The loss of a legto anyone is bound to have very traumatic effects on one s personal family or social life but the loss of one of the legs to a person working interfere with his the office would not work earning capacity in the same degree as in the case of a marginal farmer or a cycle rickshaw puller. 10. This Court in K. Janardhan case8 SCC 518 : 2 SCC 733] set aside the High Court judgment and held that the tanker driver had suffered 100% disability and incapacity in earning his keep as a tanker driver as his right leg was amputated from the knee and accordingly restored the order passed by the Commissioner of Workmen s Compensation. In K. Janardhan8 SCC 518 :2 SCC733] this Court also referred to and relied upon an earlier decision of the Court in Pratap Narain Singh Deo v. Srinivas Sabata1 SCC 289 : 1976 SCC 52] in which a carpenter who suffered an amputation of his left arm from the elbow was held to have suffered complete loss of his earning capacity. 13. Any scaling down of the compensation should require something more tangible than a hypothetical conjecture that notwithstanding the disability the victim could make up for the loss of income by changing his vocation or by adopting another means of livelihood. The party advocating for a lower amount of compensation for that reason must plead and show before the Tribunal that the victim enjoyed some legal protectionAct 1995) or in case of the vast multitude who earn their livelihood in the unorganised sector by leading cogent evidence that the victim had in fact changed his vocation or the means of his livelihood and by virtue of such change he was deriving a certain 14. The loss of earning capacity of the appellant according to us may be as high as 100% but in no case it would be less than 90%. We accordingly find and hold that the compensation for the loss of the appellant s future earnings must be computed on that basis. On calculation on that basis the amount of compensation would come to Rs 3 56 400 and after addition of a sum of Rs 30 000 and Rs 15 000 the total amount would be Rs 4 01 400. The additional compensation amount would carry interest at the rate of 9% per annum from the date of filing of the claim petition till the date of payment. The additional amount of compensation along with interest should be paid to the appellant without delay and not later than three months from today.” 19. One more decision Sandeep Khanduja v. Atul Dande28 too had dealt with the precise aspect of assessing the quantum of permanent disablement. The victim was aged about 30 years working as a chartered accountant for various institutions for which he was paid professional fees. The injuries suffered by him resulted in severe impairment of movement he had problems in climbing stairs back trouble while sleeping etc. A rod was implanted in his leg. He suffered 70% permanent disability and mental and physical agony. This court enhanced the compensation observing the proper manner to calculate the extent of disability: “9. The percentage of permanent disability is expressed by the doctors with reference to the whole body or more often than not with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limbexpressed in terms of a percentage of the total functions of that limb obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg it does not mean that the extent of permanent disability with reference to the whole body is 140% that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities the sum total 28 2017SCC 351 thereof expressed in terms of the permanent disability with reference to the whole body cannot obviously exceed 100%. 10. Where the claimant suffers a permanent disability as a result of injuries the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases the percentage of economic loss that is the percentage of loss of earning capacity arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases a particular extent of permanent disability would result in a corresponding loss of earning capacity and consequently if the evidence produced show 45% as the permanent disability will hold that there is 45% loss of future earning capacity. In most of the cases equating the extent of loss of earning capacity to the extent of permanent disability will result in award of either too low or too high a compensation. to determine 11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured and after assessing the loss of earning capacity in terms of a percentage of the income it has to be quantified in terms of money to arrive at the future loss of earnings SCC 341]: for personal “9. We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages compensation. The whole idea is to put the claimant in the same position as he was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had 10. In some cases for personal injury the claim could be in respect of lifetime s earnings lost because though he will live he cannot earn his living. In others the claim may be made for partial loss of earnings. Each case has to be considered in the light of its own facts and at the end one must ask whether the sum awarded is a fair and reasonable sum. The conventional basis of assessing compensation in personal injury cases—and that is now recognised mode as the proper measure of compensation—is taking an appropriate multiplier of an appropriate multiplicand.” In that case after following the judgment in Kerala SRTC v. Susamma Thomas2 SCC 176 the Court chose to apply multiplier of 18 keeping in view the age of the victim who as 25 years at the time of the accident. In the instant case the MACT had quantified the income of the appellant at ₹10 000 i.e. ₹1 20 000 per annum. Going by the age of the appellant at the time of the accident multiplier of 17 would be admissible. Keeping in view that the permanent disability is 70% the compensation under this head would be worked out at ₹14 28 000. The MACT had awarded compensation of ₹70 000 for permanent disability which stands enhanced to ₹14 28 000. For mental and physical agony and frustration and disappointment towards life the MACT has awarded a sum of ₹30 000 which we enhance to ₹1 30 000.” 20. Courts should not adopt a stereotypical or myopic approach but instead view the matter taking into account the realities of life both in the assessment of the extent of disabilities and compensation under various heads. In the present case the loss of an arm in the opinion of the court resulted in severe income earning impairment upon the appellant. As a typist data entry operator full functioning of his hands was essential to his livelihood. The extent of his permanent disablement was assessed at 89% however the High Court halved it to 45% on an entirely wrong application of some ‘proportionate’ principle which was illogical and is unsupportable in law. What is to be seen as emphasized by decision after decision is the impact of the injury upon the income generating capacity of the victim. The loss of a limband its severity on that account is to be judged in relation to the profession vocation or business of the victim there cannot be a blind arithmetic formula for ready application. On an overview of the principles outlined in the previous decisions it is apparent that the income generating capacity of the appellant was undoubtedly severely affected. Maybe it is not to the extent of 89% given that he still has the use of one arm is young and as yet hopefully training himself adequately for some other calling. Nevertheless the assessment of disability cannot be 45% it is assessed at 65% in the circumstances of this case. 21. This court is also of the opinion that the courts below needlessly discounted the evidence presented by the appellant in respect of the income earned by him. Working in the informal sector as he did i.e. as a typist data entry operator in court premises in Delhi his assertion about earning ₹12 000 could not be discarded substantially to the extent of bringing it down to ₹ 8 000 per month. Such self employed professionals it is noticeable were not obliged to file income tax returns for AY 2011 2012 when no levy existed for anyone earning less than ₹ 1 60 000 per annum.29 The advocate who deposed about the earnings of the appellant was believed to the extent that the tribunal fixed the appellant’s monthly earnings at ₹ 8 000 . If one takes into account contemporary minimum wages for skilled workersthe realistic figure would be ₹10 000 per month. Adding future prospects at 40%30 the income should be taken as ₹14 000 for the purpose of calculation of compensation. Accordingly this court compensation payable for the disability of loss of an arm would be ₹19 65 600 or Rupees Nineteen lakhs sixty five thousand six hundred only. In parting it needs to be underlined that Courts should be mindful that a serious injury not only permanently imposes physical limitations and disabilities but too often inflicts deep mental and emotional scars upon the victim. The attendant trauma of the victim’s having to live in a world entirely different from the one she or he is born into as an invalid and with degrees of dependence on others robbed of complete personal choice or autonomy should forever be in the judge s mind whenever tasked to adjudge compensation claims. Severe limitations inflicted due to such injuries undermine the dignity of the individual thus depriving the person of the essence of the right to a wholesome life which she or he had lived hitherto. From the world of the able bodied the victim is thrust into the world of the disabled itself most discomfiting and 29 First Schedule Finance Act 2011. 30 By applying the ratio in Pranay Sethi. unsettling. If courts nit pick and award niggardly amounts oblivious of these circumstances there is resultant affront to the injured victim. 23. The High Court’s assessment of amounts payable under other headsdo not call for interference. In view of the above conclusions the impugned judgment is hereby modified the sum of ₹19 65 600 shall be substituted in place of the amount of ₹7 77 600 considering the enhancement towards loss of earning capacity and future prospects. 24. The appeal is partly allowed the impugned judgment stands modified in the above terms. There shall be no order on costs. L. NAGESWARA RAO] KRISHNA MURARI] S. RAVINDRA BHAT] New Delhi September 17 2020.

Total Non-Compliance Of S.42 NDPS Act Can Never Be Accepted: Supreme Court

While hearing an appeal against the order of conviction under section 15 of the NDPS Act, the Supreme Court held that during investigation total non-compliance of the procedure under section 42 NDPS Act cannot be accepted. This judgment was passed in the case of Boota Singh & others vs. State of Haryana [Cr.A.No.421/2021], by a Double Bench consisting of Hon’ble Justice Uday Umesh Lalit and Hon’ble Justice K.M. Joseph. The present appeal was preferred against the judgment passed by the High court affirming the conviction and sentence under section 15 of the Narcotic Drug and Psychotropic Substances Act, 1985 (NDPS Act). The prosecution’s case is that officials were present at a certain road when they received information that the accused was selling poppy straw in a vehicle. A raid was conducted and, the accused was found to be sitting there at the jeep, the appellants were apprehended at the spot and were found to be sitting on 2 bags kept in keep. Notices under section 50 of the act were served and FIR was registered. The trial court with evidence on record acquitted one of the accused and convicted the appellants under section 15 of the NDPS Act with rigorous imprisonment for 10 years and a fine of Rs.1,00,000/- which in default would have to undergo 2 more years of imprisonment. On the applicability of section 42 of the NDPS Act, the court held that since the recovery happened while the appellants were sitting in a public place, the case falls under section 43 of the NDPS Act and not section 42. The appellants aggrieved by the order of trial Court preferred an appeal in the High Court, where while upholding the decision of the Trial Court it was held public place includes conveyance also and thus section 42 would not apply. The appellant, therefore, preferred an appeal before the Supreme Court. The Supreme court after hearing both the parties to the proceedings relied on few supreme court judgments tp arrive at its decision. In the case of Karnail Singh vs. State of Haryana, where the police officer does not record the information and does not inform the official superior, even after delay then also it will be a clear violation of Section 42 of the NDPS Act. The court after referring to the decisions observed that the vehicle was not a public conveyance and the Registration Certificate of the vehicle does not indicate it to be a Public Transport Vehicle. Under the explanation of section 43, the private vehicles would not fall under the category of Public vehicles. The Supreme court observed that there was total non-compliance of the requirements of Section 42 of the NDPS Act. Based on the judgment of Karnail Singh vs. State of Haryana and State of Rajasthan v. Jagraj Singh alias Hansa, the Court held that total non-compliance of section 42 is unacceptable in any circumstance.

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.421 OF 2021 BOOTA SINGH & OTHERS …Appellants STATE OF HARYANA …Respondent JUDGMENT Uday Umesh Lalit J This appeal challenges the judgment and final order dated 03.03.2020 passed by the High Court of Punjab & Haryana at Chandigarh dismissing CR A S 1759 SB 2004 preferred by the appellants and affirming their conviction and sentence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act 1985has conducted the search of the accused in the presence of ASI Jaswant Singhand Constable Gurjit Singh PW 1) took the sample parcels to the FSL. The prosecution has also produced documentary evidence to substantiate the version as put forth by it.” By order dated 15.03.2002 on an application preferred by him the vehicle in question was released by the Trial Court in favour of accused During trial PW4 Inspector Nand Lal the Investigating Officer deposed in his examination in chief as under “On 28.1.2002 I was posted as Sub Inspector SHO in Police Station Rori. On that day I alongwith ASI Jaswant Singh and other police officials were present at the canal bridge on Surtia Rori road in connection with patrolling. I received a secret information that all the accused are selling poppy straw in a vehicle bearing no.GUD 4997 upon a Kacha Rasta at Rori Jatana road and can be apprehended red handed if a raid is conducted. I tried to join two persons who were going to water the fields in the investigations but they refused. Thereafter I organised a raiding party and conducted a raid. All the accused were found in the jeep bearing no GUD 4997 upon a kacha rasta by the side of Rori Jatana Road Upon seeing the police party one of the accused namely Major fled the spot. I knew the accused Major Singh since long. Remaining three accused were apprehended at the spot. Accused Boota Singh Gurdeep Singh and Gurmahender Singh alias Mitta were found sitting upon two bags lying in the said Jeep. Thereafter I served notices Ex.PC Ex.PD and Ex.PE upon accused Gurdeep Boota and Gurmahender Singh respectively u s 50 of NDPS asking them as to whether they desired their search before a gazetted officer or a Magistrate. Vide replies Exl.PC 1.1 Ex.PDA and Ex.PE I accused Gurdeep Singh Boota Singh and Gurmahender Singh alias Mitta declined the offer and reposed faith in the police. …” In his cross examination the witness stated: “I did not record the secret information in writing. Wireless in my jeep was out of order at that time. I did not obtain any search warrants for conducting the search of the jeep of accused during night hours. I did not record any ground for not obtaining the requisite search warrants in my police file. The writing work was done while sitting in the jeep.” After considering the evidence on record the Trial Court by its judgment and order dated 12.08.2004 acquitted accused Major Singh but convicted accused Boota Singh Gurdeep Singh and Gurmohinder Singh under Section 15 of the NDPS Act and sentenced them to suffer rigorous imprisonment for 10 years with imposition of fine in the sum of Rs.1 00 000 in default whereof they were directed to undergo further rigorous imprisonment for a period of two years On the question of applicability of Section 42 of the NDPS Act the Trial Court stated: “ … Learned counsel sought acquittal of accused due to non compliance of Section 42 of N.D.P.S. Act. However above said argument could help the accused if recovery had been effected from the house building etc. of the accused Admittedly recovery in question was effected from the accused while they were sitting on road in a jeep at a public place Therefore case of accused would be covered by Section 43 of N.D.P.S. Act and not by Section 42 of N.D.P.S. Act. Under these circumstances argument of learned counsels for accused The convicted accused being aggrieved preferred the aforementioned Criminal Appeal before the High Court which was dismissed by the High On the question whether the matter came within the scope of Section 42 of the NDPS Act the High Court observed: 14. Furthermore in the case in hand the accused were present in a jeep on a public path and in such circumstance the provisions of Section 43 and not of 42 of the Act come into play. As per explanation to Section 43 of the Act the public place includes a conveyance also. Section 43 of the Act contemplates a seizure made in a public place or in transit. As such Section 42 of the Act is not applicable to the facts of the present case …” In this appeal preferred by Boota Singh Gurdeep Singh and Gurmohinder Singh challenging the correctness of the decisions of the courts below we heard Mr. Praveen Kumar learned counsel for the appellants and Mr. Rakesh Mudgal learned AAG for the State Mr. Praveen Kumar submitted inter alia The vehicle in question was a private vehicle belonging to accused Gurdeep Singh and was not a public conveyance though parked on a public road As accepted by PW4 Inspector Nand Lal the secret information was not recorded in writing nor any grounds were recorded for not obtaining the requisite search The instant case would not be come under Section 43 but would be governed by the provisions of Section 42 of the Section 42 having not been complied with at all the appellants were entitled to acquittal in terms of law laid down in the Constitution Bench decision of this Court in Karnail Singh v State of Haryana1 followed in subsequent decisions in Sukhdev Singh v. State of Haryana2 and State of Rajasthan v. Jagraj Singh alias 1(2009) 8 SCC 539 2(2013) 2 SCC 212 3(2016) 11 SCC 687 Countering the submissions Mr. Rakesh Mudgal learned AAG submitted that the courts below were right in observing that the instant case would be governed by the provisions of Section 43 of the NDPS Act. It was however accepted by the learned counsel that there was no material on record to conclude that the vehicle in question was a public conveyance In Karnail Singh the Constitution Bench of this Court concluded: “35. In conclusion what is to be noticed is that Abdul Rashid2 SCC 513 : 2000 SCC 496] did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham6 SCC 692 2001 SCC1217] hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows a) The officer on receiving the information of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clausesto d) of Section 42(1 b) But if the information was received when the officer was not in the police station but while he was on the move either on patrol duty or otherwise either by mobile phone or other means and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed it would not be feasible or practical to take down in writing the information given to him in such a situation he could take action as per clausestoof Section 42(1) and thereafter as soon as it is practical record the information in writing and forthwith inform the same to the official superior c) In other words the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer should normally precede the entry search and seizure by the officer. But in special circumstances involving emergent situations the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period that is after the search entry and seizure. The question is one of urgency and expediency d) While total non compliance with requirements of sub sectionsandof Section 42 is impermissible delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate if any delay may result in the accused escaping or the goods or evidence being destroyed or removed not recording in writing the information received before initiating action or non sending of a copy of such information to the official superior forthwith may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action and if the police officer fails to record in writing the information received or fails to send a copy thereof to the official superior then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly where the police officer does not record the information at all and does not inform the official superior at all then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 01.” In Jagraj Singh alias Hansa the facts were more or less identical In that case the vehiclewas not a public transport vehicle. After considering the relevant provisions and some of the decisions of this Court including the decision in Karnail Singh it was observed: “14. What Section 42(2) requires is that where an officer takes down an information in writing under sub sectionhe shall send a copy thereof to his immediate officer senior. The communication Ext. P 15 which was sent to the Circle Officer Nohar was not as per the information recorded in Ext. P 14 and Ext. P 21. Thus no error was committed by the High Court in coming to the conclusion that there was breach of Section . . . . . . . . . . . In this context it is relevant to note that before the Special Judge also the breach of Sections 42(1) and 42(2) was contended on behalf of the defence. In para 12 of the judgment the Special Judge noted the above arguments of defence However the arguments based on non compliance with Section 42(2) were brushed aside by observing that discrepancy in Ext P 14 and Ext. P 15 is totally due to clerical mistake and there was compliance with Section 42(2). The Special Judge coming to compliance with the proviso to Section 42(1) held that the vehicle searched was being used to transport passengers as has been clearly stated by its owner Vira Ram hence as per the Explanation to Section 43 of the Act the vehicle was a public transport vehicle and there was no need of any warrant or authority to search such a vehicle. The High Court has reversed the above findings of the Special Judge. We thus proceed to examine as to whether Section 43 was attracted in the present case which obviated the requirement of Section 42(1) proviso . . . . . . . . . . . 29. After referring to the earlier judgments the Constitution Bench came to the conclusion that non compliance with requirement of Sections 42 and 50 is impermissible whereas delayed compliance with satisfactory explanation will be acceptable compliance with Section 42. The Constitution Bench noted the effect of the aforesaid two decisions in para 5. The present is not a case where insofar as compliance with Section 42(1) proviso even an argument based on substantial compliance is raised there is total non compliance with Section 42(1) proviso. As observed above Section 43 being not attracted search was to be conducted after complying with the provisions of Section 42. We thus conclude that the High Court has rightly held that non compliance with Section 42(1) and Section 42(2) were proved on the record and the High Court has not committed any error in setting aside the conviction order.” The evidence in the present case clearly shows that the vehicle was not a public conveyance but was a vehicle belonging to accused Gurdeep Singh. The Registration Certificate of the vehicle which has been placed on record also does not indicate it to be a Public Transport Vehicle. The explanation to Section 43 shows that a private vehicle would not come within the expression “public place” as explained in Section 43 of the NDPS Act. On the strength of the decision of this Court in Jagraj Singh alias the relevant provision would not be Section 43 of the NDPS Act but the case would come under Section 42 of the NDPS Act It is an admitted position that there was total non compliance of the requirements of Section 42 of the NDPS Act The decision of this Court in Karnail Singh as followed in Jagraj Singh alias Hansa is absolutely clear. Total non compliance of Section 42 is impermissible. The rigor of Section 42 may get lessened in situations dealt with in the conclusion drawn by this Court in Karnail Singh but in no case total non compliance of Section 42 can be accepted In the circumstances the courts below fell in error in rejecting the submissions advanced on behalf of the appellants. We therefore allow this appeal set aside the view taken by the High Court and acquit the appellants of the charge levelled against them. The appellants be released forthwith unless their custody is required in connection with any other offence Uday Umesh Lalit New Delhi April 16 2021

No direction in the aforesaid order directing the respondents to give benefit to the petitioner of his past service so as to make him entitled to the pensionary benefits under the Old Pension Scheme : Delhi High Court

Services rendered to government offices and its holdings is always valued, however for it to acquire the benefits of certain Acts and schemes, it should meet all the requirements. This was held in the judgment passed by a two-bench judge comprising JUSTICES HON’BLE MR. JUSTICE MANMOHAN and HON’BLE MR. JUSTICE NAVIN CHAWLA, in the matter PEON VIJAY KUMAR SHARMA V. UNION OF INDIA & ORS., dealt with an issue where the petitioner filed a petition against the respondent challenging letter dated 23rd July, 2021 whereby the petitioner was not considered to be eligible for the Old Pension Scheme. Petitioner seeks a direction to the respondents to extend to the petitioner the benefits of his past service of 05 years 09 months and 02 days rendered in the office of the respondent – The Director General of Police, from 01st November, 1993 to 02nd August, 1999 towards his regular/present service and re-assign the date of his appointment to the post of Peon with effect from 29th October, 2003 to make him entitled to the pensionary benefits under the Old Pension Scheme. Counsel for the petitioner states that the respondents are depriving the petitioner of the benefits of his past service rendered in the office of respondent for the purposes of the pensionary benefits under the Old Pension Scheme. He states that since the petitioner has been given the benefits of age relaxation to the tune of 14 years 01 month and 06 days for his appointment as a Peon, he ought to have been given the benefit of his past service rendered in the office of the respondents. After hearing both the parties The hon’ble Delhi High court dismissed the petition and held that the petitioners have filed the present petition seeking quashing of the termination order whereby their services were terminated in September, 1999. The petitioners were recruited on a casual basis but have worked for different period of times running into couple of years. Taking into consideration the facts and circumstances of the case and the pleadings on record, in our considered view, the only direction which can be issued to the respondents is that they shall consider the case of the petitioners in accordance with their rules as and when regular recruitment takes place giving some weightage for the services rendered by the petitioners in the past.

IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 9328 2021 & CM APPL. 28972 2021 CT PEON VIJAY KUMAR SHARMA Through: Mr. N.L. Bareja Advocate UNION OF INDIA & ORS Through: Ms. Anju Gupta Advocate Date of Decision: 01st September 2021 HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE NAVIN CHAWLA JUDGMENT MANMOHAN J:No.1535 2003 he ought to have been given the benefit of his past service rendered in the office of the respondents The order dated 10th October 2007 passed in W.P.(C) No.1535 2003 is reproduced hereinbelow: “The petitioners have filed the present petition seeking quashing of the termination order whereby their services were terminated in September 1999. The petitioners were recruited on a casual basis but have worked for different period of times running into couple of years Taking into consideration the facts and circumstances of the case and the pleadings on record in our considered view the only direction which can be issued to the respondents is that they shall consider the case of the petitioners in accordance with their rules as and when regular recruitment takes place giving some weightage for the services rendered by the petitioners in the past Petition stands disposed of.” In the opinion of this Court there is no direction in the aforesaid order directing the respondents to give benefit to the petitioner of his past service so as to make him entitled to the pensionary benefits under the Old Pension Scheme. The arguments advanced by the petitioner are contrary to facts and untenable in law. Accordingly the present writ petition and application being bereft of merits are dismissed The order be uploaded on the website forthwith. Copy of the order be also forwarded to the learned counsel through e mail MANMOHAN J NAVIN CHAWLA J SEPTEMBER 1 2021 Page

Cannot transfer government employee to other department without their consent: High Court of Chattisgarh

A Government employee cannot be transferred to a post outside his cadre or to another department without his consent being taken. A single member bench consisting of Justice Sanjay K Agarwal of the High Court of Chattisgarh dealt with the issue of government employee transfers in the case of Pawan Kumar Sarthi and Others v The State of Chattisgarh and Others [WPS No. 4918 of 2016] on the 10th of June 2021. The petitioners Pawan Kumar Sarthi, Sunil Kumar Shrivastava, Om Prakash Shrivastava and Rakesh Kumar Sharma are all employees of the Department of Dairy Development, Chattisgarh and were working at the Integrated Dairy Development Project, Raigarh and Jashpur. However they were transferred on 29th July 2016 to the Department of Veterinary Services without taking their consent. It was noted that the facts in this case were almost the same to that of Ashok Kumar Aasrekar v State of Chattisgarh [WPS No. 1142/2013] where the court had quashed the impugned transfer order and the state was given the chance to take a fresh decision regarding the petitioners in accordance with law. The court also brought up that since much time had passed since the petitioner had been filed, many of the employees were nearing their retirement age and that would also be taken into consideration in the decision that the state was to make. As a result of this, the impugned transfer order in question was quashed as it violated the rights of the government employees who were transferred to another department without their preference being taken into consideration by the state and similarly, the state was given the liberty to take a new decision in the regard.

1. Pawan Kumar Sarthi S o Late R. Sarthi Aged About Milk Commissioner Integrated Dairy Development Project Raigarh Chhattisgarh 2. Sunil Kumar Shrivastava S o Shri S. N Shrivastava Aged About 53 Years Supervisor Grade­ Ill In The Office Of Deputy Milk Commissioner Integrated Dairy Development Project Jashpur Chhattisgarh 3. Om Prakash Shrivastava S o Late Lakhan In The Office Of Deputy Milk Commissioner Integrated Dairy Development Project Jashpur 4. Rakesh Kumar Sharma S o Ram Kumar Sharma Aged Deputy Milk Commissioner Integrated Dairy Development Project Jashpur Chhattisgarh 1. State Of Chhattisgarh Through­ Secretary Department Of Pashudhan Vikash Mantralaya Mahanadi Bhawan Mantralaya Naya Raipur 2. Director Directorate Of Animal Husbandry Indravati Bhavan New Raipur Chhattisgarh 3. Deputy Milk Commissioner Integrated Dairy Development Project Raigarh Chhattisgarh 4. Deputy Milk Commissioner Integrated Dairy Development Project Jashpur Chhattisgarh 5. Deputy Director Veterinary Services Bilaspur 6. Deputy Director Veterinary Serevices Balrampur 1. Mr. Neeraj Choubey learned counsel for the petitioners would submit that petitioners are employees of Department of Dairy Development and they are working at the Integrated Dairy Development Project Raigarh and Jashpur but by they have been transferred to the Department of Veterinary Services without taking the consent of dated 15 01 2019 wherein the impugned order of liberty has been granted to the respondent State 3. At this stage it would be appropriate to notice the order dated 15 01 2019 passed in Ashok Kumar Aasrekar in which this Court has held as was passed by the High Court. Many of the petitioners or the employees are at the whether the present dispensation would be interested in sending any of them on deputation outside the cadre to the dated 30.01.2013 stands quashed. The respondent State authorities however are given liberty to take a fresh decision in 4. Accepting the contention of the parties since the to that of Ashok Kumar Aasrekar the instant writ petition is allowed in terms of in Ashok Kumar Asrekar as notice herein­ P­1) is hereby quashed and liberty is granted to in paragraphs 4 and 5 of Ashok Kumar Aasrekar

Protection to inter-faith couple must be provided irrespective of Conversion: Allahabad High Court

The fact of that an individual has converted to Islam would not be a relevant factor while ensuring that there is no interference in the liberty of the individual unless there is any allegation by the individual regarding forcible conversion, held, a single-judge bench of Justice Salil Kumar J, while adjudicating the matter in Yashi Devi vs. State of UP; [WRIT – C No. – 10655 of 2021]. This petition has been filed by the petitioners for a direction upon the respondents not to interfere with their marital life and liberty. It is claimed that petitioners are major and have solemnized marriage out of their own free will. It is alleged that private respondent/s is interfering with their marital life and liberty. It has been asserted in the writ petition that the petitioner no.1 – Yashi Devi is aged about 20 years and Guchhan Khan – petitioner no. 2 is aged about 40 years and both entered into marriage after petitioner no.1 converted to Islam. Law is settled that it is the right of couples to live peacefully without any interference in case they are major. Hon’ble Supreme Court in Lata Singh Vs. State of U.P., AIR 2006 SC 2522 has already stated that; “The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter-caste marriages are in fact in the national interest as they will result in destroying the caste system. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter caste or inter-religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and anyone who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law.”

Court No. 35 Case : WRIT C No. 106521 Petitioner : Yashi Devi And Another Respondent : State Of U.P. And 3 Others Counsel for Petitioner : Ram Kumar Dubey Counsel for Respondent : C.S.C Hon ble Salil Kumar Rai J This petition has been filed by the petitioners for a direction upon the respondents not to interfere with their marital life and liberty. It is claimed that petitioners are major and have solemnized marriage out of their own free will. It is alleged that private respondent s is interfering with their marital life and It has been asserted in the writ petition that the petitioner no.1 Yashi Devi is aged about 20 years and Guchhan Khan petitioner no. 2 is aged about 40 years and both entered into marriage on 11.1.2021 after petitioner no.1 converted to Islam Law is settled that it is the right of couples to live peacefully without any interference in case they are major. Hon ble Supreme Court in Lata Singh Vs. State of U.P. AIR 2006 SC 2522 has already issued following directions in para 17 which reads as Under: The caste system is a curse on the nation and the sooner it is destroyed the better. In fact it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence inter caste marriages are in fact in the national interest as they will result in destroying the caste system. However disturbing news are coming from several parts of the country that young men and women who undergo inter caste marriage are threatened with violence or violence is actually committed on them. In our opinion such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. This is a free and democratic country and once a person becomes a major he or she can marry whosoever he she likes. If the parents of the boy or girl do not approve of such inter caste or inter religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter caste or inter religious marriage direct that the administration police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter therefore We WWW.LIVELAW.IN caste or inter religious marriage with a woman or man who is a major the couple are not harassed by any one nor subjected to threats or acts of violence and any one who gives such threats or harasses or commits acts of violence either himself or at his instigation is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law In view of the clear enunciation of law by the Hon ble Apex Court in the above matter it is obligatory for the concerned authorities to ensure compliance of the above directions in view of Article 141 of the Constitution of India. Above law has since been reiterated in Bhagwan Dass Vs. State2011) 6 SCC 396. In case petitioners face any genuine threat to their life and liberty or they are harassed contrary to law laid down in Lata Singh it shall be open for them to approach the Senior Superintendent of Police of the District concerned and furnish necessary details in that regard like proof of their majority marriage and alleged harassment etc. who shall take all steps as may be required in law to ensure that petitioners life and liberty are not interfered with keeping in view the directions issued in Lata Singh (supra). The filing of this petition or the order of its disposal however would not be treated as proof of marriage between the petitioners. It is also clarified that petitioners if major are entitled to live together even if not married and therefore proof of their marriage would not be required and shall not be insisted upon by the concerned Police Officer. It is further clarified that the fact of the petitioner having converted to Islam would not be a relevant factor while ensuring that there is no interference in the liberty of the petitioners unless there is any allegation by petitioner no.1 regarding forcible conversion Since the writ petition is being decided at the stage of fresh motion itself and notice has not been issued to private respondent s as such liberty is given to them to file a recall in case any of the averments made in the writ petition are found to be incorrect and this order shall stand automatically vacated in case any First Information Report has been lodged in the matter Subject to the observations made above the writ petition stands disposed of. Order Date : 8.6.2021 Digitally signed by Justice Salil Kumar Rai Date: 2021.06.08 17:07:35 IST Reason: Document Owner Location: High Court of Judicature at AllahabadWWW.LIVELAW.IN

It would be but proper to allow the accused to prepare his defence without the shackles of confinement : High Court of Meghalaya

It would be but proper to allow the accused to prepare his defence without the shackles of confinement, howbeit under strict conditions, violation of which would invite cancellation of the liberty of bail granted as upheld by the High Court of Meghalaya through the learned bench led by Justice W. Diengdoh in the case of Smti. Sheba Dhar Vs. State of Meghalaya (BA. No. 7 of 2021) The brief facts of the case are that, an FIR was lodged before the Officer-in-Charge Nartiang P.S by one Smti. Wanki Phawa to the effect that a complaint was made alleging that the accused Shri Wanrah Dhar in the evening of 14.03.2021 had forcefully pulled her daughter to his bedroom and had raped her. The victim had informed the informant only on 16.03.2021 and had accordingly gone to the Namdong PHC for medical checkup after which the doctor of the PHC informed the police. On receipt of the FIR, u/s 3(a)/4 POCSO Act r/w section 323 IPC was registered and investigation was directed to be conducted. The accused Davidson Dhar @ Wanrah was arrested on 19.03.2021 and is presently under judicial custody. The I/O had then examined the victim girl and has also examined some witnesses related to the case and in the process, the statement of the victim girl was recorded under Sections 161 and 164 Cr.P.C. After investigation is completed, the charge sheet was filed with the I/O sending the accused to face trial before the court for the offence under Section 323 IPC r/w Section 3(a)/4 of the POCSO Act. This instant application u/s 439 Cr.P.C r/w section 31 POCSO Act was preferred by the mother of the accused Shri. Davidson Dhar with a prayer to enlarge the accused person on bail. It is held by the Hon’ble Court “In this context, it is but an oft repeated statement that “the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that a bail could not be withheld as a punishment. Accordingly, this application is hereby allowed and the accused is enlarged on bail on the certain conditions”

Serial No. 02 Regular List BA. No. 21 HIGH COURT OF MEGHALAYA AT SHILLONG Date of Decision: 20.09.2021 Smti. Sheba Dhar State of Meghalaya Hon’ble Mr. Justice W. Diengdoh Judge Mr. K. Ch. Gautam Adv. Mr. A.H. Hazarika GA. For the Petitioner Appellant(s) For the Respondent(s) i) Whether approved for reporting in Law journals etc.: ii) Whether approved for publication in press: 1. Matter taken up via video conferencing. On 17.03.2021 an FIR was lodged before the Officer in Charge Nartiang P.S by one Smti. Wanki Phawa to the effect that a complaint was made alleging that the accused Shri Wanrah Dhar in the evening of 14.03.2021 had forcefully pulled her daughter to his bedroom and had raped her. The victim had informed the informant only on 16.03.2021 and had accordingly went to the Namdong PHC for medical checkup after which the doctor of the PHC informed the police. On receipt of the FIR Nartiang P.S Case No. 7(3)2021 u s 3(a) 4 POCSO Act r w section 323 IPC was registered and investigation was directed to be conducted. The accused Davidson Dhar @ Wanrah was arrested on 19.03.2021 and is presently under judicial custody. The I O had then examined the victim girl and has also examined some witnesses related to the case and in the process the statement of the victim girl was recorded under Sections 161 and 164 Cr.P.C. After investigation is completed on 29.04.2021 the charge sheet was filed with the I O sending the accused to face trial before the court for the offence under Section 323 IPC r w Section 3(a) 4 of the POCSO Act. This instant application u s 439 Cr.P.C r w section 31 POCSO Act was preferred by the mother of the accused Shri. Davidson Dhar with a prayer to enlarge the accused person on bail. Heard Mr. K.Ch. Gautam learned counsel for the applicant who has submitted that the accused has been arrested in connection with the abovementioned case and is in judicial custody for the last 5(five) months and trial has not yet commences. It is also further submitted that the victim is already a major from the information gathered from the Dedication Certificate issued by the Church of God Meghalaya Assam which is annexed as Annexure IV of this application. However Mr. Gautam has submitted that this is a matter of evidence at the trial and the same will be proved in due course. Pressing for grant of bail to the accused learned counsel for the applicant has submitted that the accused may be allowed to set his defence outside custody and any conditions imposed by this Court will be strictly adhered to. 8. Mr. A.H. Hazarika learned GA in his opposition to this application has submitted that the records would show that the case involving the accused has been charge sheeted and that the Trial Court has taken note of the materials on record to reject the earlier bail applications of the accused based on the provision of Section 29 POCSO Act that is presumption of guilt of the accused and as such there being no contrary ground this application is liable to be rejected. 9. While considering the prayer of the applicant it would be worthwhile to notice that investigation into the case against the accused has been completed and the matter was charge sheeted. The matter was then taken up by the Trial Court with the case at the stage of supply of copies to the accused. 10. What then is the purpose of incarceration of the accused under the circumstances In this context it is but an oft repeated statement that "the object of bail is to secure the attendance of the accused at the trial that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that a bail could not be withheld as a observed as follows: In the case of Sanjay Chandra v. Central Bureau of Investigation: 2012) 1 SCC 40 the Hon’ble Supreme Court at paragraphs 21 and 22 has 21. In bail applications generally it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is deemed to be innocent until duly tried and duly found guilty. 22. From the earliest times it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases "necessity" is the operative test. In this country it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter upon which he has not been convicted or that in any circumstances he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty save in the most extraordinary circumstances.” 12. As observed above at this juncture it would be but proper to allow the accused to prepare his defence without the shackles of confinement howbeit under strict conditions violation of which would invite cancellation of the liberty of bail granted. 13. Accordingly this application is hereby allowed and the accused is enlarged on bail on the following conditions: That he shall produce a personal bond of ₹ 30 000 only along with two solvent sureties of like amount to the satisfaction of the Trial Court That he shall not abscond or threaten the witnesses including the victim iii) That he shall appear in court as and when required iv) That he shall not leave the jurisdiction of India without due permission of the court. 14. With the above this matter is disposed of. No cost. 15. Registry is directed to return the case records. Judge “D. Nary PS”

Interpretation of the word “Any” makes a huge difference in the conclusion of a certain suit: Delhi High Court

The phrase “average turnover of any four years” does not give power to the authorities, to devise on its own, what the bidder wants to submit. The same was observed in the recent matter of Sungrace Energy Solutions Pvt. Ltd v. Energy Efficiency Services Ltd. [W.P.(C) 5840/2021 &CM APPL. 18296-18299/2021], listed in Delhi High Court. The above matter had its proceedings on September 14th 2021, and it was presided by a division bench, consisting of Justice Vipin Singh and Justice Jasmeet Singh. The facts, entailing the above, case are as follows. The petitioner is a leading industry in solar energy, with a stipulated time of 20 years of experience. The respondent is a Super Energy Service Company (ESCO), which enables consumers, industries and governments to effectively manage their energy needs through energy efficient technologies. The respondent was instituted, as a joint venture, in 2009, promoted by Ministry of Power with NTPC, Power Finance Corporation Ltd., REC Ltd., and Powergrid. Respondents 2 set forth an invitation for Bids for Off Grid Solar Photovoltaic Water Pumping Systems in pertinent states, inclusive of warranty and repairs, valid upto 5 years. Respondent, on the other hand, invited e-bids from eligible bidders for the aforesaid work under Single-stage Three-envelope bidding process through E-tendering. In the lieu of the above, petitioners also submitted its bids for Off Grid Solar Photovoltaic Water Pumping Systems. Respondents, on submission of documents by petitioners, acknowledge its bids and issued receipt in return. Later, the technical qualification bids were opened by Respondent No.2 and the petitioner’s bid was rejected. Aggrieved by the same, the petitioners addressed the Respondent no. 2 to have a fair bidding system. In furtherance to the above, the respondents filed a counter-affidavit, stating the reasoning for rejection. In the statement, it was incorporated that “any three years out of the last four financial years, shall be taken as the Annual Turn Over. Respondents, took 3 financial year of 2017-18, 2018-19, and 2019-2020, and the turn over didn’t cross the benchmark needed for making a successful bid. While the proceedings, certain precedents like Gautam Solar Pvt. Ltd. v. Energy Efficiency Services Limited, [W.P. (C) No. 8076/2021], Central Coalfields Limited & Anr. V. SLL-SML (Joint Venture Consortium) & Ors. [(2016) 8 SCC 622], etc. were cited by the counsels from both the sides. The Court after hearing both the sides, evidence scrutinized and facts analyzed observed that meaning of the word “any” is subjected to wrong interpretation. “In the present case, the interpretation as sought by the Respondent would make the word ‘any’, a surplus age, which cannot be the intention of the document. The whole purpose of the issuing Rules/instructions is to ensure their enforcement lest the Rule of law should be a casualty.” Court also relied its judgment upon W.B. SEB v. Patel Engg. Co. Ltd., [(2001) 2 SCC 451], , and impetus on maintaining sanctity and integrity of process of tender/bid and also award of a contract, was put. The court also highlighted Ramana Dayaram Shetty v. The International Airport Authority of India & Ors., [(1979) 3 SCC 489], wherein it was ordained that “it is a well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those Standards on pain of invalidation of an act in violation of them.” Through the virtue of Industrial Promotion & Investment Corporation of Orissa Ltd. v. New India Assurance Co. Ltd. And Anr, [(2016) 15 SCC 315], the court also relied on the doctrine of ‘verba chartarum fortius accipiuntur contra proferentem’ and held that “respondent in the present case was the master of drafting the terms of the tender. If the respondent had any other intention in mind, the wordings of the Annexures should have been different as framed herein.” The court while giving its final verdict held that “the Petitioner was entitled to take the average ATO of any of the 3 years out of the last 4 years i.e. 2016-17, 2017-2018, 2018-2019 and 2019- 2020, which suited him best”. Since the petitioners have submitted Annual Turnover from 2016-17 to 2018-19, “respondents should have accepted the same and scrutinized the bid of the Petitioner on that basis.”

20 IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on 02.09.2021 Pronounced on: 14.09.2021 W.P.(C) 5840 2021 &CM APPL. 18296 18299 2021 SUNGRACE ENERGY SOLUTIONS PVT. LTD. ..... Petitioner Through: Mr. Rohit Rathi Adv. ENERGY EFFICIENCY SERVICES LTD. ..... Respondent Through: Mr. Vikram Jetly CGSC for R 1. Mr. Samdarshi Sanjay Adv. with Mr. Prakash Jha GM Legal & Mr. Kumar Saurabh AGM Mr. Nikhil Bhandari AM for Respondent Energy Efficiency Services Ltd. HON BLE MR. JUSTICE VIPIN SANGHI HON BLE MR. JUSTICE JASMEET SINGH JUDGMENT JASMEET SINGH J 1) The writ petition has been filed seeking the following substantive prayers: a) Quash and set aside the impugned communication dated 20.05.2021 issued by the Respondent No. 2 insofar it fails to include the Petitioner in the ‘Envelope Name: Price Bid’ b) Quash and set aside the impugned e mail communication dated and 21.05.2021 issued by the Respondent No. 2 to the Petitioner c) … d) Direct the Respondent No. 2 to re conduct the entire bidding process in terms of the IFB Stay further process with respect to Open Tender NIT Bid Doc. No.: EESL 06 2020 21 KUSUM WPS 1 10 HP Off Grid 202101032 dated 14.01.2021 issued by the Respondent No. 2 Direct the Respondents to provide reason(s) for rejection of Technical Qualification bid of the Petitioner Pass any such other order directions as this Hon’ble Court deems fit and proper in the facts and circumstances of the case ” W.P.(C) 5840 2021 2) The Petitioner is stated to be one of India’s oldest leaders in the solar industry with over 20 years of experience. The Petitioner is into manufacturing of various products including Crystalline Solar Photovoltaic module of multiple ranges and provides varied solutions including Solar Water Pumping. 3) The respondent is Energy Efficiency Services Limited and is a Super Energy Service Company which enables consumers industries and governments to effectively manage their energy needs through energy efficient technologies. EESL was founded in 2009 promoted by Ministry of Power Government of India as a Joint Venture of four reputed public sector undertakings namely a) NTPC Limited b) Power Finance Corporation Limited c) REC Limited and d) POWERGRID Corporation of India Limited. 4) On 14.01.2021 respondent No. 2 invited Detailed Invitation for Bids IFB) for design manufacture supply transport installation testing and commissioning of Off Grid Solar Photovoltaic Water Pumping Systems of 1 10 HP in Selected States on PAN India basis including complete system warranty and its repair and maintenance for 5 Years under MNRE KUSUM scheme ComponentB. 5) Respondent invited e bids from eligible bidders for the aforesaid work under Single stage Three envelope bidding process through E tendering. 6) Pursuant to the IFB dated 14.01.2021 petitioner submitted its bid with the relevant documents vide the E tendering process as per the format prescribed by the respondent. The Petitioner submitted their documents on 16.02.2021 and the Respondent issued the Envelope receipt on 16.02.2021 and duly acknowledged the documents. 7) On 03.03.2021 the Technical Qualification bids were opened by Respondent No.2 and the petitioner’s bid was rejected insofar the petitioner was not included in the ‘Envelope Name: Price Bid’. Vide W.P.(C) 5840 2021 communication dated 20.05.2021 the petitioner got to know that his technical bid had been rejected. 8) Aggrieved by the said communication the petitioner on the same date i.e. 20.05.2021 addressed a communication to respondent No. 2 thereby stating inter alia that as a fair practise all the bids should have been opened to all participating tenderers to ensure no one is duly favoured. Subsequent to the said communication respondent No.2 on 21.05.2021 vide an auto generated response informed the petitioner that the petitioner’s bid was found to be non responsive for technical evaluation. Since no reply was received for the communication dated 20.05.2021 the petitioner filed the aforesaid writ petition. 9) When the matter came up before this Court on 04.06.2021 this Court directed the respondent to file the Counter affidavit Pursuant to our order of 04.06.2021 the respondent has filed a counter affidavit and the reason for rejection has been stated in Para B(x) which reads as under: “(x) It is submitted that at the stage of Technical Evaluation the Bid of the Petitioner was found non responsive since the Bidder has participated in 4 Clusters the requirement of cumulative turnover was Rs. 111.25 crores approximately. The bidder is of MSE category and was given relaxations to have one fourth of the annual cumulative turnover in accordance to Clause 2.4 of section 2 of RFP at page 47 to 49 of ANNEXURE R 1 being the Bid Document. Still Bidder could not qualify for consideration as its ATO was less than the minimum required. So due to this fact the Technical Bid of the Petitioner was rejected. Reference RFP Document: "(Page No 16) Participating Bidder should have average annual Turnover as per table 2 at page No 201 and 202 for any three years out of the last four financial years. As note it is mentioned that the combined ATO for all the states applied by the bidder shall be considered for evaluation." True copy of the entire Tender Documents pertaining to the Bid in question is appended hereto as ANNEXURE R 1.” 11) Even though the counter affidavit is cryptic on detailed reasons for rejection and says that “any three years out of the last four financial W.P.(C) 5840 2021 Sr. No. years ” shall be taken for the ATO the learned counsel for the respondent during argument has stated that the Respondent has taken the average for the years 2017 18 2018 19 and 2019 20 which comes to 26.52 crores and does not cross the threshold limit of 28.56 croresWe have heard the learned counsel for the parties and gone through the documents before us. It will be relevant to reproduce the Qualification Requirement contained in Annexure II which reads as under: QUALIFYING REQUIREMENT“Annexure II In addition to the satisfactory fulfilment of requirements stipulated under section ITB the following shall also Documents to be submitted Particulars in brief of the Documents submitted by the Bidder on Covering Letter ..... ..... Bidders should have Average Annual Turnover as per Table 2 below for any 3 years out of the last 4 years i.e 2016 17 2017 2018 2018 2019 and 2019 2020. Duly authorised copy of audited annual report Balance Sheet for any three financial years out of last four years is to be submitted by respondent along with CA certificate. Profitability means: Profit after tax. 2016 17 2017 18: 2018 19: 2019 20 Refer Format 1 in Annexure III 13) The documents to be submitted to satisfy the above Qualification Requirement was to be as per Format 1 in Annexure III which reads as emphasis supplied) W.P.(C) 5840 2021 Format 1 “ANNEXURE III Information on Average Annual Turnover To be printed on the Letterhead of the bidder including full postal address telephone faxes and e mail address] Annual Turnover Data for the last 3 years Net Worth2019 20 2018 19 2017 18 2016 17 Annual Average Annual Turnover This format should be certified by the practicing CA’s of the Bidder)” 14) The certificate submitted by the Petitioner in compliance to Annexure III Format 1 reads as under: “SUNGRACE ENERGY SOLUTIONS PVT. LTD. www. sungrace.net SUNGRACE CIN : U40109TG1999PTC031653 Information on Average Annual Turnover Annual Turnover Data for the Last 3 Year Format 1 ANNEXURE III Year 2019 20 2018 19 2017 18 2016 17 Net WorthAnnual Turnover9 59 77 285 9 46 85 635 7 39 31 574 5 12 32 175 7 32 83 128 17 27 89 503 29 00 56 916 33 28 14 572 26 95 18 590 29 74 63 359 Annual Average for 3 years out of the last 4 years5840 2021 15) The learned counsel for the Respondent has made a feeble attempt to argue that since “Annual Turnover Data for the Last 3 Years” has been mentioned in Format 1 of Annexure III the Petitioner was required to only give and the Respondent was required to only consider the Annual Turnover Data for the last 3 years namely 2019 20 2018 19 and 2017 16) We have had the occasion to deal with the said clauses of the IFB in a similar petition viz. Gautam Solar Pvt. Ltd. v. Energy Efficiency Services Limited W.P.(C) No. 8076 2021 decided on 12.08.2021 wherein we have rejected the above submission by holding as follows: “16. A bare perusal of the Row 3 of the Table in Annexure II read in conjunction with Annexure III Format 1 clearly demonstrates that the bidder to be qualified had to demonstrate the requisite Average Annual Turnover by taking into consideration the Turnover of “any 3 years out of the last 4 years i.e. 2016 17 2017 18 2018 19 and 2019 20”. If the intention of the Respondent was to consider the data of only the last the 3 years i.e. 2017 18 2018 19 and 2019 20 then there was no need for the Respondent to mention “any 3 years out of the last 4 years i.e. 2016 17 2017 18 2018 19 and 2019 20” in Annexure II of the Qualifying Requirements. The substantive provision clause on Qualifying Requirements is the one contained in Annexure III extracted above. It refers to Format 1 in Annexure III. Therefore even if there is any conflict or ambiguity between what is stated in the Qualifying Requirements and what is stated in the Format 1 in Annexure III it is the Qualifying Requirements which would rule and not what is stated in the tabulation in Format 1 in Annexure III. It is also pertinent to note that even Format 1 in Annexure III permits the Bidders to provide the Annual Turnover data for four years i..e 2016 17 2017 18 2018 19 and 2019 20. This is in consonance with the Qualification Requirements contained in Annexure II. The mere use of the words “Annual Turnover Data for the last 3 years” in Format I is neither here nor there. The same has to be read and understood as referring to the data of three financial years which the bidder seeks to rely upon to claim eligibility in terms of the Qualifying Requirements. 17. Since the Format I in Annexure III provided four rows to provide the turnover data for the four years aforesaid no fault can be found with the bidder for providing the turnover data for all the four years. It does not follow that this action of the bidder gives an option or an opportunity to the respondent to disqualify the bidder by ignoring the Turnover figures of the year which if taken into consideration would qualify the bidder. W.P.(C) 5840 2021 18. Had it been the intention of the Respondent to consider the turnover data of the last 3 years only the word „any‟ would not have been used in the Qualifying Requirements. The year 2016 17 would not have been specifically mentioned either. The said word cannot be rendered redundant. There is absolutely no ambiguity in the relevant clause in the Qualifying Requirements. It clearly permits the bidder to calculate the Average Annual Turnover by considering the Annual Turnover for “any” three years out of the four years specifically mentioned i.e. 2016 17 2017 18 2018 19 and 2019 20. The words “any” and the mention of four years including the year 2016 17 would have to be ignored from the Qualifying Requirements if the interpretation of the respondents were to be accepted. Even Format 1 in Annexure III provides one row for each 2016 17 2017 18 2018 19 and 2019 20. If only the last three years Turnover data were relevant and if only those figures could be considered there was no purpose of calling for or providing space in the for 2016 17. An interpretation which gives meaning to the words used in the Tender Document has to be preferred over one which renders its substantive terms redundant. Where the plain English reading conveys a particular meaning it is not open to Respondent to ignore the words to convey a different meaning. turnover data to provide 19. In Central Coalfields Limited & Anr. V. SLL SML& Ors.(2016) 8 SCC 622: “33. In Ramana Dayaram Shetty v. International Airport Authority of India this Court held that the words used in a document are not superfluous or redundant but must be given some meaning and weightage: 7…It is a well settled rule of interpretation applicable alike to documents as to statutes that save for compelling necessity the Court should not be prompt to ascribe superfluity to the language of a document “and should be rather at the outset inclined to suppose every word intended to have some effect or be of some use.” To reject words as insensible should be the last resort of judicial interpretation for it is an elementary rule based on common sense that no author of a formal document intended to be acted upon by the others should be presumed to use words without a meaning. The court must as far as possible avoid a construction which would render the words used by the author of the document meaningless and futile or reduce to silence any part of the document and make it altogether inapplicable." In the present case the interpretation as sought by the Respondent would make the word ‘any’ a surplusage which cannot be the intention of the document. The whole purpose of the issuing Rules instructions is to ensure their enforcement lest the Rule of law should be a casualty. 18) Moreover in W.B. SEB v. Patel Engg. Co. Ltd. 2 SCC 451 the W.P.(C) 5840 2021 Apex Court emphasised on maintaining sanctity and integrity of process of tender bid and also award of a contract as well as “ …adherence to the instructions cannot be given a go bye by branding it as a pedantic approach otherwise it will encourage and provide scope for discrimination arbitrariness and favouritism which are totally opposed to the Rule of law and our Constitutional values. The very purpose of issuing Rules instructions is to ensure their enforcement lest the Rule of law should be a casualty. Relaxation or waiver of a rule or condition unless so provided under ITB by the State or its agencies in favour of one bidder would create justifiable doubts in the minds of other bidders would impair the rule of transparency and fairness and provide room for manipulation to suit the whims of the State agencies in picking and choosing a bidder for awarding contracts as in the case of distributing bounty or charity. In our view such approach should always be avoided. Where power to relax or waive a rule or a condition exists under the Rules it has to be done strictly in compliance with the Rules.” 19) Further it is a well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those Standards on pain of invalidation of an act in violation of them. The Apex Court in Ramana Dayaram Shetty v. The International Airport Authority of India & Ors. 3 SCC 489 applying this rule held that: “Now there can be no doubt that what paragraph of the notice prescribed was a condition of eligibility which was required to be satisfied by every person submitting a tender. The condition of eligibility was that the person submitting a tender must be conducting or running a registered 2nd class hotel or restaurant and he must have at least 5 years experience as such and if he did not satisfy this condition of eligibility his tender would not be eligible for consideration. This was the standard or norm of eligibility laid down by the 1 st respondent and since W.P.(C) 5840 2021 the 4th respondents did not satisfy this standard or norm it was not competent to the 1st respondent to entertain the tender of the 4th respondents. It is a well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those Standards on pain of invalidation of an act in violation of them. This rule was enunciated by Mr Justice Frankfurter in Viteralli v. Seton(l) where the learned Judge said: An executive agency must be rigorously held to the standards by which it professes its action to be judged. Accordingly if dismissal from employment is based on a defined procedure even though generous beyond the requirement that bind such agency that procedure must be scrupulously observed. This judicially evolved rule of administrative law is now firmly established and if I may add rightly so. He that takes the procedural sword shall perish with the sword.” If the respondent had any other intention in mind the wording of the Annexure should have been different from the one framed herein. 21) We would also rely on the Doctrine of ‘verba chartarum fortius accipiuntur contra proferentem.’ The respondent in the present case was the master of drafting the terms of the tender. If the respondent had any other intention in mind the wordings of the Annexures should have been different as framed herein. 22) As observed in Industrial Promotion & Investment Corporation of Orissa Ltd. v. New India Assurance Co. Ltd. And Anr 15 SCC 315 thus: “10. ..The Common Law rule of construction “verba chartarum fortius accipiuntur contra proferentem” means that ambiguity in the wording of the policy is to be resolved against the party who prepared it. Mac Gillivray on Insurance Law[1] deals with the rule of contra proferentem as follows: “The contra proferentem rule of construction arises only where there is a wording employed by those drafting the clause which leaves the court unable to decide by ordinary principles of interpretation which of two meanings is the right one. “One must not use the rule to create the ambiguity one must find the ambiguity first.” The words should receive their ordinary and natural meaning unless that is displaced by a real ambiguity either appearing on the face of the policy or possibly by extrinsic evidence of surrounding circumstances….” W.P.(C) 5840 2021 23) The said principle of ‘verba chartarum fortius accipiuntur contra proferentem’ has also been applied by the Supreme court in the case of Bank of India and Anr. v. K. Mohandas and Ors 5 SCC 313 wherein the court observed thus: “32. The fundamental position is that it is the banks who were responsible for formulation of the terms in the contractual Scheme that the optees of voluntary retirement under that Scheme will be eligible to pension under the Pension Regulations 1995 and therefore they bear the risk of lack of clarity if any. It is a well known principle of construction of a contract that if the terms applied by one party are unclear an interpretation against that party is preferred In this view of the matter in terms of Column 3 of Qualifying Requirements the Petitioner was entitled to take the average ATO of any of the 3 years out of the last 4 years i.e. 2016 17 2017 2018 2018 2019 and 2019 2020 which suited him best. The Petitioner has clearly stated in the Annexure III Format 1 that it has considered the Annual Average Turnover for 3 years i.e. 2016 17 to 2018 2019. The Respondents should have accepted the same and scrutinised the bid of the Petitioner on that 25) Consequently we quash the communication dated 20.05.2021 and direct for the recalculation of the Average Annual Turnover of the Petitioner and assess its responsiveness in Technical evaluation. 26) With these observations the above Writ Petition is allowed. JASMEET SINGH J VIPIN SANGHI J SEPTEMBER 14 2021 ‘ms’ W.P.(C) 5840 2021

One cannot claim a right to post, if he has usurped the post meant for a reserved candidate. : Jharkhand High Court

One cannot claim a right to the position because he usurped the position meant for a reserved candidate by committing fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post based on his appointment, he cannot invoke the constitutional guarantee provided by Article 311 of the Constitution, which was referred by Justice Deepak Roshan in the matter of Rajgrih Pal versus Central Coalfield Limited [W.P.(S) No. 5564 of 2009] Facts considered for passing the order were the petitioner was initially appointed on 05.09.1980 to the post of Piece Rated Employee under the VRS for male workers, wherein there is a provision for employment of the dependent in case of male employee applied for VRS. When the petitioner was performing his duties as Munshi, he was served with a charge-sheet dated 10.12.1998, alleging that he obtained employment by claiming to be the son-in-law of one “Sado,” despite the fact that he had no such family relationship with him. Mrs M.M.Pal, learned senior counsel, challenged the dismissal order as well as the appellate order, claiming that the appointment order was issued by the Personnel Manager and that the charge-sheet was issued 18 years after the petitioner’s appointment. She also claimed that the inquiry officer conducted the investigation properly, found the petitioner not guilty, and concluded that the charges were not proven. Mr A.K.Das, learned counsel for the respondent-company, raised a preliminary objection at the outset, stating that the petitioner is a workman within the meaning of Section 2(S) of the Industrial Disputes Act, 1947 and that the proper remedy on the subject would lie before the appropriate authority and the forum established under the Industrial Disputes Act. Mr Das also referred to the enquiry report, which states that during the course of cross-examination of Management witness M.W.(1), the defendant asked to prove from the said Management witness that the petitioner is not Sado Munda’s son-in-law, to which the Management witnesses satisfactorily replied explaining the particulars of Sado’s family members and furthers The petitioner did not deny the management witness’s categorical statement. In Bank of India v. Degala Suryanarayana, after referring to H.C. Goel case, this Court held “ Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The court cannot embark upon appreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained.” Considering R. Vishwanatha Pillai vs. State of Kerala & Ors reported in (2004) 2 SCC 105 the Hon’ble Court has mentioned Aside from that, the appellant was appointed to the service because he belonged to the Scheduled Caste community. When the Scrutiny Committee discovered that he did not belong to the Scheduled Caste community, the very basis of his appointment was revoked. In the eyes of the law, his appointment was not an appointment.

Rajgrih Pal vs Central Coalfield LimitedNo. 55609 Rajgrih Pal ..... Petitioner Versus 1. Central Coalfield LimitedC.C.L. Darbhanga House Ranchi 3. General ManagerSirka C.C.L P.O. Argada District Ranchi 4. Personnel Manager SirkaP.O. Argada District Ramgarh 5. Project OfficerSirka C.C.L P.O. Argada District Ramgarh. ..... Respondents CORAM: HON BLE MR. JUSTICE DEEPAK ROSHAN For the Petitioner : Mrs. M.M.Pal Sr.Advocate For the Respondents : Mr. A.K.Das Advocate Ms. Swati Shalini Advocate JUDGEMENT C.A.V. on: 03.03.2021 Delivered on: 07 06 2021 Heard learned counsel for the parties through V.C 2. The instant writ application has been preferred by the petitioner praying therein for quashing and setting aside the order dated 11.02.2009 issued by respondent No.5 whereby the services of the petitioner has been terminated and also the appellate order dated 01.10.2009 passed by respondent no.2 whereby the appeal of the petitioner has been rejected The petitioner has also prayed for reinstatement of his service with back wages and other 3. The brief facts necessary for disposal of the instant writ application is that petitioner was initially appointed on 05.09.1980 to the post of Piece Rated Employee under the VRS for male workers wherein there is a provision for employment of the dependent in case of male employee applied for VRS. When the petitioner was performing his duties to the post of Munshi a charge sheet dated 10.12.1998 was issued to him alleging that he obtained employment claiming himself to be his son in law of one "Sado" although he did not have any such family relationship with him. For proper appreciation of this case the charge sheet issued against this petitioner is quoted herein Indian Kanoon below in para 11 of counter affidavit: Rajgrih Pal vs Central Coalfield Limited"That under the Voluntary Retirement Scheme of CCL you obtained employment in Sirka Colliery as P.R. Worker vide appointment letter No. GM(A P Vol.Rectt 80 SRK 18988 dated 05.09.1980 against the voluntary retirement of Sri Sado Coal Cutter by declaring yourself to be his son in law although you did not have any such family relationship with him. By such fraudulent means you got employment at Sirka Collierty in connivance with Sri. Sado and the then dealing officer of Sirka Colliery and G.M.Office Argada Area ii) That you are Gareri by Caste having the surname Pal and the name of your father is Sri Jhuri r o village Piparia P.O. Chhebari Distt. Rohtas whereas Sri Sado belongs to Munda Scheduled Tribe and he never married his daughter to you. After entering into the service of CCL you got your surname Pal recorded in the service sheet and other records Thus you have fraudulently entered into the services of CCL on 08.09.80 and have since been illegally on the pay roll of the company 4. The aforesaid charges constituted misconduct under clause 17(i)(a) 17(i)(o) of the Certified Standing Orders applicable to the petitioner. Pursuant to the aforesaid charge sheet petitioner submitted his reply and a departmental enquiry were constituted. The enquiry officer after conducting the enquiry submitted the report dated 26.12.2006 holding the charges as not proved Thereafter the disciplinary authority being not in agreement with the findings of the enquiry officer made a decent note and issued a second show cause notice to this petitioner with proposed punishment. The second show cause notice clearly stipulated the grounds of disagreement with the finding of an enquiry officer. Thereafter the petitioner had given a detailed reply however an order of punishment of removal from service has been passed observing that the petitioner is guilty of entering into the employment of the company fraudulently by falsely declaring him to be the dependent son in law of Sri Sado Pursuant thereto the petitioner preferred an appeal and also a writ application challenging the order of removal from service being W.P.(S) No. 20209 which was disposed of by this Court vide order dated 7th May 2009 directing the respondent authorities to dispose of the appeal Pursuant to the order passed by this Court the appellate authority dismissed the appeal of this petitioner which was communicated to him vide impugned letter dated 01.10.2009 5. Mrs. M.M.Pal learned senior counsel challenged the order of dismissal as well as the appellate order by contending that the appointment order was issued by the Personal Manager and after 18 years from the date of the appointment of this petitioner charge sheet was issued. She further contended that the inquiry officer has properly conducted the enquiry and found the petitioner not guilty and opined that the charges are not proved Indian Kanoon Rajgrih Pal vs Central Coalfield Limited7 SCC 84 Para 18 19 and 20 are quoted herein below: 18. Under Regulation 6 the enquiry proceedings can be conducted either by an enquiry officer or by the disciplinary authority itself. When the enquiry is conducted by the enquiry officer his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the enquiry officer they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officer s report and while recording a finding of guilt imposes punishment on the officer. In our opinion in any such situation the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of enquiry as explained in Karunakar 19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof whenever the disciplinary authority disagrees with the enquiry authority on any article of charge then before it records its own findings on such charge it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice as we have already observed require the authority which has to take a final decision and can impose a penalty to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer 20. The aforesaid conclusion which we have arrived at is also in consonance with the underlying principle enunciated by this Court in the case of Institute of Chartered Accountants. While agreeing with the decision in Ram Kishan case we are of the opinion that the contrary view expressed in S.S. Koshal and M.C. Saxenawho was the appointing authority. She summarized her argument by submitting that the dismissal order dated 11.02.2009 and the appellate order dated 01.10.2009 are illegal improper arbitrary and contrary to the established law. Further the dismissal order being passed by the Project Officer is also without jurisdiction. Since in the enquiry preceding no charge has been proved against the petitioner the order of dismissal on the basis of no evidence is bad in law and as such the petitioner deserves to be reinstated in service along with back wages Before concluding her arguments she also referred that the authority of the respondents who recommended the case of his father in law for VRS and offered employment to this petitioner was though also charge sheeted by the CCL but later on they were exonerated from the charges as such even this petitioner should also not be punished 8. Mr. A.K.Das learned counsel for the respondent Company at the outset raised a preliminary objection inasmuch as the petitioner is a workman within the meaning of Section 2(S) of the Industrial Disputes Act 1947 as such proper remedy on the subject would lie before the appropriate authority and the forum created under the Industrial Disputes Act 9. Mr. Das further referred to the enquiry report submits that during the course of cross examination of the Management witness M.W.(1) the defendant asked to prove from the said Management witness to substantiate that the petitioner is not the son in law of Sado Munda and to which the Management witnesses gave a satisfactorily reply explaining the particulars of family members of Sado and further stating categorically that Sado Munda had no daughter named Kalawati Devi who was claimed to be wife of this petitioner. This categorically statement of the management witness was not denied by the petitioner Learned counsel further referred to the deposition of D.W. 1 and 2 who were cross examined and vides answer to question nos. 9 and 14 respectively stated that they are not aware as to the place where the marriage of the petitioner with Kalawati Devi took place and that their deposition are based on hearsay Learned counsel further referred the enquiry proceeding dated 05.10.2005 and submits that during the cross examination of this petitioner in reply to the question no. 10 the petitioner failed to Indian Kanoon Rajgrih Pal vs Central Coalfield Limited4 SCC 75 wherein at paragraph 5 and 6 the Hon ble Apex Court has held as under: 5. It is a well settled principle that the High Court will not reappreciate the evidence but will only see whether there is evidence in support of the impugned conclusion The court has to take the evidence as it stands and its only limited jurisdiction is to examine whether on the evidence the conclusion could have been arrived at.Act 1946 and is applicable to all workmen employed under all its CCL. He further referred Circular dated 01.10.1999 and submits that the Project Officer was empowered to issue order of dismissal Indian Kanoon Rajgrih Pal vs Central Coalfield Limitedwere married however petitioner had stated that he was married to Kalawati Devi in 1979. The said Indu Devi could not even tell about the family members of the petitioner. This all goes to show that the management has given ample opportunity to the petitioner for defending his case but the petitioner failed to satisfy the respondents that he was son in law of erstwhile employee and looking to all these facts the disciplinary authority differed with the finding of enquiry officer and finally imposed punishment of dismissal after issuing 2nd show cause notice. Thus it cannot be said that opinion of the Indian Kanoon Rajgrih Pal vs Central Coalfield Limited2 SCC 130 para 6.1 and 6.2 are quoted herein below: 6.1. It is settled law that interference with the orders passed pursuant to a departmental inquiry can be only in case of "no evidence". Sufficiency of evidence is not within the realm of judicial review. The standard of proof as required in a criminal trial is not the same in a departmental inquiry. Strict rules of evidence are to be followed by the criminal court where the guilt of the accused has to be proved beyond reasonable doubt. On the other hand preponderance of probabilities is the test adopted in finding the delinquent guilty of the charge 6.2. The High Court ought not to have interfered with the order of dismissal of the respondent by re examining the evidence and taking a view different from that of the disciplinary authority which was based on the findings of the inquiry officer 16. Learned sr. counsel also argued that the Project Officer was not competent to exercise powers of the disciplinary authority as the petitioner was appointed by HR Department and was posted at Sirka Colliery under Project Officer. From the Circular dated 01.10.1999 which has been produced at the time of hearing is a part of Certified Standing Orders which clearly transpires that the power has been delegated upon the Project Officer and it has been categorically directed that in respect of Areas to CCL the Chief General Manager General Manager Project Officer and Colliery Managers will be competent authority to exercise the powers for implementation of the provisions of Standing Orders and taking disciplinary action under the provisions of Certified Standing Orders Thus looking to the circular it is held that the stand of the petitioner that project officer was not competent to pass the order of removal is non est in the eye of law and has no legs to stand 17. Learned senior counsel also contended that since the petitioner worked for 18 years as such he should have been given other subsequent benefits post retiral benefits after reinstatement. In this regard it is well settled law that if any appointment is void ab initio then the petitioner cannot have right to claim for salary and or pension. The right to salary or pension after retirement flows from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal In the instant case since the disciplinary authority after disagreeing with the findings of the inquiry officer came to conclusion that petitioner has acquired job by committing fraud by claiming himself to be son in law of erstwhile employee Mr. Sado Munda as such the claim of re instatement in Indian Kanoon Rajgrih Pal vs Central Coalfield Limited2 SCC 105 wherein at paragraph no. 15 the Hon ble Apex Court has held as 15. This apart the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community then the very basis of his appointment was taken away. His appointment was no appointment in the eye of the law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India. Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of a false caste certificate has become final. The position therefore is that the appellant has usurped the post which should have gone to a member of the Scheduled Castes. In view of the finding recorded by the Scrutiny Committee and upheld up to this Court he has disqualified himself to hold the post. The appointment was void from its inception. It cannot be said that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning of Article 311 of the Constitution of India. As the appellant had obtained the appointment by playing a fraud he cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Article 311 of the Constitution of India or the Rules framed thereunder. Where an appointment in a service has been acquired by practising fraud or deceit such an appointment is no appointment in law in service and in such a situation Article 311 of the Constitution is not attracted at all 18. In view of the aforesaid discussions it is clear that there is no procedural lapse in conducting the enquiry against this petitioner and as discussed hereinabove the findings are based on evidence and the same is not perverse no relief can be granted to this petitioner 19. Consequently the instant writ application is hereby dismissed. However there is no order as to costs Deepak Roshan J.) Jharkhand High Court Dated 07 06 2021 Amardeep AFR Indian Kanoon

There is no bar to seek maintenance both under the DV Act and Section 125 of the Cr.PC or the Hindu Marriage Act, 1955 or the Hindu Adoption and Maintenance Act, 1956 : High Court of Delhi

Maintenance granted under the Domestic Violence Act would be in addition to an order of maintenance under Section 125 of the Code of Criminal Procedure, 1973 (Cr.PC) and any other law for the time being in force as upheld by the High Court of Delhi through the learned bench led by Justice Amit Bansal in the case of Mamta Bhardwaj v. Vinod Kumar Bhardwaj & Anr. (CM(M) 213/2021) The petitioner wife had filed a suit under the Hindu Adoptions and Maintenance Act, 1956 as an indigent person, claiming maintenance before this Court. The said suit was transferred to the Family Courts and the petitioner wife was awarded maintenance @ Rs.10,000/- per month w.e.f. 13th March, 1997. It is the case of the petitioner wife that the aforesaid amount of maintenance has not been paid to her by the respondent husband and she has filed execution proceedings in respect of the same before the Family Court. On 9th November, 2017, the civil suit was filed by respondent husband against the petitioner wife seeking damages of Rs.20,00,000/- along with interest @ 24% per annum and for pendente lite and future interest on account of malicious prosecution. The suit was premised on the discharge of the respondent husband in a criminal complaint lodged by the petitioner wife against the respondent husband under Sections 498A and 406 of the Indian Penal Code, 1860. The petitioner wife filed an application under Section 26 of the DV Act in the said civil suit seeking a direction to the respondent husband to pay a sum of Rs.10,000/- per month as interim maintenance and Rs.1,00,000/- towards litigation expenses. The said application was dismissed by the Trial Court, observing that the said application had been filed for execution of the order of the Family Court, in respect of which execution has already been filed on behalf of the petitioner wife and therefore, the civil court could not become an executing court for the amount of maintenance already awarded in favour of the petitioner wife. After the perusal of facts and arguments by the learned counsels, the Hon’ble Court held, “In light of the observations made, the matter is remanded back to the Trial Court to decide the application filed by the petitioner wife under Section 26 of the DV Act on merits. Needless to state that the amount of compensation already awarded to the petitioner wife vide judgment dated 28th March, 2018 would be taken into account by the Trial Court while granting relief under Section 26 read with Section 20 of the DV Act in light of the provisions of the DV Act and the directions of the Supreme Court in Rajnesh case”

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : 11th October 2021 Decided on : 29th October 2021 CM(M) 213 2021 MAMTA BHARDWAJ Through: Mr. L.K. Singh with Ms. Saira Petitioner Parveen Advocates VINOD KUMAR BHARDWAJ & ANR. Through: Mr. Sanjeev Salhan Advocate Respondents HON BLE MR. JUSTICE AMIT BANSAL The present petition under Article 227 of the Constitution of India impugns the order dated 5th March 2020 passed by the Additional District Judge 1Saket Courts New Delhi in civil suit bearing No.CS DJ 16817 whereby the application filed by the petitioner wife under Section 26 of the Protection of Women from Domestic Violence Act 2005 hereinafter referred to as the ‘DV Act’) has been dismissed. Notice was issued in the petition on 6th April 2021. The counsel for the petitioner wife has filed written submissions along with judgments in support of his submissions. However the counsel for the respondent husband has preferred not to file any written submissions. Arguments on behalf of the parties were heard on 11th October 2021 when the judgment was reserved. CM(M) 213 2021 Digitally SignedBy:MAMTA ARYASigning Date:29.10.202113:22:23Signature Not Verified Facts in brief leading to the present petition are set out hereinbelow: 3.1 The petitioner wife had filed a suit under the Hindu Adoptions and Maintenance Act 1956 as an indigent person claiming maintenance before this Court. The said suit was transferred to the Family Courts and vide judgment dated 28th March 2018 of the Principal Judge Family Courts Shahdara Karkardooma Delhi in HAMA No. 01 of 2017 the petitioner wife was awarded maintenance @ Rs.10 000 per month w.e.f. 13th March 1997. It is the case of the petitioner wife that the aforesaid amount of maintenance has not been paid to her by the respondent husband and she has filed execution proceedings in respect of the same before the Family Court. 3.2 On 9th November 2017 the civil suit bearing No.CS DJ 16817 was filed by respondent husband against the petitioner wife seeking damages of Rs.20 00 000 along with interest @ 24% per annum and for pendente lite and future interest on account of malicious prosecution. The suit was premised on the discharge of the respondent husband in a criminal complaint lodged by the petitioner wife against the respondent husband under Sections 498A and 406 of the Indian Penal Code 1860. 3.3 The petitioner wife filed an application under Section 26 of the DV Act in the said civil suit seeking a direction to the respondent husband to pay a sum of Rs.10 000 per month as interim maintenance and Rs.1 00 000 towards litigation expenses. CM(M) 213 2021 Digitally SignedBy:MAMTA ARYASigning Date:29.10.202113:22:23Signature Not Verified 3.4 The said application was dismissed by the Trial Court vide the impugned order dated 5th March 2020 observing that the said application had been filed for execution of the order dated 28th March 2018 of the Family Court in respect of which execution has already been filed on behalf of the petitioner wife and therefore the civil court could not become an executing court for the amount of maintenance already awarded in favour of the petitioner wife. The counsel appearing on behalf of the petitioner wife assails the impugned order on the grounds that the impugned order failed to appreciate that the application under Section 26 of the DV Act was not filed towards execution of the earlier maintenance order dated 28th March 2018 granted in favour of the petitioner wife the said application was an independent application in terms of Section 26 read with Sections 20(1)(d) and 23 of the DV Act in terms of Section 26(3) of the DV Act the petitioner wife had duly informed the civil court of the factum of maintenance awarded in her favour vide the order dated 28th March 2018 iv) the grievance raised by the petitioner wife fell within the definition of ‘domestic violence’ as defined under Section 3 of the DV Act being ‘economic abuse’ as per Explanation I to Section 3 of the DV Act andas per the judgment of the Supreme Court in Rajnesh Vs. Neha and Anr. 2021) 2 SCC 324 the maintenance awarded under DV Act is in addition to the maintenance awarded to the aggrieved woman under any other statutes. The counsel appearing on behalf of the respondent husband has also relied upon the judgment of the Supreme Court in Rajneshwherein it has been held that though there is no bar to seek maintenance both under CM(M) 213 2021 Digitally SignedBy:MAMTA ARYASigning Date:29.10.202113:22:23Signature Not Verified the DV Act and other statutes it would however be inequitable to direct the husband to pay maintenance under each of the proceedings independent of the relief granted in a previous proceeding. Therefore it is contended by the counsel for the respondent husband that the impugned order of the Trial Court does not warrant interference as it would be inequitable to direct the respondent husband to pay maintenance to the petitioner wife in addition to the maintenance already granted vide the order dated 28th March 2018. At the outset a reference may be made to the relevant provisions of the DV Act which are set out as under: ―2. Definitions. In this Act unless the context otherwise requires a) ―aggrieved person‖ means any woman who is or has been in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent g) ―domestic violence‖ has the same meaning as assigned to it in section 3 k) ―monetary relief‖ means the compensation which the Magistrate may order the respondent to pay to the aggrieved person at any stage during the hearing of an application seeking any relief under this Act to meet the expenses incurred and the losses suffered by the aggrieved person as a result of the domestic violence q) ―respondent‖ means any adult male person who is or has been in a domestic relationship with the aggrieved person and CM(M) 213 2021 Digitally SignedBy:MAMTA ARYASigning Date:29.10.202113:22:23Signature Not Verified against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner 3. Definition of domestic violence. — For the purposes of this Act any act omission or commission or conduct of the respondent shall constitute domestic violence in case it — a) harms or injures or endangers the health safety life limb or well being whether mental or physical of the aggrieved person or tends to do so and includes causing physical abuse sexual abuse verbal and emotional abuse and economic abuse Explanation I.—For the purposes of this section — iv) ―economic abuse‖ includes— a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including but not limited to house hold necessities for the aggrieved person and her children if any stridhan property jointly or separately owned by the aggrieved person payment of rental related to the shared house hold and maintenance b) disposal of household effects any alienation of assets whether movable or immovable valuables shares securities bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any CM(M) 213 2021 Digitally SignedBy:MAMTA ARYASigning Date:29.10.202113:22:23Signature Not Verified other property jointly or separately held by the aggrieved person and c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household. Explanation II.—For the purpose of determining whether any act omission commission or conduct of the respondent constitutes ―domestic violence‖ under this section the overall facts and circumstances of the case shall be taken into consideration.‖ From a reading of the above provisions the position which emerges is as follows: The petitioner wife is covered under the definition of ‘aggrieved person’ under Section 2(a) of the DV Act whereas the respondent husband would be covered under the definition of ‘respondent’ under Section 2(q) of the DV Act. ii) The definition of domestic violence under Section 3 of the DV Act includes ‘economic abuse’ which includes deprivation of economic or financial resources to which the aggrieved personis entitled under any law whether payable under an order of the Court or which the aggrieved person requires out of necessity. Necessity would include household necessities as well as stridhan property etc. In terms of Section 26 the relief available under Sections 18 to 22 of the DV Act can also be sought in any legal proceedings before inter alia a civil court by the aggrieved person. It is further provided in Section 26(2) of the DV Act that the relief under Section 26 of the DV CM(M) 213 2021 Digitally SignedBy:MAMTA ARYASigning Date:29.10.202113:22:23Signature Not Verified Act can be in addition to and along with any other relief that the aggrieved person may have sought in other legal proceedings whether civil or criminal. However as per Section 26(3) of the DV Act in the event that a relief has been obtained by the aggrieved person in any proceedings other than those under the DV Act the aggrieved person shall be bound to inform the same to the court. iv) Section 20 of the DV Act empowers the Magistrate to direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person as a result of the domestic violence including economic abuse. The monetary reliefs would inter alia include maintenance for the aggrieved person which could be in addition to an order of maintenance passed under any other law for the time being in force. v) Under Section 23 of the DV Act the Magistrate is entitled to pass interim orders which would imply that monetary relief may be granted on an interim basis. vi) On a conjoint reading of Sections 20 and 23 with Section 26 of the DV Act it can be concluded that monetary relief including maintenance for the aggrieved person to meet the expenses incurred as a result of the domestic violence including economic abuse may be granted on an interim basis in any legal proceedings before inter alia a civil court. In the light of the aforesaid provisions of the DV Act the petitioner wife would be entitled to invoke the provisions of Section 26 read with CM(M) 213 2021 Digitally SignedBy:MAMTA ARYASigning Date:29.10.202113:22:23Signature Not Verified Section 20 of the DV Act to seek monetary relief including maintenance which would be in addition to the maintenance granted to her vide the order dated 28th March 2018. Admittedly the petitioner wife had disclosed in her application under Section 26 of the DV Act the factum of the maintenance which had already been awarded in her favour vide the order dated 28th March 2018. Since both parties have placed reliance on the judgment of Rajnesh supra) it is deemed relevant to analyse the observations of the Supreme Court in the said case. The Supreme Court in Rajnesh while approving the judgments of the High Court of Bombay in Vishal Vs. Aparna 2018 SCC OnLine Bom 1207 and the High Court of Delhi in R.D. Vs. B.D. 2019 SCC OnLine Del 9526 has observed in light of the question of overlapping jurisdictions for grant of maintenance that Section 20(1)(d) of the DV Act makes it clear that the maintenance granted under the DV Act would be in addition to an order of maintenance under Section 125 of the Code of Criminal Procedure 1973 and any other law for the time being in force. It was observed by the Supreme Court that the legislative mandate envisages grant of maintenance to wife under various statutes. There is no bar to seek maintenance both under the DV Act and Section 125 of the Cr.PC or the Hindu Marriage Act 1955 or the Hindu Adoption and Maintenance Act 1956. The only obligation imposed on the wife would be to disclose the earlier maintenance being granted to her in the previously instituted proceedings so that the quantum of maintenance in the subsequent proceedings could be fixed taking into account the maintenance already CM(M) 213 2021 Digitally SignedBy:MAMTA ARYASigning Date:29.10.202113:22:23Signature Not Verified awarded in favour of the wife in any previously instituted proceedings. The directions passed by the Supreme Court are set out below: ―61. To overcome the issue of overlapping jurisdiction and avoid conflicting orders being passed in different proceedings we direct that in a subsequent maintenance proceeding the applicant shall disclose the previous maintenance proceeding and the orders passed therein so that the court would take into consideration the maintenance already awarded in the previous proceeding and grant an adjustment or set off of the said amount. If the order passed in the previous proceeding requires any modification or variation the party would be required to move the court concerned in the previous proceeding. 128.1.Where successive claims for maintenance are made by a party under different statutes the court would consider an adjustment or set off of the amount awarded in the previous proceeding(s) while determining whether any further amount is to be awarded in the subsequent proceeding. 128.2.It is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein in the subsequent proceeding. 128.3.If the order passed in the previous proceeding(s) requires any modification or variation it would be required to be done in the same proceeding.‖ In light of the above the impugned order by the Trial Court is clearly erroneous inasmuch as it dismisses the application filed by the petitioner wife under Section 26 of the DV Act only on the basis that it has been filed towards execution of the maintenance already granted to the petitioner wife vide the order dated 28th March 2018. The Trial Court has failed to appreciate that the aforesaid application was an independent remedy invoked by the petitioner wife under the provisions of the DV Act. The CM(M) 213 2021 Digitally SignedBy:MAMTA ARYASigning Date:29.10.202113:22:23Signature Not Verified petitioner wife is also not seeking any modification or variation of the order dated 28th March 2018 by way of the application under Section 26 of the DV Act. Furthermore no inquiry has been made by the Trial Court with regard to the merits of the said application in terms of the provisions of the DV Act. 11. Accordingly the impugned order is set aside. In light of the observations made hereinabove the matter is remanded back to the Trial Court to decide the application filed by the petitioner wife under Section 26 of the DV Act on merits. Needless to state that the amount of compensation already awarded to the petitioner wife vide judgment dated 28th March 2018 would be taken into account by the Trial Court while granting relief under Section 26 read with Section 20 of the DV Act in light of the provisions of the DV Act and the directions of the Supreme Court in Rajnesh213 2021 Digitally SignedBy:MAMTA ARYASigning Date:29.10.202113:22:23Signature Not Verified

For using out-of-court dispute settlement methods, parties are entitled to a refund of the court fees: High Court of Delhi

Section 89 CPC and Section 69-A of the 1955 Act be interpreted liberally to include all methods of out-of-court dispute settlement between parties that the Court subsequently finds to have been legally arrived at. The purpose of Section 69-A is to reward parties who have chosen to withdraw their litigations in favour of more conciliatory dispute settlement mechanisms, thus saving the time and resources of the Court, by enabling them to claim refund of the court fees deposited by them. It is an economic incentive for pushing them towards exploring alternative methods of dispute settlement and the same was upheld by High Court of Delhi through the learned bench led by Justice Suresh Kumar Kait in the case of SUN PHARMACEUTICAL INDUSTRIES LTD. vs. OLCARE LABORATORIES PVT LTD. [CS(COMM) 639/2021] on 22.02.2022. The facts of the case are that the plaintiff seeks a permanent injunction restraining infringement of copyright, trade mark, passing off, unfair competition, and delivery up, damages and/or rending of accounts of profits, etc. against the defendant. For the said dispute, the parties have arrived at an amicable settlement out of court. The present application has been jointly filed by plaintiff and defendant praying for issuance of decree of the present suit and for refund of entire Court fees. The plaintiff’s counsel submitted that in terms of settlement, the present suit be decreed against defendant and parties have agreed to be bound by the terms of settlement that has been reached between them. Further, it was submitted that since the subject matter of the suit stands amicably resolved, therefore, the entire court fees should be refunded. In the view of facts and circumstances, the Court held that the settlement reached between the parties is valid and lawful, therefore, the plaintiff is entitled to refund of entire court fees. Registry was directed to issue necessary authorization in favour of the plaintiff to seek refund before the appropriate authorities and accordingly the present suit stood decreed. The Court observed that “Section 89 CPC and Section 69-A of the 1955 Act be interpreted liberally to include all methods of out-of-court dispute settlement between parties that the Court subsequently finds to have been legally arrived at. The purpose of Section 69-A is to reward parties who have chosen to withdraw their litigations in favour of more conciliatory dispute settlement mechanisms, thus saving the time and resources of the Court, by enabling them to claim refund of the court fees deposited by them. It is an economic incentive for pushing them towards exploring alternative methods of dispute settlement.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 22.02.2022 CS(COMM) 639 2021 SUN PHARMACEUTICAL INDUSTRIES LTD Plaintiff Through Mr. Sachin Gupta Ms. Jasleen Kaur and Ms. Swati Meena Advs. OLCARE LABORATORIES PVT LTD ..... Defendant Through Mr. Amar Dave Mr. Prakash Gogia Ms. Jaikriti S. Jadeja and Ms. Prapti Allagh Advs. HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENTI.A. 2939 2022The present application has been jointly filed by plaintiff and defendant praying for issuance of decree in terms of prayer clause 28(b) of the present suit and for refund of entire Court fees. In the present suit filed by the plaintiff seeking permanent injunction restraining infringement of copyright trade mark passing off unfair competition delivery up damages and or rending of accounts of profits etc. CS(COMM) 639 2021 against the defendant parties have arrived at an amicable settlement out of court in terms enumerated in Paragraph 2 of the present application. Learned counsel for the plaintiff submits that in terms of settlement the present suit be decreed against defendant. Upon hearing learned counsel for the parties and upon perusal of the application and in specific contents of Para 2 thereof this Court finds that the settlement reached between the parties is valid and lawful. Accordingly the present application filed by the plaintiff and Needless to say parties shall be bound by the terms of settlement defendant is allowed. reached between them. CS(COMM) 639 2021 The application stands disposed of accordingly. In view of order passed in IA No. 2939 2022the present suit is decreed qua defendant in terms of Paragraph No.2 thereof which shall form part of decree sheet. Decree sheet be accordingly drawn. Learned counsel also submits that since the subject matter of the suit stands amicably resolved therefore the entire court fees be refunded. CS(COMM) 639 2021 Reliance is placed upon decision of Hon ble Supreme Court in The HC of Judicature at Madras Rep. by its Registrar General v. MC. Subramaniam Ors. 3 SCC 560. 10. The relevant observations of the Hon’ble Supreme Court in The HC of Judicature at Madras Rep. by its Registrar General are as under: “23. We find ourselves in agreement with the approach taken by the High Courts in the decisions stated supra. The purpose of Section 69 A is to reward parties who have chosen to withdraw their litigations in favour of more conciliatory dispute settlement mechanisms thus saving the time and resources of the Court by enabling them to claim refund of the court fees deposited by them. Such refund of court fee though it may not be connected to the substance of the dispute between the parties is certainly an ancillary economic incentive for pushing them towards exploring alternative methods of dispute settlement. As the Karnataka High Court has rightly observed in Kamalamma the parties who have agreed to settle their disputes without requiring judicial intervention under Section 89 CPC are even more deserving of this benefit. This is because by choosing to resolve their claims themselves they have saved the State of the logistical hassle of arranging for a third party institution to settle the dispute. Though arbitration and mediation are certainly salutary dispute resolution mechanisms we also find that the importance of private amicable negotiation between the parties cannot be understated. In our view there is no justifiable reason why Section 69 A should only incentivise the methods of out of court settlement stated in CS(COMM) 639 2021 Section 89 CPC and afford step brotherly treatment to other methods availed of by the parties. 24. Admittedly there may be situations wherein the parties have after the course of a long drawn trial or multiple frivolous litigations approached the Court seeking refund of court fees in the guise of having settled their disputes. In such cases the Court may having regard to the previous conduct of the parties and the principles of equity refuse to grant relief under the relevant rules pertaining to court fees. However we do not find the present case as being of such 25. Thus even though a strict construction of the terms of Section 89 CPC and Section 69 A of the 1955 Act may not encompass such private negotiations and settlements between the parties we emphasise that the participants in such settlements will be entitled to the same benefits as those who have been referred to explore alternate dispute settlement methods under Section 89 CPC. Indeed we find it puzzling that the petitioner should be so vehemently opposed to granting such benefit. Though the Registry State Government will be losing a one time court fee in the short term they will be saved the expense and opportunity cost of managing an endless cycle of litigation in the long term. It is therefore in their own interest to allow Respondent 1 s 26. Thus in our view the High Court was correct in holding that Section 89 CPC and Section 69 A of the 1955 Act be interpreted liberally. In view of this broad purposive construction we affirm the High Court s conclusion and hold that Section 89 CPC shall cover and the benefit of Section 69 A of the 1955 Act shall also extend to all methods of out of court dispute settlement between parties that the Court subsequently finds to have been legally arrived at. This would thus cover the present controversy wherein a CS(COMM) 639 2021 private settlement was arrived at and a memo to withdraw the appeal was filed before the High Court. In such a case as well the appellant i.e. Respondent 1 herein would be entitled to refund of court fee.” 11. Concurring with afore noted decision of Hon’ble Supreme Court in The HC of Judicature at Madras Rep. by its Registrar General the plaintiff is entitled to refund of entire court fees. Registry is directed to issue necessary certificate authorization in favour of the plaintiff to seek refund before the appropriate authorities. 12. With aforesaid directions the present suit stand decreed accordingly. Pending application if any is disposed of as infructuous. 13. The dates already fixed i.e. 02.03.2022 and 21.03.2022 stand FEBRUARY 22 2022 rk SURESH KUMAR KAIT J CS(COMM) 639 2021

Power under Section 319 Cr.P.C. to be exercised sparingly : Supreme Court

The test to check whether power under Section 319 Cr.P.C. is applicable is that if the evidence had gone unrebutted, it would lead to conviction. The Supreme Court bench consisting of J. Ashok Bhushan, J. R. Subhash Reddy and  J. M.R. Shah set aside a High Court order in the matter of Ajay Kumar @ Bittu & Anr. v. State of Uttarakhand & Anr. [Criminal Appeal No. 88 of 2021]. The appellant was accused of rioting with weapons, unlawful assembly, attempt to murder, cause hurt and trespass along with six others. The Police after carrying out the investigation submitted a chargesheet exonerating the appellants. The Trial began in which an informant implicated all accused including the appellants without assigning any specific role to them. An application was filed before the court for summoning of the appellants which was rejected, and hence, the informant filed a Criminal Revision before the High Court. The court allowed the revision and directed the application to be considered. The Session Judge allowed the application and issued a bailable and later a non-bailable warrant along with a notice under Section 446 Cr.P.C. as to why the amount of sureties were not realized when the appellants did not appear. The appellants filed criminal revision before the High Court and later in the Supreme Court.

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.88 OF 2021 arising out of SLP6 SCC 368 allowed the Revision and directed the application under Section 319 Cr.P.C. to be considered afresh. Following is the operative portion of the order passed by the High Court in paragraph 7 “7. After having considered the aforesaid ratio and also the reasons which have been assigned by the Additional Sessions Judge Laksar Haridwar this Court is of the view that the revision deserves to be allowed and the same is consequently allowed. The order dated 21.06.2018 passed by the learned Additional Sessions Judge Laksar District Haridwar in Sessions Trial No.2216 State v. Chandra Pal and others is quashed. The matter is remitted back to the Additional Sessions Judge Laksar District Haridwar to reconsider the application paper No.53in the light of ratio as propounded by the Hon’ble Apex Courts Judgment in Rajesh’ case iv. After the Order of the High Court dated 11.07.2019 in the Criminal Revision Learned Session Judge again considered the application under Section 319 Cr.P.C. Learned Session Judge referring to the observations made by the High Court in paragraph 5 as well as the judgment of this Court in Rajesh and others versus State of Haryana(Supra) allowed the application and summoned the appellants by Order dated 17.08.2019. The Trial Court issued a bailable warrant against the appellants on 05.09.2019 and after bailable warrant being served when they did not appear on 18.09.2019 Non Bailable warrant was issued to the appellants and a Notice under Section 446 Cr.P.C. was issued as to why the amount of sureties being not realised from two sureties Arun Kumar and Chandra Pal. The appellants filed Criminal Revision before the High Court against the order dated 17.08.2019 of the Additional Session Judge summoning them. v. The High Court dismissed the Revision noticing a subsequent order dated 18.09.2019 by which notice has been issued under Section 446 Cr.P.C. The High Court took the view that the Revision was filed on 23.09.2019 but the order passed by the Court on 18.09.2019 has not been brought on record hence there is concealment of not placing the order on record. The High Court further observed that since the proceeding in pursuance to allowing the application under Section 319 Cr.P.C. has already been initiated in which the revisionists have already invoked the jurisdiction of the Revisional Court in which order dated 18.09.2019 has been passed the Revision is to be dismissed. Aggrieved by the order of the High Court dated 27.09.2019 this appeal has been filed 4. We have heard the learned counsel for the parties and have perused The principles for exercise of power under Section 319 Cr.P.C. by Criminal Court are well settled. The Constitution Bench of this Court in Hardeep Singh versus State of Punjab and others 3 SCC 92 has elaborately considered all contours of Section 319 Cr.P.C. This Court has held that Power under Section 319 Cr.P.C. is a discretionary and extra ordinary power which has to be exercised sparingly. This Court further held that the test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge but short of satisfaction to an extent that the evidence if goes unrebutted would lead to conviction. In paragraph 105 and 106 following has been laid down: “105. Power under Section 319 CrPC 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 106. Thus we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of cross examination it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge but short of satisfaction to an extent that the evidence if goes un rebutted would lead to conviction. In the absence of such satisfaction the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if “it appears from the evidence that any person not being the accused has committed any offence” is clear from the words “for which such person could be tried together with the accused.” The words used are not “for which such person could be convicted”. There is therefore no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused.” The Two Judge Bench of this Court again reiterated the same ratio in Rajesh and others versus State of Haryana which judgment has also been relied by the High Court in the impugned judgment Now we may notice the reason which persuaded the High Court to reject the Revision. After noticing the facts of the case the High Court proceeded to consider the revision and recorded its reason for dismissing it in following words: “Although a reference has been made in paragraph 10 of the application filed in support of the revision to the effect that the proceedings was taken by the present revisionists before the Sessions Court and an order of 18.09.2019 has been passed whereby the notices have been issued to the present revisionists under Section 446 This order passed by the Court below is that of 18.09.2019. the copy of the said order was received by the revisionists on 21.09.2019 as would be apparent from the folio annexed with the certified copy of the order dated 18.09.2019 as supplied by the learned counsel for the revisionist during the course of arguments to this Court though it is not part of the Criminal Revision. The revision itself was filed on 23.09.2019. The said order passed by the Court under Section 446 has not been brought on record. Hence this Court is of the view that apart from the fact that there is a concealment by not placing the order on record which otherwise has been procured by the revisionist prior to the filing of the revision and furthermore since the proceedings in pursuance to allowing the application under Section 319 CrPC has already been initiated in which the revisionist has already invoked the jurisdiction of the Revisional court in which the order dated 18.09.2019 has been passed. In view of the already ongoing proceedings before the Sessions Court prior to the filing of the present revision this court is of the view that no simultaneous challenge to the impugned order dated 17.08.2019 summoning the revisionists under Section 319 of CrPC would be tenable before this Court till the order dated 18.09.2019 passed in the proceedings at the behest of the present revisionist subsist. Consequently this revision lacks merit and the same is dismissed as it is not sustainable before this A perusal of the judgment of the High Court indicates that the High Court did not examine the correctness of the order dated 17.08.2019 by which the appellants were summoned by Additional District Judge under Section 319 Cr.P.C. rather has dismissed the Criminal Revision on basis of a subsequent fact i.e. order dated 18.09.2019 by which notice has been issued under Section 446 Cr.P.C. The High Court further took the view that since the proceedings in pursuance of Section 319 Cr.P.C. have already been initiated and that no simultaneous challenge to the impugned order dated 17.08.2019 summoning the revisionists under Section 319 Cr.P.C would be tenable before the High Court till the order dated 18.09.2019 passed in proceedings at the behest of revisionist subsist. We may now notice the nature of the proceedings subsequent to the order dated 17.08.2019 by which the appellants were summoned. The appellant has brought on record the order sheet of the Court along with the application for additional documents. The order sheet indicates that although the summons was served on the appellants but they have not appeared hence bailable warrant of Rs.10 000 was issued against the appellants. Order dated 05.09.2019 is to the following effect: Sd illegible Kashim Ansari Record is produced. Accused Sandeep appearance dispensed through his Allowed Remaining accused Arun Chandrapal Jitender and Gautam are present Summon is duly served on accused Jyoti and Bittu. Accused Jyoti and Bittu are absent. The bailable warrant of Rs.10 000 be issue against Jyoti and Bittu for 18.09.2019 Sd illegible Additional Session Judge Laksar 10. Subsequently on 18.09.2019 the case was again taken by the Additional District Judge and following order was passed: Sd illegible file Accused is produced The Chandrapal Gautam Jitender and Sandeep are present The Bailable warrants issued against accused Jyoti and Bittu are returned after being served. Accused Jyoti and Bittu are absent even after service of Bailable warrants. Therefore non bailable warrants are issued against Jyoti and Bittu to ensure their presence Accused Jyoti and Bittu are not being produced before the Court inspite of sureties given by the guarantors. The surety of accused Bittu is Accused Arun Kumar and the surety of accused Jyoti is her father accused Chandrapal and the another surety is accused Arun. Both of them are present in the Court Therefore the Bail bonds executed by them are forfeited for not producing Accused Bittu and Jyoti before the Court. Therefore notice under section 446 CrPC is being issued with the intent that why the amount if surety be not realized from them. The case be produced for appearance of accused Jyoti and Bittu and for the explanation by the guarantors on Sd illegible Additional Session Judge Laksar The proceedings which were taken on 05.09.2019 and 18.09.2019 are proceedings consequent to and subsequent to the order dated 17.08.2019. The subsequent proceeding in no manner can be a ground to not consider the correctness and validity of order dated 17.08.2019. We are of the considered opinion that the High Court completely erred in refusing to consider the correctness of the order dated 17.08.2019 on the ground that on 18.09.2019 notice under Section 446 Cr.P.C. has been issued. As and when it is found that order dated 17.08.2019 could not have been passed in exercise of jurisdiction under Section 319 Cr.P.C. all subsequent proceedings thereto shall automatically come to an end. The view of the High Court which is recorded in following words: “…this court is of the view that no simultaneous challenge to the impugned order dated 17.08.2019 summoning the revisionists under Section 319 of Cr.P.C. would be tenable before this Court till the order dated 18.09.2019 passed in the proceedings at the behest of present revisionist cannot be said to be correct view The order dated 18.09.2019 by which the Court has directed appearance of the accused appellant is to be taken to its logical end but that order cannot provide a shield of protection to earlier order dated 17.08.2019 by which appellant has been summoned. The subsequent proceedings of the court which have been brought on record indicate that the appellant no.2 and 1 have appeared before the Court and have also been granted bail. 15. One of the grounds taken in this appeal is that appellant No.1 is Juvenile at the date of incident his Date of Birth being 01.04.2000. The above ground also needs to be considered by the High Court 16. We thus are of the view that the impugned judgment of the High Court dated 27.09.2019 is unsustainable and deserves to be set aside. We order accordingly. The Criminal Revision of the appellants be considered afresh by the High Court in accordance with the law. The appeal is ASHOK BHUSHAN ) ( R. SUBHASH REDDY ( M.R. SHAH New Delhi January 29 2021

Accused been denied a fair trial, matter to be remanded back to Trial judge for de nove trial: Orrisa High Court

The appellant had no valid, proper and effective legal representation in the case which is violation of the principles enshrined under Articles 39-A and 21 of the Constitution. This was said in the case of Habil Sindhu v State of Odisha [Jail Criminal Appeal No. 132 of 2005] by Justice Shri S.K. Mishra And Justice Miss Savitri Ratho in Orissa High Court At Cuttack. The facts of the case date back to 30.06.2005, when the trial Judge convicted the appellant and sentenced him to undergo R.I. for life for the offence under Section 302/201 of the Penal Code. Assailing his conviction under Section 302/201 of the Indian Penal Code, the appellant filed an appeal. The Amicus Curiae has assailed the impugned judgment on various grounds pertaining to appreciation of evidence. It was contended that the appellant was not provided with effective free legal services by the State Defence Counsel (SDC). Secondly, it was contended that the trial Judge engaged a SDC to defend him, but such counsel was engaged without assessing his ability to defend the accused, who was charged with murder of three persons. Moreover, it was also contended that the counsel was engaged on the date of trial when the private defence counsel appearing for the appellant did not appear. On date of trial, no witnesses were examined on behalf of the prosecution, on the next two dates, majority of the material witnesses were examined. Firstly, the Court observed that learned trial Judge has not recorded whether the SDC engaged by him was among the counsels short listed by the District Judges’ office to be appointed as SDC. Secondly, there is no observation by the learned trial Judge that the SDC engaged by the court to defend the appellant was in fact competent in the assessment of the learned trial Judge to defend the appellant in a complex case of a triple murder. It was also brought to notice that the SDC has not been given adequate opportunity to prepare the case. Thirdly, it can be well deciphered from the case record that the prosecution witnesses were examined in chief and then cross-examined by the defence on 17th, 18th and 19th August of 2004 and they were examined in trial of an accused charged committing murder of three persons by a SDC, who is engaged just one day prior to the examination i.e. on 16.08.2004. To this, the Court conceived that “the appellant had no valid, proper and effective legal representation in the case”.

ORISSA HIGH COURT CUTTACK Jail Criminal Appeal No. 1305 From the judgment of conviction and order of sentence passed on 30.06.2005 by Sri J.K. Dash Addl. Sessions Judge Baripada convicting the appellant Habil Sindhu under Section 302 201 of the IPC and sentencing him to undergo R.I. for life in S.T. Case No.40 1603 Habil Sindhu Appellant State of Odisha Respondent For Appellant Mr. Himansu Bhusan Das For Respondent Mr. M.S. Sahoo P R E S E N T : SHRI S.K.MISHRA MISS SAVITRI RATHO Date of Hearing : 03.03.2021 : Date of Judgment : 13.04.2021 S.K.Mishra J. In this appeal the sole appellant Habil Sindhu had assailed his conviction under Section 302 201 of the Indian Penal Code 1860 hereinafter referred to as ‘Penal Code’ for brevity by the learned Addl. Sessions Judge Baripada in S.T. Case No.40 163 of 2003. As per the judgment dated 30.06.2005 the learned trial Judge convicted the appellant for the aforesaid offence and sentenced him to undergo R.I. for life for the offence under Section 302 of the Penal Code. No separate sentence has been passed for the offence under Section 201 of the Penal Code. The learned Amicus Curiae has assailed the impugned judgment on various grounds pertaining to appreciation of evidence. However we are inclined to take into consideration the last submission made by the learned Amicus Curiae relying upon the reported case of Anokhilal v. State of Madhya Pradesh 20 SCC 196. He would submit that in this case the appellant was not provided with effective free legal services by the State Defence Counsel4 SCC 158 : (2012) 9 SCC 408) emphasises that the object of criminal trial is to search for the truth and the trial is not about over technicalities and must be conducted in such manner as will protect the innocent and punish the guilty. insertion of Article 39 A 20.3. Even before Constitution the decision of this Court in Bashira v. State of U.P. 1 SCR 32 put the matter beyond any doubt and held that the time granted to the Amicus Curiae in that matter to prepare for the defense was completely insufficient and that the award of sentence of death resulted in deprivation of the life of the accused and was in breach of the procedure established by law. 20.4. The portion quoted in Bashira v. State of U.P. supra) from the judgment of the Andhra Pradesh High Court authored by Subba Rao J. the then Chief Justice of the High Court stated with clarity that mere formal compliance of the rule under which sufficient time had to be given to the counsel to prepare for the defence would not carry out the object underlying the rule. It was further stated that the opportunity must be real where the counsel is given sufficient and adequate time to prepare. 20.5 In Bashira v. State of U.P. as well as in Ambadas Laxman Shinde v. State of Maharashtra 18 SCC 788 making substantial progress in the matter on the very day after a counsel was engaged as Amicus Curiae was not accepted by this Court as compliance with ‘sufficient opportunity’ to the counsel.” After conclusion of the hearing in the reported case the Hon’ble Supreme Court has given the following directions: “ 31.1. In all cases where there is a possibility of life sentence or death sentence learned Advocates who have put in minimum of 10 years’ practice at the Bar alone be considered to be appointed as Amicus Curiae or through legal services to represent an accused. 31.2. In all matters dealt with by the High Court concerning confirmation of death sentence Senior Advocates of the Court must first be considered to be appointed as Amicus Curiae. 31.3. Whenever any learned counsel is appointed as Amicus Curiae some reasonable time may be provided to enable the counsel to prepare the matter. There cannot be any hard and fast rule in that behalf. However a minimum of seven days’ time may normally be considered to be appropriate and 31.4. Any learned counsel who is appointed as Amicus Curiae on behalf of the accused must normally be granted to have meetings and discussion with the accused concerned. Such interactions may prove to be helpful as was noticed in Imtiyaz Ramzan Khan v. State of Maharashtra 9 SCC 160.” Applying the aforesaid principles to the case at hand we find from the record that originally the appellant had engaged his own counsel. Finally on 06.07.2004 in the presence of his counsel charges were framed under Sections 302 201 of the Penal Code by the learned trial Judge and summons were issued to the witnesses. On 16.08.2004 the accused was produced in custody. The Advocates on behalf of the accused did not appear on that date. The accused was asked to engage a private counsel but he failed to engage any counsel during course of the day. Hence Shri P.D. Sahu an Advocate was appointed as the SDC on behalf of the accused who accepted the assignment and filed hazira to that effect. On that day no witness was present. The case was ordered to be 5 posted to 17.08.2004 for trial and the accused was remanded to custody. On 17.08.2004 the accused was produced and the SDC took part in the trial. Four witnesses were examined on that day. On 18.08.2004 two more witnesses were examined. On 19.08.2004 Dr. Pradeep Kumar Misra who conducted post mortem examination on the dead bodies of the deceased was examined and the case was adjourned to 14.09.2004. On 14.09.2004 P.W.8 Ram Narayan Acharya was examined cross examined and discharged and the case was adjourned to 15.09.2004 for trial. On that date no witnesses were present. On 16.11.2004 rest of the witnesses were examined. On 13.12.2004 two more witnesses were examined. The Investigating Officer was examined on 17.01.2005. Then the case was adjourned for examination of other witnesses and it suffers several adjournments. On 19.04.2005 finally the IO was examined. The prosecution case was closed. Then it was posted to 21.04.2005 and 22.06.2005 for recording of defence evidence. On that dates arguments were heard. The case was posted to 23.06.2005 for further arguments. Further arguments were heard on 23.06.2005 and the case was posted to 28.06.2005 for judgment. On 28.06.2005 as per the direction of the learned trial Judge district police through escort produced the appellant before the court judgment was not pronounced as it was not ready and the case was adjourned to 30.06.2005. On that day judgment of conviction was pronounced and later on sentence was awarded. The aforesaid facts set in a chronological order show that the appellant was not given proper legal assistance as enshrined under Article 39 A of the Constitution in the true sense. On a date when a case was posted for hearing in the absence of the counsel the appellant was directed to be defended by a SDC. Firstly the learned trial Judge has not recorded whether the SDC engaged by him was among the counsels short listed by the District Judges’ office to be appointed as SDC. Secondly there is no observation by the learned trial Judge that the SDC engaged by the court to defend the appellant was in fact competent in the assessment of the learned trial Judge to defend the appellant in a complex case of a triple murder. Moreover the SDC has not been given adequate opportunity to prepare the case. It can be well deciphered from the case record that P.W.1 Trimurty Sundhi P.W.2 Budhia Boipai P.W.3 Gourahari Mohanta P.W.4 Budhurai Baipai P.W.5 Dr. Sudhir Chandra Malik P.W.6 Sankarsana Sethi P.W.7 Dr. Pradip Kumar Mishra P.W.8 Dr. Ram Narayan Acharya and P.W.9 Barana Sundhi were examined in chief and then cross examined by the defence on 17th 18th and 19th August of 2004. They were examined in trial of an accused charged committing murder of three persons by a SDC who is engaged just one day prior to the examination i.e. on 16.08.2004. So in our considered opinion the appellant had no valid proper and effective legal representation in the case. The learned trial Judge should have granted at least seven days time to the learned counsel appearing for the appellant to prepare the case. We are therefore of the opinion that this is a case where the accused has been denied a fair trial and it is violative of Article 39 A as well as Article 21 of the Constitution. Mr. M.S. Sahoo learned Addl. Government Advocate would strenuously argue that even if there is a violation of the principles enshrined under Articles 39 A and 21 of the Constitution the appellant cannot be acquitted of the offence as he has committed gruesome murders by severing the head of three persons from the rest of their bodies as he suspected that they were practicing witchcraft. He would argue that the malady of witch hunting is a big problem in the tribals dominated district of Mayurbhanj and therefore the appellant cannot be allowed to go scot free. The learned counsel for the appellant submits that the appellant is in custody since the date of his arrest i.e. 03.01.2003 and in the meantime more than 18 years has elapsed and therefore he should be set at liberty. It is true that there is a delay in disposal of the appeal. However the delay in disposal of the appeal cannot be attributed only to the judiciary. There are certain factors which are beyond the control to the judiciary for which the delayed disposal has occasioned. Keeping in view the entire facts of the case and taking a holistic view of the matter at hand we are of the opinion that the case should be remanded back to the learned trial Judge for de nove trial. It is further brought to our notice that in the meantime the FTC has been abolished and at present no judge is posted as Addl. Sessions JudgeBaripada. Be that as it may we remand the case to the court of learned Sessions Judge Mayurbhanj Baripada with a direction to dispose of the case as early as possible preferably within a period of three months from the date of receipt of copy of this judgment. While disposing of the session trial the learned Sessions Judge shall keep in mind the following observations: 7.1. In a case where the privately engaged counsel does not appear on a date of hearing or trial then effort should be made by the learned Sessions Judge to draw attention of the counsels appearing to the various provisions of the Bar Council Rules and Advocates Act and they should be politely remained of their duties towards the client the court and the society. In this connection our judgment in Sapua Das and others v. State of Orissa Criminal Misc. Case No.403 of 2018 decided on 20.04.2018 is relevant. 7.2. While preparing list of a State Defence Counsel or Amicus Curiae care must be taken by the learned District and Sessions Judge to include the names of those counsels who have at least ten years of practice. In all such cases the learned District Judge with inputs of Chief Judicial Magistrate as well as the Registrar of the Civil Court and inputs of the Public Prosecutor President of the local Barshould form an opinion about the ability of the counsel to provide meaningful assistance to the accused. Only when the District Judge is satisfied either on his own information or information received by him then only a counsel should be included in the penal of State Defence Counsel for the purpose of defending persons who do not have enough means to engage their own private counsel. 7.3. If a situation arises where the privately engaged counsel do not come forward or their assistance cannot be obtained without considerable delay and expenses then the Presiding Judge of the court in seisin of the case may appoint a State Defence Counsel or Amicus Curiae. 7.4 While appointing a counsel to defend an accused the Presiding Judge of that Court in seisin of the trial should be satisfied about his ability to defend the accused. 7.5 In this connection the learned trial Judge may look into or take into consideration the list prepared by the District Court office. But it is not binding upon him. If he finds that as per his own judgment while deciding the case that the counsel mentioned in the Penal do not have the ability to defend and give meaningful assistance to the accused the learned trial Judge may appoint a counsel of his choice de hors the list that has been prepared. 7.6 In such cases of appointment beyond outside the State Defence Counsel list prepared by the District Court the payment of the dues should not be withheld by the Registrar or such other officer in charge of the finances and accounts of the District Court. 7.7. Such appointment from outside the list of the State Defence Counsel prepared by the District Office shall not be considered as a financial irregularity. We must hasten to add that the learned trial Judge should record a finding that the counsel named in the list in his opinion may not be able to render meaningful assistance to the accused. It shall be proper on the part of the learned Judge to record the reasons for his opinion. It is further observed that in order to expedite trial trial Judge should not procrastinate the trial as is seen in this case. In his anxiety to examine witnesses on that date though the trial commenced on the next date of appointment of State Defence Counsel the learned trial Judge went on to adjourn the case for several times thereafter as noted by us in the preceding With such observation we dispose of the appeal set aside the conviction and sentence of the appellant and remit the matter back to the learned Sessions Judge Mayurbhanj Baripada for de nove trial. We further direct that the learned Sessions Judge shall observe the directions given by us in the preceding paragraphs especially paragraphs 7.1 to 7.7 while conducting the trial. We hope and trust that the trial should be concluded within a period of three months from the date of receipt of copy of this judgment along with Trial Court Records. We further direct the Registry of this Court to forthwith communicate the copy of this judgment along with TCRs by Special Messenger so to ensure that the records 11 are delivered in the office of the learned Sessions Judge within a period of seven As the restrictions due to the COVID 19 situation are continuing the learned counsel for the parties may utilize a soft copy of this judgment available in the High Court’s website or print out thereof at par with certified copy in the manner prescribed vide Court’s Notice No.4587 dated 25th March 2020. S.K. Mishra J. Savitri Ratho J. Savitri Ratho J. I agree Orissa High Court Cuttack Dated the 13th April 2021 PCD

The terms and conditions did not contemplate a hearing before the issuance of the order of termination: High Court Of Sikkim

A writ court under Article 226 was required to examine whether the petitioner’s right conferred by part III of the Constitution of India or her statutory right was violated by any action of the Government, authority or person. Such an opinion was held by The Hon’ble High Court Of Sikkim before The Hon’ble Mr. Justice Bhaskar Raj Pradhan in the matter of Ms. Manju Chettri Vs. State of Sikkim and Ors [W.P. (C) No. 34 of 2021]. The facts of the case were associated with an application under 226 of the Constitution of India. The writ petition was listed to admit the issuance of notice. The petitioner was aggrieved by the order passed by the 3rd respondent. The said respondent discharged the petitioner from her contractual service. The petitioner prayed for a declaration and stated that her contract termination was illegal and violated the principles of natural justice. She also prayed for restoring her service with all benefits. The counsel, Mr. J. B. Pradhan representing the petitioner stated that there is an endorsement to the Executive Chairman of the 3rd respondent to consider her case on the special ground. The Hon’ble Court stated that the petitioner had failed to prove that how the termination of the contract was illegal, arbitrary and violated natural justice. It’s evident that contractual service is governed by the terms and conditions of the contract. Therefore, according to clause 2 of the letter of appointment, initially, the probation was for 6 months and can be extended upon her performance. It seemed that the petitioner signed all the terms and conditions but the T&Cs were not looked at thoroughly before order issuance.  Considering all the facts and submissions, The Hon’ble Court ruled out “… From what has been placed before this court, the act of the 3rd respondent is not violative of the rights conferred by part III of the Constitution of India or any other statutory rights. It is neither arbitrary nor illegal… In view of the above, this court is of the considered view that the writ petition is not maintainable. It is accordingly dismissed. However, the petitioner is free to make such representation to the 3rd respondent, if she so desires, to consider her case sympathetically.”

THE HIGH COURT OF SIKKIM: GANGTOK Civil Extra Ordinary Jurisdiction) SINGLE BENCH: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE W.P.No. 321 ….. Petitioner Ms. Manju Chettri W o Shri Bishal Chettri R o Lower Sichey P O Gangtok P.S. Sadar Thana Gangtok East Sikkim 737102. Represented by and through Chief Secretary Government of Sikkim Tashiling Gangtok. East Sikkim 737101. 1. State of Sikkim 2. Power Department 3. Teesta Urja Limited 4. Manager HR & A 5. Mr. Arvind Kumar Through the Managing Director Local Office Near Manan Kendra Pintsho Namgyal Building Development Area Gangtok East Sikkim 737101. Human Resource & Administration Teesta Urja Limited East Sikkim 737101. Executive Chairman and Nominee Director of Government of Sikkim Local Office Near Manan Kendra Represented by and through PCE cum Secretary Government of Sikkim Power Secretariat Kazi Road Gangtok East Sikkim 737101. W.P.No. 321 Manju Chettri vs. State of Sikkim and Ors. Pintsho Namgyal Building Development Area Gangtok East Sikkim 737101. ….. Respondents Application under Article 226 of the Constitution of Mr. J. B. Pradhan Senior Advocate with Mr. Bhusan Nepal and Mr. D.K. Siwakoti Advocates for the Mr. Sudesh Joshi Additional Advocate General for the State respondent nos. 1 & 2. Date of hearing : 21.10.2021. ORDERBhaskar Raj Pradhan J. This writ petition is listed for admission hearing before issuance of notice. The learned Additional Advocate General is present on advance notice. 2. Aggrieved by the order of termination dated 09.09.2020 passed by the 3rd respondent discharging her contractual service with immediate effect the petitioner has preferred the present writ petition under Article 226 of the Constitution of India. The petitioner has prayed for a declaration that the order of termination is illegal and arbitrary and in violation of principles of natural justice. She has also prayed for reinstatement in service with all consequential benefits. W.P.No. 321 Manju Chettri vs. State of Sikkim and Ors. 3. Mr. J. B. Pradhan learned Senior Advocate representing the petitioner took this court through the writ petition the order of termination the appointment order dated 15.07.2015 and the representation made to the Hon’ble Chief Minister by the petitioner dated 13.09.2020 in which there is an endorsement to the Executive Chairman of the 3rd respondent to consider her case on special ground. It is submitted that in spite of the endorsement when the 3rd respondent failed to consider the petitioner’s case she was compelled to approach this court. 4. This court has perused the writ petition and the documents attached therewith. Although the petitioner seeks a declaration that the order of termination is arbitrary and in violation of principles of natural justice she has failed to demonstrate how it is so. A perusal of the offer letter dated 16.06.2015 and the appointment order dated 15.07.2015 makes it evident the petitioner’s appointment was contractual. Contractual service governed by the terms and conditions of the contract. Clause 2 of the letter of appointment provides that the probation is to be for an initial period of 6 months from the date of joining which could however be extended depending upon her performance at the sole discretion of the W.P.No. 321 Manju Chettri vs. State of Sikkim and Ors. management. It was further provided that the petitioner would continue to be on probation until and unless the completion of probation is confirmed in writing by the Management. Admittedly there is no such confirmation in writing by the 3rd respondent. 5. Clause 9 provides for termination. The 3rd respondent has reserved their right to terminate the petitioner’s service by giving one month notice in writing or one month pay in lieu thereof. The order of termination sought to pay one month pay in lieu of the notice in terms of clause 9 of the appointment letter dated 15.07.2015. Clause 16 of the letter of appointment provided that in case the terms and conditions of the offer letter are acceptable to the petitioner the duplicate copy duly signed as a token of acceptance shall be returned to the 3rd respondent. The petitioner has signed on the duplicate copy of the offer letter dated 16.06.2015 as a token of acceptance of the offer which provided that the appointment letter with detailed terms and conditions would be issued subsequently on her joining. It is quite evident that the petitioner having served the 3rd respondent for a little more than 5 years had accepted the terms and conditions. The terms and conditions did not contemplate a hearing before issuance of the order of W.P.No. 321 Manju Chettri vs. State of Sikkim and Ors. termination. In the matter of this nature the scope is limited. A writ court under Article 226 is required to examine whether the petitioner’s right conferred by part III of the Constitution of India or her statutory right has been violated by any action of the Government authority or person. From what has been placed before this court the act of the 3rd respondent is not violative of the rights conferred by part III of the Constitution of India or any other statutory rights. It is neither arbitrary nor illegal. In view of the above this court is of the considered view that the writ petition is not maintainable. It is accordingly dismissed. However the petitioner is free to make such representation to the 3rd respondent if she so desires to consider her case sympathetically. Judge Bhaskar Raj Pradhan ) Approved for reporting:Yes No :Yes No Internet

The right to be informed about the quality, quantity, potency, purity, standard and price of goods so as to protect the consumer against unfair trade practices: High Court Of New Delhi

The Petitioners was that the District Consumer Dispute Redressal Forum, Janakpuri, Delhi has, till date, not disposed of their consumer complaint, which was filed way back in 2007, and the same issue was held in the judgement passed by a single bench judge JUSTICE PRATHIBA M. SINGH, in the matter MOHAN PRASAD (SINCE DECEASED) THROUGH: HIS LRS SH. YOGESH & ORS V. EMPLOYEES STATE INSURANCE CORPORATION & ANR. dealt with an issue mentioned above. The Petitioner-father had lost his son who was just 13 years of age and had filed a consumer complaint against the Employees State Insurance Corporation/Respondent No.1, In this case of the Petitioners, it was stated that there was medical negligence, which led to the demise of his young son. Mr Jha, ld. Counsel for the Petitioners submitted that there has been an enormous delay in the adjudication of this matter. Later Mr Abhik, ld. Counsel for the Respondents, also submitted that he has no objection if the direction is W.P.(C) 12490/2021 passed by this Court for expeditious disposal of this case, before the Consumer Forum. The parties submitted the matter before the Consumer Forum has proceeded as down below: And few more facts were mentioned by the parties. Meanwhile, nine years have been passed and the matter was not been finally heard. Besides addressing this Court on the delay in this specific case, ld. Counsels appearing for both parties have also raised various grievances about how the Consumer Forum is functioning. It was further submitted by ld. Counsels that on most occasions, proceedings are not held for the entire duration of the working hours. Accordingly, the proceedings of this case including the case history as downloaded from the website, shows that evidence had concluded way back in 2008, and arguments have not been heard for the last 13-14 years. Even the constitution of the Medical Board was directed after the conclusion of the evidence. Later both counsels had informed the Court that the vacancies in the Consumer Forum have now been filled and the requisite quorum is available for hearing the matter. Accordingly, considering the protracted delay in hearing this matter, it is directed that the case shall be listed before the said Consumer Forum on 22nd November 2021. The matter shall then be heard and final judgment shall be passed by 20th December 2021. Accordingly, the worthy Registrar General of this Court, shall obtain a report from the Registrar or Secretary, District Consumer Dispute Redressal Forum, Janakpuri, Delhi, containing the following details: The court perused the facts and argument’s presented, it thought that- “A proper breakup of these details, in the form of a chart, shall be placed before this Court by the next date of hearing. This matter shall be treated as a part-heard matter. With these observations, this petition and all pending applications are disposed of”. Click here for judgment

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 9th November 2021 W.P.(C) 12490 2021 & CM APPL. 39317 2021 MOHAN PRASADTHROUGH: HIS LRS SH. YOGESH & ORS. Through: Mr. F.K. Jha Advocate ..... Petitioners M: 9810055432). EMPLOYEES STATE INSURANCE CORPORATION ANR. JUSTICE PRATHIBA M. SINGH Through: Mr. Abhik Advocate. ..... Respondents Prathiba M. Singh J.This hearing has been done through video conferencing. The grievance of the Petitioners is that the District Consumer Dispute Redressal ForumJanakpuri Delhihas till date not disposed of their consumer complaint which was filed way back in 2007. The Petitioner father had lost his son who was just 13 years of age and had filed a consumer complaint against the Employees State Insurance Corporation Respondent No.1 and the Employees State Insurance Hospital Respondent No.2. The case of the Petitioners is that there was medical negligence which led to the demise of his young son. 3. Mr. Jha ld. Counsel for the Petitioners submits that there has been enormous delay in the adjudication of this matter. Mr. Abhik ld. Counsel for the Respondents also submits that he has no objection if direction is W.P.(C) 12490 2021 passed by this Court for expeditious disposal of this case before the Consumer Forum. The parties submit that the matter before the Consumer Forum has proceeded as under: i) Petitioner father filed Consumer Complaint No.892 2007 before the Consumer Forum on 17th October 2007. ii) Reply and rejoinder were filed by the Respondents and Petitioners respectively in February April 2008. iii) Evidence was concluded on 4th November 2008 and the matter was fixed for arguments. Accordingly various written submissions were filed by both parties between 2007 and 2009. iv) It was only on 3rd December 2010 that the Consumer Forum directed constitution of a Medical Board for expert opinion and the same was constituted after a delay of almost 2 years. v) The opinion of the Medical Board was submitted in 2012 but even then the matter has been listed for final arguments on multiple dates since August 2013 till today and the next date before the Consumer Forum is 28th February 2022. Therefore though nine years have passed and the matter has not been finally Besides addressing this Court on the delay in this specific case ld. Counsels appearing for both parties have also raised various grievances about the manner in which the Consumer Forum is functioning. It is their submission that the Consumer Forum does not assemble on time and on several occasions Presiding Officers do not hold court. It is further submitted by ld. Counsels that on most occasions proceedings are not held for the entire duration of the working hours. W.P.(C) 12490 2021 On a perusal of the record and on the basis of submissions of the parties it is clear that the demise of the son took place on 28th June 2007 and the consumer complaint was filed by the Petitioner father on 17th October 2007. Evidence was concluded in the matter in 2008 and the matter has been fixed for arguments since then repeatedly. The orders of the Consumer Forum show that the matter is being repeatedly adjourned from time to time and the reasons given are as under: i) Complete records of the Medical Board not being put up ii) Quorum of the Consumer Forum not being complete iii) Presiding Officer of the Consumer Forum being on leave and iv) File of the matter not being traceable. The proceedings of this case including the case history as downloaded from the website shows that evidence had concluded way back in 2008 and arguments have not been heard for the last 13 14 years. In fact even the constitution of the Medical Board was directed after conclusion of evidence. It is especially important to note that the case relates to a minor who was 13 years old who passed away for which the father sought compensation. Such cases ought to be adjudicated expeditiously and with alacrity. This delay of 14 years has taken place despite the parties having concluded evidence within one year of the filing of the complaint because the forum has not finally heard the matter and passed the final judgment. There can be no justification for such a long delay in finally hearing the matter. Both counsels have informed the Court that the vacancies in the Consumer Forum have now been filled and the requisite quorum is available for hearing the matter. W.P.(C) 12490 2021 Accordingly considering the protracted delay in hearing this matter it is directed that the case shall be listed before the said Consumer Forum on 22nd November 2021. The matter shall then be heard and final judgment shall be passed by 20th December 2021. 10. As to the submissions made by ld. counsels appearing today concerning the manner of functioning of the Consumer Forum this is a cause for consternation. In light of these submissions this Court find it appropriate to ascertain whether there are other similar cases pending before the Consumer Forum and their status. Accordingly the worthy Registrar General of this Court shall obtain a report from the Registrar or Secretary District Consumer Dispute Redressal Forum Janakpuri Delhi containing the following details: List of cases complaints pending for final hearing Date of institution of the said complaints Date when evidence was concluded in the said complaints Any infrastructural requirements in the said forum and Status of vacancies of presiding officers including Chairperson and members. A proper breakup of these details in the form of a chart shall be placed before this Court by the next date of hearing. 11. This matter shall be treated as a part heard matter. 12. With these observations this petition and all pending applications are 13. List on 6th January 2022 for the purposes of receiving status report disposed of. and compliance. 14. The digitally signed copy of this order duly uploaded on the official W.P.(C) 12490 2021 website of the Delhi High Court www.delhihighcourt.nic.in shall be treated as the certified copy of the order for the purpose of ensuring compliance. No physical copy of orders shall be insisted upon by any authority entity or PRATHIBA M. SINGH NOVEMBER 9 2021 W.P.(C) 12490 2021

Child unable to maintain herself is entitled to maintenance: Madras High Court

An unmarried daughter unable to maintain herself is entitled to claim maintenance under the Hindu Adoption and Maintenance Act, 1956. A single judge bench of Justice P Velmurugan, while adjudicating the matter in Navira Krishnan v. SN Venkata Krishnan [Crl.M.P.No.4709 of 2021]; dealt with the issue of providing maintenance to the wife and her child. The learned counsel for the petitioner submits that the petitioner is a minor child represented by her mother viz., Mrs. P Jayabharathy. The respondent is the father of the petitioner. The marriage between the petitioner’s mother and the respondent was solemnized on 16.6.2016 and out of their wedlock, the petitioner herein born on 11.07.2017. Subsequently, the parents of the petitioner were living separately and the petitioner is under the care and custody of her mother. The respondent/father is an employee of Southern Railways as Engineer and he is earning more than one lakh per month and the respondent was not taking care of his child. Hence, the mother of the petitioner/minor child filed a petition in M.C.No.453 of 2018 under Section 125 Cr.P.C before the learned VI Additional Principal Judge, Family Court, Chennai seeking maintenance of Rs.12,500/- per month. However, the learned Judge, without considering the cost of living prevailing as on date ordered Rs.5,000/- per month as maintenance. Challenging the same, the petitioner filed the present petition seeking enhancement of the award amount. The learned counsel for the respondent would submit that the mother of the petitioner filed a petition under Domestic Violence Act and also receiving Rs.15,000/- per month as interim maintenance to herself and the minor child. Subsequently, the petitioner filed a maintenance case in M.C.No.453 of 2018 and the leaned Judge, ordered Rs.5,000/- per month as maintenance to the petitioner. He would further submit that the petitioner’s mother has voluntarily left the matrimonial home, the respondent is ready to take care of his child. Hence, he objects to enhancement of the maintenance amount. The Court upon considering the aforesaid facts stated that “Admittedly, the paternity of the petitioner/minor child is not in dispute. The ingredients of Section 125 of Cr.P.C clearly shows that the child who is unable to maintain herself is entitled for maintenance. In the present case, the petitioner is under the care and custody of her mother and she does not have any independent income to maintain herself and also her minor child. The respondent/father has not established the fact that the petitioner and her mother are having sufficient income to maintain themselves. The learned Judge failed to consider the cost of living prevailing as on date and ordered only Rs.5,000/- per month as maintenance to the petitioner, which is not sufficient for the child. In the light of the above facts and circumstances, this Court is inclined to modify the order dated 22.12.2020 in M.C.No.453 of 2018 passed by the learned VI Additional Principal Judge, Family Court, Chennai, to the effect that the maintenance amount Rs.5,000/- per month ordered by the Court below to the petitioner is enhanced to Rs.20,000/- per month from the date of filing of the above case” Click here to read the judgment.

Crl.R.C.No.1921IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 29.04.2021CORAM:THE HON BLE Mr. JUSTICE P.VELMURUGANCriminal Revision Case No.1921and Crl.M.P.No.47021Navira Krishnan (Minor)Rep.by her Natural Guardian MotherMrs.P.Jayabharathy ... Petitioner..vs.. S.N.Venkatakrishnan... RespondentCriminal Revision Case filed under Section 397 and 401 Cr.P.C to set aside the order passed by the learned VI Additional Family Court Judge Chennai in M.C.No.4518 dated 22.12.2020 to the extent of the maintenance awarded of Rs.5 000 to the petitioner and direct the respondent to pay the enhanced maintenance of Rs.12 500 to the petitioner from the date of filing the petition.For Petitioner :Mr.S.SaravananFor Respondent:Mr.V.KannadasanPage No.1 6 https: www.mhc.tn.gov.in judis Crl.R.C.No.1921O R D E RThis Criminal Revision Case has been filed against the order dated 22.12.2020 in M.C.No.4518 passed by the learned VI Additional Principal Judge Family Court Chennai.2.The learned counsel for the petitioner would submit that the petitioner is a minor child represented by her mother viz. Mrs.P.Jayabharathy. The respondent is the father of the petitioner. The marriage between the petitioner s mother and the respondent was solemnized on 16.6.2016 and out of their wedlock the petitioner herein born on 11.07.2017. Subsequently the parents of the petitioner were living separately and the petitioner is under the care and custody of her mother. The respondent father is an employee of Southern Railways as Engineer and he is earning more than one lakh per month and the respondent was not taking care of his child. Hence the mother of the petitioner minor child filed a petition in M.C.No.4518 under Section 125 Cr.P.C before the learned VI Additional Principal Judge Family Court Chennai seeking maintenance of Rs.12 500 per month. Page No.2 6 https: www.mhc.tn.gov.in judis Crl.R.C.No.1921However the learned Judge without considering the cost of living prevailing as on date ordered Rs.5 000 per month as maintenance. Challenging the same the petitioner filed the present petition seeking enhancement of the award amount.3.The learned counsel for the respondent would submit that the mother of the petitioner filed a petition under Domestic Violence Act and also receiving Rs.15 000 per month as interim maintenance to herself and the minor child. Subsequently the petitioner filed a maintenance case in M.C.No.4518 and the leaned Judge ordered Rs.5 000 per month as maintenance to the petitioner. He would further submit that the petitioner s mother has voluntarily left the matrimonial home the respondent is ready to take care of his child. Hence he objects to enhancement of the maintenance amount.4.Heard the learned counsel for the petitioner and the learned counsel for the respondent and also perused the materials available on record.Page No.3 6 https: www.mhc.tn.gov.in judis Crl.R.C.No.19215.Admittedly the paternity of the petitioner minor child is not in dispute. The ingredients of Section 125 of Cr.P.C clearly shows that the child who is unable to maintain herself is entitled for maintenance. In the present case the petitioner is under the care and custody of her mother and she does not have any independent income to maintain herself and also her minor child. The respondent father has not established the fact that the petitioner and her mother are having sufficient income to maintain themselves. The learned Judge failed to consider the cost of living prevailing as on date and ordered only Rs.5 000 per month as maintenance to the petitioner which is not sufficient for the child.6.In the light of the above facts and circumstances this Court is inclined to modify the order dated 22.12.2020 in M.C.No.4518 passed by the learned VI Additional Principal Judge Family Court Chennai to the effect that the maintenance amount Rs.5 000 per month ordered by the Court below to the petitioner is enhanced to Rs.20 000 per month from the date of filing of the above case.Page No.4 6 https: www.mhc.tn.gov.in judis Crl.R.C.No.19217.With the above observation this Criminal Revision Case is allowed. Consequently connected miscellaneous petition is closed.29.04.2021Internet: Yes NomsToThe VI Additional Principal Judge Family Court Chennai.Page No.5 6 https: www.mhc.tn.gov.in judis Crl.R.C.No.1921P.VELMURUGAN J.msCrl.R.C.No.1921and Crl.M.P.No.4702129.04.2021Page No.6 6

M/S Popular Steel V/S Jahangir Alam and Anr.

It is only for the petitioner to produce evidence to show that Respondent is liable and have no merits in the case. Case Name: M/S Popular Steel V/S Jahangir Alam and Anr. Case Number:  W.P. (C) Nos. 7107, 7108 of 2012 Court: Delhi High Court Bench: Justice Ms. Rekha Pillai Decided on: February 5, 2019 Relevant Acts/ Sections: Art 226 and 226 of Constitution of India, Section 10 ofIndustrial Disputes Act Brief Facts and Procedural History: The petitions filed in the court are vide Articles 226 and 227 of the Constitution of India, seeking a common award dated 16.08.2012 passed by the Labour Court relating to two interconnected industrial disputes filed by two workmen who are the respondents in this case after the Labour Court passed an order where there termination was held illegal and unjust and each of them were granted a lump sum amount of Rs.1, 00,000/- in lieu of reinstatement and back wages.The procedural history of this case is the respondent no.1 had joined the services of the petitioner on 05.05.1999 as an Assistant Machineman and worked there for a period of eight years during which he met with two accidents which were result of the direct negligence on the part of the petitioner’s management.The respondent no.1 performed all his duties with honesty and utmost dedication till 15.07.2007, after which he wasn’t allowed to re-join the duties as he went to visit his ailing father in his native village. The petitioner had illegally terminated him without providing any reasons and thus the respondent no.1 filed a claim petition in the Labour Court challenging his illegal termination. The details of the case are same for Jahangir Alam who was also illegally terminated of his service without the petitioner providing him any reasonable reasons. The labour court found the evidence on the part of petitioner insufficient and upheld his dismissal from job and awarded a compensation of Rs. 1 lakh.Vide the present petitions under Articles 226 and 227 of the Constitution of India, the petitioner impugned a common Award dated 16.08.2012 passed by the learned Labour Court in respect of two inter-connected industrial disputes filed by two workmen, namely Raj Kumar and Jahangir, who had been arrayed as the respondents in W.P.(C) No.7107/2012 and W.P.(C)No.7108/2012 respectively. Issues before the court: Whether the Labour Court was correct in discarding the testimony of handwriting?Whether the termination of respondents was just? Ratio of the Court: The present writ petitions filed by the petitioner to impugned the Award on the basis of two grounds. The counsel for the petitioner, Mr. Satender Verma, addresses the first and foremost ground which is the appointment of respondent no.1 for a fixed tenure and this can be proved by the appointment letter dated 01.01.2002.The Second ground is the testimony of the Handwriting Expert which was discarded by the Labour Court which had proved through the report that the signatures of the respondent no.1 on the appointment letter and the affidavit filed before the Labour Court are of the same person.On the other hand, Mr H.R.Jha, counsel for the respondent no.1, supports the impugned award and contends that even the respondent hadn’t filed any letter of appointment, as the petitioner didn’t issue any such letter, still he had duly placed record on the Insured Person Card issued to him by ESIC, which in itself shows thathis date of appointment was 04.01.2001, hereafter there was nothingshow that there was any break in his service.Mr.Jha also states that it was for the petitioner to produce the relevant attendance registers and otherconnected documents, in support of its contention that the respondent wasn’t in continuous employment, which were deliberately not produced before the Labour Court and thus he pleads to dismiss the writ petition.The court opined by relying on Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil [(2010) 8 SCC 329] that even though learned counsel for the petitioner is justified in contending that the report of handwriting expert cannot be simply brushed aside by the Court, in the facts of the present case, it cannot at all be said that the report has been simply discarded without assigning any reasons. The learned Labour Court has on a close scrutiny of the documents as also the report, categorically come to a conclusion that the same did not inspire confidence.It needs no reiteration that while exercising its powers under Article 226, this Court is not sitting in appeal and can only interfere with the learned Labour Court’s Award if there has been a manifest failure of justice or when the principles of natural justice have been flouted.The respondent had failed to prove that the handwriting was his and that he had been continuously employed by the present appellant. Also the reference to sec 10 of IO Act is misplaced but doesn’t help the respondent’s case. After listening to both the counsel for the petitioner as well as the respondent, the Honorable court was of the opinion that the termination was illegal and unreasonable and the petitioner was unable to provide sufficient evidence which could prove their point. Decision of the Court: The Honorable High Court of Delhi upheld the decision of the Labour Court and did not interfere with the relief of Rs. 1 lakh Writ Petition was dismissed.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 05.02.2019 M S POPULAR STEEL Through: Mr.Satender Verma Adv. ..... Petitioner W.P.(C) No.7107 2012 W.P.(C) 7108 2012 RAJ KUMAR Through: Mr.H.R. Jha Adv. Respondent M S POPULAR STEEL Through: Mr.Satender Verma Adv. Petitioner JAHANGIR ALAM Through: None. Respondent HON BLE MS. JUSTICE REKHA PALLI REKHA PALLI JAt the outset it may be noted that on 01.02.2019 the parties were granted one final opportunity of six weeks to file their written submissions. However at the joint request of the learned counsel for the parties a short adjournment was granted and the matter was listed for W.P.(C) 7107 2012 & W.P.(C) 7108 2012 today. Today the learned counsel for the parties have handed over their written submissions in Court itself and therefore with the consent of all the parties the matter has been taken up for final disposal. Vide the present petitions under Articles 226 and 227 of the Constitution of India the petitioner impugns a common Award dated 16.08.2012 passed by the learned Labour Court in respect of two inter connected industrial disputes filed by two workmen namely Raj Kumar and Jahangir who have been arrayed as the respondents in W.P.(C) No.7107 2012 and W.P.(C)No.7108 2012 respectively. Under impugned Award learned Labour Court after holding termination of the two workmen as illegal and unjustified had granted each of them a lump sum compensation of Rs.1 00 000 in lieu of reinstatement and backwages. Since the petitioner impugns a common order passed by the learned Labour Court in respect of two employees who had filed separate claims before it the present writ petitions are being decided by a common judgment. However for the sake of convenience only the facts of W.P.(C) No.7107 2012 are being referred to hereinbelow and the respondents in the two writ petitions are hereinafter being referred to by their respective names i.e. Raj Kumar and Jahangir. The relevant facts emerging from the record are that Raj Kumar joined the services of the petitioner on 05.05.1999 as an Assistant Machineman and worked there for over eight years during which period he allegedly met with two accidents as a direct result of the negligence W.P.(C) 7107 2012 & W.P.(C) 7108 2012 on the part of the petitioner’s management. It is Raj Kumar’s case that during his tenure with the petitioner he performed his duties with utmost diligence and honesty till 15.07.2007 when he was not allowed to re join his duties upon returning from his native village after attending to his ailing father and was instead illegally terminated by the petitioner without assigning any reasons. He therefore filed a claim petition before the learned Labour Court challenging his termination by the petitioner. The petitioner filed its reply to Raj Kumar’s claim petition before the learned Labour Court denying that he had been illegally terminated from service. The petitioner’s stand in its reply was that Raj Kumar was initially appointed from 04.01.2001 and not from 05.05.1999 as claimed by him and he had continued to work as a helper till October 2001 whereafter he was appointed as an Assistant Machineman for a fixed term from 01.01.2002 to 31.03.2006. Thereafter his services were dispensed with in accordance with the terms of his appointment letter dated 01.01.2002. Even though Raj Kumar admittedly did not file any document other than an Insured Person Card issued by the Employees State Insurance Corporationto show the nature of his appointment the petitioner had filed a copy of his appointment letter dated 01.01.2002 showing that he was only appointed as an Assistant Machineman for a fixed period from 01.01.2002 to 31.03.2006 which letter was also claimed to have been counter signed by Raj Kumar. Thus the petitioner’s plea before the learned Labour Court was that Raj Kumar had been initially appointed as a helper from W.P.(C) 7107 2012 & W.P.(C) 7108 2012 04.01.2001 till October 2001 whereafter he was appointed as an Assistant Machineman w.e.f. 01.01.2002 only for a specific period. In his rejoinder Raj Kumar denied having been issued any appointment letter and specifically denied his signatures on the appointment letter dated 01.01.2002 produced by the petitioner. The petitioner therefore examined a handwriting expert namely Mr.M.S. Mishra as its witness. Mr.Mishra claimed to have compared Raj Kumar’s disputed signatures on his appointment letters dated 04.01.2001 and 01.01.2002 as also on the full and final receipt dated 08.04.2006 stated to have been executed by him with his admitted signatures in the affidavit filed before the learned Labour Court. After a close examination of the manner design nature and tendency of the curves angles etc. Mr.Mishra claims that he had tendered his report opining that the disputed signatures on the letters dated 04.01.2001 01.01.2002 and receipt dated 08.04.2006 were by the same person who had signed the affidavit filed before the Labour Court. Based on this report of the handwriting expert the petitioner submitted before the learned Labour Court that there could be no doubt about the fact that Raj Kumar had been appointed only for a fixed term and his services had therefore come to an end on account of efflux of time and he had not been illegally terminated as alleged by him. At this stage it may also be noted that before the learned Labour Court the petitioner had also taken a stand that after the termination of Raj Kumar’s services in accordance with his terms of appointment the W.P.(C) 7107 2012 & W.P.(C) 7108 2012 petitioner had closed its factory on 20.08.2009 and in this regard based on the petitioner’s application an additional issue was framed on 10.11.2010 to the effect as to whether the Management had closed down its business manufacturing activities w.e.f. 20.08.2009 which issue was decided in favour of the petitioner. Based on the pleadings of the parties and the evidence led before it the learned Labour Court rejected the report of the petitioner’s handwriting expert by observing that his testimony did not inspire any confidence as there was no evidence to corroborate the findings of his report. Consequently the learned Labour Court rejected the defence taken by the petitioner that Raj Kumar was terminated in accordance with the terms of his appointment as the Court did not find that there was any such valid letter of appointment in the first place. The Court further held that in view of the admitted position that Raj Kumar had been employed with the petitioner for more than 240 days his termination without assigning any reason was illegal and unjustified. In view of its finding that the petitioner’s manufacturing activities had been closed from 20.08.2009 the Court instead of directing reinstatement and payment of backwages awarded compensation of Rs.1 00 000 to Raj The present writ petitions have been filed by petitioner management impugning the aforesaid Award on two primary grounds. Mr. Satender Verma learned counsel for the petitioner first and foremost states that the factum of appointment of Raj Kumar being for a W.P.(C) 7107 2012 & W.P.(C) 7108 2012 fixed term was evident from a bare perusal of the letter of appointment dated 01.01.2002 itself and the said letter has been wrongly rejected by the learned Labour Court. Secondly the learned Labour Court has without any basis discarded the testimony of the handwriting expert who had given a specific report clearly stating that Raj Kumar’s disputed signatures as appearing on the letter of appointment were matching with his admitted signatures on the affidavit filed by him before the learned Labour Court. He further submits that once it is evident that the handwriting expert had clearly opined that the signatures on the said letter were that of Raj Kumar there was no reason for the learned Labour Court to conclude that the appointment letter dated 01.01.2002 was not genuine. He thus contends that in view of the letter dated 01.01.2002 the finding of the learned Labour Court that there was nothing to show that the appointment of the respondent was for a fixed period was wholly perverse. In support of his aforesaid contention that the learned Labour Court could not have ignored the report of the handwriting expert and that too without assigning any cogent reasons Mr.Verma has relied on a decision of the Supreme Court in the case of Murarilal vs. State of M.P. AIR 1980 SC 531]. By drawing my attention to paragraph 11 of the aforesaid decision he submits that the Supreme Court has categorically stated that there is no rule of law stipulating that the opinion of a handwriting expert can never be relied upon unless the same is substantially corroborated by other evidence. W.P.(C) 7107 2012 & W.P.(C) 7108 2012 11. Mr.Verma further contends that once Raj Kumar had failed to file any document in support of his plea that he was in continuous employment w.e.f. 05.05.1999 the plea of the petitioner to the effect that he had been appointed for a fixed tenure ought to have been accepted. He places reliance on a decision of the Supreme Court in the case of Manager R.B.I. Bangalore v. S. Manito contend that the learned Labour Court has wrongly shifted the onus on the management petitioner to prove that Raj Kumar was not in continuous employment since the date of his initial appointment. He states that the petitioner having never been directed to produce the attendance registers or salary registers it was under no obligation to produce the same. Therefore he contends that the learned Labour Court erred in drawing an adverse inference against the petitioner for its failure to produce to the aforesaid documents. 12. Lastly Mr.Verma submits that the learned Labour Court had erroneously placed reliance on Sections 25R and 25O of the Industrial Disputes Act 1947 as also Section 10 of the Contract Labour Regulation and Abolition) Act 1970 which he submits are not at all applicable to the facts of the present case as it is not a case of closure or of a workman employed through a contractor. He thus states that the reliance placed on the aforesaid provisions shows clear non application of mind on the part of the learned Labour Court. 13. On the other hand Mr.H.R. Jha learned counsel for the workman Raj Kumar while supporting the impugned Award states that even W.P.(C) 7107 2012 & W.P.(C) 7108 2012 though Raj Kumar had not filed any letter of appointment as none had ever been issued by the petitioner he had duly placed on record the Insured Person Card issued to him by ESIC which in itself shows that his date of appointment was 04.01.2001 whereafter there was nothing to show that there was any break in his service. He further states that it was for the petitioner to produce the relevant attendance registers and other connected documents in support of its contention that Raj Kumar was not in continuous employment which documents were deliberately not produced. Therefore the learned Labour Court was justified in drawing an adverse inference against the petitioner in this regard. He further states that once the learned Labour Court after examining the documents on record was of the opinion that the report of the handwriting expert did not inspire confidence there is no reason at all for this Court in the exercise of its jurisdiction under Articles 226 and 227 of the Constitution of India to interfere with the findings of the learned Labour Court. He therefore prays that the writ petition be dismissed. I have heard the learned counsel for the parties and with their assistance perused the record. In the light of the rival contentions of the parties two primary issues arise for consideration in the present petitions the first being as to whether the learned Labour Court was justified in discarding the testimony of the handwriting expert produced by the petitioner. In this regard learned counsel for the petitioner has by placing reliance on the decision in Murarilal vehemently contended that the learned W.P.(C) 7107 2012 & W.P.(C) 7108 2012 Labour Court could not have discarded the handwriting expert’s report without assigning any cogent reasons. I am of the opinion that even though learned counsel for the petitioner is justified in contending that the report of handwriting expert cannot be simply brushed aside by the Court in the facts of the present case it cannot at all be said that the report has been simply discarded without assigning any reasons. The learned Labour Court has on a close scrutiny of the documents as also the report categorically come to a conclusion that the same did not inspire confidence and I see no reason to differ with the conclusion while exercising the power of judicial review under Article 226 of the Constitution of India. It needs no reiteration that while exercising its powers under Article 226 this Court is not sitting in appeal and can only interfere with the learned Labour Court’s Award if there has been a manifest failure of justice or when the principles of natural justice have been flouted. Merely because another view more favourable to the petitioner may be possible on the basis of the material on record would not be reason for this Court to exercise its extraordinary writ jurisdiction. Reference may be made to the decision of the Supreme Court in Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil8 SCC 329]. 16. Once I find no reason to differ with the conclusion of the learned Labour Court that the handwriting expert’s report did not inspire confidence as a necessary corollary thereof the appointment letters that have been relied upon by the petitioner also have to be rejected. It is therefore evident that there was no other material before the learned W.P.(C) 7107 2012 & W.P.(C) 7108 2012 Labour Court in support of the petitioner’s plea that Raj Kumar was only appointed for a specific period and thus in the light of the admitted position that Raj Kumar had been in employment for more than 240 days his termination without assigning any reason has to be and has correctly been held by the learned Labour Court to be illegal and I cannot also lose sight of another vital fact that both Raj Kumar and Jahangir had suffered injuries leading to permanent disabilities while in the service of the petitioner. They both claim to have been in service for long periods and have been terminated in a similar manner without assigning any reasons. The petitioner’s plea that both these workmen were appointed for fixed terms just does not inspire confidence. Merely because they are stated to have appended their signatures on the bottom of the alleged appointment letters which signatures have been denied by them it cannot be said that they were appointed only for fixed terms especially in the light of the ESIC cards issued to them which show that they were in continuous employment with the petitioner. In view of my aforesaid conclusion I do not find any merit in the petitioner’s contention that the learned Labour Court had erred in drawing an adverse inference against the petitioner for non production of documents like the salary register and the attendance register. In my view once there was no denial to the fact that the workmen were in service for more than 240 days and the only defence of the petitioner was that the same was on account of a fixed term appointment which came to W.P.(C) 7107 2012 & W.P.(C) 7108 2012 an end by efflux of time which defence of the petitioner was rejected by the learned Labour Court as a necessary corollary it was only for the petitioner to produce evidence to show that the workmen had not been in employment for 240 days. In these circumstances there is no infirmity in the approach adopted by the learned Labour Court in drawing an adverse inference against the petitioner on account of its failure to produce the documents in its possession. 19. Coming to the last contention of the learned counsel for the petitioner that the learned Labour Court has wrongly relied on Sections 25R and 25O of the Industrial Disputes Act 1947 as also Section 10 of the Contract LabourAct 1970 even though I find merit in this contention of the petitioner as in the facts of the present case the reliance on these provision was wholly misplaced in my view nothing material turns on it as the petitioner has miserably failed to prove that the workmen had been appointed for fixed terms. Consequently in view of the admitted position that their services had been terminated without assigning any reason the challenge to the impugned Award has failed. There is absolutely no reason to interfere with the limited relief of compensation of Rs.1 00 000 granted to the workmen. 20. For the aforesaid reasons I find no infirmity in the impugned Award. The writ petition is dismissed with no order as to costs. REKHA PALLI J FEBRUARY 05 2019 gm W.P.(C) 7107 2012 & W.P.(C) 7108 2012

Ritualistic adherence to the condition of state policy regardless of some of them being impossible of performance, is not the way a welfare state is constitutionally expected to function: Karnataka High Court

A writ of certiorari issued quashing the impugned Endorsement to sanction Freedom Fighter pension to the petitioner and settle all the arrears within a period of six weeks, failing which they shall personally & collectively pay him Rs. 1000/- for the delay of each day brooked as held by the Hon’ble Karnataka High court in the matter of Gundu Rao Desai V. State Of Karnataka, [WP No. 7948 of 2021]. The Facts of the case are as follows that the petitioner’s claims for the Freedom Fighter Pension have been rejected on the ground of endorsement, that he has not produced the affidavits of the two-person who were detained with him because of their participation in the struggle for independence of the country. The petitioner had made a claim for pension on 19.03.1998, except that the file moved from this office table to that for two decades and nothing has happened. The Ld. AGA appeared for the respondent vehemently opposed the writ petition contending that the requirement of producing a certain document is a matter of state policy that regulates the grant of Freedom Fighter Pension which is structured in the requirement and cannot be flattered. The Hon’ble Justice Krishna S. Dixit  before the Karnataka High Court, heard the learned counsel and having persuaded the petition paper held that Hon’ble Karnataka High Court is inclined to grant Indulgence in the matter for following reason, “During the freedom struggle , several nationals sacrificed their lives , limbs & liberty and obviously their families is too get affected ; all this happened unseen and unsung; other who survived the struggle and lived after the Dawn of Freedom , need to be protected, presumably they being Central Government and State Government have promulgated Freedom Fighter Pension Schemes; the fulfilment of requirement of such scheme should not be insisted upon mindlessly and impossibly”,  and adhering to the Submission of Ld. Counsel for the Petitioner, the Hon’ble Court took the precedent of E.P Royappa V. State of Tamil Nadu [AIR 1947 SC 555], and stated that, “all the action of the state be legislative or executive should, be animated by reason and justness it is more when the cause of Freedom Fighter who are in late evening of their lives.” The Hon’ble Court subsequently found that in all civilized Jurisdiction where conditions prescribed by the statues are or became impossible of performance, they are treated either as having complied or their compliance being dispensed with, subject to all just exception, placing reliance on “Maxwell On The Interpretation Of Statues” Twelfth Edition, LexisNexis – Butterworth Wadhawa at page 326 treats the subject under “IMPOSSIBILITY OF COMPLIANCE”, which further implies the enactment that imposes duties upon conditions, when it has not been constructed as conditions precedent to the exercise of jurisdiction, subject to the maxim, lex non cogit ad impossibilia. They are understood as dispensing with the performance of what is prescribed when the performance of it is impossible.

IN THE HIGH COURT OF KARNATAKA BENGALURU DATED THIS THE 7TH DAY OF SEPTEMBER 2021 THE HON BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 7498 OF 2021 GUNDURAO DESAI AGED ABOUT 94 YEARS S O VENKOBORAO DESAI R AT NO.242 4TH WARD NEAR RAMA TEMPLE DESAI ONI VENKATAPURA KAMALAPURA BELLARY 583 221. … PETITIONER BY SRI.C.M.NAGABHUSHANA ADVOCATE) 1. THE STATE OF KARNATAKA DEPARTMENT OF HOME DR. AMBEDKAR VEEDHI BENGALURU 560 001. REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY. 2. DEPUTY COMMISSIONER BELLARY DISTRICT BELLARY 583 101. 3. ASSISTANT COMMISSIONER HOSAPETE BELLARY DISTRICT BELLARY 583 201. 4. THE TAHSILDAR HOSAPATE TALUK TALUK OFFICE BUILDING HOSAPETE BELLARY DISTRICT BELLARY 583 201. BY MR. SHRIDHAR HEGDE HCGP) … RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R 3 TO CONSIDER THE ORIGINAL LETTER DATED 27.12.1995 VIDE ANNX P SUBMITTED BY THE PETITIONER TO CONSIDER FOR FREEDOM FIGHTER PENSION. THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY THE COURT MADE THE FOLLOWING: Petitioner claiming to be a freedom fighter is knocking at the doors of writ Court grieving against the endorsement dated 20.07.2019 a copy whereof is at Annexure P which has the following text: “ªÀiÁ£ÀågÉà «µÀAiÀÄ: ²æà zÉøÁ¬Ä UÀÄAqÀÄgÁªï ªÀiÁf CzsÀåPÀëgÀÄ mË£ï ¥ÀAZÁAiÀÄw ºÁUÀÆ ¸ÁévÀAvÀæöå ºÉÆÃgÁlUÁgÀgÀÄ PÀªÀįÁ¥ÀÄgÀ ºÉƸÀ¥ÉÃmÉ vÁ®ÆèPÀÄ EªÀjUÉ ¸ÁévÀAvÀæöå ºÉÆÃgÁlUÁgÀgÀ ¦AZÀtÂAiÀÄ£ÀÄß ªÀÄAdÆgÀÄ ªÀiÁqÀĪÀ §UÉÎ. G¯ÉèÃR: vÀªÀÄä ªÀÄ£À« ¢£ÁAPÀ:26.06.2019. ªÉÄîÌAqÀ «µÀAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀAvÉ ¢£ÁAPÀ:26.05.2019gÀ vÀªÀÄä ¥ÀvÀ æzÀ°è E£ÉÆߧ⠸ÀºÀ§A¢ §UÉÎ ªÀÄ»w MzÀV¸À®Ä ¥Àæ¸ÀÄvÀÛ ¸ÁzsÀå«®èªÉAzÀÄ w½¹gÀÄwÛÃj. ¸ÀPÁðgÀzÀ DzÉñÀ ¸ÀASÉå:r¦JCgï 89 ¦J¦üÓ 1994 ¢£ÁAPÀ:27.12.1995gÀ£ÀéAiÀÄ ¸ÁévÀAvÀæöå ºÉÆÃgÁlUÁgÀjUÉ À£À ªÀÄAdÆgÀÄ ªÀiÁqÀ®Ä CUÀvÀå«gÀĪÀ zÁR¯ÉUÀ¼À°è gÁdå PÉÃAzÀæ UËgÀªÀzs MAzÀÄ ªÀĵÀð eÉ樀 ²PÉë C£ÀĨsÀ«¹gÀĪÀ E§âgÀÄ ¸ÁévÀAvÀæöå AiÉÆÃzs ¥ÀqÉ¢gÀĪÀ ªÀÄÆ® ¸ÀºÀ§A¢ü ¥ÀæªÀiÁt ¥ÀvÀæUÀ¼À£ÀÄß MzÀV¸À¨ÉÃPÁVgÀÄvÀÛzÉ. æªÀ£ÀÄß ªÀiÁvÀæ MzÀV¹gÀÄwÛÃj. DzÀgÉ ¤ÃªÀÅ M§âgÀ ¸ÀºÀ§A¢ü ¥ÀvÀ À£À ªÀÄAdÆgÀÄ ªÀiÁqÀ®Ä DzÀÝjAzÀ ¤ªÀÄUÉ gÁdå PÉÃAzÀ ¸ÀPÁðgÀzÀ ¤AiÀĪÀÄUÀ¼À°è CªÀPÁ±À«gÀĪÀÅ¢®èªÉAzÀÄ w½¸À®Ä £Á£ÀÄ æ UËgÀªÀzs 2. The net effect of the above Endorsement is the rejection of petitioner’s claim for Freedom Fighters Pension on the ground that he has not produced the affidavit of two persons who were detained with him because of their participation in the struggle for Independence of the country those days petitioner had made the claim for pension on 19.03.1998 itself except that the file moved from this office table to that nothing has happened though more than two decades have slipped away at least as a concession to the shortness of human life things could have been accomplished in a few years even if they were moved with snail speed that did not happen reveal the records be that as it may. After service of notice the official respondents have entered appearance through the learned AGA who vehemently opposes the writ petition contending that the requirement of producing certain documents is a matter of State Policy that regulates grant of Freedom Fighters Pension and therefore the impugned endorsement which is structured on this requirement cannot be faltered he hastens to add that an argument to the contrary has abundant abuse potential inasmuch as even unscrupulous claims may be sustained and therefore no concession in matters of the kind can be shown as to requirement of producing the necessary documents so contending he seeks dismissal of the writ petition. 4. Having heard the learned counsel for the parties and having perused the petition papers this Court is inclined to grant indulgence in the matter as under and for the following reasons: a) During the Freedom Struggle several nationals sacrificed their lives limbs & liberty and obviously their families too got affected all this happened unseen & unsung others who survived the struggle and lived after the Dawn of Freedom needed to be protected presumably they being incapable of paddling their life boats therefore both the Central Government and the State Governments have promulgated Freedom Fighters Pension Schemes fulfillment of requirement of such Schemes should not be insisted upon mindlessly and impossibly as rightly argued C.M.Nagabhushana he is more than justified in adding that ritualistic adherence to the conditions of State Policy regardless of some of them being impossible of performance is not the way a Welfare State is constitutionally expected to function the Apex Court in E.P.ROYAPPA vs. STATE OF TAMIL NADU AIR 1974 SC 555 has observed that all actions of the State be legislative or executive should be animated by reason & justness it is more so when the cause of Freedom Fighters who are in the late evening of their lives is involved the impugned Endorsement does not reflect this approach to the matter more particularly when the Freedom Fighters are a vanishing class majority of them having already closed their eyes statistically speaking. b) There is no much dispute as to petitioner being a nonagenarian he having attained age of 94 years is in the late evening of the life the approach of State and its officials has to be very gentle & humane while considering the claim of such persons the Apex Court time & again has observed that just claims of the citizens cannot be rejected on flimsy grounds if the petitioner has crossed the age of 94 years it sounds unjust & arbitrary to say the least to expect the co detenues elder to him to be alive and much less available for swearing to an affidavit expected under the conditions of State Policy petitioner has specifically stated in so many words in his letter dated 20.01.2021 a copy whereof is at Annexure Q that only one of the co detenues is alive and others are dead & gone that being the position asking him to produce the affidavits of two co detenues virtually amounts to compelling him to retrieve the dead from their grave infuse soul into their body and ask them to swear to the affidavit this is an impossibility at least with all the progress the medical science has till now achieved. c) In all civilized jurisdictions where conditions prescribed by the statutes are or become impossible of performance they are treated either as having been complied or their compliance being dispensed with subject to all just exceptions into which argued case of the petitioner does not fit “Maxwell on The Interpretation of Statutes” Twelfth Edition LexisNexis Butterworths Wadhwa at page 326 treats the subject as under: “3. IMPOSSIBILITY OF COMPLIANCE. Enactments which impose duties upon conditions are when these are not construed as conditions precedent to the exercise of a jurisdiction subject to the maxim lex non cogit ad impossibilia. They are 7 understood as dispensing with the performance of what is prescribed when performance of it is Thus where an Act provided that an appellant should send notice to the respondent of his having entered into a recognisance in default of which the appeal should not be allowed it was held that the death of the respondent was not fatal to the appeal but dispensed with the service.” d) The approach of the statutory authorities to the compassionate policies of the State such as Freedom Fighters Pension Schemes should not hijack justice in the ritualistic adherence to the black letter of law and in a gross disregard to its spirit otherwise they may be likened to surgeons who would rather have their patients dead in accordance with the principles of surgery than live contrary to that is not a happy thing to happen in an arguably sane world it is not the case of respondents that the petitioner is guilty of fraud fabrication or the like the Apex Court in KAMALA BAI SINKAR vs. STATE OF MAHARASHTRA 11 SCC 754 has observed that where the claim of an pension aspirant is probablized the same cannot be negatived in the absence of derogatory factors in fact the Apex Court directed payment of Freedom Fighters Pension with all the arrears there is no reason for not granting relief to the petitioner on the similar lines there being no contra material warranting its denial. In the above circumstances this writ petition succeeds a Writ of Certiorari issues quashing Endorsement respondents 1 2 & 3 are mandamussed to sanction Freedom Fighters Pension to the petitioner with retrospective effect from 19.03.1998 and settle all the arrears within a period of six weeks failing which they shall personally & collectively pay him Rs.1 000 for the delay of each day brooked the said amount after payment may be recovered from the erring officials in accordance with law. It is open to the answering respondents to solicit any document information from the side of petitioner as are required for accomplishing the mandated task however subject to the rider that in the guise of such solicitation no delay shall be brooked. Now no costs. Snb Sd

Non IPC offences with imprisonment that can be extended more than 3- years are non-bailable: High Court of Bombay

If the offences in the other laws i.e. other than IPC are punishable with imprisonment for three years and upwards then the offences are cognizable and non bailable according to Part II of the Schedule -I of CrPC .This was decided in the case of Piyush Subhashbhai Ranipa vs. State of Maharashtra [Anticipiatory Bail Appl No. 336 OF 2021] by the Hon’ble Judge Sarang V. Kotwal in the High Court of Bombay. The facts of the case are that an FIR was lodged by the Zonal Manager of a company named Jain Irrigation system against another company- TERA flow,  which was using trademark ‘Jain HDPE’ and selling goods in the name of the complainant company. The stamps of Certificate of Manufacturing License were also forged and the police seized that good and thereafter began its investigation in the matter. This petition was filed seeking anticipatory bail in connection with the FIR filed. The legal questions involved in this case are quite few. Firstly, the major question involved was whether the offence under Section 63 of Copyright Act and Section 103 of Trademarks act were bailable or non-bailable. To decide upon this, the court referred the concerned provisions.                                                                               Thereafter it heard the contentions put forth by the parties, where the applicant’s counsel stated that looking at the scheme of Copyright Act and Trade Marks Act, it shows that the offences are bailable. Whereas, the counsel for respondent stated that this issue is no longer res integra and courts have time and again stated that offences in which punishment can extend up to 3 years are non bailable offences. The court referred to a series of judgements one notable being the case of State of Maharashtra Vs. Shri. Suresh Ganpatrao Kenjale [1995 CrilL 2478] where it was held” In the Second Schedule of the Code of Criminal Procedure, 1973 making classification of offences against other laws, it is provided that the offences which are punishable with imprisonment for three year and upwards, but not more than seven years, are non-bailable”. CrPC laws can be used to offences for statutes other than IPC to decide whether an offence is bailable or not an unless otherwise provided under the relevant statute, the offences other than IPC are punishable with imprisonment to the extent of three years, and shall fall within the classification II of offences as classified under Part II of First Schedule. Thus, offences under the Copyright Act and Trademark Act shall be cognizable and non-bailable. After applying this to the facts of the case, it was observed that the accused have falsely applied the informant’s trademark to their own products and have attempted to sell those products. By their act, the public were induced or an attempt was made to induce the public to buy these products under the impression that they were manufactured by the informant’s company.

on 03 03 2021 on 03 03 : 1 : 04 aba 336 21.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYCRIMINAL APPELLATE JURISDICTIONANTICIPATORY BAIL APPLICATION NO. 336 OF 2021Piyush Subhashbhai Ranipa.... Applicant VersusThe State of Maharashtra.... Respondent______Mr. Mandar Soman for Applicant.Mr. Ajay Patil APP for State Respondent.Mr. Aniket Nikam as amicus Curiae. ______CORAM: SARANG V. KOTWAL J.DATE: 26th FEBRUARY 2021P.C. :1.The Applicant is seeking anticipatory bail in connectionwith C.R.No. 8620 registered with Mohol Police Station Solapur District Solapur under sections 418 465 482 483 485 486 488 r w. 34 of the Indian Penal Codeandunder section 63 of the Copyright Act 1957. Subsequently section103 of the Trade Marks Act 1999 is also applied. 2.The First Information ReportisGokhale on 03 03 2021 on 03 03 : 2 : 04 aba 336 21.odtlodged by one Prakash Gore. He was a Zonal Manager of JainIrrigation System. His company received complaints thatsubstandard goods in the name of their company were sold in themarket. The informant received a secret information that oneEicher truck bearing No.GJ03 BV 9840 was carrying goods in thename of the complainant’s company which actually were notgenuine goods. That vehicle had started from Gujarat and wasgoing towards Karnataka. On 19 12 2020 at about 4:00p.m. theinformant and his associates saw that vehicle. They made inquirieswith the driver Jeevan about the goods. He informed that thegoods were loaded from Tera flow company Ribda and he wasgoing to Chadchan. He showed invoices. The invoice mentionedfour different HDPE pipes worth Rs.94 485 . The informantphysically saw those goods. He saw that some goods were bearingmark ‘Jain HDPE’ bearing stamp of CML7018761. That stamp was a forged stamp.The goods were being transported and sold using fake trademarkand therefore he lodged this F.I.R. The investigation was carriedout and the goods were seized. on 03 03 2021 on 03 03 : 3 : 04 aba 336 21.odt3.A few legal questions arose while deciding thisapplication. Therefore I have heard Shri. Mandar Soman learnedcounsel for the applicant Shri. Ajay Patil learned APP for theState. Shri. Aniket Nikam learned counsel was requested to assistthe court for deciding a larger issue as to whether offencespunishable upto three years were bailable or non bailable.4.First point for consideration was whether the offenceunder section 63 of the Copyright Act and also subsequentlyapplied section 103 of the Trade Marks Act were bailable or nonbailable. Shri. Soman invited my attention to the order passed bythe learned Magistrate wherein the co accused were granted bailon the ground that section 418 of I.P.C. was bailable and therefore bail was granted to the co accused. Perusal of that ordershows that the learned Magistrate has only referred to section 418of IPC. He has not considered application of section 63 of theCopyright Act and section 103 of the Trade Marks Act. Shri. Somanclaimed parity with co accused in this case. The allegations againstthe applicant are that he was manufacturing all these pipes and athis instance the pipes were being transported and sold. The on 03 03 2021 on 03 03 : 4 : 04 aba 336 21.odtinvestigation papers produced by Shri. Patil before me showedphotographs of those pipes which bore the aforementioned nameand registration number of the trademark of complainant’scompany. Therefore the first question which needs to be addressedand decided is to whether the offence punishable under section 63of the Copyright Act and section 103 of Trade Marks Act arebailable or non bailable. Section 63 of the Copyright Act reads thus: “63 Offence of infringement of copyright or other rights conferred bythis Act Any person who knowingly infringes or abets theinfringement ofthe copyright in a work or(b) any other right conferred by this Act [shall be punishable with imprisonment for a term which shallnot be less than six months but which may extend to three yearsand with fine which shall not be less than fifty thousand rupeesbut which may extend to two lakh rupees: Provided thatthe court may for adequate and special reasons to be mentioned in thejudgment impose a sentence of imprisonment for a term ofless than six months or a fine of less than fifty thousandrupees.]” on 03 03 2021 on 03 03 : 5 : 04 aba 336 21.odtSection 103 of the Trade Marks Act reads thus: “103 Penalty for applying false trade marks trade descriptions etc. Any person who falsifies any trade mark or(b) falsely applies to goods or services any trade mark or(c) makes disposes of or has in his possession any die block machine plate or other instrument for the purpose offalsifying or of being used for falsifying a trade mark or(d) applies any false trade description to goods or services or(e) applies to any goods to which an indication of the countryor place in which they were made or produced or the nameand address of the manufacturer or person for whom thegoods are manufactured is required to be applied undersection 139 a false indication of such country place name oraddress or(f) tampers with alters or effaces an indication of originwhich has been applied to any goods to which it is required tobe applied under section 139 or(g) causes any of the things above mentioned in this section tobe done shall unless he proves that he acted without intentto defraud be punishable with imprisonment for a term whichshall not be less than six months but which may extend tothree years and with fine which shall not be less than fiftythousand rupees but which may extend to two lakh rupees:Provided that the court may for adequate andspecial reasons to be mentioned in the judgment impose a on 03 03 2021 on 03 03 : 6 : 04 aba 336 21.odtsentence of imprisonment for a term of less than six months ora fine of less than fifty thousand rupees.”It can be seen that in both these sections sentence ofimprisonment extending upto three years can be imposed. Thequestion raised by Shri. Soman is whether the offence in whichsentence of imprisonment upto three years can be imposed fallswithin third category of Part II of Schedule I of Cr.p.c. or it fallswithin second category of that Part. Therefore that question needsto be answered first. For that purpose I have heard all the learnedcounsel.5.Shri. Soman submitted that the schedule of Cr.p.c. doesrefer to other laws and can be used to decide whether the offencesin Statutes other than Indian Penal Code are bailable or nonbailable. He submitted that the schedule of Cr.p.c. can be appliedto other Acts keeping in mind object and reasons of thatparticular Act. He submitted that looking at the scheme ofCopyright Act and Trade Marks Act it shows that the offences arebailable. 6.As against this Shri. Nikam and Shri. Patil submittedthat this issue is no more res integra and different courts on 03 03 2021 on 03 03 : 7 : 04 aba 336 21.odtincluding a Division bench of this court have held that the offencesin which punishment can extend upto 3 years are non bailableoffences. 7.I have considered their submissions in that behalf. Shri.Patil and Shri. Nikam both have relied on a few judgments. 8.First of these was a judgment of single Judge of thiscourt passed in the case of Ramrao Marotrao Budruk Vs. The Stateof Maharashtra and another reported in 1994 SCC OnLine Bom407 . In that case the court was deciding whether section 2 of thePrevention of Insults to National Honour Act 1971 makes offenceunder that Act bailable or non bailable. In that context paragraph Nos.3 and 8 of that Judgment are important. Those twoparagraphs are reproduced as follows: “3. Section 2 of the Prevention of Insults to NationalHonour Act 1971runs thus:“whoever in any public place or in any other placewithin public view burns mutilates …. or otherwisebrings into contemptthe Indian NationalFlag or the Constitution of India or any part thereof on 03 03 2021 on 03 03 : 8 : 04 aba 336 21.odtshall be punished with imprisonment for a termwhich may extend to three years or with fine orwith both. . .8. Section 2 of the Act empowers the Court tosentence an accused upto 3 years and it is amaximum sentence but permissible. Therefore itmakes no difference by the fact that theimprisonment for such an offence can also be lessthan 3 years. To put in figures for an offence undersection 2 of the Act the imprisonment for 2 yearsand 365 days can be inflicted or ever less than that.As such it would be an offence punishable withimprisonment for 3 years which would make it as anon bailable one. If the punishment is upto 2 yearsand 364 days it would be an offence punishablewith imprisonment for less than 3 years so as tomake it a bailable on under category No.3 of thesaid classification. If the offence therefore fallswithin the corners of category No.2 of the saidclassification an application under section 438 Cr.P.C. for a relief anticipatory bail would bemaintainable as the offence would be a non bailableone. The learned 2nd Additional Sessions Judge on 03 03 2021 on 03 03 : 9 : 04 aba 336 21.odttherefore committed an error in treating the offenceunder section 2 of the Act as a bailable one.”9.Similar view was expressed by another single Judge ofthis court in the case of State of Maharashtra Vs. Shri. SureshGanpatrao Kenjale reported in 1995 CriLJ 2478. The relevantparagraph No.3 in that judgment is reproduced as follows: “3. The Sessions Judge Bhandara while rejectingthe application for police custody observed that forthe offence under S. 7 of the P.C. Act theimprisonment prescribed is not less than sixmonths but that may extend to five years and forthe offence under S. 13(1)(d) r w S. 13(2) of theP.C. Act the minimum imprisonment is one yearand it may extend to seven years and thusconcluded that the said offences are punishablewith imprisonment for less than three years andtherefore they are bailable offences and the policecustody remand cannot be ordered. The reasoninggiven by the Sessions Judge on its face appears tobe fallacious. He has not properly construed thepunishment prescribed under S. 7 as well as underS. 13(1)(d) r w 13(2) of the Prevention ofCorruption Act and in the light of Schedule II of on 03 03 2021 on 03 03 : 10 : 04 aba 336 21.odtthe Code of Criminal Procedure 1973 makingclassification of offences against other laws. Forthe offence under S. 7 of the P.C. Act it is providedthat the said offence shall be punishable withimprisonment which shall not be less than sixmonths which may extend to five years and shallalso be liable to fine. This means that themaximum punishment for an offence under S. 7 ofthe P.C. Act is five years. Similarly for the offenceunder S. 13(1)(d) of the P.C. Act it is providedthat the said offence shall be punishable underSub sectionof S. 13 with imprisonment uptoseven years. In the Second Schedule of the Code ofCriminal Procedure 1973 making classification ofoffences against other laws it is provided that theoffences which are punishable with imprisonmentfor three year and upwards but not more thanseven years are non bailable. By no stretch ofimagination can it be said that the offences underSs. 7 and 13(1)(d)r w. S. 13(2) of the P.C. Act arenot punishable with imprisonment of three yearsand upwards but not more than seven years. Whileconstruing whether an offence is bailable or non bailable it is not the minimum sentence which canbe awarded under the law is required to be seen1 on 03 03 2021 on 03 03 : 11 : 04 aba 336 21.odtbut the maximum sentence which can be awardedunder the law has to be seen and the maximumsentence awardable under S.7 of the P.C. Act is fiveyears and for the offence under S. 13(1)(d) as isprovided in S. 13(2) is seven years and therefore both the offences are non bailable and theSessions Judge was not justified in holding thatthe said offences are bailable. 10.A Division Bench of this court also had an occasion todeal with this issue in the case of Mahesh Shivram Puthran V. TheCommissioner of Police Thane Dist. Thane and others reportedin 2011 SCC OnLine Bom 389. In that case the court wasconsidering whether offences under sections 43 and 52 of theM.R.T.P. Act 1966 were cognizable or non cognizable. In thatcontext the division bench referred to sub section 2 of section 4and section 5 of Cr.p.c. The relevant discussion can be found inparagraph Nos.12 and 13 which are as follows: 12. The Act by itself does not provide whether thesaid offence is cognizable or bailable. For that wehave to refer to Section 4 of the Criminal ProcedureCode. The same reads thus:1 on 03 03 2021 on 03 03 : 12 : 04 aba 336 21.odt“4. Trial of offences under the PenalCode 1860 and other laws.(1) All offences under the Penal Code 1860 shall be Investigated inquired into tried andotherwise dealt with according to the provisionshereinafter containedAll offences under any other lawshall be investigated inquired into tried andotherwise dealt with according to the sameprovisions but subject to any enactment for thetime being in force regulating the manner or placeof investigating inquiring into trying or otherwisedealing with such offences."Sub sectionrefers to offences underthe Penal Code 1860. This provision has noapplication to the case on hand. However sub sectionrefers to all offences under any otherlaw which would include the offences punishableunder the said Act of 1966. In other words offencesunder the provisions of the Act of 1966 can beinvestigated enquired into tried and otherwisedealt with according to the same provisions butsubject to any enactment for the time being in forceregulating the manner or place of investigating enquiring into trying or otherwise dealing with1 on 03 03 2021 on 03 03 : 13 : 04 aba 336 21.odtsuch offences. We have already alluded to theprovisions of the Act of 1966 which provide formechanism to institute prosecution for offencespunishable under the said Act and Rules madethereunder. Accordingly the said provisions wouldprevail being special enactment. 13. Besides it may be useful to refer to Section 5 ofthe Code which reads thus: "Saving. Nothing contained in thisCode shall in the absence of a specific provision tothe contrary affect any special or local law for thetime being in force or any special jurisdiction orpower conferred or any special form of procedureprescribed by any other law for the time being inforce."In Paragraph 14 the Division Bench recorded it’sconclusion thus:“As the maximum punishment providedin terms of Section 52 of the Act which has beenapplied to the case on hand being up to threeyears at best the second category of cases specifiedin Part II of Schedule I would be attracted. It wouldnecessarily follow that the offence under Section 52of the Act is a cognizable and non bailable offence.”1 on 03 03 2021 on 03 03 : 14 : 04 aba 336 21.odt11.Recently a Division Bench of the Rajasthan High Courthas also taken a similar view in the case of Nathu Ram S o PurnaRam Versus The State of Rajasthan reported in D. B. Cri. Ref.No.1 2020. A specific question for reference posed before thedivision bench of Rajasthan High Court was as follows: “What would be the nature of an offencefor whichimprisonment “may extend to three years” isprovided and no stipulation is made in the statuteregarding it being cognizable or non cognizable.”After discussion the division bench answered thereference in paragraph No.25 which reads thus: “25. Accordingly the reference is answered interms that unless otherwise provided under therelevant statute the offences under the laws otherthan IPC punishable with imprisonment to theextent of three years shall fall within theclassification II of offences classified under Part IIof First Schedule and thus shall be cognizable andnon bailable.”1 on 03 03 2021 on 03 03 : 15 : 04 aba 336 21.odt12.The question whether the offence is bailable or nothas to be seen in the light of definition of bailable offence providedunder section 2(a) of the Cr.p.c. which reads thus:“2. Definitions“bailable offence” means an offence which isshown as bailable in the First Schedue or which ismade bailable by any other law for the time beingin force and “non bailable offence” means anyother offence ”13.Thus the next relevant sections would be sub section 2of section 4 and section 5 of the Cr.p.c. as they are referred to bythe Division Bench of this court in the case of Mahesh ShivramPuthranAny police officer not below the rank of deputysuperintendent of police or equivalent may if he issatisfied that any of the offences referred to in sub sectionhas been is being or is likely to be committed search and seize without warrant thegoods die block machine plate otherinstruments or things involved in committing theoffence wherever found and all the articles soseized shall as soon as practicable be producedbefore a Judicial Magistrate of the first class orMetropolitan Magistrate as the case may be:1 on 03 03 2021 on 03 03 : 18 : 04 aba 336 21.odtProvided that the police officer beforemaking any search and seizure shall obtain theopinion of the Registrar on facts involved in theoffence relating to trade mark and shall abide bythe opinion so obtained.17.Shri. Soman in support of his contention relied on thejudgment of division bench of this court in the case of Anant s o.Tukaram Teke & Ors. Vs. The State of Maharashtra & Anr. decidedby the Aurangabad Bench of this court in Criminal ApplicationNO.14713. In that case according to Shri. Soman the divisionbench had held that the provision of sub section 4 of section 115 ofthe Act are mandatory in nature. He submitted that in the presentcase the opinion of the Registrar is not obtained. 18.Learned APP on the other hand submitted that this isnot a case where the accused had tried to use a trademark whichwas similar in nature to the one registered in favour of theinformant’s company but they had actually used the sametrademark with the same number which was allotted to the firstinformant. He submitted that the applicant does not have any1 on 03 03 2021 on 03 03 : 19 : 04 aba 336 21.odtauthority to manufacture such goods and pass them off as thegoods manufactured by the informant’s company. He submittedthat the accused have attempted to sell their own products in themarket whose standard is questionable. The consumers were led tobelieve that the products were manufactured by the informant’scompany.19.I have considered these submissions. The Judgment ofAnant Tekerelied on by Shri. Soman will have to be readin the light of the facts mentioned in that case. The informant’scase therein was that the accused were in the similar business asthat of the informant i.e. business of selling tea packets. The packof the tea which accused was selling was deceptively similar to thepack of the complainant. In that case the Deputy Superintendent ofPolice of Beed visited factory of the accused and took action basedon the information that the accused were preparing their packetsin their factory situated at MIDC. After that the police inspector ofBeed raided some shop premises and seized tea packets of theaccused. The Police Inspector seized the machinery of the accusedand Deputy Superintendent of Police had sent a letter to the1 on 03 03 2021 on 03 03 : 20 : 04 aba 336 21.odtRegistrar of Trade Marks seeking opinion under section 115(4) ofthe Act. The division bench found fault with this procedure. It washeld in paragraphs 18 and 23 that in the relevant facts and theprovisions of the Copyright Act and Trade Marks Act the courtneeded to go with the presumption that the compliance ofprovision of section 115 of the Act was mandatory. In paragraph26 of the Judgment it was mentioned that there was a certificatein favour of the accused under Copyright Act and due to suchcertificate act of the accused in these circumstances did notamount to any offence under sections 102 to 104 and 105 of theTrade Marks Act 1999. This is a distinguishing feature in this case. Theapplicant has not claimed that he has any certificate registeredunder the Copyright Act mentioning the informant’s product andtrademark registration number. Therefore benefit of section110(b) of the Trade Marks Act is not available to the applicant inthis case. In the present case there was no question of seekingopinion of the Registrar for Trademarks because accused in thiscase had not used a mark where there was a possibility of2 on 03 03 2021 on 03 03 : 21 : 04 aba 336 21.odtsimilarity but they had gone ahead and used the very sametrademark with the very same number under which the trademarkwas registered in favour of the informant’s company. Moreover atthe time of registration of F.I.R. the goods in question were alreadytaken in custody. It was not a result of a fresh search and seizureafter that. Therefore the observations in the case of Anant Teke(supra) are not applicable to the present case. 20.In this case whether there is infringement of CopyrightAct attracting punishment under section 63 of the Act is a matterof investigation but certainly there appears to be infringement ofthe trademark registered in the name of the informant’s company.Therefore commission of offence punishable under section 103 ofthe Trade Marks Act is clearly made out. The accused have falselyapplied the informant’s trademark to their own products and haveattempted to sell those products. Thus the act of the accused alsoamounts to offence under section 420 r w. 511 of the IPC. By theiract the public were induced or an attempt was made to induce thepublic to buy these products under the impression that they weremanufactured by the informant’s company.2 on 03 03 2021 on 03 03 : 22 : 04 aba 336 21.odt21.In the present case there is also a statement of co accused which shows active involvement of the present applicantand it was mentioned that the goods were given by the applicantand they were manufactured at his unit. In this view of the matter custodial interrogation of the applicant is necessary. No relief ofanticipatory bail can be granted.22.The application is rejected. 23.Before parting with the order it is necessary to recordappreciation for the assistance rendered by all the learned counsel.(SARANG V. KOTWAL J.)24.At this stage Shri. Soman submitted that the interimrelief granted earlier be continued for a period of two weeks.However considering that already few months have passed andinvestigation needs to progress further such request is rejected. (SARANG V. KOTWAL J.)2

Selections conducted more than a decade earlier cannot be the subject of interference by this court: Supreme Court of India

The court will not interfere in matters like selections for posts in a police force which took place more than a decade ago. This was held in the judgement passed by a bench consisting of Justice L. Nageswara Rao and Justice Aniruddha Bose in the case of Arvind Kumar Tiwari & Others v The State of Uttar Pradesh [Writ Petition (Civil) No. 1369 of 2018] pronounced on 26th July 2021. On 12th June 2010 a notification was issued by the Uttar Pradesh Police Recruitment and Promotion Board for selection to 5389 Sub Inspector posts by promotion from eligible constables and head constables through departmental examination. Constables below the age of 40 who would complete service of three years by the first day of the recruitment were declared as eligible to be a part of the selection. The recruitment process was governed by the Uttar Pradesh Sub-Inspector and Inspector Service Rules 2008 which state that 50% of the posts are to be filled up by direct recruitment and the remaining 50% by promotion on the basis of Departmental examination from among suitable head constables and constables. From the 3358 candidates who were found worthy, only 3248 ultimately joined. Additionally a few of the candidates were allowed relaxation by the High court of Uttar Pradesh through the Raghuraj Singh v State of Uttar Pradesh [Civil Writ Petition No. 45 of 2016] judgement despite narrowly crossing the age of 40 years as they had proven themselves to be very good candidates. The petitioner, Arvind Kumar Tiwari had applied for the posts mentioned in the notice in 2010 and he was not among the selected candidates. He filed this petition requesting that the results of the examinations conducted to be revealed. The petitioner’s main contention was that there were several unfilled vacancies, so the marks of the examination should be revealed and the benefit allowed to the candidates in the Raghuraj Singh judgement (supra) should be extended to all the other candidates as well. The respondents pointed out the decision of the board which made it clear that a candidate would not be able to seek evaluation in further subjects unless they obtained a minimum 50% marks in the objective type subjects which the petitioner failed to do.

Non Reportable IN THE CIVIL ORIGINAL JURISDICTION Writ PetitionNo.13618 Arvind Kumar Tiwari & Ors .... Petitioner(s The State of Uttar Pradesh & Ors. …. RespondentNo.13319 Writ PetitionNo.6019 Writ PetitionNo.14818 Writ PetitionNo.419 Writ PetitionNo.419 Writ PetitionNo.3319 Writ PetitionNo.2619 Writ PetitionNo.3319 Writ PetitionNo.3719 Writ PetitionNo.4819 Writ PetitionNo.7519 1 | P a g e J U D G M E N T L. NAGESWARA RAO J The complaint of the Writ Petitioners is that their result marks of “Sub Inspector Ranker’s Examination 2000 2008” have not been declared. The further grievance of the Petitioners is that the benefit of the judgment dated 30.01.2017 of this Court in Writ PetitionNo.416 Raghuraj Singh v. State of Uttar Pradesh & Ors.) has not been extended to them. A Notification was issued on 12.06.2010 by U.P. Police Recruitment and Promotion Boardfor selection to 5389 posts of Sub Inspector Service Rules 2008 100 marks 2. Basic Law Construction and Police Procedure100 marks 3. Numerical and Mental Ability Test 50 marks 4. Mental Aptitude Test I.Q. Test Responding 50 marks Except the subject Hindi Essay questions of other subjects would be of objective type. Note 2 to Rule 16(2 stipulates that a candidate who fails to obtain minimum 50 marks in each subject shall not be eligible for promotion. The examination was conducted on 13.03.2011. The Board issued a Notification on 20.04.2011 cancelling 08 questions which were found to be incorrect. Thereafter 3 | P a g e another Notification was issued by the Board on 26.05.2011 cancelling 18 questions which were found to be incorrect. On 11.06.2011 the result of the written examination was declared and 3891 candidates were selected out of whom 3351 candidates qualified after going through the physical test and group discussion. A Writ Petition was filed in the High Court of Judicature at Allahabad by some of the unsuccessful candidates to set aside the result of the written examination. They complained of irregularities in the conduct of written examination. The cancellation of 18 questions was the main point taken by the Writ Petitioners. As the cancellation of questions was not due to any mistake of the candidates a learned Single Judge of the High Court directed the Board to award full marks for the cancelled questions. Having been informed that there were several vacancies the Respondents therein were permitted to send the Writ Petitioners for training if found eligible after revision of the list. The said judgment of the learned Single Judge was challenged by a Special Appeal before the High Court. The Division Bench of the High Court vide interim order dated 30.08.2012 stayed the operation of the judgment of the learned Single Judge and directed that no person shall be sent for training. The State of U.P 4 | P a g e approached this Court questioning the order passed by the Division Bench on 30.08.2012. This Court set aside the order of the Division Bench on 07.10.2013 By an order dated 18.07.2014 this Court took note of the ongoing litigation pertaining to the selection to the posts of Sub Inspectors by promotion in the State of Uttar Pradesh and issued the following directions: a) The posts that have been filled up by successful candidates as has been apprised to us at the Bar are 3358 and the candidates who have joined in the said posts and presently working shall not be b) The U.P. Police Recruitment and Promotion Board Lucknow shall scrutinize the papers of all the Candidates namely the persons who had approached the Writ Court and the Candidates who had not approached the Writ Court and if they have attempted and answered the 18 questions which were wrongly set out they will be awarded full marks for said 18 questions. 5 | P a g e If a candidate has not answered any erroneous question the same shall be proportionately reduced. To clarify the candidate shall only get full marks of questions answered. d) A fresh select list shall be drawn up taking into account the aforesaid marks in respect of 2031 posts which are available in present pertaining to the year 2008. e) The aforesaid exercise shall be completed within a period of three months hence the successful candidates shall be duly intimated and subsequent action shall be taken by the State. From the 3358 candidates who were declared successful by a Notification dated 11.06.2011 3248 candidates actually joined. 110 candidates who were not permitted to join due to their crossing the age of 40 years were given the benefit of relaxation of age pursuant to an order passed by this Court. In Writ Petition No.45 2016 Raghuraj Singh this Court directed the Petitioners to be accommodated in the existing vacancies of Sub Inspectors Ranker if they have obtained 6 | P a g e marks between 190.16667 and 223.33333. It is clear from a perusal of the order that the Petitioners therein were qualified for being selected and promoted as Sub Inspectors Civil Police) Ranker. These Writ Petitions have been filed seeking a direction that the order passed in Raghuraj Singhshould be extended to them after declaring the marks obtained by them. The contention of the Petitioners is that there are several unfilled vacancies. It was submitted on behalf of the Petitioners that there is no reason for which their marks are not declared. It was submitted on behalf of the Petitioners that there can be no objection for declaring their marks and their promotion if they are found eligible. Finally it was argued on behalf of the Petitioners that they are entitled for the same order that was passed in Raghuraj SinghNo.45 2016. On behalf of the State of Uttar Pradesh it was contended that the Petitioners are not entitled for the relief sought as they did not qualify in the selection of the test. According to the Respondents the selection test is conducted in four stages. In the first stage of written examination the candidates failing to obtain 50 marks in each of the four subjects prescribed for written examination shall be filtered out and the candidates 7 | P a g e obtaining minimum 50% marks in every subject shall be included in the list of candidates for physical ability test. The learned counsel appearing for the State referred to a decision of the Board dated 22.02.2011 according to which the papers of objective type answer sheets will be evaluated initially The Hindi Essay answer sheet will be taken up for evaluation thereafter only of those candidates who have obtained minimum 50% in each of the subjects which are of objective type. In other words the candidates who do not secure minimum 50% marks in the three objective type subjects shall be disqualified and the examination paper for Hindi Essay shall not be evaluated. Initially the marks of the candidates who were declared unsuccessful in the examination was not declared. By a Notification dated 17.05.2019 the Board uploaded the marks of all unsuccessful candidates. Several applications were filed seeking information relating to the marks obtained by them in the written examination. In response to the applications filed by 1815 candidates marks have been given to 1637 candidates. The scheme of the examination conducted for selection by promotion to the post of Sub Inspectors of Police is in accordance with Rule 16 of the said Rules. There are three 8 | P a g e subjects which are categorized as objective type. Note 2 of Rule 16 provides that a candidate who fails to obtain minimum of 50% marks in each subject shall not be eligible for promotion. The decision of the Board dated 22.02.2011 makes it clear that unless a candidate obtains minimum 50 marks in the objective type subjects they shall not be entitled to seek evaluation of the Hindi Essay Subject. Such of those candidates who failed to secure 50% marks in the objective type subjects stood disqualified. The Writ Petitioners are in such category. Therefore their Hindi Essay paper was not evaluated and the marks were not declared The decision of the Board was taken prior to the date of the examination and no fault can be found with the same. More than 50 000 candidates appeared for the examination and the short listing of the candidates in stages is within the domain of the Board and cannot said to be arbitrary and discriminatory. 10. The Petitioners are not entitled for extension of the order passed in Raghuraj Singh No. 28838 2019 this Court refused to entertain any challenge to the same selection process on the ground that several years have gone by. Selections conducted more than 10 | P a g e a decade earlier cannot be the subject matter of interference 11. For the aforementioned reasons the Writ Petitions are by this Court. dismissed. .....................................J [ L. NAGESWARA RAO [ ANIRUDDHA BOSE .....................................J New Delhi July 26 2021. 11 | P a g e

Twaha Fasal’s bail gets canceled in UAPA case over alleged Maoist links: Kerala High Court

The bail order passed by Special NIA Court Kochi for Thwaha Fasal in a UAPA case, arrested on November 2019 was set aside by the Kerala High Court. However bail has been granted to the other convict by divisional Bench of Kerala High court comprising of Hon’ble Justice A.Hariprasad and Justice K.Haripal in the case of Union of India vs. Twaha Fasal [CRL.A.No. 705 of 2020] and Union of India vs. Allan Shuaib [CRL.A.No. 706 of 2020]. In the instant case, both Twaha Fasal and Allan Shuaib were arrested in November 2019 by Kerala police under the Unlawful Activities Prevention Act alleging that they were supporting proscribed Maoist group which was declared as a terrorist organization. Later on, the National Investigation Agency took over the case. Documents seized from the accused were ‘highly inflammable and volatile’ and they were found shouting slogans in the favor of CP (Maoists). Offences under Sections 38 and 39 of the UAPA which deal with association with a terrorist organization and supporting it with the intention to further its activities, Section 13 of the UAPA (punishment for unlawful activity) and 120B of the Indian Penal Code (criminal conspiracy) were invoked against them. In September 2020, the NIA Court granted them bail observing that the National Investigation Agency failed to establish a prima facie case under the Unlawful Activities Prevention Act (UAPA), 1967, against the accused. NIA court observed that mere possession of books on Communist Ideology, Maoism, Class struggle does not prove anything adverse against the accused and Right to Protest is a constitutionally guaranteed right. When the appeal was made in Kerala High Court, the court observed that the trial court went into a “thread-bare analysis” of the documents on record as if in a trial and said ‘After rushing through the materials we are only to say that, generally speaking, some of those materials are not innocent and innocuous which could be ignored in a light hearted manner’ with reference to the case of “NIA vs. Zahoor Ahmed Shah Watali”. The High court did not accept the fact that the accused were keeping all the books and records out of their intellectual curiosity.

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE A.HARIPRASAD THE HONOURABLE MR. JUSTICE K.HARIPAL MONDAY THE 04TH DAY OF JANUARY 2021 14TH POUSHA 1942 CRL.A.No.705 OF 2020 CHALLENGING COMMON ORDER DATED 09.09.2019 IN CRL. M.P. NO. 56 OF 2020 IN S.C. NO. 1 2020 NIA OF THE SPECIAL COURT FOR TRIAL OF NIA CASES AT ERNAKULAM UNION OF INDIA REPRESENTED BY NATIONAL INVESTIGATION AGENCY 4TH CROSS ROAD GIRINAGAR KADAVANTHARA BY ADV. SHRI.P.VIJAYAKUMAR ASG OF INDIA S O. ABUBACKER KOTTUMMAL HOUSE MOORKANAD PANTHEERANKAVU KOZHIKODE 673 019 BY ADV. SRI.K.S.MADHUSOODANAN BY ADV. SRI.THUSHAR NIRMAL SARATHY BY ADV. SRI.M.M.VINOD KUMAR BY ADV. SRI.P.K.RAKESH KUMAR BY ADV. SRI.K.S.MIZVER BY ADV. SRI.M.J.KIRANKUMAR BY ADV. SRI.S RAJEEV THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25 11 2020 ALONG WITH CRL.A.NO.706 2020 THE COURT ON 04 01 2021 DELIVERED Crl.A.Nos.705 & 7020 :2 IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE A.HARIPRASAD THE HONOURABLE MR. JUSTICE K.HARIPAL MONDAY THE 04TH DAY OF JANUARY 2021 14TH POUSHA 1942 CRL.A.No.706 OF 2020 CHALLENGING COMMON ORDER DATED 09.09.2019 IN CRL. M.P. NO. 55 OF 2020 IN S.C. NO. 1 2020 NIA OF THE SPECIAL COURT FOR TRIAL OF NIA CASES AT ERNAKULAM UNION OF INDIA REPRESENTED BY NATIONAL INVESTIGATION AGENCY 4TH CROSS ROAD GIRINAGAR KADAVANTHARA BY ADV. SHRI.P.VIJAYAKUMAR ASG OF INDIA S O. MOHAMMED SHUAIB MANIPOORI HOUSE PALATTU NAGAR BY ADV. SRI.S.RAJEEV BY ADV. SRI.K.K.DHEERENDRAKRISHNAN BY ADV. SRI.V.VINAY BY ADV. SRI.D.FEROZE BY ADV. SRI.K.ANANDof the National Investigation Agency Act Act 308 challenging the correctness of the common order passed by the Special Judge for the trial of NIA cases Ernakulam in Crl.M.P.Nos.55 2020 and 56 2020 in S.C.No.1 2020 NIA The respondents along with another person by name Usman who is absconding stand charged by the NIA for offences punishable under Section 120B IPC read with Sections 38 and 39 of the Unlawful Activities Act 1967 hereinafter referred to as the Act Apart from the above the second accused who is the respondent in Crl.A.No.705 2020 faces allegation under Section 13 of the Act also. The allegation is that on 01.11.2019 at 6.45 p.m. while the Sub Inspector of Pantheerankavu police station Kozhikode and party were engaged in routine law and order patrol duty he noticed the respondents and the said Usman huddled together in darkness on the veranda of a shop out of suspicion when the police approached them the said Usman ran away and disappeared from the place who has not yet Crl.A.Nos.705 & 7020 :4 been nabbed. Investigation of the case against him is continuing. The police seized objectionable printed and written materials from the respondents which include violent exhortations for civil war in tune with Maoist ideology. They were taken to the police station and Crime No.507 2019 of Pantheerankavu police station was registered against the three accused persons alleging offences punishable under Sections 20 38 and 39 of the Act along with Section 120B IPC. That night itself the residences of the respondents were searched and more incriminating materials were traced from their possession. According to the prosecution such materials were more volatile even exhorting secession of the country after liberating Jammu & Kashmir. Materials creating unrest in society also could be found out. Thus it became very clear that the respondents were activists of the banned CPI(Maoist). At the time of searching the residence of the second accused he shouted slogans supporting Maoist ideology. Since the materials found out from the possession of the respondents were grave enough to pose threat to national security by order dated 16.12.2019 the Ministry of Home Affairs Government of India entrusted investigation of the case with the NIA. During the course of investigation though the respondents had Crl.A.Nos.705 & 7020 :5 moved the courts seeking bail they were rejected by the trial court as well as this Court. On conclusion of investigation the final report has been laid against the respondents and the said Usman alleging offence punishable under Sections 38 and 39 of the Act read with 120B IPC besides Section 13 against the second accused. After laying the charge sheet the respondents moved the trial court again with the said Crl.M.Ps. The learned Special Judge by the impugned order granted them bail imposing conditions. That order is now under challenge. 4. We heard Sri.P.Vijayakumar the learned Assistant Solicitor General of India and Sri. Arjun Ambalappatta the learned senior Public Prosecutor for the NIA besides Sri.S.Rajeev and Sri.K.S.Madhusoodanan the learned counsel for the respondents. The learned Assistant Solicitor General has raised caustic criticism against the order under challenge. According to him the learned Special Judge lost sight of the purport of the Act and showed over enthusiasm in granting bail to the respondents the court was proceeding on wrong assumptions. At the stage of considering the application for bail the learned Judge should not have gone deep Crl.A.Nos.705 & 7020 :6 disintegrating all the material pieces of evidence for concluding that there is no prima facie case in favour of the prosecution. The court has considered evidence as if in a trial such detailed analysis was not warranted the documents relied on by the prosecution should have been taken as true and a deeper enquiry is not expected for deciding the application for bail. Both the counsel representing the appellant complained that the court has not properly understood the intention of the legislature. The object of the Act is to prevent unlawful activities even if overt acts are not proved that is not an impediment in finding prima facie case as far as offences under Sections 38 and 39 of the Act are concerned The learned Assistant Solicitor General also complained that the trial judge was placing reliance on authorities having no bearing in this case According to him even though the decision reported in National Investigation Agency v. Zahoor Ahmad Shah Watali:5 SCC 1] was also relied it was not properly understood and applied. He further argued that the learned Special Judge has mistaken the activities of a terrorist organisation and the gravity of the offence has been diluted for granting bail. According to him the cumulative effect of the materials found out from the possession of the Crl.A.Nos.705 & 7020 :7 respondents should not have been overlooked by the court. On the other hand the learned counsel for the respondents defended the order of the learned Special Judge. According to them the court has granted them bail after eleven months of incarceration. The import of each and every material relied on by the prosecution has been examined in the light of Section 43 D(5) of the Act. Counsel for the second accused respondent in Crl.A.705 2020 filed a detailed objection Both the learned counsel for the respondents have challenged the very maintainability of the appeals. According to them the appeal memoranda have been signed by the Superintendent of Police NIA Kochi and the appeals were presented before court by the Assistant Solicitor General of India who is not a Public Prosecutor as defined under Section 24(1) of the Code of Criminal Procedure hereinafter referred to as the Code . In this connection the counsel also relied on the decisions of this Court in State of Kerala v. Krishnanand Benny P Jacob and another v. Rajesh Kumar Unnithan and another of the NIA Act those appeals were dismissed by this Court as per the judgment reported in Thwaha Fasal and another v State of Kerala and othersin which one of us Crl.A.Nos.705 & 7020 :9 Hariprasad J) was party. Meanwhile the charge sheet was laid as aforestated and thereafter they moved fresh applications for bail before the Special Judge which were allowed by the impugned common order. In his detailed order the learned Special Judge after considering various aspects and after analysing each and every material evidence projected against the respondents concluded that the prosecution could not make out prima facie case against them that they have not indulged in any specific terrorist act or act of violence. In that view he allowed the applications and released them on bail imposing certain conditions. Aggrieved by the same Union of India represented by the National Investigation Agency has preferred these appeals 11. The allegations against the accused are briefly as follow: Accused 1 to 3 had knowingly and intentionally associated themselves and acted as members of Communist Party of Indiaproscribed as a terrorist organisation by the Government of India under Section 35 of the Unlawful ActivitiesAct 1967 and included in the I Schedule to the Act thereby committed the offence punishable under Section 38 of the Act Accused 1 to 3 had knowingly and intentionally possessed documents supporting and published by Crl.A.Nos.705 & 7020 :10 CPI(Maoist) possessed digital devices and other materials with the intention of supporting the proscribed terrorist organisation and propagating its violent extremist ideology and thereby committed the offence punishable under Section 39 of the Act Accused 1 to 3 had knowingly and intentionally attended various conspiracy meetings along with other underground part time and professional members of CPI(Maoist). They had attended various programmes organised by the frontal organisations of the proscribed terrorist organisation for furthering the objectives of CPI(Maoist) and thereby committed the offence punishable under Section 120B of IPC Accused No. 2 in furtherance of the conspiracy with co accused and others had knowingly and intentionally prepared cloth banners supporting secession of Kashmir from the Indian Union for displaying at public place and thus committed the offence of unlawful activity punishable under Section 13 of the Act. It is further stated that investigation revealed that A1 and A2 had nurtured Maoist ideology since 2015 16 and had subsequently knowingly and intentionally associated with the proscribed terrorist organisation CPI(Maoist) with the intention of furthering its objectives The accused had conspired and propagated the ideology of the terrorist Crl.A.Nos.705 & 7020 :11 organisation among their friends while attempting to radicalize and recruit such persons into the proscribed organisation. The accused have conducted clandestine meetings in Kozhikode and Kannur districts besides knowingly and intentionally attended various conspiracy meetings with underground professional members and leaders of CPI(Maoist) party like A3. A1 and A2 have also attended various programmes organised by the frontal organisations of CPI(Maoist) with the intention of furthering the objectives of the proscribed terrorist It is not disputed that Communist Party of Indiais an outfit proscribed under Section 35 of the Act 14. The argument of the learned counsel for the respondents that the appeals are not maintainable can be considered at the outset. It is true that the learned ASG has not been notified as a Public Prosecutor as defined under Section 24 of the Code. The appeal memoranda are signed by the Superintendent of Police NIA Cochin Unit who re registered the crime in Cochin Unit of the NIA. In that capacity his name appears in the list of witnesses as witness No.91. The appeals were presented by the ASG and Sri. Arjun Ambalappatta in his capacity as the Public Crl.A.Nos.705 & 7020 :12 Prosecutor. The notification referred to above dated 12.09.2011 published in the Gazette of India of even date reads thus: “MINISTRY OF HOME AFFAIRS INTERNAL SECURITY I DIVISION New Delhi the 12th September 2011 S.O. 2070(E) In exercise of the powers conferred by sub section of Section 15 of the National Investigation Agency Act 2008 read with sub section of Section 24 of the Code of Criminal Procedure 1973 the Central Government hereby appoints Shri Ahmad Khan Senior Public Prosecutor NIA Shri S K Rama Rao Senior Public Prosecutor NIA Shri S Abdul Khader Kunju Public Prosecutor NIA and Shri Arjun Ambalapatta Public Prosecutor NIA as Public Prosecutors for conducting the cases instituted by the National Investigation Agency in the trial courts appeals revisions or other matters arising out of the case in revisional or appellate courts established by law of the country F. No.1 11011 65 2011 IS IV DHARMENDRA SHARMA Jt.Secy” In other words Sri. Arjun Ambalappatta stands appointed as the Special Public Prosecutor NIA under Section 24(8) of the Code and thus entitled to conduct cases instituted by the NIA in trial courts appeals revisions or other matters arising out the case in courts established by the law of the country. Dockets of the appeals bear the names of both the ASG and the Crl.A.Nos.705 & 7020 :13 Public Prosecutor. When a Public Prosecutor is appointed under sub sectionorof Section 24 of the Code there is no point in saying that his appointment is without consulting the High Court. Moreover Section 15 of the NIA Act also enables the Central Government to appoint a person subject to the qualifications provided in sub sectionto be the Public Prosecutor and may appoint one or more persons to be Additional Public Prosecutor or Additional Public Prosecutors. That means even though the ASG is not a Public Prosecutor as defined under Section 2(u) read with Section 24 of the Code the challenge against the maintainability of the appeals cannot be sustained since the appeals are signed by the Superintendent of Police and presented by the Public Prosecutor appointed under Section 15 of the NIA Act read with Section 24(8) of the Code. can be extracted: 15. Now turning to the merits Sections 13 38 and 39 of the Act “13. Punishment for unlawful activities.—(1) Whoever— a) takes part in or commits or b) advocates abets advises or incites the commission of any unlawful activity shall be punishable with imprisonment for a term which may extend to seven years and shall also be liable to fine Crl.A.Nos.705 & 7020 :14 2) Whoever in any way assists any unlawful activity of any association declared unlawful under section 3 after the notification by which it has been so declared has become effective under sub section of that section shall be punishable with imprisonment for a term which may extend to five years or with fine or with both 3) Nothing in this section shall apply to any treaty agreement or convention entered into between the Government of India and the Government of any other country or to any negotiations therefor carried on by any person authorised in this behalf by the Government of India 38. Offence relating to membership of a terrorist 1) A person who associates himself or professes to be associated with a terrorist organisation with intention to further its activities commits an offence relating to membership of a terrorist organisation: Provided that this sub section shall not apply where the person charged is able to prove— a) that the organisation was not declared as a terrorist organisation at the time when he became a member or began to profess to be a member and b) that he has not taken part in the activities of the organisation at any time during its inclusion in the First Schedule as a terrorist organisation 2) A person who commits the offence relating to membership of a terrorist organisation under sub section 1) shall be punishable with imprisonment for a term not exceeding ten years or with fine or with both 39. Offence relating to support given to a terrorist 1) A person commits the offence relating to support given to a terrorist organisation a) who with intention to further the activity of a terrorist Crl.A.Nos.705 & 7020 :15 organisation i) invites support for the terrorist organisation and ii) the support is not or is not restricted to provide money or other property within the meaning of section 40 or b) who with intention to further the activity of a terrorist organisation arranges manages or assists in arranging or managing a meeting which he knows is i) to support the terrorist organisation or ii) to further the activity of the terrorist organisation or iii) to be addressed by a person who associates or professes to be associated with the terrorist organisation or c) who with intention to further the activity of a terrorist organisation addresses a meeting for the purpose of encouraging support for the terrorist organisation or to further its activity 2) A person who commits the offence relating to support given to a terrorist organisation under sub sectionshall be punishable with imprisonment for a term not exceeding ten years or with fine or with both.” In Thwaha Fasal quoted supra referring to Sections 38 and 39 of the Act this Court observed as follow: “13. Section 38 on the other hand deals with punishment of a person who associates himself or professes to be associated with a terrorist organisation with an intention to further its activities thereby commits an offence relating to membership of a terrorist organisation. Proviso to that Section may not be relevant at this stage of the case. It is evident that a person knowingly or consciously associating Crl.A.Nos.705 & 7020 :16 with a terrorist organisation and a person who professes to be associated with a terrorist organisation will be punishable if he does so with an intention to further its activities as he commits an offence relating to membership of a terrorist organisation. We are inclined to think that the words “associated” and “professes to be associated” occurring in Section 38 of the UA(P) Act are employed in a broad sense and with a specific purpose Anybody indulging in such activities will normally do so clandestinely or surreptitiously. Contextually therefore not only overt actions but covert actions may also at times satisfy the ingredients of the Section provided they were done knowingly or consciously for the objectives mentioned in the Section. … 14. Section 39 of the UA(P) Act deals with punishment for support given to a terrorist organisation. On a reading of the Section it will be clear that the support must be intentional and it should be for furtherance of the activity of a terrorist organisation.” Both are cognate offences. In our view if there are materials to infer that the accused have done something to promote or enthuse the activities of a terrorist organisation or done anything supporting its activities with the intention to further its activities these offences are attracted. Crl.A.Nos.705 & 7020 :17 17. Offences under Sections 38 and 39 of the Act fall within Chapter VI of the Act. In this connection Section 43 D(5) of the Act reads thus: “43D. Modified application of certain provisions of the Code. xxx xxx xxx xxx Notwithstanding anything contained in the Code no person accused of an offence punishable under Chapters IV and VI of this Act shall if in custody be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: Provided that such accused person shall not be released on bail or on his own bond if the Court on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.” In other words whenever an offence falling under Chapters IV and VI of the Act is alleged against the accused on perusal of the case diary or the final report that there are reasonable grounds for believing that the accusation against the said person is prima facie true the Act restrains the court from releasing him on bail. The Hon ble Supreme Court in National Investigation Agency v. Zahoor Ahmed Shah Watalihas observed as follows: “18. A priori the exercise to be undertaken by the Court at this stage of giving reasons for grant or non grant of bail is markedly different from discussing Crl.A.Nos.705 & 7020 :18 merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage. The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the Accused in the commission of the stated offence or otherwise According to the Hon ble Court the opinion regarding the grant or otherwise of the bail must be reached by the courts not only in reference to the accusation in the FIR but also in reference to the contents of the case diary including the charge sheet and the other material gathered by the investigating agency. Regarding the application of Section 43 D of the Act the Court noted thus: “18. …................................ Be it noted that the special provision Section 43D of the 1967 Act applies right from the stage of registration of FIR for offences under Chapters IV and VI of the 1967 Act until the conclusion of the trial thereof. To wit soon after the arrest of the Accused on the basis of the FIR registered against him but before filing of the chargesheet by the Investigating Agency after filing of the first charge sheet and before the filing of the supplementary or final chargesheet consequent to further investigation under Section 173(8) Cr.P.C. until framing of the charges or after framing of the charges by the Court and recording of evidence of key witnesses etc However once charges are framed it would be safe to assume that a very strong suspicion was founded upon the materials before the Court which prompted the Crl.A.Nos.705 & 7020 :19 Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged against the accused to justify the framing of charge. In that situation the Accused may have to undertake an arduous task to satisfy the court that despite the framing of charge the materials presented along with the chargesheet do not make out reasonable grounds for believing that the accusation against him is prima facie true. Similar opinion is required to be formed by the Court whilst considering the prayer for bail made after filing of the first report made under Section 173 of the Code as in the present case 19. For that the totality of the material gathered by the Investigating Agency and presented along with the report and including the case diary is required to be reckoned and not by analysing individual pieces of evidence or circumstance. In any case the question of discarding the document at this stage on the ground of being inadmissible in evidence is not permissible. For the issue of admissibility of the document evidence would be a matter for trial. The Court must look at the contents of the document and take such document into account as it is.” 18. After going through the impugned order we have no doubt that there is force in the submission of the learned Assistant Solicitor General and the Public Prosecutor for the NIA that the learned Special Judge had ventured to make a thorough threadbare analysis into each and every document relied on by the prosecution as if in a trial. In other words there is substance in the contention that the learned Judge has Crl.A.Nos.705 & 7020 :20 overstepped while deciding to release the respondents on bail. 19. We do not approve the approach made by the learned Special Judge. He is of the firm view basing on the authorities that bail is the rule and jail exception. Even though that is the general perception in ordinary crimes when the accused faces allegation under a special enactment his right to be enlarged on bail shall be governed by the provisions of the special statute. In such cases the provisions under the Code cannot be readily applied. As noticed earlier Section 43 D(5) of the Act is an exception to the provisions of the Code which postulates modified applications of certain provisions of the Code. It starts with a non obstante clause. When offence under Chapters IV and VI of the Act is alleged the court shall not grant bail unless giving liberty to the Prosecutor to address the court. Further the proviso to Section 43 D(5 works as a statutory injunction on the court in granting bail if there are prima facie circumstances to believe that the allegations are true bail cannot be granted as a rule. The Hon ble Apex Court in Watalihas stated how the materials placed before court have to be understood while considering an application for bail. 20. The Act was enacted for the purpose of combating and Crl.A.Nos.705 & 7020 :21 controlling unlawful activities and acts of terrorism and related activities Though the Act had come into existence in 1967 drastic amendments were made in 2008 and 2013. Section 43 D was brought into the statute in 2008 to meet the contingencies of the changed circumstances Terrorist acts or acts prompting or assisting such activities have been taken serious note of by the legislature and that was how stringent provisions have been incorporated in the matter of grant of bail especially when certain category of offences are attracted. In such situations the powers of the Sessions Court as well as that of this Court under Section 439 stand circumscribed. What we endeavour to say is that the principle bail is the rule and jail the exception has no application in such a case especially when the offences under Chapters IV and VI of the Act are alleged against the accused. In this connection the decisions of the Hon ble Supreme Court in Narcotic Control Bureau v. Kishan Lal and othersand Union of India v. Ikram Khan and others9 SCC 221] rendered in the background of Section 37 of the NDPS Act require to be mentioned. 21. Having said that the Special Judge ought to have considered the import of Section 43 D(5) of the Act now the second aspect is Crl.A.Nos.705 & 7020 :22 whether there exist prima facie grounds to say that the accusations against the appellants are true. In order to form an opinion on this it is not necessary to delve deep into material documents one after another as done by the learned Special Judge. The Apex Court has in Watali quoted supra made it succinctly clear as follow: By its very nature the expression “prima facie true” would mean that the materials evidence collated by the Investigating Agency in reference to the accusation against the concerned Accused in the first information report must prevail until contradicted and overcome or disproved by other evidence and on the face of it shows the complicity of such Accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence unless rebutted or contradicted. In one sense the degree of satisfaction is lighter when the court has to opine that the accusation is “prima facie true” as compared to the opinion of Accused “not guilty” of such offence as required under the other special enactments. In any case the degree of satisfaction to be recorded by the court for opining that there are reasonable grounds for believing that the accusation against the Accused is prima facie true is lighter than the Crl.A.Nos.705 & 7020 :23 degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act. …......” As rightly pointed out by the learned ASG the learned Judge has failed to notice the cumulative effect of the documents and materials seized from the possession of the respondents. The learned Judge has categorised the documents into 12 and said that those documents do not make out a prima facie case to proceed against the respondents. But after going through the material documents and also bearing in mind the authorities on the subject we are unable to subscribe to the view Various documents were seized from the respondents. The learned counsel for the respondents wanted to impress us that such materials if at all found in the possession of the respondents were carried by them out of their curiosity to know about the philosophy of the CPI(Maoist) that it might be the affinity of the youth in the tender age to know novel ideologies and that no criminal intention can be attributed. It was pointed out that the first accused is a law student only 19 years old at the time of registration of the crime whereas the second accused is a student in Journalism aged 23 years. Even though they are youth and such a Crl.A.Nos.705 & 7020 :24 proposition is also probable we cannot ignore the fact that the respondents had carried only such type of literature or writings which were published by the CPI(Maoist) which is admittedly a proscribed underworld organisation. 23. We have already stated in brief the necessary ingredients of the offences under Sections 38 and 39 of the Act. The respondents had carried numerous writings and literature published by the said organisation or by those who have strong allegiance to the outfit. That means the contention that the respondents had carried such materials out of their youthful inquisitiveness and quest for understanding new ideologies and curiosity does not carry any weight. If they as youngsters were interested in understanding and assimilating new and novel ideologies a bunch of materials published by a particular outfit alone would not have been found in their possession and power. The underlying element of mens rea cannot be overlooked. Therefore this circumstance alone is sufficient to say at least at this stage that they are protagonists of the organisation. 24. There is also considerable force in the argument of the learned counsel for the appellant that the trial Judge has failed in Crl.A.Nos.705 & 7020 :25 understanding terrorist acts vis a vis the activities of a terrorist organisation. We have noticed that the learned Judge has repeatedly used terms like terrorist activities terrorist attacks violent act violence paragraph 90) overt act of violence terrorist act in the impugned order. It appears that the Judge was under the mistaken notion that in order to attract the alleged offences such violent acts were necessary. But the prosecution has no case that the appellants are members of a terrorist organisation Though the crime was originally registered alleging offence punishable under Section 20 of the Act as well after investigation that provision stands deleted. Similarly the prosecution has no allegation that the respondents have indulged themselves in any terrorist act as defined in Section 15 of the Act. A terrorist act and acts which further the activities by promoting and assisting activities of such terrorist organisation by persons who associate themselves or profess to be associated have to be seen differently. Separate provisions have been incorporated in the statute to meet such contingencies. 25. The learned Special Judge has not considered the other pieces Crl.A.Nos.705 & 7020 :26 of evidence which include the oral testimony of witnesses recorded by the investigating officer relied on by the prosecution. Apart from the documents and electronic gadgets seized from the possession of the respondents witnesses have spoken that the respondents had close association and rapport with persons having close link with the banned organisation. There are also ocular evidence to say that they were regularly attending meetings of such organisations. In the light of the directives given by the Hon ble Apex Court these matters cannot be eschewed but are relevant while considering the question as to whether the accused are entitled to be released on bail 26. There is also substance in the contention of the learned counsel for the appellant that the trial Judge has oversimplified the materials seized from the possession of the respondents. There are documents which are innocuous on the face of it at the same time there are other documents which are highly inflammable and volatile. After rushing through the materials we are only to say that generally speaking some of those materials are not innocent and innocuous which could be ignored in a light hearted manner. True the prosecution could not prove that the respondents are members of an unlawful organisation. But these Crl.A.Nos.705 & 7020 :27 are surreptitious activities for which evidence may not be readily available in black and white. Everything is done under the carpet behind the curtain without leaving any footprint. Matters have to be inferred from the circumstances. The statement of witness Nos.56 57 58 63 and 64 have to be considered in this context. Statements of some of the witnesses suggest that the respondents used to take photocopies of such documents. Similarly the documents seized from the respondents cannot be seen in isolation. D17 document alone is sufficient to understand the modus operandi of the outfit. It is seen that they consider the administrative set up of the Government and the police as their foes The strategies adopted by them to further the activities of the outfit are vividly given in the guidelines regarding the movements of the activists how meetings should be convened guidelines regarding use of electronic gadgets use of internet computer social media etc. and how precautions are to be taken. This document also envisages two types of comraderie parasya sakhakkal and rahasya sakhakkal that is comrades working overtly and covertly. By no stretch of imagination it could be thought that such types of documents were carried by the respondents out of mere curiosity or intellectual pursuit of new ideologies Crl.A.Nos.705 & 7020 :28 27. After perusing D17 document an important aspect came to the fore is that the respondents did not carry their mobile phones while they were arrested. It is very conspicuous. This document is sceptical about telephone tapping tracing a person in transit through phones etc It cautions its activists and reminds that all communications shall be done discretely only. It is not that both of them do not have mobile phones Their mobile sets were seized from the respective residences after the search. So in all probability the respondents were keeping their mobile phones at home obeying the diktat. It was pointed out by the learned counsel for the respondents that publication of these materials have not been banned and carrying them cannot be described as an offence. We are unable to subscribe to the argument. Firstly it is not disputed at this stage that these are publications made by a banned outfit. Secondly once such an organisation stands proscribed it cannot be heard to say that each and every publication made by them should stand prohibited separately Moreover as hinted earlier carrying such documents cannot be reckoned in isolation. This together with the oral testimony of witnesses do suggest prima facie that the respondents were protagonists of such an ideology. Crl.A.Nos.705 & 7020 :29 29. Moreover at least in one instance 15 copies of the literature were found in the possession of the second accused. It is a very strong circumstance capable of drawing adverse inference against the respondents to say that such items were carried with clear intention for the purpose of circulation. 30. The learned Special Judge has relied on numerous authorities to fortify his conclusion regarding the grant of bail to the respondents Even though he had noticed Watali as well noted supra did not choose to follow the law laid down by the Supreme Court on the subject which holds the field. It is binding under Article 141 of the Constitution. If the directions in the case were properly understood and applied we are sure the decision would have been different. It is the latest authority on the subject which is based on earlier decisions of the Apex Court. 31. The subsequent conduct of the second accused also should have been taken serious note of by the trial court. It is the specific allegation of the prosecution that after having arrested and taken to his residence for conducting a search the second accused was shouting slogans in support of the CPI(Maoist). This conduct is relevant for the Crl.A.Nos.705 & 7020 :30 32. The second accused faces offence under Section 13 of the Act also for having carried two banners seeking independence of Jammu Kashmir. Documents carried by the respondents depict Jammu Kashmir as a neighbouring country. We are unable to approve the argument of the learned counsel that this has to be viewed in the light of the protests emerged against the amendment of the Constitution which conferred status of Union Territory on Jammu & Kashmir. In our view the said documents carry the seeds of a secessionist ideology and the very Act is intended to compact such activities. 33. On evaluation of the entire circumstances and materials we find it difficult to uphold the order under challenge. As rightly pointed out by the learned Asst. Solicitor General and the Public Prosecutor the Special Judge has oversimplified the matters and watered down the seriousness of the documents seized from the respondents or the statements of witnesses spoken against them. Therefore the order warrants interference under Section 386 of the Code. 34. The learned counsel for the respondents cited very many authorities as if it is the proceedings for cancellation of bail. In fact we are not on the question. We are sitting in appeal over the correctness of Crl.A.Nos.705 & 7020 :31 the order granting bail to the respondents. As held by a Full Bench of this Court in Mastiguda Aboobacker and another v. National Investigation Agency and othersKHC 265in which one of us was partyin the absence of prescribed special procedure for investigating enquiring into or trying the offences under the NIA Act provisions under the Code will prevail since the NIA Act is intrinsically interlinked with the provisions of the Code. That means powers of this Court under Section 386 of the Code will govern the subject. It also requires to be stated that very many authorities were relied on by the learned Special Judge outside the context. While considering the question whether there is prima facie material to infer commission of offence under Sections 38 and 39 of the Act the court should have confined to the area of enquiry instead of going haywire We have no doubt that rights and personal liberty are sacrosanct. Courts are bound to protect it. At the same time individual rights should subserve the national interest. When individual rights are pitted against national interest and security the latter should prevail. In the result the order of the trial court granting bail to the Crl.A.Nos.705 & 7020 :32 respondents cannot be sustained. But after considering the case of the first accused who is the respondent in Crl.A.706 2020 we are of the view that there are numerous mitigating circumstances in his favour Firstly on the date of detection of the crime he was only 20 years old Secondly referring to copies of the prescription produced along with the bail application the learned Special Judge has noted that he has some psychiatric issues for which treatment is underway. While considering the appeals we give more importance on this aspect. Moreover materials placed before the court seized from him are less serious compared to the materials seized from the possession of the second accused again the subsequent conduct of the second accused is also blameworthy. That means we do not propose to reverse the order so far as the first accused is concerned who shall continue on bail on the same terms and conditions imposed by the Special Judge whereas Crl.A.No.705 2020 will stand allowed and that part of the order granting bail to the second accused is reversed. He will surrender before the Special Judge forthwith failing which the Special Court shall take steps to secure him in custody. In the light of the above finding the learned Special Judge is Crl.A.Nos.705 & 7020 :33 directed to try and dispose of S.C.No.1 2020 pending before court as expeditiously as possible within one year from the date of receipt of a copy of this judgment. It goes without saying that various observations comments made hereabove are for the limited purpose of disposing of these appeals The Special Judge shall try and dispose of the case uninfluenced by such observations comments. 39. We would also like to remind the learned Judge that the impugned order has been prepared as if it is a court of record which was unnecessary. Similarly the learned Judge while quoting some judgments of the Apex Court has stated the names of the Hon ble Judges who authored the judgments which is unwholesome. The appeals are disposed of as above. Sd A. HARIPRASAD JUDGE K. HARIPAL JUDGE True copy P.S. to Judge Crl.A.Nos.705 & 7020 :34

Refusal to make tea doesn’t amount to grave and sudden provocation: Bombay High Court

The medieval notion of the wife being the property of the husband to do as he wishes still persists in the majority mindset; which is nothing but notions of patriarchy. Refusal to make tea offered grave and sudden provocation is clearly untenable and unsustainable. Bombay High Court gave the judgment in the case of Santosh Mahadev Atkar vs. The State of Maharashtra [Criminal Appeal no.544 of 2019] and quashed the appeal of the appellant by stating the above-cited reasons; which was presided over by the single bench of Hon’ble Justice Revati Mohite Dere. In the present case, an appeal was made by the appellant challenging the order passed by the Additional Sessions Judge convicting him for the offence u/s 304 of the Indian Penal Code and to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.5,000/-. According to the facts of the case, a complaint was lodged by the deceased’s uncle against the appellant for assaulting the deceased (Appellant’s wife) because of which she succumbed to her injuries. It was found that the appellant used to suspect the deceased wife’s character very often. One day, the deceased did not make tea for the appellant due to which the appellant attacked her from behind & gave a blow on her head with a hammer; which was witnessed by their 6-year-old daughter. The Appellant later cleaned the blood and gave a bath to the deceased and then took her to the hospital. But she couldn’t survive the injuries and hence, died.  In the Learned Magistrate, the appellant was convicted for the offence punishable under Section 302 and 201 of the Indian Penal Code. The appellant’s counsel had argued that the incident was a result of the grave and sudden provocation offered by deceased-Manisha, when she refused to make tea for the appellant and hence, the sentence of the appellant be reduced to the period already undergone by the appellant. Whereas, the respondent’s counsel had submitted that the appellant after assaulting the deceased on the flimsy ground of refusing to make tea for him, bathed the deceased, cleaned the blood from the spot, and as such wasted valuable time in taking Manisha to the hospital, resulting in her death. In the High Court, the appellant’s daughter had given her testimony where she submitted that she saw her father attacking her mother with a hammer due to which she started bleeding and then was taken to the Hospital by the appellant himself. The court considered the appellant’s daughter’s testimony as confident which could not be disbelieved.

19 apeal 544 2019.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 544 OF 2019 Santosh Mahadev Atkar Age: 35 years Resident of Vitthal Hospital Servant Quarter Room No. 17 Pandharpur Tal. Pandharpur District Solapur In Jail) Versus The State of Maharashtra Through City Police Station Original Accused Original Complainant Mr. Sarang Aradhye for the Appellant Mr. S. V. Gavand A.P.P for the RespondentState CORAM : REVATI MOHITE DERE J TUESDAY 2 nd FEBRUARY 2021 ORAL JUDGMENT : Heard learned counsel for the parties. The appellant has impugned the judgment and order dated 1st July 2016 passed by the learned Additional Sessions Judge Pandharpur in SQ Pathan 1 19 19 apeal 544 2019.doc Sessions Case No. 13 2014 convicting and sentencing the appellant as under : for 6 months 3 months. for the offence punishable under 304 Part II of the Indian Penal Code to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.5 000 in default of payment of fine to suffer simple imprisonment for the offence punishable under Section 201 of the Indian Penal Code to suffer rigorous imprisonment for 2 years and to pay a fine of Rs.3 000 in default of payment of fine to suffer simple imprisonment for Both the aforesaid sentences were directed to run concurrently A few facts as are necessary to decide the case are as under : The appellant is the husband who was married to Manisha deceased) on 15th December 2005. From the said wedlock the appellant and Manisha were blessed with a daughter Rohini. The appellant and Manisha were residing in the Servants’ Quarters of Vitthal Hospital at Pandharpur along with the appellant’s mother who was serving in the said Hospital. According to the prosecution the appellant was suspecting Manisha’s character as a result of which there used to be frequent quarrels SQ Pathan 2 19 19 apeal 544 2019.doc between them. The incident is stated to have taken place on 19th December 2013 at about 6:00 a.m. It is the prosecution case that Manisha was leaving the house on the said date and time without preparing tea on account of which there was exchange of words between the appellant and deceased Manisha. As the appellant was suspecting Manisha’s character and as she refused to make tea for the appellant the appellant is alleged to have given a blow on Manisha’s head from behind with a hammer. The said incident is alleged to have been witnessed by Rohini who at the relevant time was aged 6 years. It is the prosecution case that soon after Manisha was assaulted the appellant gave her a bath wiped the blood stains from the spot and thereafter took Manisha to Vitthal Hospital. As Manisha’s condition was critical the doctor who treated Manisha asked the appellant to shift Manisha to the Civil Hospital Solapur. Pursuant thereto Manisha was shifted to the Civil Hospital Solapur. Throughout Manisha’s condition was critical and she was unable to speak and eventually on 25th December 2013 Manisha succumbed to her injury. In the meantime i.e. on 19th December 2013 Manisha’s uncle Macchindra Waghmareon learning that Manisha was admitted to the hospital immediately rushed to the hospital i.e. Vitthal Hospital where SQ Pathan 3 19 19 apeal 544 2019.doc the appellant informed Macchindra that he had assaulted Manisha Pursuant thereto Macchindra Waghmarelodged a complaint with the Pandharpur Police Station. On registration of the FIR investigation commenced statements of witnesses were recorded panchanamas were drawn and after investigation charge sheet was filed as against the appellant for the offence punishable under Section 302 and 201 of the Indian Penal Code in the Court of the learned Magistrate at Pandharpur. The said offence being Sessions triable the case was committed to the Court of Sessions at Pandharpur. Charge was framed against the appellant for the aforesaid offence to which the appellant pleaded not guilty and claimed to be tried. The prosecution in support of its case examined 12 witnesses. Thereafter Section 313 statement of the appellant was recorded. The learned Judge after hearing the parties was pleased to convict the appellant for the offence as stated in para 2 hereinabove. Learned counsel for the appellant assailed the judgment on several counts. He submitted that the prosecution case essentially rests on extra judicial confession made by the appellant to PW 4 Macchindra Waghmare PW 6 Nandabai Waghmare and PW 7 Dr. Bajrang Dhotre. He SQ Pathan 4 19 19 apeal 544 2019.doc submitted that the said evidence is a weak piece of evidence and that the appellant cannot be convicted only on the basis of the extra judicial confession made to the said witnesses. He further submitted that as far as the child witness i.e. PW 5 Rohini is concerned the trial Court has discarded her evidence for the reasons set out in the judgment. He submits that the incident was a result of grave and sudden provocation offered by deceased Manisha when she refused to make tea for the appellant and as such the sentence of the appellant be reduced to the period already undergone by the appellant. Learned A.P.P supported the judgment and order of conviction and sentence and prayed for dismissal of the appeal. He submitted that the reasons given by the learned Judge for discarding the evidence of the child witness i.e. PW 5 Rohini are flimsy and cannot be sustained. He submitted that the evidence of PW 5 Rohini inspires confidence and that she has not buckled in her cross examination. He submits that Rohini’s evidence ought to be considered more particularly when she was a natural witness who was present at the spot and had seen the appellant assaulting her mother Manishaas well as the evidence of PW 6 Nandabaiwas also residing with them that the appellant was suspecting Manisha’s character and would quarrel with her on account of the same and that on 19th December 2013 the appellant assaulted Manisha on her head resulting in serious injuries pursuant to which the appellant admitted Manisha to Vitthal Hospital. PW 4 Macchindra has further stated that Manisha was shifted from Vitthal Hospital to Civil Hospital as she was seriously injured. He SQ Pathan 7 19 19 apeal 544 2019.doc has stated that Manisha was unconscious and had sustained injuries on her head. He has further stated that when he questioned the appellant as to what had happened the appellant disclosed to him that at 6:00 a.m he had asked Manisha to prepare tea and that when she refused to prepare tea he assaulted her with a hammer on her head pursuant to which he brought her to the Civil Hospital. PW 4 Macchindra on the basis of the said disclosure made by the appellant lodged a complaint FIR as against the appellant with the Pandharpur Police Station. The said FIR is at Exhibit 23 Although several suggestions were made to the said witness nothing is elicited in his cross examination to disbelieve the said witness. A suggestion was also made to the said witness that the deceased fell as a result of which she sustained an injury on her head which suggestion was denied by the witness. It was also brought on record that the appellant had filed a complaint against the said witness and Manisha’s parents in 2010 as a result of which they were falsely implicating him in the said case which suggestion was also denied by the said witness. The evidence of PW 6 Nandabaiis similar to the evidence of PW 4 Macchindra with respect to the ill treatment meted out by the appellant to her daughter Manisha i.e. the appellant used to suspect Manisha’s character would quarrel with her and also assault her SQ Pathan 8 19 19 apeal 544 2019.doc PW 6 Nandabai has stated that when she along with others visited the Civil Hospital Solapur they learnt that Manisha was serious that she was not opening her eyes nor could she talk. She has stated that when she asked the appellant what had happened the appellant disclosed that in the morning at 6:00 a.m as Manisha had not given him tea and as he suspected her character he hit her on her head resulting in Manisha sustaining an injury. Again nothing material is brought in the cross examination so as to disbelieve or discredit this witness. The suggestions made to the said witness i.e. PW 6 Nandabai have been categorically denied by her i.e. that Manisha was injured in an accident that no such disclosure was made by the appellant to her and that they had lodged a false complaint against him because of an earlier complaint lodged by the appellant against them in 2010. Thus from the evidence on record it is evident that the appellant would suspect Manisha’s character and that the appellant had made an extra judicial confession to PW 4 Macchindra and PW 6 Nandabai that he had assaulted Manisha. It is pertinent to note that the evidence of both the aforesaid witnesses i.e. PW 4 Macchindra and PW 6 Nandabai is duly corroborated by an independent witness i.e. PW 7 Dr. Bajrang Dhotre. PW 7 Dr Dhotre was working as a Medical Officer at Vitthal Hospital Pandharpur at SQ Pathan 9 19 19 apeal 544 2019.doc the relevant time. He has stated that on 19th December 2013 at about 7:00 a.m. Manisha was admitted in the hospital that when he examined her he found that she was in a serious condition as she had suffered heavy bleeding. He had stated that the said patient was brought by Santosh Atkar appellant). He has further stated that the appellant informed him i.e. gave history that he had hit Manisha at 6:30 a.m. in the morning with a hammer at the residential quarters of Vitthal Hospital. PW 7 Dr. Dhotre has stated that the said history given by the appellant was reduced into writing by him in the appellant’s words. PW 7 Dr. Dhotre has identified his handwriting on the case papers which are exhibited at Exhibit 28. Exhibit 28 i.e. case papers of Manisha read as under : “Patient brought by Mr. Santosh Mahadeo Aatkar c alleged history an assault he hited by hammer today morning at about 6:30 A.M. at Vitthal Hospital PW 7 Dr. Dhotre found the following injuries on Manisha i) C.L.W. measuring 4 Cms. X 3.5 Cms. oozing of blood was present. It was present at left parietal region 5 Cms. away from the midline and was placed anterio posteriorely. On clinical examination it was depressed fracture of skull C.L.W. measuring 3 X 1 Cm. was vertical in direction was muscle deep and blood mark was present. It was SQ Pathan 10 19 19 apeal 544 2019.doc situated at medial aspect of left forearm in its lower 1 3rd C.L.W. measuring 2 X 0.5 Cm. was vertical in direction and blood mark was present and was at medial to injury No.2 and it was parallel to it iv) C.L.W. measuring 1 X 0.5 Cm. was horizontal in direction and blood mark was present and was at dorsum of left little finger on its terminal part of 1st digit v) Haematoma measuring 5 X 3 Cms. was tender and was at dorsum of right hand vi) Abrasion 2 X 1 Cm. was read in colour and was at right patellor region. It is simple in nature All injuries are within 6 hours old. Injury Nos. 1 2 3 4 was caused by hard and blunt and hard and rough object Injury Nos. 5 and 6 are caused by hard and rough object.” PW 7 Dr. Dhotre advised CT Scan of the patient Manisha and asked her to be shifted to a higher center for further treatment pursuant to which Manisha was taken to the Civil Hospital at Solapur. Thus the extra judicial confession made by the appellant to PW 4 Macchindra and PW 6 Nandabai is duly corroborated by PW 7 Dr. Dhotre and is supported by Exhibit 28 i.e. the case papers. It appears that after Manisha was shifted to the Civil Hospital at Solapur efforts were made by the police to record her statement however she was not found in a condition to record her SQ Pathan 11 19 19 apeal 544 2019.doc statement. On 25th December 2013 Manisha succumbed to her injuries The cause of death was stated to be head injury. Column 19 of the post mortem report reveals the following internal injuries : “(i) Underscalp haematoma present over left side fronto parieto tempora occipital region size 13 cm x 7 cm ii) Comminuted depressed fracture of left parietal bone of size 4 cm x 3.5 cm iii) Extradural haematoma present over left parietal region about 50 gms Subdural haematoma present all over brain about 100 Subarachnoid haemorrhage present all over brain surface as think blood film Meninges torn Brain congested & ocetomatovy.” Thus it appears that the appellant assaulted Manisha on her head with a hammer from behind resulting in a grievous injury on the head and other injuries on her person. The situs of injury is consistent with the evidence on record. SQ Pathan 12 19 19 apeal 544 2019.doc As far as PW 5 Rohini is concerned the learned Judge has discarded her evidence as it was recorded belatedly i.e. after 11 12 days of the incident. It is pertinent to note that the incident had taken place on 19 th December 2013 and that Manisha succumbed to her injuries on 25th December 2013. PW 5 Rohini was aged 6 years at the relevant time and it appears that on 30th December 2013 Rohini’s statement was recorded i.e after 5 days of her mother’s demise. Rohini’s 164 statement was also recorded in the said case on 15th January 2014. A perusal of the evidence of PW 5 Rohini shows that she was present in the house at the relevant time and had witnessed the quarrel between her fatherand mother Manisha). She has stated that because of the quarrel she woke up and saw her father assaulting her mother with a hammer on her head and that there was blood on the floor. She has stated that her father after cleaning the floor bathed her mother and thereafter took her to the hospital. She has also identified the hammerwhich was seized at the instance of the appellant from the house. A perusal of the cross examination shows that Rohini has not buckled in her cross examination despite a gruelling cross and has stuck to what she has stated in her examination in chief. She has denied the suggestions given in the cross examination i.e. of not witnessing the incident. The evidence of this witness i.e. Rohini aged 6 SQ Pathan 13 19 19 apeal 544 2019.doc years inspires confidence and cannot be disbelieved. There is nothing in the cross examination of this witness to disbelieve her presence in the house at the relevant time. Delay per se of a few days in recording her statement in the facts cannot be said to be fatal. It will have to be borne in mind first the trauma of a young child aged 6 years on seeing her mother being assaulted by her father the trauma of seeing not only the assault but of seeing her mother lying there for an hour during which her father appellant) gave her mother a bath to clean the blood and also cleaned the spot. Manisha succumbed to her injuries on 25th December 2013 and Rohini’s statement was recorded on 30th December 2013 and 164 statement on 15th January 2014. The trauma of a child loosing a loved one in such a brutal way will have to be borne in mind. Having regard to the facts in these circumstances delay in recording her statement cannot be said to be fatal. Rohini’s presence cannot be doubted. Her evidence inspires confidence. She is a natural witness who woke up on hearing the quarrel between her parents and witnessed the assault on her mother by her father and saw her father cleaning the spot soon thereafter. The spot panchanama reveals that the room in which the incident took place was one room with an open kitchen and a bathroom Thus evidence on record shows that the incident took place in the room SQ Pathan 14 19 19 apeal 544 2019.doc and as such Rohini could have clearly witnessed the same. The Panch to the spot panchanama i.e. PW 2 Krishna Kale has given the description of the room and what was seen. He has stated that when he entered the room he found that blood stains had been wiped off with cloth that on entering the bathroom he saw blood stained blouse petticoat chaddar and gunny bag lying there. The said witness corroborates PW 5 Rohini with respect to the spot of incident being cleaned. Coupled with the aforesaid evidence there is evidence of recovery of a blood stained hammer at the instance of the appellant from behind the cooler in his house. The evidence of PW 3 Krushna Kale panch to the memorandum of panchanama as well as PW 12 Suresh Thorat API support the recovery of the said blood stained hammer at the instance of the appellant. It appears from the evidence of PW 8 Vilas Salunke photographer) who had taken photographs of the spot that there was no blood seen at the spot on the floor. The said photographs were taken soon after the incident. The said witness was examined to show that the appellant had wiped the blood from the spot soon after the incident so as to destroy evidence. SQ Pathan 15 19 19 apeal 544 2019.doc Learned counsel for the appellant relied on the judgment of the Apex Court in the case of Madanlal vs. State of Punjab1. He submitted that in the said case the accused was convicted for the offence under Section 304 Partof the Indian Penal Code and was sentenced to suffer imprisonment of 4 years. He submitted that as the accused’s act was a result of grave and sudden provocation his sentence was reduced to the period undergone. According to the learned counsel for the appellant since the appellant in the present case acted under grave and sudden provocation the appellant’s sentence also be reduced to the period undergone by him. A perusal of the said judgment relied upon by the learned counsel is clearly distinguishable and has no bearing on the facts in the present case. The case before the Apex Court was that the appellant therein had caused serious injury to the deceased with a handle of a pump the motive of the crime was that the accused therein was hungry for 3 days and when he asked for food from the deceased Sewadar of the `Dera’ where free food was being supplied the deceased refused and consequently the appellant in a fit of anger attacked the deceased on being deprived of the 1992 SuppSCC 233 SQ Pathan 16 19 19 apeal 544 2019.doc power of self control. Admittedly in that case the appellant and the deceased were not known to each other and the motive was hunger for 3 days. In the present case the appellant was suspecting his wife’s character and would assault her on account of the same. On the day of the incident on being refused tea the appellant assaulted Manisha with a hammer. The deceased Manisha by refusing to make tea for the appellant by no stretch of imagination can be said to have offered grave and sudden provocation for the appellant to assault her much less such a brutal assault. It would not be out of place to observe that a wife is not a chattel or an object. Marriage ideally is a partnership based on equality More often than not it is far from that. Cases such as these are not uncommon. Such cases reflect the imbalance of gender skewed patriarchy the socio cultural milieu one has grown up in which often seeps into a marital relationship. There is imbalance of gender roles where wife as a homemaker is expected to do all the household chores. Emotional labour in a marriage is also expected to be done by the wife. Coupled with these imbalances in the equation is the imbalance of expectation and subjugation. Social conditions of women also make them handover themselves to their spouses. Thus men in such cases consider themselves as primary partners and their wives `chattel’. To quote from a study ‘The SQ Pathan 17 19 19 apeal 544 2019.doc Man Who Mistook His Wife For Chattel’ by Margo Wilson and Martin “by `proprietary’ we mean first that men lay claim to particular women as songbirds lay claim to territories as lions lay claim to a kill or as people of both sexes lay claim to valuables. Having located an individually recognizable and potentially defensible resource packet the proprietary creature proceeds to advertise and exercise the intention of defending it from rivals. Proprietariness has the further implication possibly peculiar to the human case of a sense of right or entitlement”. This medieval notion of the wife being the property of the husband to do as he wishes unfortunately still persists in the majority mindset. Nothing but notions of patriarchy. Thus the submission of the learned counsel for the appellant that the deceased by refusing to make tea for the appellant offered grave and sudden provocation is ludicrous clearly untenable and unsustainable and as such deserves to be rejected. In the facts the appellant not only assaulted his wife but also after assaulting her wasted precious and crucial time i.e. around one hour in covering his act by destroying evidence by wiping the blood from the spot and bathing Manisha before taking her to the hospital. If the appellant had rushed Manisha to the hospital soon after the incident possibly her life could have been saved and Rohini would not have lost her mother. SQ Pathan 18 19 19 apeal 544 2019.doc Considering the overwhelming evidence on record pointing to the complicity no infirmity can be found in the impugned judgment and order convicting and sentencing the appellant for the offences mentioned in para 2 hereinabove. The facts on record also do not warrant any reduction in the sentence awarded to the appellant. Accordingly the appeal is REVATI MOHITE DERE J. SQ Pathan 19 19

Government employee have no responsibility towards the family members legally separated. : Telangana High Court

In the case of a Government employee, “Member of the Family” refers to the employee’s spouse, son, daughter, step-son, or step-daughter, and any other person related to and residing with, such employee and wholly dependent on such employee, but does not include a spouse legally separated from such employee, or a son, daughter, step-son, or step-daughter, was refereed by Justice G.Sri Devi of the Telangana High Court in the matter of Vaidya Aditya v. State [CRIMINAL APPEAL No. 544 of 2020] This order was given for the fact that Respondent officials filed a complaint in ACB, City Range-2, against the appellant’s father, V.Vara Prasad, the then Additional District Judge, alleging that he owned ‘disproportionate assets’ worth Rs.74,44,460/- and issued an FIR dated 13.11.2018. Following that, the Director-General of the Telangana State Anti-Corruption Bureau submitted a proposal to the government, requesting permission to file an application before the I-Additional Special Judge, for SPE & ACB Cases, Hyderabad, in the above crime via Letter, for the attachment of certain properties held in the name of Vaidya Vara Prasad and his family members.  Accordingly, the State Government issued G.O.Ms.No.21, Law (LA&J, Spl. B) Department, dated 10.04.2019, authorising respondent herein to file a petition for attachment of Vaidya Vara Prasad and his family members’ properties worth Rs.1,28,56,042/- as described in Annexure I to Annexure V, pursuant to section 3 of the Criminal Law Amendment Ordinance, 1944. In accordance with the above mentioned G.O., the respondent filed a petition in Crl.M.P.No.20 of 2020 before the I-Additional Special Judge for SPE & ACB Cases, Hyderabad, under sections 3 and 4 of the Criminal Law Amendment Ordinance, 1944. (Document No.3). As a result, temporary attachment orders were issued by the learned I-Additional Special Judge for SPE&ACB Cases in Hyderabad. As a result, as correctly stated by the learned Counsel for the appellant, the Respondent has given no document demonstrating that the authorities have done a proper study of the appellant’s sources of income in accordance with the mandate of the aforementioned G.O. This directive is clearly designed to safeguard the accused’s innocent relatives and to prevent the authorities from abusing the power granted to them by the Ordinance to seize property believed to belong to the accused/public worker. The Respondent authorities have apparently abandoned this rule. According to the learned Special Prosecutor’s arguments, from 03.02.2016 to 07.11.2018, a total amount of Rs.38,84,683/- was received from the United States of America and credited to the Bank Account No.1179101024044 of Canara Bank, Kundanbagh Branch, which is in the name of appellant Aditya Vaidya (Para 4 of Counter). The payment of an Rs.3 lakh advance by the appellant’s grandfather was disallowed by the respondent. Respondent claimed that the appellant’s grandpa, Sri. Uma Shankar, Advocate, does not have the financial means to pay the sum of Rs.3 lakhs.”As per the directions of Vaidya Vara Prasad, Davalji Rajkumar transferred Rs.12,34,000/- in two transactions to the Canara Bank, Kundanbagh Branch account stands in the name of appellant Aditya Vaidya,” according to page 8 of the Respondent’s Counter submitted in this appeal. This demonstrates the Special Court’s casual approach to the petitioners’ case. Applying the observations made in the aforementioned judgement to the facts of the current case, this Court concludes that the appellant has presented ample documented evidence demonstrating that the said Flat No.B-608, Aditya Sunshine Apartments, Kondapur, Hyderabad was purchased with his own funds. The respondent, on the other hand, has not produced any evidence that the appellant’s father, Accused Officer, contributed any money to the acquisition of Flat No.B-608 or that he paid the total transaction price in the year 2013. The contents of the documents provided by the appellant clearly show that the aforementioned Flat No.B-608 was purchased with his own money and is the appellant’s exclusive property. Respondent should have followed the instructions in Government Memo No.623/SPL.C/A1/2008-1, dated 15.10.2008 and not included the appellant’s asset to his father’s holdings.

Vaidya Aditya vs The State Acb on 17 March 2021 Telangana High Court Vaidya Aditya vs The State Acb on 17 March 2021 Bench: G Sri Devi THE HONOURABLE JUSTICE G. SRI DEVI CRIMINAL APPEAL No. 5420 This Criminal Appeal is filed by the appellant under Section 11 of the Criminal Law Amendment Ordinance 1944 being aggrieved by the order of interim attachment of his properties dated 04.01.2020 passed by the I Additional Special Judge for SPE and ACB Cases City Civil Court Hyderabad in Crl.M.P.No.220 arising out of Cr.No.25 RCA CR 2 2018 of ACB City Range 2 Hyderabad. The said Crime is registered against V.Vara Prasad the then Additional District Judge who is the father of the appellant During the course of investigation the respondent herein filed Crl.M.P.No.220 seeking ad interim order attaching movable and immovable properties of the Accused Officer and his family members as per Annexure I to V of G.O.Ms.No.21 dated 10.04.2019 of LawDepartment dated 10.04.2019 It is the submission of the appellant that when the property of the appellant was attached the appellant moved an application before the Special Judge claiming that the said property belongs to him and his father Accused Officer has not contributed any part of consideration while purchasing the said property but however the Special Judge orally observed that such claim will be considered during the course of trial. As such he filed the present appeal to set aside the impugned order in respect of attachment of his properties mentioned in Annexure III of G.O.Ms.No.21 dated In the grounds of appeal the appellant contends that there is documentary evidence in the shape of bank accounts to show that he has contributed the entire consideration for the acquisition of the property. It is submitted that the appellant is an earning member working in USA and while studying abroad he was remitting his salary income to his Bank Account in USA from which it was transferred to his Bank Account in India and from that account only the consideration is paid to the It is further submitted that when the father of the appellantapplied for permission for acquisition of the property by his son the Additional Special Judge replied that because the appellant is not dependent on the accused no such permission is necessary for purchase of the property. It is therefore submitted that the Special Judge without applying his mind to the material on record simply refused to exercise his jurisdiction to adjudicate upon the claim of the appellant and committed irregularity. To substantiate such contention the learned Counsel for the Indian Kanoon Vaidya Aditya vs The State Acb on 17 March 2021 appellant placed reliance on the judgement of this Court in K. Somasekhara Reddy & others vs. The State represented by its SHO Inspector of Police Kadapa1 The learned Special Public Prosecutor for ACB while supporting the orders of the Special Judge strenuously contended that all the documents produced by the appellant to show that the consideration was paid by him and that accused has not contributed anything for acquisition of property have to be considered at the time of trial of the case on the charge of his possessing assets disproportionate to his known sources of income. He argued that without evidence relating to documents it is not desirable to lift the interim attachment order on the property and hence he urged to dismiss the appeal Having heard the arguments of both the learned Counsel I have considered the documents filed along with the appeal. The facts of the case appearing from the arguments and the documents are required to be referred for appreciation of the case of both sides The facts of the case are that respondent officials registered a case in Cr.No.25 RCA CR 2 2018 of ACB City Range 2 against 2015ALT32 father of the appellant herein by name V.Vara Prasad the then Additional District Judge Under Sections 13and Section 13of Prevention of Corruption Act alleging that he possessed disproportionate assets worth of Rs.74 44 460 and issued FIR dated 13.11.2018. Subsequently the Director General Anti Corruption Bureau of Telangana State submitted a proposal to the Government seeking authorisation to file an application before the I Additional Special Judge for SPE & ACB Cases Hyderabad in the above crime vide Letter in RC.No.122 RCA CR.2 2018 S.2 dated 12.02.2019 for attachment of certain properties stood in the name of Vaidya Vara Prasad and his family members. Accordingly the State Government issued G.O.Ms.No.21 LawDepartment dated 10.04.2019 authorizing respondent herein to file the petition for attachment of properties of Vaidya Vara Prasad and his family members worth of Rs 1 28 56 042 as described in Annexure I to Annexure V under section 3 of Criminal Law Amendment Ordinance 1944. Pursuant to the said G.O. the respondent filed petition in Crl.M.P.No.220 under section 3 and 4 Criminal Law Amendment ordinance 1944 before the I Additional Special Judge for SPE & ACB Cases HyderabadAppellant completed his Engineering Education in Hyderabad. Later he left for U.S.A. in August 2012 to study M.S. While he was a student he was offered internship with his employer Thomson Routers) and he was earning and sending money to his parents. Copy of employment letter dated 01.05.2013 is filed in proof of the same Indian Kanoon Vaidya Aditya vs The State Acb on 17 March 2021 b) Appellant after completion of his M.S. education in U.S.A. joined as Software Engineerin Tech Leaders INC Company situated at Plano Texas U.S.A. w.e.f c) The employer used to deposit pay salary into his two bank accounts in U.S.A. i.e.Bank of America with Account bearing No.29013308100Marlborough with Account No.18496935. These account particulars are made available d) On 27 12 2013 appellant entered into an Agreement of Sale to purchase Flat No.B 608 Aditya Sunshine Apartments Kondapur Hyderabad for a sale consideration of Rs.53 Lakhs. His grandfather Sri. Uma Shanker who is a practicing Advocate paid Rs.3 Lakhs towards advance to the vendor in two instalments i.e.Rs.1 50 000 each as indicated by Document No.10 and 11 Subsequently appellant obtained the executed registered sale deed No.5942 2017 dated 08 06 2017by paying balance of Rs.50 Lakhs through 5Cheques each worth of Rs.10 LakhsAppellant submits that he purchased Flat No.B 608 Aditya Sunshine Apartments Kondapur with his own funds. He also availed hand loan from his sister s husband Ravishankar Siddapuram family friend Sri. D. Raj Kumar through account transfers. He repaid the said hand loan of D. Raj Kumar and part of hand loan to his brother in law Ravi Shankar Siddapuram through account transfers much prior to registration of the case against his father. The said transactions are reflected in Canara Bank Statement of Appellantand Bank Statements of Rajkumar Document No.24). Basing on these documents it is submitted by the appellant that his father the accused in the case is in no way concerned with the said property. His father has not contributed any money to purchase the said Flat No.B 608 f) While inviting my attention to the above documents the learned Counsel for the Appellant argued that the appellant is not dependent on his father at the time of acquiring the subject attached property as per Document No.23 and therefore he cannot be considered as member of the family for the purpose of this case g) As rightly pointed out by the learned Counsel for the appellant the word family member is clearly defined in Section 2 v) of AP Civil ServiceRules 1964 as follows Indian Kanoon Vaidya Aditya vs The State Acb on 17 March 2021 Member of the Family" in relation to a Government employee includes the spouse son daughter step son or step daughter of such employee whether residing with such employee or not and any other person related to and residing with such employee and wholly dependent on such employee but does not include a spouse legally separated from such employee or a son daughter step son or step daughter who is no longer in any way dependent upon such employee or of whose custody such employee is deprived by law Inasmuch as the documents produced by the appellant before the Special Judge and also before this Court abundantly proves that he is the salaried person and has independent income in USA and is not dependant on his father the accused as such the above items of properties of appellant should not have been added to the assets of his father One more circumstance that is lost sight of by the authorities as also the learned Special Judge is that the Memo No.623 SPL.C A1 2008 1 of GAD Government of Andhra Pradesh dated 15.10.2008 which clearly states that "...the properties of kith and kin of the Accused Officer should not automatically be added to the properties Proper analysis of the sources of such assets of Kith and kin and friends should be undertaken before arriving at a decision to include the same in the properties of the accused officer Therefore as rightly submitted by the learned Counsel for the appellant there is no document produced by the Respondent to show that in compliance of the mandate of the above G.O the authorities have conducted proper analysis of sources of income of the appellant. This mandate is obviously intended to protect innocent kith and kin of the accused and prevent the authorities to abuse the power given to them by the Ordinance to attach the property which is believed to be belonging to the accused public servant. This rule is evidently given a go bye by the Respondent The arguments of the learned Special Prosecutor as also pleaded in the counter are that as per the Bank Transactions a total amount of Rs.38 84 683 was received from U.S.A. and Credited to the Bank Account No.1179101024044 of Canara Bank Kundanbagh Branch from 03.02.2016 to 07.11.2018 which stands in the name of appellant Aditya Vaidyawhere it is stated that "as per the instructions of Vaidya Vara Prasad Davalji Rajkumar transferred Rs.12 34 000 in two transactions to the Canara Bank Kundanbagh Branch account stands in the name of appellant Aditya Vaidya In page 15 of the Counter again it is stated that "Ravishankar Siddapuram brother in law of appellant transferred Rs.10 Lakhs on 22.05.2017 to Canara Bank Account of appellant Indian Kanoon Vaidya Aditya vs The State Acb on 17 March 2021 It is the contention of the Respondent that there are illegal transactions between appellant s father Rajkumar and Ravishankar Siddapuram. Respondent further contended that appellant s father paid entire sale consideration of Rs.53 Lakhs to the Vendor of appellantand subsequently the said Vendor repaid the said amount to father of appellant i.e. after getting the registered sale deed by appellant in the year 2017 and therefore requested to dismiss the appeal The arguments of the learned Special Public Prosecutor are not convincing as they are based on assumptions and short of any prima facie evidence. The copy of agreement of sale shows that the appellant entered into registered agreement of sale dated 27.12.2013 with his father s friend Sudharshan Patipaka in respect of said Flat No.B 608. Appellant s grandfather Sri.Uma Shakar Senior Advocate) paid advance of sale consideration of Rs.3 00 000 in cash and obtained receipts which is evident from the document Nos.10 and 11 It is not in dispute that the appellant has got SB Account No.1179101024044 at Canara Bank Kundanbagh Branch Hyderabad. As per document No.19 it is clear that the appellant joined as Software Employee in TEK LEADERS Company in U.S.A. in February 2015. Appellant filed his bank statements showing that he was getting his salary amount deposited into two banks of U.S.A. i.e. Bank of Americaand DCU Bank clearly show that appellant availed hand loan of Rs.12 34 000 from his family friend D.Rajkumar and repaid the said hand loan long prior to this case through account transfer only. The Canara Bank statement of appellant also proves that the appellant availed hand loan of Rs.15 34 000 from his sister s husband Ravi Shankar Siddapuram through account transfer but subsequently appellant repaid an amount of Rs.6 50 000 through account transfer The above documents filed by appellant clearly demonstrate that the appellant purchased schedule item of property i.e. Flat No.B 608 with his own funds. There is no record to show that the father of appellant has contributed any amount to purchase the said property. The respondent should not have brought the said property of appellant for interim attachment without making any exercise to analyze the income sources of the appellant as per the mandate given in the G.O referred in the above paragraphs. In the sale deed of the said property i.e. Document No.16 the mode of payment of sale consideration of said Flat is clearly recited stating that the balance of sale consideration of Rs.50 Lakhs was paid by appellant himself through his account. Appellant also filed Axis Bank Account Statement of his Vendorto prove that the said sale consideration of Rs.50 Lakhs was credited into the account of the Vendor. The contents of the above documents prove that the said property was acquired by appellant with his own funds. Appellant being major and independent earning member in U.S.A. in order to purchase the said Flat need not seek any prior permission from the High Court which is evident from the letter addressed by the Registrar Indian Kanoon to the then District Judge Medak at Sangareddyin similar set of circumstances held thus 8. Although the petitioners herein had filed objections on 26 09 2012 along with supporting material the Special Court in its order dt.06 06 2014 in Crl.M.P.No.1714 took the view that the points raised in the objections can only be effectively considered after full trial and after examining the witnesses and documents 49. In my opinion in doing so the Court below had abdicated its responsibility to decide the objections and acted contrary to the mandate of sub Sectionof Section 5 of the Ordinance by refusing the investigating objections. Also in Crl.M.P.No.1214 when extension of the ad interim attachment was sought under Section 10 a) of the Ordinance by the respondents that too with a delay of 464 days it directed extension of the attachment for a period of one year from 06 06 2014 without assigning any reasons therefor 50. This shows the casual manner with which the Special Court is conducting the proceedings against the petitioners."Applying the observations made in the aforesaid judgement to the facts of the present case this Court finally holds that there is abundant documentary evidence filed by appellant which proves that the said Flat No.B 608 Aditya Sunshine Apartments Kondapur Hyderabad was purchased by the appellant with his own earnings. On the other hand there is no record placed by the respondent to prove that the father of the appellant i.e. Accused Officer contributed any amount to purchase the said Flat No.B 608 or that he has paid the entire sale consideration in the year 2013 itself and that the vendor has repaid the entire amount to the father of the appellant. The contents of the documents filed by appellant clearly prove that the said Flat No.B 608 is acquired by appellant with his own funds and it is exclusive property of the Indian Kanoon Vaidya Aditya vs The State Acb on 17 March 2021 a p p e l l a n t . R e s p o n d e n t s h o u l d h a v e a d h e r e d t o t h e c o n t e n t s o f G o v e r n m e n t M e m o No.623 SPL.C A1 2008 1 dated 15.10.2008and should not have added the said asset of the appellant to the assets of his father For the foregoing reasons the appeal is allowed and the interim attachment in respect of Item No.1 and Item No.2 of Annexure III of G.O.Ms.No.21 LawDepartment dated 10.04.2019 i.e. Flat No.B 608 Aditya Sunshine Apartments Kondapur village Serilingampally Mandal Hyderabad worth of Rs.53 Lakhs is raised and the interim attachment order dated 04 01 2020 in Crl.M.P.No. 220 in Cr.No.25 RCA CR 2 2018 of ACB City Range 2 Hyderabad on the file of I Additional Special Judge for SPE & ACB Cases Hyderabad to the extent of aforesaid items is set Miscellaneous petitions if any pending shall stand closed JUSTICE G.SRI DEVI 17.03.2021 Gsn gkv Indian Kanoon

State Government and its functionaries are obliged to go strictly in order of merit and apply the principle of reservation while selecting candidates: Supreme Court of India

While filling up these vacancies, the State shall adhere to the minimum required qualifying marks as devised during the process of selection and consider all eligible candidates and go strictly in order of merit. All selections done in accordance with these directions are deemed to be Constitutional in nature and hence valid. This auspicious judgment was passed by the Supreme Court of India in the matter of PRAMOD KUMAR SINGH AND ORS. V. STATE OF UTTAR PRADESH AND ORS. [WRIT PETITION (CIVIL)NO. 465 OF 2020] by Honourable Justice Uday Umesh Lalit, Honourable Justice S. Ravindra Bhat and Honourable Justice Hrishikesh Roy. This petition was filed under Article 32 and the following reliefs were sought-Direct the Respondents to rectify the final select list dated 11.11.2019 in terms of three parameters i.e. merit, preference, and reservation, and consider the Petitioners for appointment to the post of Constable PAC & Fireman seats meant for General Category Male Candidates which remained unfilled till date. The principal grounds raised in the writ petition were that candidates in their reserve category in Constable (Civil) were wrongly shifted to open category on different cadre and the Respondents had filled only 1650 seats out of 2016 seats in Constable PAC Post and 446 seats out of 1038 in Constable Fireman Post. The facts leading to this case were that UP Government had issued an advertisement citing that the selection process was to fill up 41610 posts of Police Constables. The petitioners had participated in the selection process as candidates of the General Category. In the results 38315 candidates were successful, thus, there were vacancies that were not filled as no suitable candidates were available. The Court observed that “In the instant case concerning the selection of police constables, about 2312 vacancies had remained unfilled and additionally, there were 982 vacancies arising out of causes such as non-reporting of the selected candidates. In the circumstances, the directions given in Ashish Kumar Yadav and ors. v. State of Uttar Pradesh and ors are relevant.” Thus, UP undertook further selections and submitted an affidavit of compliance. Later, in this writ petition it is submitted that certain candidates coming from ‘Reserved Categories’, who were initially selected against Reserved Categories’ seats, were now shown against ‘Open Category’ and, thus, the chances of ‘Open Category’ candidates to that extent stood prejudiced. According to the petitioners, there should not have been any adjustment of the candidates who were already selected and all those seats should have been made available to the ‘Open Category’. The Court observed that “In the affidavit-in-reply filed in the present matter, marks obtained by all the petitioners have been set out. The State has given details about the last selected candidates in various categories and has stated that the last selected person in the ‘General Male Category’ was one Pawan Singh (having secured 313.616 marks). Except for the petitioners at serial Nos. 22 and 24, who had secured 313.616 marks, none of the 48 petitioners had secured marks in excess of 313.616. It is also stated that since a large number of candidates had secured exactly 313.616 marks, the tiebreaker principle was adopted in which these two petitioners got eliminated.” Additionally, “The process adopted by the State Government as is discernable from the affidavit of compliance shows that List-I dealt with the candidates selected in ‘Open Category’ while Lists II, III and IV pertained to the candidates selected in ‘OBC/SC/ST categories respectively. List-I comprised of two kinds of candidates. First, those who were initially selected in their respective vertical reserved categories (OBC/SC/ST), but depending on their merit, were found entitled to be put in ‘Open Category’; and secondly, new candidates who were selected on the basis of their merit in various categories.” Thus, the Court stated that “It is not the grievance of the petitioners that any candidate who had secured marks lesser than the petitioners, has been selected. The challenge is to the shifting of candidates, who were earlier selected against posts meant for reserved categories, to the open category. the State Government and its functionaries were obliged to go strictly in order of merit and apply the principle of reservation. With the availability of 3295 additional posts, in the re-working exercise, if the candidates who were already selected against reserved posts were entitled to be considered against open category posts, that exercise cannot be termed as illegal or invalid on any count. These 3295 posts were part of the same selection process initiated in 2013 for filling up 41610 posts and as such the adjustment was rightly done by the State.”

IN THE CRIMINAL APPELLATE JURISDICTION Criminal Appeal No 2521 Arising out of SLPNo 6721 The StateNarcotics Control Bureau JUDGMENT Dr Dhananjaya Y Chandrachud J This appeal arises from a judgment of a learned Single Judge of the High Court of Delhi dated 28 July 2020 by which the application filed by the respondent seeking suspension of sentence under Section 389(1) of the Code of Criminal Procedure 19731 has been allowed The respondent has been convicted of offences punishable under Sections 23(c and 25A of the Narcotic Drugs and Psychotropic Substances Act 1985 2. He has been sentenced to suffer rigorous imprisonment for ten years in respect of the offence under Section 23(c) and for three years under the provisions of Section 25A apart from fine. Briefly stated on 2 December 2015 the IO of the Narcotics Control Bureau Delhi Zonal Unit received a phone call from DHL Courier that two parcels were lying in the office and were suspected to contain narcotic drugs. Accordingly a team of the Narcotics Control Bureau Delhi Zonal Unit reached the office of DHL. Two parcels were seized. The parcels were found to contain 325 grams of heroin and 390 grams of pseudoephedrine. The parcels were booked to a foreign destination at the behest of a foreign national by the co accused who was an employee of the respondent. The respondent himself is a proprietor of the courier agency which had accepted the parcels initially for booking from the foreign national. The Special Judge after considering the entirety of the evidence on the record came to the conclusion that the offence stood established as against the respondent but the benefit of doubt was granted to the co accused on the ground that he was only an employee who was acting at the behest of the respondent. An appeal has been filed before the High Court of Delhi by the respondent. While considering the application for suspending the sentence the learned Single Judge recorded the following submissions of the respondent in paragraph 2 of the impugned order “2. Learned counsel for the appellant submits that out of the total sentence of 10 years awarded to the appellant by the Trial Court the appellant has already undergone a period of about 4 years and 4 months. He has taken the Court through the records to show that though the appellant who was owner of the courier company has been convicted and the employee of the company who had received the parcels has been acquitted on the same set of evidence. It is further submitted that no investigation was made to arrest the consignor. He also submits that since the appeal is likely to take some time to come up for final hearing no useful purpose would be served in keeping the appellant in jail till such time and prays that the appellant s sentence may be suspended during the pendency of the The application was opposed on behalf of the Narcotics Control Bureau by the Senior Standing Counsel who appeared to oppose the suspension of sentence The High Court while passing an order of suspension of sentence indicated its reasons in paragraph 4 of the order which reads as follows “4. Looking into the facts and circumstances of the case and the period undergone by the appellant and the fact that the appeal is not likely to be taken for hearing in near future on account of disruption caused by COVID 19 pandemic the application is allowed and the sentence of the appellant is suspended during the pendency of the appeal on his furnishing a personal bond in the sum of Rs.50 000 with one surety of the like amount to the satisfaction of the concerned Jail Superintendent Duty Magistrate subject to the following The appellant will not leave NCT of Delhi without prior permission of the Court The appellant shall appear before the Court as and when the appeal is taken up for final hearing In case of change of address the appellant shall promptly inform the same to the concerned IO as well as to the Mr Aman Lekhi learned Additional Solicitor General appearing on behalf of the appellant submits that the provisions of Section 37 of the NDPS Act contain stringent requirements before an application for bail can be allowed. Learned Additional Solicitor General submits that one of the requirements is that “the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail”. It was urged that in a case such as a present where the conviction is under the provisions of Sections 23(c) and 25A of the NDPS Act the requirement of Section 37 that “there are reasonable grounds for believing that he is not guilty of such offence” must apply a fortiori because the trial Court after conducting a trial has on the basis of the evidence which is adduced come to the conclusion that the offence has been established. In the present case it was urged that absolutely no reasons have been indicated by the learned Single Judge of the High Court for granting bail save and except for a vague reference to the “facts and circumstances” of the case the period undergone by the respondent and the fact that the appeal was not likely to be taken for hearing in the near future due to the disruption caused by the Covid 19 pandemic On the other hand Ms Nidhi learned counsel appearing through the Supreme Court Legal Services Committee to represent the respondent has adverted to the judgment of the Trial Judge and submitted that prima facie the involvement of the respondent would not stand established. That apart it has been submitted that the respondent has undergone about four years and four months of imprisonment and the High Court having exercised its discretion to grant bail a case for interference has not been made out While considering the rival submissions we must at the outset advert to the manner in which the learned Single Judge of the High Court has dealt with the application for suspension of sentence under Section 389(1) of CrPC. The offence of which the respondent has been convicted by the Special Judge arises out of the provisions of Sections 23(c) and 25A of the NDPS Act. The findings of the learned Special Judge which have been arrived at after a trial on the basis of evidence which has been adduced indicate that the respondent who was a proprietor of a courier agency was complicit with a foreign national in the booking of two parcels which were found to contain 325 grams of heroin and 390 grams of pseudoephedrine. Section 37 of the NDPS Act stipulates that no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27A and also for offences involving a commercial quantity shall be released on bail where the public prosecutor opposes the application unless the Court is satisfied “that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail”. Where the trial has ended in an order of conviction the High Court when a suspension of sentence is sought under Section 389(1) of CrPC must be duly cognizant of the fact that a finding of guilt has been arrived at by the Trial Judge at the conclusion of the trial. This is not to say that the High Court is deprived of its power to suspend the sentence under Section 389(1) of CrPC. The High Court may do so for sufficient reasons which must have a bearing on the public policy underlying the incorporation of Section 37 of the NDPS Act. At this stage we will refer to the decision of a two Judge Bench of this Court in Preet Pal Singh v State of Uttar Pradesh3 where Justice Indira Banerjee speaking for the Court observed as follows “35. There is a difference between grant of bail under Section 439 of the CrPC in case of pre trial arrest and suspension of sentence under Section 389 of the CrPC and grant of bail post conviction. In the earlier case there may be presumption of innocence which is a fundamental postulate of criminal jurisprudence and the courts may be liberal depending on the facts and circumstances of the case on the principle that bail is the rule and jail is an exception as held by this Court in Dataram Singh v. State of U.P. and Anr. of the Cr.P.C.” The principles which must guide the grant of bail in a case under the NDPS Act have been reiterated in several decisions of this Court and we may refer to the decision in State of Kerala v Rajesh4. The High Court unfortunately in the present case has not applied its mind to the governing provisions of the NDPS 2020) 8 SCC 645 2020) 12 SCC 122 Act. On the basis of the material which emerged before the learned Special Judge and which forms the basis of the order of conviction we are of the view that no case for suspension of sentence under Section 389(1) of CrPC was established. The order granting suspension of sentence under Section 389(1) of CrPC is unsustainable and would accordingly have to be set aside While concluding however we hasten to add that our observations are confined to the question as to whether a case for suspension of sentence was made out and shall not affect the merits of the case when the appeal comes up for hearing before the High Court For the above reasons we allow the appeal. The judgment and order of the High Court dated 28 July 2020 suspending the sentence of the respondent shall stand set aside and the respondent shall surrender forthwith to the sentence However having regard to the fact that the respondent has undergone four years and four months of imprisonment we would request the High Court to take up the appeal for hearing and final disposal upon the respondent’s surrendering to the sentence and dispose it of by the end of 2021 Pending application if any stands disposed of SECTION II C S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to AppealNo(s).670 2021 Arising out of impugned final judgment and order dated 28 07 2020 in CRLMB No. 7540 2020 passed by the High Court of Delhi at New THE STATENARCOTICS CONTROL BUREAU VERSUS LOKESH CHADHA WITH IA No. 9362 2021 EXEMPTION FROM FILING C C OF THE IMPUGNED Date : 02 03 2021 This petition was called on for hearing today CORAM : HON BLE DR. JUSTICE D.Y. CHANDRACHUD HON BLE MR. JUSTICE M.R. SHAH Mr. Aman Lekhi ASG Mr. Bharat Singh Adv Mr. B V Balaram Das AOR Mr. Divyansh H Rathi Adv Mr. Anirudh Bakhru Adv Ms. Nidhi AOR Mr. Jaydip Pati Adv UPON hearing the counsel the Court made the following O R D E R For the reasons recorded in the signed reportable judgment we allow the appeal. The judgment and order of the High Court dated 28 July 2020 suspending the sentence of the respondent shall stand set aside and the respondent shall surrender forthwith to the sentence. However having regard to the fact that the respondent has undergone four years and four months of imprisonment we would request the High Court to take up the appeal for hearing and final disposal upon the respondent’s surrendering to the sentence and dispose it of by the end of 2021 Pending application if any stands disposed of AR CUM PS COURT MASTER SAROJ KUMARI GAUR Signed reportable judgment is placed on the file ITEM NO.8 Court 6SECTION II C S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to AppealNo(s).670 2021 Arising out of impugned final judgment and order dated 28 07 2020 in CRLMB No. 7540 2020 passed by the High Court of Delhi at New NARCOTICS CONTROL BUREAU VERSUS LOKESH CHADHA WITH IA No. 9362 2021 EXEMPTION FROM FILING C C OF THE IMPUGNED Date : 02 03 2021 This petition was called on for hearing today CORAM : HON BLE DR. JUSTICE D.Y. CHANDRACHUD HON BLE MR. JUSTICE M.R. SHAH Mr. Aman Lekhi ASG Mr. Bharat Singh Adv Mr. B V Balaram Das AOR Mr. Divyansh H Rathi Adv Mr. Anirudh Bakhru Adv Ms. Nidhi AOR Mr. Jaydip Pati Adv UPON hearing the counsel the Court made the following O R D E R For the reasons recorded in the signed reportable judgment we allow the appeal. The judgment and order of the High Court dated 28 July 2020 suspending the sentence of the respondent shall stand set aside and the respondent shall surrender forthwith to the sentence. However having regard to the fact that the respondent has undergone four years and four months of imprisonment we would request the High Court to take up the appeal for hearing and final disposal upon the respondent’s surrendering to the sentence and dispose it of by the end of 2021 Pending application if any stands disposed of AR CUM PS COURT MASTER SAROJ KUMARI GAUR Signed reportable judgment is placed on the file

Dismissal of appeal on non-compliance of documents regarding physical possession of machinery: High Court of Shimla.

Once the bid document required a contractor to show that he was in physical possession of a particular kind of machinery in working order, he cannot explain that he would procure the same in the future. This honorable judgement was passed by High Court of Shimla in the case of M/s. Amit Singla Versus State of Himachal Pradesh & others [LPA No.78 of 2020] by The Hon’ble Mr. Justice L. Narayana Swamy and Chief Justice the Hon’ble Mr. Justice Anoop Chitkara. Aggrieved by the refusal of learned Single Judge to quash the evaluation proceedings and the tender process by which the tender allotted to the respondent; the petitioner had come up before this Court. Under the Standard Bidding Document, the petitioner had participated in the invitation for bid for improvement and strengthening of Thalout-Thachi-Somagd Road. Vide communication addressed to the petitioner by Chief Engineer, Mandi Zone, it was pointed out that the tender was under process of technical evaluation and they sought clarification primarily qua the following two points. Invoice-cum-delivery challan for Batching Plant costing Rs.23,75,000/- as uploaded doesn’t seem to be as per requirement of item P/L bituminous concrete with 100-120 TPH batch type hot mix plant, Tax invoice as uploaded by you doesn’t seem to be as per requirement of Track mounted mobile stone crusher as provided in the bid document. The company had assured to lease out a Batch Mix Plant to the petitioner for the work. Similarly, it gave the undertaking to lease out Jaw Crusher. The petitioner also submitted documents regarding works of Kalpa Division. During the evaluation of the tender documents, the Evaluation Committee vide proceedings found the petitioner’s offer and bid as non-responsive. In contrast, it found the technical bid submitted by the respondent as responsive. The court opinioned that, “Neither the company’s resolution to the said effect was attached, nor the amount of lease money for such undertaking. The date from which they will hand over the machinery was also not given. It was also not mentioned that such machinery was presently in working condition as of the undertaking’s date. Once the bid document required a contractor to show that he was in physical possession of a particular kind of machinery in working order, he cannot explain that he would procure the same in the future.”

Hig h C o urt of H.P on 24 04 HCHP 1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLALPA No.720.Reserved on: March 2 2021.Date of Decision: April 24 2021.M s. Amit Singla …. Appellant.VersusState of Himachal Pradesh & others …. Respondents.Coram:The Hon’ble Mr. Justice L. Narayana Swamy Chief JusticeThe Hon’ble Mr. Justice Anoop Chitkara Judge.Whether approved for reporting 1 yesFor the Appellant: Mr. Gaurav Chopra Mr. Pranay Pratap Singh andMr. Reshabh Bajaj Advocates.For the respondents:Mr. Ashok Sharma A.G. with Mr. Nand Lal Thakur Addl. A.G and Mr. Rajat Chauhan Law Officer forrespondents No.1 to 8.Mr. J.S. Bhogal Senior Advocate with Mr. SuneetGoel Advocate for respondent No.9.Anoop Chitkara Judge .Aggrieved by the refusal of learned Single Judge to quash the evaluationproceedings and the tender process by which the tender allotted to the respondent no. 9 the petitioner has come up before this Court.2.Under the Standard Bidding Document the petitioner had participated in theinvitation for bid for improvement and strengthening of Thalout Thachi Somagd RoadKm 0 0 to 34 0(Job No.CRF HP 2018 19 161)addressed to the petitionerby Chief Engineer HP.PWD Mandi Zone it was pointed out that the tender was under1Whether reporters of Local Papers may be allowed to see the judgment Hig h C o urt of H.P on 24 04 HCHP 2 process of technical evaluation and they sought clarification primarily qua the followingtwo points:1).Invoice cum delivery challan for Batching Plant CP1881518900costing Rs.23 75 000 as uploaded by you doesn’t seem to be as perrequirement of item No.16dated 30.10.2019. The response of the petitioner to points No.1 and 2is extracted as follows: 1.In reply to the said point it may be brought to your notice that pointno.16that you have mentioned in this point is a part of thefinancial bid and not a part of the qualifying criteria or Technical Bid.There is no such point in the standard Bidding Document as availablewith us. Even the list where a proper list of machinery has beenpublished only a condition for Batching Plant is mentioned. There isno mention of a Batch Mix Plant to be used for making Cementousconcrete or bituminous mix. We have already shown the ownership ofa Cement Batch Mix plant and are further also submitting anundertaking from the owner of a similar Batch Mix plant and arefurther also submitting an undertaking from the owner of a similarBatch Mix Plant as desired by you as per letter dated 11.10.2019(annexed herewith as Annexure A 1). This undertaking clearly statesthat if we are awarded this work then the company giving theundertaking and owner of the similar Batch Mix Plant shall give thisplant on hire basis to our firm to complete the said work. Rather asper the additional conditions as per the latest IRC Codes of Practice stated on page 75 it is clearly mentioned that an affidavit has to begiven for installing the Batch Type Hot Mix Plant within 25 km fromthe location of the work and for the same an affidavit duly attested bynot less than Executive Magistrate has to be appended with the tenderdocuments. This condition has been duly complied with by our firm.2.In reply to point No.2 it is submitted that the invoice provided by usis for the crusher machine jaw plate for stone crusher machine withconveyor belt and idler roller and fully in consonance with therequirement of Track mounted mobile stone crusher as provided in thebid document. The only difference between the invoice provided by Hig h C o urt of H.P on 24 04 HCHP 3 us and the requirement of the tender is that our crusher is Wheelmounted while the department is asking for a track mounted crusher.The mode of mounting of the crusher will have no impact on theoutput of the crusher. Rather the wheel mounted crusher will bemuch more portable for a work to be executed in almost 25 KM.Additionally we are annexing the ownership proof and an undertakingof the firm which has consented to provide us with the said crusher onhire basis provided the work is awarded to our firmof theEvaluation Committee another stipulation was mentioned in column No.17as per which the petitioner s performance for the works carried out in KalpaDivision were to be considered.9.Challenging the declaration of the technical bid of the petitioner as non responsive the petitioner came up before this Court by filing CWP No.33619. Inthe said writ petition the petitioner sought quashing of the evaluation proceedings dated4.11.2019 of Evaluation Committeedirecting the respondents to openthe financial bid of the petitioner and restraining the first respondent from finalizing thetender process and further to restrain from awarding of the work mentioned above. 10.Vide judgment dated 14.12.2020 learned Single Judge of this Court dismissed thewrit petition. Challenging the dismissal of the petition for quashing of the declarationof the technical bid as non responsive the petitioner came up before this Court by filingan Intra Court Appeal under Clause 10 of the Letters Patent constituting the High Courtof Judicature at Lahore the 21st March 1919 as extended to the High Court ofHimachal Pradesh. Hig h C o urt of H.P on 24 04 HCHP 4 11.We have heard learned counsel for the parties and have gone through the record.12.The Evaluation Committee vide proceedings dated 4.11.2019to M s. Amit Singla Chandigarh on hire basisfor the execution of the work of “Improvement and Strengthening ofThalout Thachi Somagd Road Km.0 0 to 34 0(Job no.CRF HP 2018 19 161)(SH: ROFD FC M T CD Works R walls B wall PCC V ShapeDrain Parapets Crash Barriers Road Furniture Rain Shelter and SignBoard)” in Himachal Pradesh.”18.Now main reference is made to the tax invoice the description of goods in Taxinvoicereads as follows:“Roljack jaw crusher size:24”x16” Heavy Duty Single Toggle Machine Molded Swing Jaw Doubt Wheel Lubrication GREASE Type Jaw PlateMagnanese Steel chrome alloy Grade 7 Hydraulic Chrome Alloy Grade 7 Hydraulic jack for jaw Gap Setting Bear ”19.A perusal of this description does not point out that it is a track based crusher. Mr.Ashok Sharma learned Advocate General stated on instructions that the strata of theconcerned road are slushy. The area gets lots of rain and snow due to which thepossibility of wheel mounted stone crusher being struck up in the slush would be there and to rule out that situation the department insisted on a track mounted mobile stonecrusher. We can take judicial notice that a track mounted mobile stone crusher issimilar to a battle tank which moves on a self laid track. It is in contrast to any vehiclethat moves on wheels which may get stuck up in snow slush or marshy lands. Theconcerned engineers who were experts in hill road making could conceive the possible Hig h C o urt of H.P on 24 04 HCHP 6 bottlenecks in the construction. To ensure timely and speedy construction they insistedupon a track mounted mobile stone crusher. Initially the petitioner did not annex thedocuments and subsequently annexed a document of ownership of another privatelimited company with its undertakings and that too of a crusher which did not establishwith certainty that it was track mounted. Except the undertaking there is no otherdocument on record to show that the machinery was track mounted. 20.A perusal of the undertaking given by M s. NH Construction Private Limitedreveals that they had undertakento lease out such machinery without specifyingany terms and conditions. Neither the company s resolution to the said effect wasattached nor the amount of lease money for such undertaking. The date from whichthey will hand over the machinery was also not given. It was also not mentioned thatsuch machinery was presently in working condition as of the undertaking s date.21. Once the bid document required a contractor to show that he was in physicalpossession of a particular kind of machinery in working order he cannot explain that hewould procure the same in the future. The essence of civil construction is the time limitwithin which the construction must be completed. The violation of the time limit leadsto the escalation of price and throwing out of gear the schedules of so many other unitsand things which depend upon the project s timely completion.22. Resultantly there is no error in the Evaluation Committee for declaring thepetitioner appellant s technical bid as non responsive. Consequently there is no reasonto interfere in this tender process.23.The learned Single Judge vide his detailed and very well reasoned judgment hadalso arrived at the similar conclusion.Given above there is no merit in the appeal which is accordingly dismissed. Chief Justice. April 24 2021Judge

Presumptions under Sections 29 and 30 of the POCSO Act do not take away the primary duty of prosecution to establish the fundamental facts: High Court of Tripura

It may appear that in the light of presumptions, the burden of proof oscillates between the prosecution and the accused, depending on the quality of evidence let in, in practice the process of adducing evidence in a POCSO case does not substantially differ from any other criminal case. To that extent, the presumptions and the duty to rebut presumptions are co-extensive. This auspicious judgment was passed by the High Court of Tripura in the matter of SRI JOUBANSEN TRIPURA V. THE STATE OF TRIPURA [CRIMINAL APPEAL (J) NO. 30 of 2018] by Honourable Chief Justice Akil Kureshi and Honourable Justice Arindam Lodh. This appeal has been filed under Section 374 of the Code of Criminal Procedure, 1973 whereby the judgment of sentence and order of conviction passed by the learned Special Judge, South Tripura, Belonia for the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 is challenged.  The victim’s daughter used to reside with the convicted father whereas the mother lived separately. Joubansen started committing sexual intercourse with victim’s daughter and it continued for about three months after which she told her mother who registered a case under Section 376(2) and 506 of Indian Penal Code and Section 4 of POCSO Act. The convict challenged his sentence and contended that the prosecution case was doubtful since the complaint was lodged with the intention to malign his image and the evidence regarding material objects was not brought to his notice, thus, denying him a reasonable opportunity to explain the circumstances arising out of those material objects. In order to ascertain the sustainability of the judgment and order of conviction and sentence passed, the HC perused the evidence and materials brought on record and recorded that the victim was medically examined and during her cross-examination denied the suggestions put forth by the defence that the appellant did not commit any sexual intercourse with her. The defence failed to shake the mother’s evidence which she stated in her examination-in-chief also. Dr. Achintya Pal, the medical officer opined that there was evidence of vaginal penetration hence recent sexual intercourse could not be ruled out. Thus, the Court stated, “Upon meticulous reading of Section 29 and 30 of the POCSO Act, according to us, the prosecution will commence the trial with an additional advantage that there will be a presumption of guilt against the accused person, but, in our considered view, such presumption cannot form the basis of conviction, if that be so, it would offend Article 20(3) and 21 of the Constitution of India. Perhaps, it is not the object of the legislature to incorporate Sections 29 and 30 under the POCSO Act.” The Court also added, “the prosecution will commence trial with an additional advantage of presumption against the accused but, prosecution is legally bound to establish foundational facts which set the prosecution case in motion. Then, it will be the obligation of the accused to prove his innocence but the standard of proof again will be on the basis of preponderance of probabilities.” The Court hence observed that “It may safely be said that presumptions under Sections 29 and 30 of the POCSO Act do not take away the primary duty of the prosecution to establish the fundamental facts. This duty is always on the prosecution and never shifts to the accused.” Additionally, the court acknowledged that, “foundational facts which the prosecution has been able to establish and the appellant failed to controvert these established facts.”

Page 1 HIGH COURT OF TRIPURA CRL. A.(J) 318 Sri Joubansen Tripura son of Sri Ramcharan Tripura resident of Manirampur Budhi Kumar Para P.S. Belonia District South Tripura now undergoing imprisonment in Kendriya Sansodhanagar Bishalgarh District Sepahijala Tripura) Appellant(s) The State of Tripura Respondent(s) For Appellant(s) For Respondent(s) Date of hearing Date of delivery of judgment Order : Mr. S. Bhattacharjee Advocate : Mr. S. Debnath Addl. PP : : 01.04.2021 Whether fit for reporting : Yes BEFORE HON’BLE THE CHIEF JUSTICE AKIL KURESHI HON’BLE MR. JUSTICE ARINDAM LODH Judgment & Order This appeal has been filed under Section 374 of the code of Civil Procedure 1973 by the convict appellant against the judgment of sentence and order of conviction dated 21.12.2017 passed by the learned Special Judge South Tripura Belonia in case No. Special 07of 2017 whereby and whereunder the appellant was sentenced to undergo rigorous imprisonment for LIFE which shall mean the remainder of his natural life and also shall pay a fine of Rs. 5 000 for the offence punishable under Section 6 of the Protection of Children from Sexual OffencesAct 2012 Heard Mr. S. Bhattacharjee learned counsel appearing for the appellant as well as Mr. S. Debnath learned Additional PP appearing for the Page 2 The prosecution case as depicted by the learned Special Judge is reproduced here in below: “Smt. Darbarani Tripura the wife of Joubansen Tripura had withdrawn from the society of Joubansen Tripura two years back as per their social custom. But her victim daughter aged 12 years used to reside with Joubansen Tripura and Joubansen started committing sexual intercourse with victim daughter and it continued for about three months. Because of threat of Joubansen initially her victim daughter did not divulge such fact to anybody but ultimately divulged such fact to Darbarani. Now Darbarani took up the matter with the local leading people. On this factual matrix Darbarani Tripura lodged ejahar with O C Belonia Women P.S. on 20.09.2016 which was registered as Belonia Women P.S. Case No. 64 16 under Section 376(2)(i)(n) and 506 of IPC and Section 4 of POCSO Act”. During investigation the investigating officer examined as many as 21 witnesses recorded the statement of the victim under Section 164(5) Cr.P.C. conducted medical examination of the victim arrested the accused appellant and collected various material objects and filed charge sheet against the appellant under Section 376(2)(i)(n) and 506 of the IPC and under Section 6 of the POCSO Act 2012. On receipt of the charge sheet charge was framed under section 376 of IPC and under Section 6(n) of the POCSO Act 2012 to which the appellant pleaded not guilty and claimed to be tried. To substantiate the charge the prosecution had examined 13 witnesses including the victim and exhibited 10 documents. After completion of recording of prosecution evidences the appellant was examined under Section 313 Cr.P.C. where he repeated the plea of his innocence and denied to adduce any evidence on his behalf. Argument was heard. The learned Special Judge Page 3 having considered the evidences and materials on record convicted and sentenced the appellant as aforestated. Feeling aggrieved and dissatisfied with the judgment and order of conviction and sentence the appellant has preferred the instant appeal before this court. Mr. Bhattacharjee learned counsel appearing for the appellant has contended that the prosecution case was doubtful. There were so many scopes for this court to form a different view as that of the view taken by the learned Special Judge. According to learned counsel for the appellant the factum of rape was not proved. The informant mother of the victim had lodged the complaint out of their marital dispute though the complainant after dissolution of marriage with the appellant had married another person. Further according to Mr. Bhattacharjee learned counsel the informant lodged the complaint with the intention to malign her former husband i.e. the appellant herein. Mr. Bhattacharjee has further argued that in the examination of the appellant under Section 313 Cr.P.C. the evidences regarding material objects was not brought to the notice of the accused appellant and thus the appellant was denied of reasonable opportunity to explain the circumstance arising out of those material objects. On the other hand Mr. S. Debnath learned Additional PP has defended the judgment of the learned Special Judge. Learned Additional PP has contended that apart from the oral testimony of the victim girl the fact of penetrative sexual assault by the appellant had been substantially proved by medical evidence. According to learned Additional PP there was no reason to disbelieve the ocular version of the prosecutrix which was substantially Page 4 supported by medical evidence and confirmed by the doctor who had examined her. In view of the aforesaid rival submission and in our quest to find out the merits of the present appeal viz a viz the sustainability of the judgment and order of conviction and sentence passed by the learned Special Judge we have perused the evidences and materials brought on record by the The victim was examined as PW 1. At the time of examination she was aged about 12 years. As such the learned Special Judge tested her intelligence and found to be competent to testify. She deposed that her mother was withdrawn from the society of her father two years back. At that time she used to live with her father. Her younger brother Punita Tripura also used to reside with her father. After separation of her mother she used to reside in the house of her uncle near to the house of her father. At night her father used to consume alcohol and thereafter he used to ask her to remove her panty. She expressed her fear but her father used to console her that nothing would happen to her as he would take care of everything. In that way her father started committing sexual intercourse with her. She felt pain in her private parts. Her father threatened her not to divulge to anybody else he would kill her. Out of fear initially she did not tell anybody. PW 1 further stated that her father committed sexual intercourse with her for about ten times. Ultimately she disclosed the same to her mother. Her mother took up the issue with her maternal uncle and other local leading people. Finally her mother lodged the case against her father. PW 1 was taken to a Magistrate before whom she gave her statement. She was also medically examined. During her cross examination she admitted that during the initial period of separation of her parents sometime she used to stay with Page 5 her father and sometime with her mother. Her mother conducted a second marriage. She denied the suggestions put forth by the defence that the appellant did not commit any sexual intercourse with her. PW 2 the mother of the victim lodged the complaint. She deposed that out of her wedlock with the appellant she gave birth of four daughters and one son including her victim daughter. After separation she used to live in her paternal house when after about ten months her victim daughter informed her that the appellant had committed sexual intercourse with her for about 15 days. The appellant also threatened her to kill and for that reason PW 1 did not inform the incident to her initially. She took up the issue with her brother Buddimohan Debbarma and also with the village leading people who advised her to lodge police case. The complaint was scribed by one of her relatives namely Umacharan. She put her signature which being identified was marked as Exhibit 2. She further deposed that she conducted second marriage before filing the complaint against the appellant. After the complaint the victim has been living with her. PW 2 further deposed that she has handed over the school certificate of the victim to one police officer who seized the same by preparing seizure list whereupon she put her signature and B(iii). Accordingly PW 12 has further opined that there was evidence of vaginal penetration and recent sexual intercourse could not be ruled out. He has identified the entire report marked as Exhibit 7 1. PW 13 Smt. Rubibala Baidya was posed as women police Sub Inspector. She has investigated the case and has submitted the charge sheet. materials on record. We have given our anxious consideration to the entire evidences and Page 8 Section 29 of the POCSO Act 2012 mandates that where the person is prosecuted for committing or abetting or attempting to commit any offence under Section 3 5 7 and 9 the Special Court shall presume that the person has committed or abetted or attempted to commit the offence unless contrary is proved. This section is an exception to the general rule of criminal jurisprudence that the accused person shall be presumed innocent till he is found guilty. In fact section 3 5 7 and 9 are definition sections and punishments have been prescribed in section 4 6 8 and 10 respectively. Again the exception under Section 30 of the POCSO Act has made it clear that mental state include intention motive knowledge belief reason to belief etc. Therefore section 30 of the POCSO Act is not applicable in the offences punishable under Section 4 6 8 and 10 of POCSO Act because when the physical facts in case of charge under Sections 4 6 8 and 10 will be proved there will be no scope for the accused to take the defence that he did not have the intention knowledge etc. to commit penetrative sexual assault aggravated sexual assault sexual assault or aggravated sexual assault but such scope may be there for the accused in case of charges if framed under Section 12 and 15 of the POCSO Act. Upon meticulous reading of Section 29 and 30 of the POCSO Act according to us prosecution will commence the trial with an additional advantage that there will be presumption of guilt against the accused person but in our considered view such presumption cannot form the basis of conviction if that be so it would offend Article 20(3) and 21 of the Constitution of India. Perhaps it is not the object of the legislature to incorporate Sections 29 and 30 under the POCSO Act. Page 9 As we have said in the first part of this paragraph that prosecution will commence trial with an additional advantage of presumption against the accused but prosecution is legally bound to establish foundational facts which sets the prosecution case in motion. If the prosecution succeeds to establish the foundational facts then it will be the obligation of the accused to prove his innocence but standard of proof again will be on the basis of preponderance of probabilities. Keeping in view the aforesaid principles we shall proceed to decide as to whether the prosecution has been able to establish the foundational facts of the instant case. Foundational facts in POCSO Act include: i) the proof that the victim is a child ii) that alleged incident has taken place iii) that the accused has committed the offence and iv) whenever physical injury is caused to establish it with supporting medical evidence. If the fundamental facts of the prosecution case are laid by the prosecution by leading legally admissible evidence the duty of the accused is to rebut it by establishing from the evidence on record that he has not committed the offence. This can be achieved by eliciting patent absurdities or inherent infirmities in the version of prosecution or in the oral testimony of witnesses or the existence of enmity between the accused and victim or bring out material contradictions and omissions in the evidence of witnesses or to establish that the victim and witnesses are unreliable or that there is considerable and unexplained delay in lodging the complaint or that the victim is not a child. Accused may reach that end by discrediting and demolishing prosecution witnesses by effective cross examination. Only if he is not fully able to do so he needs only to rebut the presumption by leading Page 10 defence evidence. Still whether to offer himself as a witness is the choice of the accused. Fundamentally the process of adducing evidence in a POCSO case does not substantially differ from any other criminal trial except that in a trial under the POCSO Act the prosecution is additionally armed with the presumptions and the corresponding obligation on the accused to rebut the presumption. It is imperative to mention that in POCSO cases considering the gravity of sentence and the stringency of the provisions an onerous duty is cast on the trial court to ensure a more careful scrutiny of evidence especially when the evidence let in is the nature of oral testimony of the victim alone and not corroborated by any other evidence—oral documentary and medical. emphasis supplied) 14. Legally the duty of the accused to rebut the presumption as arises only after the prosecution has established the foundational facts of the offence alleged against the accused. The yardstick for evaluating the rebuttable evidence is limited to the scale of preponderance of probability. Once the burden to rebut the presumption is discharged by the accused through effective cross examination or by adducing defence evidence or by the accused himself tendering oral evidence what remains is the appreciation of the evidence let in. Though it may appear that in the light of presumptions the burden of proof oscillate between the prosecution and the accused depending on the quality of evidence let in in practice the process of adducing evidence in a POCSO case does not substantially differ from any other criminal case. Once the recording of prosecution evidence starts the cross examination of the witnesses will have to be undertaken by the accused keeping in mind the duty of the accused to demolish the prosecution case by Page 11 an effective cross examination and additionally to elicit facts to rebut the statutory presumption that may arise from the evidence of prosecution witnesses. Practically the duty of prosecution to establish the foundational facts and the duty of accused to rebut presumption arise with the commencement of trial progresses forward along with the trial and establishment of one extinguishes the other. To that extent the presumptions and the duty to rebut presumptions are co extensive. emphasis supplied) 15. If an accused is convicted only on the basis of presumption as contemplated in Sections 29 and 30 of the POCSO Act then it would definitely offend Articles 20(3) and 21 of the Constitution of India. In my opinion it was not the object of the legislature. Presumption of innocence is a human right and cannot per se be equated with the fundamental right under Article 21 of the Constitution of India. The Supreme Court in various decisions has held that provisions imposing reverse burden must not only be required to be strictly complied with but also may be subject to proof of some basic facts as envisaged under the Statute. 3 SCR 10: AIR 1961 SC 1808:2 Cri LJ 16. It may safely be said that presumptions under Sections 29 and 30 of the POCSO Act do not take away the primary duty of prosecution to establish the fundamental facts. This duty is always on the prosecution and never shifts to the accused. POCSO Act has no different connotations. Parliament is competent to place burden on certain aspects on the accused especially those which are within his exclusive knowledge. It is justified on the ground that Page 12 prosecution cannot in the very nature of things be expected to know the affairs of the accused. This is specifically so in the case of sexual offences where there may not be any eye witness to the incident. Even the burden on accused is also a partial one and is justifiable on larger public interest.3 SCR 10: AIR 1961 SC 1808: 1961) 2 Cri LJ 856 Noor Aga Vrs. State of Punjab & Anr.16 SCC 417 Abdul Rashid Ibrahim Vrs. State of Gujarat2 SCC 513] In the case in hand the victim has categorically stated that after separation of her parents she used to stay with her father the appellant herein. The prosecution will not get any benefit from her admission in cross examination when she has stated that sometime she used to stay with her mother and sometime with her father. The fact remains that she also used to stay with her father appellant which is also evident from the deposition of other witnesses. This is one of the foundational fact which the prosecution has been able to establish and contrary thereto the appellant has failed to controvert this established fact. The version of the victimthat the appellant used to consume alcohol at night has not been controverted by the appellant. Hence this fact also has been established by the prosecution. Next the deposition of the victim that her father committed sexual intercourse with her atleast for ten times and the last one was about 15 days back has been substantiated by her medical examination confirmed by the doctor. Her hymen was old healed tear at 6 o’clock and 9 o’clock which indicates that there was vaginal penetration. After receipt of SFSL report doctor finally has given his opinion that there was evidence of Page 13 vaginal penetration and recent sexual intercourse could not be ruled out. Further her statement during deposition that she was abused sexually by her father and threatened her not to divulge the incident else he would kill her is found to be available in her statement recorded under Section 164(5) Cr.P.C. before the learned Magistrate. In the natural course of normal life the victim narrated the incident to her mother who informed the incident first to her brother Buddhi Mohan Tripura who approached Munyabati Tripura and Vice Chairman of the ADC villagewas 12 years old. Following the principles as laid down in the case of Madanmohan Singh and others versus Rajnikant and another reported in9 SCC 209 wherein the apex court held that for determining the age of a person the best evidence is of her parents supported by unimpeachable document. In case of Date of Birth depicted in her school certificate stands belied by unimpeachable evidence of reliable person and contemporaneous documents Page 14 like Birth Register of Municipality Government hospital Nursing home entry in the School Certificate stands discarded. In the case in hand the appellant has not demolished the statement of PW 2 regarding the age of the victim. Only a suggestion has been put forth by the defence at the time of her cross examination but suggestion cannot form the basis of evidence. Hence the prosecution has been able to prove the age of the victim being minor beyond reasonable doubt. Since all the foundational facts have been established and the appellant has failed to rebut the presumption by way of rebuttable evidence we cannot arrive at a different finding than that of the findings returned by the learned Special Judge in convicting the appellant. Coming to the sentencing part we notice that the learned Special Judge has provided that the convict would suffer rigorous imprisonment for life which shall mean the remainder of his natural life. It is well settled through series of judgments of the Supreme Court that the power to award fixed term sentences without remission is available only with the High Court and Supreme Court. It is not necessary to refer several judgments on the point. It would be sufficient to refer to a Constitution Bench judgment of Supreme Court in case of Union of India vs. V. Sriharan alias Murugan and others reported in7 SCC 1. In the present case however we notice that Section 6 of the POCSO Act under which the accused is convicted itself provides for a punishment for aggravated penetrative sexual assault which shall be rigorous imprisonment for a term which shall not be less than 7 years but which may extend to imprisonment for life which shall mean imprisonment for the remainder of natural life of that person and would also Page 15 be liable to pay fine or with death. Despite availability of such powers we do not think the maximum imprisonment prescribed under the said Section would be warranted in the present case. The accused convict has of course committed a serious offence and which must meet with punishment which is commensurate with the nature of offence committed by him. The sentence in facts of the case is reduced to a period of 12 years which the convict shall serve without remissions. The sentence part of the judgment of the Special Court is modified to this extent. In the result the instant appeal stands partly allowed with the modification of total period of sentence as indicated here in above. Send down the LCRs. ARINDAM LODH ) J CJ Saikat

Detention will not be repealed if the grounds of detention show past offences and a habitual nature of committing past offences : Bombay High Court

Detention order can encroach on personal liberty and freedom if didn’t have the proper grounds. However if such detention order has justifiable reasons, it is held to be just. This was held in the judgment passed by a two-bench judge comprising HON’BLE JUSTICES: S. S. SHINDE & N. J. JAMADAR, J,, in the matter Sunita Chandrashekhar Kapre V. Commissioner of Police, dealt with an issue where the petitioner filed a petition against a detention order issued under Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981. The Petitioner is mother of the detenue who is detained. It has been stated that with a view to prevent the detenue from acting in any manner prejudicial to the maintenance of public order, it is necessary to detain him under the Act and, therefore, in exercise of the power conferred by sub Section (2) of Section 3 of the Act. The detenue was served with the said detention order and along with the said detention order, another order of same date was sent, directing the detenue to be detained in Yerwada Central Prison, Pune under the conditions laid down in the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders Order, 1981. The detenue was also served with the communication purportedly issued by Respondent, containing the grounds of detention on the basis of which the detention order was issued, and the documents accompanied with its translation, alleging that the said grounds of detention have been formulated on the basis of said material. Being aggrieved by the said orders as mentioned herein before the petitioner has filed this petition by invoking writ jurisdiction under article 226 of the Constitution of India. The counsel for petitioner submits that the orders passed by Respondent display complete non application of mind and malafide on the part of the detaining authority. By no stretch of imagination can it be said that the activities of the detenue are prejudicial to the maintenance of public order entailing his detention under the provisions of the said Act. None of the activities of the detenue, as mentioned in the grounds of detention, can be said to be disturbing the maintenance of public order. The counsel for respondent submitted that though the detaining authority did not place reliance upon the earlier detention order and offences, however, the criminal history of the detenue is writ large and cannot be ignored.

on 30 08 2021 on 30 08 1 13WP 2392 2021.docIN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTIONCRIMINAL WRIT PETITION NO. 2392 OF 2021Sunita Chandrashekhar KapreAged: 48 years Occ:Resident of Alka Niwasm Opp.Sant Gadge Maharaj School Kondhwa Khurd Pune....PETITIONERVersus1.Shri. Amitabh GuptaCommissioner of PolicePune City.2.The State of Maharashtra3.The Superintendent of JailYerwada Central Prison Pune.4.The Secretary Advisory BoardMantralaya Mumbai....RESPONDENTS...Ms. Misbah Solkar for Petitioner.Mr. J.P. Yagnik APP for State. ... CORAM : S. S. SHINDE & N. J. JAMADAR JJ. RESERVED ON: 18th AUGUST 2021. PRONOUNCED ON: 30th AUGUST 2021.JUDGMENTof Section 3 of the said Act read withGovernment order Home DepartmentNo. 1220 CR 200 Spl 3B dated 06.01.2021. Respondent No. 1 directed that the detenue be detainedunder the said Act. The detenue was served with the said detention order andalong with the said detention order another order of same date was sent directing the detenue to be detained in Yerwada Central Prison Pune underthe conditions laid down in the Maharashtra Prevention of DangerousActivities of Slumlords Bootleggers Drug OffendersOrder 1981. The detenue was also served with the communicationpurportedly issued by Respondent No. 1 containing the grounds of detentionon the basis of which the detention order was issued and the documentsBhagyawant Punde PA on 30 08 2021 on 30 08 3 13WP 2392 2021.docaccompanied with its translation alleging that the said grounds of detentionhave been formulated on the basis of said material. Being aggrieved by the saidorders as mentioned herein before the petitioner has filed this petition byinvoking writ jurisdiction under article 226 of the Constitution of India.4.Learned counsel for the petitioner invites our attention to thegroundstoin para 6 of the petition and submits that the orders passedby Respondent No. 1 display complete non application of mind and malafideon the part of the detaining authority. By no stretch of imagination can it besaid that the activities of the detenue are prejudicial to the maintenance ofpublic order entailing his detention under the provisions of the said Act. Noneof the activities of the detenue as mentioned in the grounds of detention canbe said to be disturbing the maintenance of public order. It is submitted thatthere is an inordinate and unexplained delay of two months in passing theorder of detention by Respondent No. 1 inasmuch the last alleged offenceregistered against the detenue is on 04.01.2021 and the detention order hasbeen passed on 030.3.2021. It is submitted that due to the delay of twomonths the live link between the passing of detention order and registration oflast offence has been snapped. The compilation of documents which has beenrelied upon while passing the detention order are running into 375 pages andsame were placed before the detaining authority to formulate the grounds ofBhagyawant Punde PA on 30 08 2021 on 30 08 4 13WP 2392 2021.docdetention arrive at subjective satisfaction and ultimately to pass the order ofdetention. The detaining authority has relied upon the extraneous material asit is mentioned in para 8 of the grounds of detention that Respondent No. 1has relied upon the material mentioned in Para 50.1 5.2 6.1 and 6.2 of thegrounds of detention to pass the order thereby the detaining authority hastaken into consideration extraneous material pertaining to other crimes of year2016 2017 and 2020.5.It is not clear from the grounds of detention whether RespondentNo. 1 before formulating the grounds of detention as a matter of fact gonethrough the opinion of different sub ordinate officers written on the saidproposal. The detaining authority has relied upon the statements of twowitnesses A and B recorded in camera for arriving at subjective satisfaction forissuing the detention order. It is submitted that the aforesaid two statements ofthe witnesses have not been properly verified by the superior officers of therank of Assistant Commissioner of Police. It appears that belated attempt wasmade to verify said statements however there was considerable delay inverifying the statements by the Assistant Commissioner of Police. It issubmitted that without opposing bail application of the detenue theSponsoring Authority moved a proposal for preventive detention before thedetaining authority and the same was approved by the detaining authorityBhagyawant Punde PA on 30 08 2021 on 30 08 5 13WP 2392 2021.docdespite the fact that the detenue was already in judicial custody. The statementof said witnesses seems to be fabricated and got up statements in order to putthe detenue behind bars in preventive detention. It is submitted that in camera statements concerned only with the specific individuals and they havenothing to do with the members of public at large. Therefore at best incidentstated in the said statements can be considered as breach of law and order anddo not disturb the tempo of public or public tranquility at large therefore theorder of detention deserves to be quashed and set aside.6.In support of the aforesaid contentions the learned counsel forthe petitioner has relied upon the judgments in the case of Hanuman RajaramMhatre Vs. The Commissioner of Police Thane & Ors.1 Pushkar Mukherjee& 29 Others Vs. The State of West Bengal.2 Pawan Tukaram Kudale Vs. TheCommissioner of Police.3 Mohamad Ishaq Mohamad Ismail Shaikh Vs.Sanjay Barve & Ors.4 Mr. Shubham Rajendra Hingade Vs. State ofMaharashtra & Anr.5 and Banka Sneha Sheela Vs. The State of Telangana &Ors.6.1Writ Petition No. 4646 201721969SCC 103Writ Petition No. 181184Writ Petition No. 133 2020.5Writ Petition No. 55216Criminal Appeal No. 7321 No. 4729 2021Bhagyawant Punde PA on 30 08 2021 on 30 08 6 13WP 2392 2021.doc7.On the other hand Mr. Yagnik the learned APP appearing forRespondent State relying upon the affidavit filed by Commissioner of Police Pune City Pune i.e. Respondent No. 1 submits that it is abundantly clearfrom the activities alleged against the detenue that he has indulged in seriousoffences covered under Chapter XVI and XVII of IPC so also offencespunishable under Arms Act. It is submitted that though the detainingauthority did not place reliance upon the earlier detention order and offences however the criminal history of the detenue is writ large and cannot beignored. It is matter of record that in 2018 the order of detention was passedagainst the same detenue and he was detained. Learned APP invites attentionof this Court to the affidavit filed by Respondent No. 1 and submits that anexhaustive reply is given to the grounds raised in the petition which is selfexplanatory.Learned APP placed reliance upon the judgment of DivisionBench of this Courtin the case ofDeepak Govind Murudkar Vs. Mendonca Commissioner of Police.7 andsubmits that the offences falling under Chapter XVI and XVII of IPC orChapter V of the Arms Act can be taken into consideration for determiningwhether the person is dangerous person under Section 2(b 1) of said Act asheld in the aforesaid judgment in para 11. It is submitted that delay in issuance7Writ Petition No. 2090 1999Bhagyawant Punde PA on 30 08 2021 on 30 08 7 13WP 2392 2021.docof detention order is not significant and before passing the detention orderviews of various authorities are required to be taken. It is submitted that it ismade clear in the grounds of detention so also in the reply filed byRespondent No. 1 that the detaining authoriy is relying upon para 5.1 5.2 6.1and 6.2 to form his opinion before setting out the grounds of detention.Therefore relying upon the grounds of detention and averments in theaffidavit filed by Respondent No. 1 the learned APP submits that the petitionis devoid of any merit and same deserves to be dismissed in limine. 8.We have given careful consideration to submissions of learnedcounsel for the petitioner and learned APP for Respondent State. With theirable assistance we have carefully perused the pleadings and grounds in thepetition annexures thereto reply filed by Respondent No. 1 grounds ofdetention and the original record produced by the Respondent State. So fargroundandare taken in the petition are concerned those are general innature without referring to a specific ground of detention or any othermaterial. It would be apt to reproduce herein below the groundwhichreads as under:Respondent No. 1 in his reply in para 9stated thus: 9.With reference to para no. 6(c) of the contentsof para are denied. It is submitted that the lastoffence which is registered against the Detenu isKondhawa Cr.No. 11 2021. As the Detenu wasarrested on 04 01 2021 in the said C.R. and05 01 2021 he was produced before J.M.F.C.Cantonment Court and he was in police remand till10 01 2021 & then remanded to judicial custody.On 10 02 2021 he had applied for bail to theHon’ble Session Court and after coming to thenotice of the said fact to the sponsoring authorityi.e. Police Inspector Kondhawa and considering themodus operandi of Detenue to commit the crimeafter released from court on bail. The sponsoringauthority conducted confidential inquiry of theillegal activities of the Detenue and found that theDetenue is a dangerous person and he will againrepeat his illegal activities after released on bail fromthe court and decided to send detention proposal.Therefore on 18 02 2021 the sponsoring authoritysend proposal along with all necessary documents tothe detaining authority i.e. Commissioner of Police Pune. The said proposal is received by the detainingauthority on dated 25 02 2021 through divisionalAsst. Commissioner of Police Pune zonal DeputyCommissioner of Police Pune regional Addl.Commissioner of Police Pune who gave theirBhagyawant Punde PA on 30 08 2021 on 30 08 9 13WP 2392 2021.docendorsement and forwarded the same. All thesenior officers above Asst. Commissioner of Police have applied their mind verified and examined thestatements of the witnesses and history of illegalactivities of Detenue and recommended for thedetention of the Detenue and therefore afterapplication of mind the detaining authority i.e.Commissioner of Police Pune have passed thedetention order on 03 03 2021. Therefore there isno inordinate delay in passing said detention order.I have gone through the documents Ipreliminary approved Detention Order thendictated the Draft grounds of detention and same isforwarded back to prepare the same through properchannel then I received grounds of detention andpapers. I read carefully and subjectively satisfiedpreparation of detention order from receipt of theproposal to my office i.e. The Commissioner ofPolice Pune and passing. 10.We have considered the reply filed by Respondent No. 1 so alsothe original record and we are of the opinion that two months time taken forpassing the order of detention in the facts and circumstances of the presentcase cannot be considered as significant so as to cause the interference in theorder of detention. It is evident from the reply filed by Respondent No. 1 thatthe delay of two months has been satisfactorily explained.11.We have carefully perused the groundwherein it is statedthat Respondent No. 1 has relied upon the extraneous material before arrivingat subjective satisfaction and passing the order of detention. Respondent No. 1in his reply to groundstated as under: Bhagyawant Punde PA on 30 08 2021 on 30 08 10 13WP 2392 2021.doc10.With reference to Para No. 6(d) of thePetition it is submitted that the contents of the saidpara are denied. It is submitted that in para 3.1 it isclearly mentioned that “The past offencesmentioned in the chart of offences have not beenrelied upon while passing the order of detention butis only referred to show that Detenue has habituallybeen committing serious offences. Hence theoffences registered against the Detenue in the year2016 2017 2020 were not taken into consideration.(except crime no. 1134 20 registered on14 11 2020) The detaining authority has reliedupon the material mention in para 5.1 5.2 6.1 and6.2 of the grounds of detention to arrive at hissubjective satisfaction that Detenue is dangerousperson as defied in para 2(b 1) of the MPDA act andcriminal activities of the Detenue as discussed inabove para. no. 6(A). Therefore it shows that thedetention authority have applied his mind and aftergoing through the material placed before him by thesponsoring authority the detention order is came tobe passed which is legal according to the provisionsof law.12.It is clear from reading grounds of detention and also aforesaidaverment in reply filed by Respondent No. 1 that Respondent No. 1 hasplaced reliance upon the material mentioned in para 5.1 5.2 6.1 and 6.2 ofthe grounds of detention to arrive at subjective satisfaction that detenue is adangerous person as defined under the said Act. It is clearly mentioned in thegrounds of detention and affidavit filed by Respondent No. 1 that pastoffences mentioned in the chart of offences and also detention order andproceedings under Section 110(e) of Cr.P.C. are only for the purpose ofBhagyawant Punde PA on 30 08 2021 on 30 08 11 13WP 2392 2021.docshowing that the detenue has been habitual in committing serious offences.Therefore we do not find any substance in groundto the petition.13.It appears that Respondent No. 1 has applied his mind perusedthe opinion of sub ordinate officers and after arriving at subjective satisfactionpassed the order of detention. Therefore there is no substance in ground(G) andare concerned the said groundsraise concern about authenticity of statements of two witness A & B recordedin camera. It is stated in groundthat said in camera statements of twowitnesses seem to be fabricated and got up statements in order to put thedetenue behind bars under preventive detention. In camera statements of saidwitnesses concerned only with the specific individual and they have nothingto do with members of public at large.15.It is stated to the reply to groundthat statements of witnessesA & B are duly verified and examined by Assistant Commissioner of Policewherein on verification the said officer found that the said witnesses aredeposing true facts about alleged incident.Bhagyawant Punde PA on 30 08 2021 on 30 08 12 13WP 2392 2021.doc16.So far ground in respect of bail application is concerned it isstated in the reply that to oppose the bail application and to resort an actionunder preventive detention both are different. In case of Detenue thesponsoring authority satisfied that the illegal activities of the detenue wereprejudicial to the maintenance of public order and also danger to the society atlarge. Therefore sponsoring authority have no other alternative way except toselect the remedy to detain the detenue under the MPDA Act. and the SeniorPolice Officers have verified and examined the material placed before them bythe sponsoring authority and after their satisfaction they have recommendedthe proposal under MPDA Act to the detaining authority and detainingauthority after application of mind passed the order of detention.17.Respondent No. 1 in his reply stated that in due adherence toprovisions of MPDA Act and in particular Section 8(2) of the said Act andarticle 22 of the Constitution of India the order of detention has been passed.18.So far grounds raised by the petitioner about authenticity andgenuineness of in camera statements of witnesses A and B are concerned wehave carefully perused the said statements and we are of the considered viewthat the activities alleged against the detenue are prejudicial to themaintenance of public order in the said area. The detenue and his associatesBhagyawant Punde PA on 30 08 2021 on 30 08 13 13WP 2392 2021.docused deadly weapons like sword so as to create terror in the minds of public atlarge which has impact upon the community residing in the said area. It is amatter of record that inspite of detenue was detained in the year 2018 challenge to said order was negated after his release he did not improve on thecontrary started indulging in serious offences and posing danger to the interestof public at large.19.The judgments relied by the learned counsel for the petitioner aredistinguishable on facts. In that view of the matter and in the peculiar factsand circumstances of this case we are of the opinion that there is no substancein the petition and same is devoid of any merit accordingly stands dismissed.20.Rule stands discharged. ( N. J. JAMADAR J.)(S. S. SHINDE J.)Bhagyawant Punde PA

The monetary penalty imposed on noticee under section 15A (b) of the SEBI Act – The Security and Exchange Board of India

The monetary penalty imposed on noticee under section 15A (b) of the SEBI Act – The Security and Exchange Board of India The Securities and Exchange Board of India received a letter from TITAN company limited where the company disclosed to SEBI about the contravention of SEBI Regulations, 2015 and a violation of the Company’s Code of Conduct for Prevention of Insider Trading by some of its designated persons/employees. The proceedings were initiated and several non-compliances were found of violations of PIT regulations and proceedings were initiated against  Mr. Deepak Kumar (NOTICEE)  under the provisions of Section 15A(b) of Securities and Exchange Board of India Act, 1992 for alleged violation of Regulation 7(2)(a) of PIT Regulations. Adjudication proceedings were initiated by the appointed adjudication officer SOMA MAJUMDER [ADJUDICATION ORDER NO. Order/SM/DD/2021-22/14951] A show-cause notice under  Rule 4 of the Adjudication Rules as to show cause why adjudication proceedings should not be initiated against the noticee for the alleged violations. The noticee responded and the adjudication was initiated against this response. The allegations were that the noticee total traded value of securities was Rs. 66,42,117 and it was observed that on 3 occasions in the aforesaid calendar quarter, the traded value of shares exceeded rupees ten lakhs. Therefore, for the aforesaid three (3) transactions, which were more than the limit specified in Regulation 7(2)(a) of PIT Regulations and it was alleged that Noticee has violated Regulation 7(2)(a) of PIT Regulations, on three (3) occasions by not making disclosures as required. The proceedings were initiated and through the trading details, it was found out that there was no evidence of the noticee making the disclosures of transactions to the company, and as per the necessary PIT regulations the disclosures have to be made of every event of either acquisition or disposal of securities in excess of the limits specified therein in terms of number/value/percentage. Noticee in his response contented that he was not aware of the provisions of PIT Regulations. the officer states that this response is not justified as the ignorance of the law is no excuse and everyone is presumed to know the law of the land and a person cannot defend the actions by ignoring the law and hence it is concluded that the allegation that Noticee has violated Regulation 7(2)(a) of PIT Regulations on three (3) occasions, stands established. On the imposition of monetary penalty the officer refers to the case of Virendrakumar Jayantilal Patel vs. SEBI and SEBI v/s Shri Ram Mutual Fund [2006] 68 SCL 216(SC) and because of these judgments establishes that t Noticee would be liable for monetary penalty under Section 15A (b) of the SEBI Act and a penalty of Rs. 1,00,000/- was imposed. Click here to read the Order

BEFORE THE ADJUDICATING OFFICER SECURITIES AND EXCHANGE BOARD OF INDIA ADJUDICATION ORDER NO. Order SM DD 2021 22 14951] UNDER SECTION 15 I OF SECURITIES AND EXCHANGE BOARD OF INDIA ACT 1992 READ WITH RULE 5 OF SEBIRULES 1995 In respect of Mr. Deepak Kumar PAN: BEAPK8166A In the matter of Titan Company Limited FACTS OF THE CASE IN BRIEF 1. Securities and Exchange Board of Indiareceived from Titan Company Limited to as ‘Company Titan TCL’) wherein the company intimated SEBI about contravention of SEBIRegulations 2015and Company’s Code of Conduct for Prevention of Insider Trading by some of its designated persons employees. 2. Thereafter SEBI conducted an investigation in the scrip of Titan and observed several non compliances of PIT Regulations during the period April 01 2018 to March 31 2019 by employees and designated persons of TCL including Mr. Deepak Kumar hereinafter referred to as ‘Noticee by name’). Therefore SEBI initiated adjudication proceedings against Noticee under the provisions of Section 15A(b) of Securities and Exchange Board of India Act 1992 for alleged violation of Regulation 7(2)(a) of PIT Regulations by Noticee. Adjudication Order in respect of Deepak Kumar in the matter of Titan Company Ltd. APPOINTMENT OF ADJUDICATING OFFICER 3. Vide order dated March 02 2021 SEBI appointed the undersigned as Adjudicating Officer under Section 15I of the SEBI Act read with Section 19 of the SEBI Act and Rule 3 of the SEBIRules 1995to inquire into and adjudge under the provisions of Section 15A(b) of SEBI Act the aforesaid alleged violation by Noticee. SHOW CAUSE NOTICE REPLY AND PERSONAL HEARING 4. A show cause notice dated August 09 2021(hereinafter referred to as ‘SCN’) was issued to Noticee under Rule 4 of the Adjudication Rules to show cause as to why an inquiry should not be initiated against Noticee and penalty if any not be imposed upon him under the provisions of Section 15A(b) of SEBI Act for the aforesaid violation alleged to have been committed by him. 5. The allegations levelled against Noticee in the SCN are as under: a) During the course of investigation it was observed that Noticee had traded in the shares of the Titan during the Investigation Period. Details of his trading are as under: Name of Noticee Table 1 Total Traded Value BSE+NSE)Apr June 2018 No. of occasions on which traded value exceeded Rs. 10 lakh Mr. Deepak Kumar b) It was observed from the table above that in the calendar quarter ending on June 2018 the total traded value of the securities traded by Noticee in the scrip of Titan was Rs. 66 42 117. It was also observed that on 3 occasions in the aforesaid calendar quarter the traded value of shares exceeded rupees ten lakhs. Therefore for the aforesaid threetransactions which were in excess of the limit specified in Regulation 7(2)(a) of PIT Regulations Noticee was required to make disclosure in terms of the aforesaid regulation. In this regard Adjudication Order in respect of Deepak Kumar in the matter of Titan Company Ltd. in reply to a query by SEBI TCL vide email dated October 28 2020 confirmed that it had not received any disclosures from Noticee. c) In view of the above observations it was alleged that Noticee has violated Regulation 7(2)(a) of PIT Regulations on three occasions by not making disclosures as required in terms of aforesaid regulation. 6. The SCN was sent to Noticee through Speed Post Acknowledgement dueon August 09 2021 and digitally signed email dated August 12 2021 and was duly served on Noticee. Noticee was given fifteendays’ time to make his submissions in respect of the allegations made in the SCN. Vide email dated August 18 2021 Noticee submitted his reply to the SCN. 7. Thereafter in the interest of natural justice vide hearing notice dated September 21 2021 Noticee was granted an opportunity of personal hearing before the undersigned on October 07 2021. The aforesaid hearing notice was sent to Noticee through SPAD as well as digitally signed email on September 22 2021 and was duly served upon him. Noticee appeared for hearing on the scheduled date and reiterated the submissions by him vide his earlier email dated August 18 2021. Due to difficulties in view of the Covid 19 pandemic hearing was conducted through video conferencing. 8. The submissions by Noticee are summarized hereunder: a. Noticee had transacted in the FY 2018 19 as per given data but those were done out of ignorance and were unintentional. b. He was not aware about the fact the employees were not allowed to trade in the company’s shares. He was employed at a low level of hierarchy. c. He was trading in multiple shares one of which was Titan shares. d. He stopped trading in Titan shares as soon as he came to know about this e. He incurred losses in the transactions in Titan’s shares. CONSIDERATION OF ISSUES EVIDENCE AND FINDINGS Adjudication Order in respect of Deepak Kumar in the matter of Titan Company Ltd. 9. I have carefully perused the charges levelled against Noticee replies submissions filed by Noticee and other documents evidence available on record. The issues that arise for consideration in the present case are: 1) Whether Noticee has violated Regulation 7(2)(a) of PIT Regulations 2) Does the violation if any attract monetary penalty under Section 15A(b) of 3) If the answer to issue no. 2 is in affirmative then what should be the quantum SEBI Act of monetary penalty 10. Before moving forward it is pertinent to refer to the relevant provision of the PIT Regulations which was in force at the time of impugned transactions which are reproduced as under: Relevant provisions of PIT Regulations: Disclosures by certain persons. 7(2) continual disclosure. a)Every promoter employee and director of every company shall disclose to the company the number of such securities acquired or disposed of within two trading days of such transaction if the value of the securities traded whether in one transaction or a series of transactions over any calendar quarter aggregates to a traded value in excess of ten lakh rupees or such other value as may be specified Issue No.1 Whether Noticee has violated Regulation 7(2)(a) of PIT Regulations 11. I note from the available records that Noticee was one of the employees of Titan. While in employment of Titan Noticee had transacted in securities of Titan as seen from the details extracted from the trade log obtained from NSE which are given below: Adjudication Order in respect of Deepak Kumar in the matter of Titan Company Ltd. Table 2 Name of Noticee BSE+NSE)No. of occasions on which traded value exceeded Rs. 10 lakh April June 2018 Mr. Deepak Kumar 12. On perusal of the trading details of Noticee for the quarter April to June 2018 I note that on May 9 2018 the total value traded by Noticee in the scrip of Titan was Rs. 19 49 504 which was in excess of rupees ten lakhs. Similarly I note that on May 10 2018 the total value traded by Noticee in the scrip of Titan was Rs. 19 61 288 which was in excess of rupees ten lakhs. Further I note that on May 14 2018 the total value traded by Noticee in the scrip of Titan was Rs. 27 31 325 which was in excess of rupees ten lakhs. From the submissions made by Noticee I note that he has not disputed the impugned transactions by him in the scrip of Titan as specified above. 13. In terms of Regulation 7(2)(a) of PIT Regulations Noticee being an employee of the company was required to make disclosures to Titan for each of the aforesaid transactions within twoworking days. However there is no evidence available on record to show that Noticee had made any disclosures in terms of the aforesaid regulation for the above three transactions. 14. In terms of the aforesaid provision of PIT Regulations requisite disclosures are to be made based on every event of either acquisition or disposal of securities in excess of the limits specified therein in terms of number value percentage. In the instant matter disclosure requirements in terms of Regulation 7(2)(a) of PIT Regulations were triggered because the traded value of Noticee’s transactions in the scrip of Titan exceeded ten lakh rupees. 15. Noticee has contended that he was not aware of the provisions of PIT Regulations. In this regard I note that statement made by Noticee is not justified. As postulated by legal maxim “ignorantia juris non excusat” ignorance of law is no excuse and everyone is presumed to know the law of the land. A person cannot defend his Adjudication Order in respect of Deepak Kumar in the matter of Titan Company Ltd. illegal actions by stating that he was not aware his actions were illegal even if he honestly believed that they were not breaking the law. Therefore I do not find any merit in this contention of Noticee. As regards his contention about incurring losses in these transactions I find that the requirement of disclosure under Regulation 7(2)(a) of PIT Regulations is not contingent on gains or losses made in the transactions and therefore this statement is without any merit. 16. In view of the above findings I conclude that the allegation that Noticee has violated Regulation 7(2)(a) of PIT Regulations on three occasions stands Issue No. 2 Does the violation attract monetary penalty under Section 15Aof SEBI Act 17. In this regard I place reliance on the order of the Hon’ble SAT in the matter of Virendrakumar Jayantilal Patel vs. SEBI wherein Hon’ble SAT held that “ …. obligation to make disclosures within the stipulated time is a mandatory obligation and penalty is imposed for not complying with the mandatory obligation.” 18. I note that the Hon’ble Supreme Court of India in the matter of SEBI v s Shri Ram Mutual Fund68 SCL 216(SC) held that “In our considered opinion penalty is attracted as soon as the contravention of the statutory obligation as contemplated by the Act and the Regulations is established...…”. 19. Therefore in view of the above judgments and considering that Noticee violated Regulation 7(2)(a) of PIT Regulations as established in the foregoing paragraphs I find that Noticee would be liable for monetary penalty under Section 15Aof the SEBI Act. The text of Section 15A(b) of the SEBI Act is reproduced below: SEBI Act there under — Penalty for failure to furnish information return etc. 15A. If any person who is required under this Act or any rules or regulations made Adjudication Order in respect of Deepak Kumar in the matter of Titan Company Ltd. to file any return or furnish any information books or other documents within the time specified therefore in the regulations fails to file return or furnish the same within the time specified therefore in the regulations he shall be liable to a penalty which shall not be less than one lakh rupees but which may extend to one lakh rupees for each day during which such failure continues subject to a maximum of Issue No.3 What should be the quantum of monetary penalty 20. While determining the quantum of penalty under Section 15A(b) of the SEBI Act it is important to consider the factors as stipulated in Section 15J of the SEBI Act one crore rupees which reads as under: SEBI Act Factors to be taken into account by the adjudicating officer. Section 15J While adjudging quantum of penalty under section 15 I the adjudicating officer shall have due regard to the following factors namely: a) the amount of disproportionate gain or unfair advantage wherever quantifiable made as a result of the default b) the amount of loss caused to an investor or group of investors as a result of the default c) the repetitive nature of the default. Explanation For the removal of doubts it is clarified that the power of an adjudicating officer to adjudge the quantum of penalty under sections 15A to 15E clausesandof section 15F 15G 15H and 15HA shall be and shall always be deemed to have been exercised under the provisions of this section. 21. In view of the charges established and the facts and circumstances of the case the quantum of penalty would depend on the factors referred in Section 15 J of the SEBI Act stated as above. In the instant case it is not possible from the material on record to quantify the amount of disproportionate gain or unfair Adjudication Order in respect of Deepak Kumar in the matter of Titan Company Ltd. advantage resulting from the default of Noticee in making disclosures or the consequent loss caused to investors as a result of the default. 22. However with respect to the disclosure violations by Noticee I note that the purpose of these disclosures is to bring about transparency in the transactions of Directors Promoters Acquirers employees and assist the Regulator to effectively monitor the transactions in the market. Hon ble SAT in the case of M s. Coimbatore Flavors & Fragrances Ltd. & Ors vs SEBI has held that "Undoubtedly the purpose of these disclosures is to bring about more transparency in the affairs of the companies. True and timely disclosures by a company or its promoters are very essential from two angles. Firstly investors can take a more informed decision to invest or not to invest in a particular scrip secondly the Regulator can properly monitor the transactions in the capital market to effectively regulate the same." Hon’ble SAT in the aforesaid order has articulated the importance of true and timely disclosures. Further I find that Noticee has violated the provisions of Regulation 7(2)(a) of PIT Regulations on threeoccasions. 23. Having considered all the facts and circumstances of the case the material available on record the submissions made by Noticee and also the factors mentioned in Section 15J of the SEBI Act as enumerated above I in exercise of the powers conferred upon me under Section 15 I of the SEBI Act read with Rule 5 of the Adjudication Rules hereby impose a penalty of Rs. 1 00 000 on Noticee i.e. Mr. Deepak Kumar under the provisions of Section 15A(b) of SEBI Act. I am of the view that the said penalty is commensurate with the lapse omission on the part of Noticee. 24. Noticee shall remit pay the said amount of penalty within 45 days of receipt of this order through online payment facility available on the website of SEBI i.e. www.sebi.gov.in on the following path by clicking on the payment link: ENFORCEMENT > Orders > Orders of AO > PAY NOW. In case of any difficulties in payment of penalties Noticee may contact the support at Adjudication Order in respect of Deepak Kumar in the matter of Titan Company Ltd. 25. The said confirmation of e payment made in the format as given in table below should be sent to "The Division Chief EFD DRA I Securities and Exchange Board of India SEBI Bhavan Plot no. C 7 "G" Block Bandra Kurla Complex BandraMumbai 400 051” and also to e mail id: tad@sebi.gov.in 1. Case Name: 2. Name of payee: 3. Date of payment: 4. Amount paid: 5. Transaction no.: 6. Bank details in which payment is made: 7. Payment is made for: like penalties disgorgement recovery settlement amount and legal charges along with order details) 26. In the event of failure to pay the said amount of penalty within 45 days of the receipt of this Order recovery proceedings may be initiated under Section 28A of the SEBI Act for realization of the said amount of penalty along with interest thereon inter alia by attachment and sale of movable and immovable properties of Noticee. 27. In terms of the provisions of Rule 6 of the Adjudication Rules a copy of this order is being sent to Noticee viz. Mr. Deepak Kumar and also to SEBI. Place: Mumbai SOMA MAJUMDER Date: February 11 2022 ADJUDICATING OFFICER Adjudication Order in respect of Deepak Kumar in the matter of Titan Company Ltd.

Bar against anticipatory bail u/s 18 of the SC/ST Act could only be invoked if a prima facie case is made out: High Court of Delhi

High Court has inherent powers to grant pre-arrest bail in appropriate cases and bar against Anticipatory Bail under Section 18 of the SC/ST Act could only be invoked if a prima facie case is made out. Section 18 of the SC/ST Act bars anticipatory bail generally and only in such circumstances where it is prima facie shown that the Applicant had not committed an offence against the Complainant “knowingly” that the lady is from an SC/ST community, bail can be granted and the same was upheld by High Court of Delhi through the learned bench led by Justice Chandra Dhari Singh in the case of JOY DEV NATH vs. STATE (NCT OF DELHI) [BAIL APPN. NO. 4511/2021] on 28.01.2022. The facts of the case are that the Complainant was a divorced woman belonging to Scheduled Caste category and was living along with her daughter. The Petitioner used to regularly visit Complainant’s house and he continued to visit her even after her divorce. The Petitioner used to extort money from complainant by blackmailing her. The present application has been filed on behalf of the petitioner praying anticipatory bail. He prayed that he was falsely implicated in the present case with a view to harass him. The petitioner’s counsel submitted that the Petitioner has been falsely implicated in the present case. It is submitted that the Petitioner never abused or passed any casteist remarks against the Complainant in the public or otherwise. Hence no offence under SC/ST Act is made out against the Petitioner. There is also an extraordinary delay in lodging the instant FIR without any explanation and such an unexplained delay casts a prima facie doubt on the complaint itself, thereby entitling the Petitioner for Anticipatory Bail u/s 438 of the Cr.P.C. According to facts and circumstances, Court disposed of the case on terms that as per the complaint filed by the complainant, the case does not make out prima facie case for the applicability of the provisions of SC/ST Act, therefore, the bar created by Sections 18 and 18A will also not be applicable. The Court observed, “High Court has inherent powers to grant pre-arrest bail in appropriate cases and bar against Anticipatory Bail under Section 18 of the SC/ST Act could only be invoked if a prima facie case is made out. Section 18 of the SC/ST Act bars anticipatory bail generally and only in such circumstances where it is prima facie shown that the Applicant had not committed an offence against the Complainant “knowingly” that the lady is from an SC/ST community, bail can be granted.”

IN THE HIGH COURT OF DELHI AT NEW DELHI 07th January 2022 Reserved on: Pronounced on: 28th January 2022 BAIL APPN. NO. 4511 2021 JOY DEV NATH ..... Petitioner Through: Mr. Amit Yadav Mr. Jitender Gupta and Mr. Deepak Rohilla STATERespondent Ms. Kusum Dhalla APP for HON’BLE MR. JUSTICE CHANDRA DHARI SINGH JUDGMENT THROUGH VIDEO CONFERENCING) CHANDRA DHARI SINGH J. The present application has been filed under Section 438 of the Code of Criminal Procedure 1973 on behalf of the petitioner applicant praying anticipatory bail in FIR bearing No. 1251 2021 registered under Police Station Nihal Vihar Delhi for offence punishable under Sections 376 506 of the Indian Penal Code 1860and Sections 3and 3(1)(s) BAIL APPLN NO. 4511 2021 of the Scheduled Caste and Scheduled Tribe Act 1989category and is currently residing at House No. 63 Kunwar Singh Nagar Temple Galli Nangloi Delhi 110041 along with her daughter. ii) Complainant got married to Sh. Shashi Shekhar on 31st December 1999 according to Hindu rites and ceremonies. iii) The Complainant‟s matrimonial house. He continued to visit her even after her divorce. iv) One day the Petitioner Applicant made physical relations forcefully with the Complainant and took objectionable pictures of her and also threatened to kill her and her daughter if she told anything about it to anyone. v) The Petitioner Applicant used to extort money from complainant by blackmailing her. The Petitioner Applicant had extorted around Rs.15 00 000 and a gold chain of Rs.58 407 from the complainant. BAIL APPLN NO. 4511 2021 After reaching at her parental residence in Patna the Complainant tried contacting the Petitioner Applicant several times but he did not answer her calls. After returning back to Delhi Complainant came to know that the Petitioner Applicant has already married with another girl. vii) On 20th September 2021 the Complainant accidently met the Petitioner Applicant near Narayan Dharamkanta and asked him as to why he has cheated her. The Petitioner Applicant replied that why should he marry a Pasiwomen like her. He has also given threat to the complainant. viii) On 28th September 2021 the Complainant gave a complaint to the concerned Police station. On the said complaint on 31st October 2021 the FIR bearing No. 1251 2021 was registered at Police Station Nihal Vihar for the offences punishable under Sections 376 506 of the IPC & Sections 3(l)(r) and 3(1)(s) of SC ST Act. The case was also registered against Petitioner Applicant regarding extortion of money on the pretext of giving false promise of marriage spewing death threats abusive language and passing casteist remarks. ix) The Petitioner Applicant moved an anticipatory bail application before the Learned Sessions Judge West Tis Hazari Court. Vide order dated 18th December 2021 the Court below had dismissed the bail application filed under Section 438 of the BAIL APPLN NO. 4511 2021 Cr.P.C. The relevant observations of the order dated 18th December 2021 are as follows: “I have considered rival arguments and the case law relied by Ld. Counsel for applicant. the applicant I am in agreement with the submissions of Ld. state Counsel that the anticipatory bail is not maintainable in view of the fact that there are prima facie that he made allegations against physical relations with the complainant without her consent and hence prima facie offence u s 3of the SC ST Act. Also the Hon’ble Supreme court of India in Prithvi Rajhas clearly held that the provisions of 438 Cr.P.C shall not apply in case prima facie offence under SC ST Act is made out which is the case at Hand. Therefore in view of the judgment Prithvi Raj I am of the considered view that the present application is not maintainable and is accordingly dismissed. Copy of this order be given dasti to Ld. Counsel for applicant.” 3. Mr. Amit Yadav learned counsel appearing on behalf of the Petitioner submitted that the Petitioner Applicant has been falsely implicated in the present case with a view to harass Petitioner Applicant. It is submitted that there are several material contradictions in the statements of the complainant the Petitioner Applicant never abused or passed any casteist remarks against the Complainant in the public or otherwise. Hence no offence under SC ST Act is made out against the Petitioner Applicant. There is also an extraordinary delay in lodging the instant FIR without any explanation. BAIL APPLN NO. 4511 2021 4. In support of the argument learned counsel referred to the judgment passed by the Bombay High Court in Akshay Manoj Jaisinghani v. State of Maharashtra BAIL APPN. No. 2221 2016 dated 9th January 2017 to suggest that the Complainant was well educated and a mature lady to understand the nature of their relationship and that she knowingly and willingly consented to the sexual relations even during her marriage) between them. The FIR does not reveal either the date or time or even the year when the alleged sexual relation took place however the registration of the FIR has been done only after a significant time has elapsed. It is submitted that as per the decision in Vikul Bakshi v. State of NCT Delhi 2016 JCC 54 such an unexplained delay casts a prima facie doubt on the complaint itself thereby entitling the Petitioner Applicant for Anticipatory Bail under Section 438 of the Cr.P.C. However the veracity of the claim of applicant petition promising the complainant to marry her if at all was made is a question that can only be adjudged during the trial. Learned Counsel appearing on behalf of the Petitioner Applicant also relied on the judgment of Hon‟ble Supreme Court of India in Jayanti Rani Panda v. State of West Bengal 1984 CRL(J) 1535 wherein it was held that if an adult girl had consented sexual intercourse with a person who made false promise to marry her it would not amount to consent under the misconception of the fact under Section 90 of the IPC and sexual intercourse under these circumstances would not be an offence of rape as defined under Section 375 of the IPC. BAIL APPLN NO. 4511 2021 6. It is submitted on behalf of the Petitioner Applicant that even the charges under the SC ST Act are false. The Hon‟ble Supreme Court of India in Prithvi Raj Chauhan Vs Union of India and Others 2020 SCC SC 159 held that the High Court has inherent powers to grant pre arrest bail in appropriate cases whether the petitioner would be entitled to anticipatory bail or not when Sections 18 and 18A of the SC ST Act provide that the provisions of Section 438 Cr.P.C. will not be available in cases under the Act. Nevertheless the Supreme Court while dealing with the validity of these provisions in Prithvi Raj Chauhanheld that the High Court has inherent powers to grant pre arrest bail in appropriate cases and bar against Anticipatory Bail under Section 18 of the SC ST Act could only be invoked if a prima facie case is made out. Furthermore under Section 3(1)(r) of the SC ST Act it is required that the abusive insults against a member of the SC ST community must happen at a place within „the public view.‟ It is vehemently submitted by the learned counsel appearing on behalf of the Petitioner Applicant that the Petitioner Applicant is ready to join the investigation as and when required. In view of such facts and circumstances he submitted that no prima facie evidence is found that the Petitioner Applicant had abused the Complainant in public using casteist slurs and that the applicant ever made sexual relationship with the Complainant without her consent and therefore the application may be allowed and Petitioner Applicant must be granted the relief under Section 438 of the Cr.P.C. BAIL APPLN NO. 4511 2021 9. Per Contra Ms. Kusum Dhalla learned APP appearing on behalf of the State has vehemently opposed the application and stated that as per the judgment of Prithvi Raj ChauhanSection 18 of the SC ST Act bars anticipatory bail generally and only in such circumstances where it is prima facie shown that the Applicant had not committed an offence against the Complainant „knowingly‟ that the lady is from an SC ST community bail can be granted. Therefore the maintainability of the present anticipatory bail application under section 438 Cr.P.C. is in question. It is submitted that there are specific and direct allegations against the Petitioner Applicant in the complaint that he forcefully made physical relations with the Complainant and took objectionable photographs of the complainant and therefore present case falls under Section 3(w) of the SC ST Act. It is further submitted that the Petitioner Applicant had also threatened the complainant to kill her. It is further submitted that the question as to whether the alleged act was done with or without the consent of the Complainant is a matter of Trial and at this stage it cannot be said that Complainant‟s case is false and fabricated. Hon‟ble Court. 11. The rival submissions now fall for consideration before this 12. Heard the counsels for parties at length and perused the record. 13. This Court has given thoughtful consideration to the submissions made by learned counsel for the parties and has also perused the material on record. BAIL APPLN NO. 4511 2021 14. Before adverting to the facts of the case it is necessary to set out the relevant provisions of the SC ST Act which are reproduced as under: “3. Punishments for offences atrocities.— 1) Whoever not being a member of a Scheduled Caste or a Scheduled Tribe Xxx xxx r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view s) abuses any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within public view Xxx xxx w)intentionally touches a woman belonging to a Scheduled Caste or a Scheduled Tribe knowing that she belongs to a Scheduled Caste or a Scheduled Tribe when such act of touching is of a sexual nature and is without the recipient’s consent uses words acts or gestures of a sexual nature towards a woman belonging to a Scheduled Caste or a Scheduled Tribe knowing that she belongs to a Scheduled Caste or a Scheduled Tribe. 18. Section 438 of the Code not to apply to persons committing an offence under the Act.— Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this BAIL APPLN NO. 4511 2021 18 A. No enquiry or approval required.—(1) For the purposes of this Act — a) preliminary enquiry shall not be required for registration of a First Information Report against any person or b) the investigating officer shall not require approval for the arrest if necessary of any person against whom an accusation of having committed an offence under this Act has been made and no procedure other provided under this Act or the Code shall apply. 2) The provisions of Section 438 of the Code shall not apply to a case under this Act notwithstanding any judgment or order or direction of any Court.” 15. As stated above both sides have relied upon the decision of the Hon‟ble Supreme Court in Prithvi Raj Chauhan in which the court has rendered two separate but concurrent decisions the relevant paras of which are as follows : “10. Concerning the applicability of provisions of section 438 Cr.PC it shall not apply to the cases under Act of 1989. However if the complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989 the bar created by section 18 and 18A shall not apply. We have the review this aspect while deciding 11. Concerning the applicability of provisions of Section 438 CrPC it shall not apply to the cases under the 1989 Act. However if the complaint does not make out a prima facie case for applicability of the provisions of the 1989 Act the bar created by Sections 18 and 18 A(i) shall not apply. We have BAIL APPLN NO. 4511 2021 clarified this aspect while deciding the review 12. The Court can in exceptional cases exercise power under Section 482 CrPC for quashing the cases to prevent misuse of provisions on settled parameters as already observed while deciding the review petitions. The legal position is clear and no argument to the contrary has been raised.” Opinion of Arun Mishra J.) “20. …. while considering any application seeking pre arrest bail the High Court has to balance the two interests: i.e. that the power is not so used as to convert the jurisdiction into that under Section 438 of the Criminal Procedure Code but that it is used sparingly and such orders made in very exceptional cases where no prima facie offence is made out as shown in the FIR and further also that if such orders are not made in those classes of cases the result would inevitably be a miscarriage of justice or abuse of process of law. I consider such stringent terms otherwise contrary the philosophy of bail absolutely essential because a liberal use of the power to grant pre arrest bail would defeat the intention of Parliament. 32. As far as the provision of Section 18 A and anticipatory bail is concerned the judgment of Mishra J. has stated that in cases where no prima facie materials exist warranting arrest in a complaint the court has the inherent power to direct a pre arrest bail. 33. I would only add a caveat with the observation and emphasise that while considering any application seeking pre arrest bail the High Court has to balance BAIL APPLN NO. 4511 2021 the two interests : i.e. that the power is not so used as to convert the jurisdiction into that under Section 438 of the Criminal Procedure Code but that it is used sparingly and such orders made in very exceptional cases where no prima facie offence is made out as shown in the FIR and further also that if such orders are not made in those classes of cases the result would inevitably be a miscarriage of justice or abuse of process of law. I consider such stringent terms otherwise contrary the philosophy of bail absolutely essential because a liberal use of the power to grant pre arrest bail would defeat the intention of Parliament.” It is held that the High Court has inherent powers to grant pre Opinion of S. Ravindra Bhat J.) arrest bail in appropriate cases. It is an admitted fact that the Petitioner applicant and the Complainant were indeed involved in a physical relationship even before she was married and it was a consensual one which is evident from the screenshots attached along with this application. The Petitioner Applicant and the Complainant had been in a relation for last more than ten years and even deeply involved within the family and the same can be corroborated from the fact that the Petitioner Applicant went to attend the Complainant‟s Sister‟s wedding in Patna in the year 2017 and stayed there for five days from 2nd December 2017 to 7th December 2017. Their deep involvement can also be seen from the fact that when the Complainant purchased her car Maruti Swift bearing Registration No. DL 4C AU 4095 then it was the Petitioner who had given his ALTO car No. DL 4C AS 0128 in the exchange scheme which was worth Rupees Two Lakhs. BAIL APPLN NO. 4511 2021 17. The perusal of the complaint filed by the complainant also does not make out prima facie case for the applicability of the provisions of SC ST Act therefore the bar created by Sections 18 and 18A will not be applicable to the instant case. It is also an admitted fact that other offences alleged are not punishable with death or petitioner applicant has also undertaken to cooperate with the police in the investigation. 19. The Complainant does not allege in her complaint that she was sexually victimised by reason of her caste status throughout her relationship with the Petitioner Applicant and only brings in the allegation relating to her caste in an alleged episode of 20th September 2021 which arose in the backdrop and context of the applicant refusing to marry the prosecutrix and not in the context of the allegations of sexual assault upon her. It is perhaps for this reason that initially section 3(1)(w) of the SC ST Act was not alleged in the FIR but was added subsequently when raised before the Court below which has also been recorded in the order dated 18th December 2021. It appears that the offences in the nature sexual assault alleged to have been committed by Petitioner Applicant had no reference to the prosecutrix‟s caste thereby Section 3(1)(w) of the SC ST Act does not prima facie come into play in the instant case. 20. Furthermore insofar as the provisions of Sections 3(1)(r) and 3(1)(s) of the SC ST Act are concerned there is no allegation that the BAIL APPLN NO. 4511 2021 alleged casteist slur was made “within public view” as required in Sections 3(1)(r) and 3(1)(s) of the SC ST Act. In fact it has been pointed out that the court below in order dated 18th December 2021 recorded that the learned Counsel for the State had fairly conceded after speaking to the Complainant that she was not aware if any public person was present or not at the time of alleged incident. 21. Thus absence of the ingredients of Section 3(1)(w) of the SC ST Act or even for the offence under Sections 3(1)(r) and 3(1)(s) of the SC ST Act the question of applicability of the Sections 18 or 18A(2) of the SC ST Act getting triggered does not arise in the instant case. In view of the aforementioned facts circumstances analysis and reasoning and keeping in mind the legal position this court is persuaded to allow the instant anticipatory bail application. It is accordingly directed that in the event of arrest the Petitioner Applicant shall be admitted to bail by the Investigating Officer Arresting Officer on furnishing a personal bond of Rs. 50 000 with one surety of the like amount from a family member to the satisfaction of the Investigating Officer Arresting Officer subject to following conditions: he shall surrender his passport if any to the Investigating Officer and shall under no circumstances leave India without prior permission of the Court concerned he shall cooperate in the investigation and appear before the Investigating Officer of the case as and when required The petitioner applicant shall remain present before the BAIL APPLN NO. 4511 2021 jurisdictional police station on Second and Fourth Saturday every month for the period of two months or till filing of the final report whichever is earlier he shall not directly or indirectly make any inducement threat or promise to any person acquainted with the facts of the case he shall provide his mobile number(s) to the Investigating Officer and keep it operational at all times he shall drop a PIN on the Google map to ensure that his location is available to the Investigating Officer and In case of change of residential address and or mobile number the same shall be intimated to the Investigating Officer Court concerned by way of an affidavit. 23. The application stands disposed of in the above terms. 24. Other pending applications if any also stand disposed of. It is made clear that above observations made by this Court while allowing the instant application shall have no affect on the proceedings of the Court below. 26. The judgment be uploaded on the website forthwith. CHANDRA DHARI SINGH) January 28 2021 BAIL APPLN NO. 4511 2021

Having not presented them self for Cross-examination, an adverse presumption has to be drawn against them: Supreme Court

This present Judgment was forwarded by this Hon’ble SC in the Civil Appeal case of Iqbal Basith & Others V. N. Subbalakshmi & Others, [C.A. No. 1725 of 2010], chaired by Hon’ble justice Mr. R.F. Nariman, Mr. Navin Sinha and Mr. Krishna Murari. The plaintiffs are in appeal against the concurrent findings by two courts, rejecting their plaint seeking the relief for permanent injunction. The suit was initially dismissed. R.F.A. No.116/1990 preferred by the appellants was allowed by the High Court. The order was set aside by this court in C.A. No. 2072/2000 on 22.07.2004 and the matter was remanded to the High Court. Both the Courts held that the respondents had no concern with the suit property, yet ventured to decide that the appellants had failed to establish title and dismissed the suit. The conclusion of the High Court that the identity of the suit property had not been established is perverse and contrary to the evidence on record. The present suit was instituted by the appellants in 1974 seeking permanent injunction as the respondents attempted to encroach on their property. The suit schedule property was described as no. 44/6. After examining all the submissions, arguments and evidences forwarded by the councils, the Hon’ble HC observed that, “The conclusion by the courts below that the appellants had failed to establish title and therefore could not be said to be in lawful possession is therefore held to be perverse and unsustainable. Similarly, the conclusion that the identity of the suit property was not established is also held to be perverse in view of letter dated 16.04.1956 from the municipality, referred to herein above. The contention of the respondents feebly seeking to question the title of the appellants was rejected holding that they had nothing to do with the suit schedule property and that their conduct was questionable. Yet the appellants were wrongly denied the relief of permanent injunction. In our considered opinion the Trial Court and the High Court both posed unto themselves the wrong question venturing to decide the title of the appellants, and arrived at an erroneous conclusion.”

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.1725 OF 2010 IQBAL BASITH AND OTHERS N. SUBBALAKSHMI AND OTHERS ...RESPONDENT(S NAVIN SINHA J The plaintiffs are in appeal against the concurrent findings by two courts rejecting their plaint seeking the relief for permanent injunction. The suit was initially dismissed. R.F.A No.116 1990 preferred by the appellants was allowed by the High Court. The order was set aside by this court in C.A. No 2072 2000 on 22.07.2004 and the matter was remanded to the High Court. Signature Not Verified Digitally signed by Jayant Kumar Arora 2. Mr. Basava Prabhu S. Patil learned senior counsel appearing on behalf of the appellants submits that the respondents had no concern with the suit property no. 44 6 ad measuring 90 ft. x 110 ft. situated on the J. C. Road in Bangalore. The respondents were the owner of property bearing no. 42 at a distance of 103 ft. with intervening properties also The respondents illegally attempted to encroach on the appellants property on 10.02.1974 by dumping bamboo and other construction materials compelling the appellants to institute the present suit. Shri Patil relied upon the reports of the Pleader Commissioner appointed by the Trial Court and again by the High Court to submit that the appellants were found to be in possession of the property coupled with the entries in the property tax register and the municipal tax receipts in name of the appellants. The respondents did not claim any title in themselves to the suit property but feebly sought to question the appellants title in a vague manner. O.S. No. 3334 1984 filed by the respondents was allowed to be dismissed in default. The suit filed by the appellants was only for grant of permanent injunction. No issue with regard to title was therefore framed The lawful possession of the appellants stood established from Ex.D 1 dated 07.09.1946 filed by the respondents vesting title in their vendor O.A. Majid Khan by the Bangalore City Municipalityunder Section 41(2) of the Mysore City Municipalities Act 1933 hereinafter referred to as ‘the Act’) over an area of 75 ft. x 110 ft. and the subsequent sale deed dated 27.09.1962 by the Municipality in favour of the appellants mother for the remaining area of 15 ft. x 110 ft. Both the Courts held that the respondents had no concern with the suit property yet ventured to decide that the appellants had failed to establish title and dismissed the suit. The conclusion of the High Court that the identity of the suit property had not been established is perverse and contrary to the evidence on record. 4. Mr. Purushottam Sharma Tripathi learned counsel for the respondents submitted that the appellants failed to establish the identity of the suit property the boundaries having changed from time to time. The appellants also failed to establish title in favour of their vendor. It was therefore rightly held that they could not establish lawful possession. No original documents of title were produced but only photocopies which were inadmissible in evidence. The property tax register entries for the years 1950 51 to 1954 55 are irrelevant as the appellants claimed acquisition of title from O.A. Majid Khan on basis of sale deed dated 10.07.1956. The suit was therefore rightly dismissed. Shri Tripathi however fairly conceded that the respondents were in possession of property bearing no.42 which was at a distance of 103 ft. from the suit property bearing no. 44 6 and that there were intervening properties also. He further with all fairness acknowledged that the respondents never claimed any title to the property bearing no. 44 6. 6. We have considered the submissions on behalf of the parties and are of the deliberated opinion that the appeal deserves to be allowed for reasons to be enumerated hereinafter The suit property bearing no. 44 6 in J.C. Road Bangalore measures totally 90 ft. x 110 ft. The property originally belonged to the municipality identified as site no.10 and 17 J.C. Road 6th Division Bangalore. On 08.08.1945 the City Municipal Council resolved to sell 75 ft. x 110 ft. to one O.A. Majid Khan. Sanction for the sale was accorded by the Municipality on 07.09.1946 by Government Order No. L.3392 3 ML 55 46 6 under Section 41(2 of the Act. The respondents themselves filed a certified copy of the same in the suit which was marked as Ex. D 1. The said O.A. Majid Khan by letter no. A7.0.170 46 47 dated 17.09.1946 was directed to deposit Rs.17 361 as consideration. The Municipal Engineer on 30.09.1946 was directed to hand over possession after deposit of the consideration amount. Possession was handed over to O.A. Majid Khan on 10.10.1946. On 16.04.1956 the Assistant Revenue Officer of the Municipality informed that the property bearing no.10 and 17 sold to O.A Majid Khan had been renumbered as 44 J.C. Road 25th division Sufia Khatoon the widow of O.A. Majid Khan sold the property to the mother of the appellants Zahara Khatoon original plaintiff no. 3 on 10.07.1956 by a registered sale deed. Two confirmatory sale deeds were also executed on 08.04.1958 and 21.08.1959 by the legal heirs of O.A. Majid Khan in favour of Zahara Khatoon after attaining majority. Subsequently on 27.09.1962 the remaining portion of the suit property admeasuring 15 ft. x 110 ft. was sold by the municipality to Zahara Khatoon by a registered sale deed. Zahara Khatoon thus became the owner of the suit area of 90 ft. x 110 ft. of property bearing no. 44 6. The mother of the appellants gifted the property to them in 1966. The necessary entries were made in the property tax register and the tax receipts demonstrate the payment of tax by the appellants from 1964 65 up to the year 1969 70 and again from 1984 85 1986 87. The present suit was instituted by the appellants in 1974 seeking permanent injunction as the respondents attempted to encroach on their property. The suit schedule property was described as no. 44 6. The respondents in their written statement claimed ownership and possession of property no. 42 acknowledging that other properties lay in between. A feeble vague objection was raised but not pursued questioning the title of the appellants. The respondents raised no genuine objection to the validity or genuineness of the government documents and the registered sale deeds produced by the appellants in support of their lawful possession of the suit property. The original defendant no.1 did not appear in person to depose and be cross examined in the suit. His younger brother deposed on the basis of a power of attorney acknowledging that the latter had separated from his elder brother. No explanation was furnished why the original defendant did not appear in person to depose We find no reason not to draw an adverse inference against defendant no.1 in the circumstances. In Iswar Bhai C. Patel vs Harihar Behera 3 SCC 457 this Court observed as follows: “17…..Having not entered into the witness box and having not presented himself for cross examination an adverse presumption has to be drawn against him on the basis of the principles contained in Illustration g) of Section 114 of the Evidence Act 1872.” 10. The Trial Court framed four issues. The question of title of the appellants was not one of them. “1. Do the plaintiffs prove their lawful possession of the suit property 2. Do the plaintiffs prove the defendants interfered with their possession of suit property 3. Whether plaintiffs have to pay court fee on the market value of the property in view of the pleadings in plaint 4. What relief or order 11. The High Court framed the issues afresh as follows. Title was again not one of them “1. Whether plaintiffs have proved identity of suit schedule property 2. Whether plaintiffs have proved that they are in lawful possession of suit schedule property 3. Whether plaintiffs have proved interference by 4. Whether the trial court Judge has property appreciated evidence on record and arrived at proper reasons and conclusions ” 12. Both the courts then proceeded to consider the title of the appellants to decide lawful possession. The respondents had themselves produced a certified copy of Ex. D 1 dated 07.09.1946. The appellants produced photocopies of all other resolutions government orders and sale deed in favour of their vendor O.A. Majid Khan by the Municipality. The failure to produce the originals or certified copies of other documents was properly explained as being untraceable after the death of the brother of P.W.1 who looked after property matters. The attempt to procure certified copies from the municipality was also unsuccessful as they were informed that the original files were not traceable. The photocopies were marked as exhibits without objection. The respondents never questioned the genuineness of the same. Despite the aforesaid and the fact that these documents were more than 30 years old were produced from the proper custody of the appellants along with an explanation for non production of the originals they were rejected without any valid reason holding that there could be no presumption that documents executed by a public authority had been issued in proper exercise of statutory powers. This finding in our opinion is clearly perverse in view of Section 114(e) of the Indian Evidence Act 1872 which provides that there shall be a presumption that all official acts have been regularly performed. The onus lies on the person who disputes the same to prove otherwise. 13. This Court in Lakhi Baruah vs. Padma Kanta Kalita 1996) 8 SCC 357 with regard to admissibility in evidence of thirty years old documents produced from proper custody observed as follows : “14. It will be appropriate to refer to Section 90 of the Evidence Act 1872 which is set out “90. Presumption as to documents thirty years old.— Where any document purporting or proved to be thirty years old is produced from any custody which the Court in the particular case considers proper the Court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person is in that person’s handwriting and in the case of a document executed or attested that it was duly executed and attested by the persons by whom it purports to be executed and attested.” 15. Section 90 of the Evidence Act 1872 is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting signature or execution of old documents after lapse of thirty years. In order to obviate such difficulties or improbabilities to prove execution of an old document Section 90 has been incorporated in the Evidence Act 1872 which does away with the strict rule of proof of private documents Presumption of genuineness may be raised if the documents in question is produced from proper custody. It is however the discretion of the court to accept the presumption flowing from Section 90. There is however no manner of doubt that judicial discretion under Section 90 should not be exercised arbitrarily and not being informed by reasons.” 14. The appellants were seeking the relief of permanent injunction only. Their title to the suit property was not disputed by the respondents. The respondents acknowledged that they were in ownership and possession of plot no.42 which had no concern with the suit property and was situated at a distance of 103 feet with other intervening properties. The two reports of the Pleader Commissioner also confirmed the possessory title of the appellants along with property tax registers and municipal tax receipts. The appellants had more than sufficiently established their lawful possession of the suit property. 15. The conclusion by the courts below that the appellants had failed to establish title and therefore could not be said to be in lawful possession is therefore held to be perverse and unsustainable. Similarly the conclusion that the identity of the suit property was not established is also held to be perverse in view of letter dated 16.04.1956 from the municipality referred to herein above. The contention of the respondents feebly seeking to question the title of the appellants was rejected holding that they had nothing to do with the suit schedule property and that their conduct was questionable. Yet the appellants were wrongly denied the relief of permanent injunction. In our considered opinion the Trial Court and the High Court both posed unto themselves the wrong question venturing to decide the title of the appellants and arrived at an erroneous conclusion. 16. On basis of the aforesaid discussion the materials and evidence on record we are of the considered opinion that the impugned orders dismissing the suit and the appeal are therefore not sustainable. We therefore set aside the orders of the Trial Court and the High Court dismissing the suit and allow the DECEMBER 14 2020

Voluntary retirement application deemed to be accepted where employer does not refuse before the expiry of the period specified in the notice : Supreme Court of India

Request made by the employee for curtailment of the period of notice of 3 months before voluntary retirement can only be rejected by the employer if the same causes administrative inconvenience. The Supreme Court bench consisting of J. Ashok Bhushan, J. R. Subhash Reddy, and J. M. R. Shah elaborated upon an employee’s eligibility to seek voluntary retirement in the matter of Indian Bank &Anr. v. Mahaveer Khariwal [Civil Appeal No. 2760 of 2010]. The respondent, or the original writ petitioner, employee, who was working with the appellant bank, employer, was promoted as Chief Manager. The employee was transferred from Colombo overseas branch to a branch in New Delhi. He applied for 30 days leave to visit London as his son was admitted to the hospital after which the employee wrote to the employer seeking an extension of leave, both of which were rejected and the employee was directed to report on duty. The employee submitted an application seeking voluntary retirement from the services of the employer. In this notice, the employee requested for waiver of three months’ notice as required under Regulation 29 of the Indian Bank Employees Pension Regulations, 1995 and requested to deduct the salary of the said notice period from the amount payable by the employer on retirement. The employer rejected the request on the grounds that the employee was not eligible under the Pension Regulations, 1995. The employee preferred a writ petition seeking directions to the employer to accept the voluntary retirement with terms as mentioned, to reimburse the educational expenses for the son of the employee and grant traveling allowance bills for the journey from Colombo to New Delhi which was rejected on account of delay in submitting the bills. The court dismissed the petition so far as a challenge to the rejection of the voluntary retirement, however, granting the other two prayers. The employee then sort to a Letters Patent Appeal before the High Court who allowed the same and directed the employer to release retiral dues of the employee. Aggrieved, the employer preferred the present appeal to the Supreme Court.

Feeling aggrieved and dissatisfied with the impugned judgment and order dated 02.02.2009 passed by the Division the said appeal preferred by the respondent herein and has quashed and set aside the judgment and order passed by the learned Single Judge and has quashed and set aside communication dated 20.04.2004 of the bank rejecting the application for voluntary retirement and has directed the appellant­bank to release retiral dues of the respondent in accordance with the Pension Regulations 1995 with simple That the respondent herein original writ petitioner ‘employer’) who was promoted as Chief Manager SMG­IV. In March 1998 he was transferred and posted as Chief Manager Colombo Branch Colombo. Thereafter by order dated Defence Colony Branch New Delhi. That on 21.01.2004 the 32 97­98 dated 15th July 1997 and the format given by the employer for submitting the notice of voluntary retirement. In 29 of the Indian Bank Employees Pension Regulations 1995 hereinafter referred to as ‘Pension Regulations 1995’) and requested authorised the employer to deduct the salary of the retirement. The employer vide letter dated 20.04.2004 which Being aggrieved by the rejection of the application for employer to reimburse the educational expenses for the son of while he was posted at Colombo. One another prayer was for New Delhi which was declined by the employer on account of delay in submitting the bills. The learned Single Judge by so far as challenge to the rejection of his voluntary retirement application vide communication dated 20.04.2004. However Feeling aggrieved and dissatisfied with the judgment and petition with respect to his prayer to quash the letter dated 20.04.2004 rejecting his request for voluntary retirement the employee preferred Letters Patent Appeal before the Division Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Division Bench of the High Shri Ravi Sikri learned Senior Advocate has appeared on 6.1 Shri Ravi Sikri learned Senior Advocate appearing on behalf of the employer has made the following submissions assailing the impugned judgment and order passed by the 29 of the Pension Regulations 1995 in its true perception an employee requires permission acceptance of the employer months from the date of submitting the voluntary retirement that what is relevant is taking the decision within three voluntary retirement. It is submitted that in the present case that the High Court has failed to appreciate that an mandatory notice in writing to enable the employer to make necessary arrangements for an alternate hand in place of the and therefore his application for voluntary retirement was defective to that extent. It is submitted that therefore the which was not in consonance with the Pension Regulations that the High Court has failed to appreciate that the employee’s offer of surrendering three months salary in lieu of mandatory notice period could not be considered to be a valid was in fact transferred to the foreign branch and was not sent Regulations 1995 the employee was not eligible to apply for voluntary retirement unless after having been transferred or India as contemplated under Regulation 29(1) for voluntary retirement the employer initiated departmental from 26.11.2003 to 19.01.2004 and from 22.01.2004 and the disciplinary authority imposed the penalty of compulsory retirement on the employee. It is submitted that therefore the Making the above submissions it is prayed to allow the and order passed by the Division Bench and restore the judgment and order passed by the learned Single Judge and voluntary retirement was rejected. It is submitted that the Division Bench of the High Court has rightly interpreted Regulation 29 and has rightly considered that the bar under Regulation 29(1) shall not be applicable insofar as Regulation 29(1) is concerned as the employee was not on deputation at Colombo Branch but was on transfer. It is submitted that the but the question is whether the rejection of the voluntary submitted the voluntary retirement application on 21.01.2004 In the application itself the employee requested for waiver of disputed that the notice of voluntary retirement requires to Sub­Regulation 2 of Regulation 29 in case the appointing before the expiry of the period specified in the notice the said notice period. In the present case on the 90th day vide for voluntary retirement was rejected without assigning any for voluntary retirement under Pension Regulations 1995. The i.e. 20.04.2004 however the same was received by the employee on 23.04.2004. The learned Single Judge dismissed the writ petition so far as challenge to the communication dated 20.04.2004 is concerned. However on appeal by the impugned judgment and order the Division Bench has set aside the communication dated 20.04.2004 by which the request of the employee for voluntary retirement from the service of the Therefore the short question which is posed for the consideration before this Court is whether the rejection of the request of the employee for voluntary retirement vide 9. While considering the aforesaid question Regulation 29 is 1) On or after the first day of November 1993 at any time after an employee has completed twenty years of qualifying service he may by giving notice of not less employee who is on deputation or on study leave on abroad unless after having been transferred or having to an employee who seeks retirement from service for body whether incorporated or not to which he is on 2) The notice of Voluntary retirement given under sub­ expiry of the period specified in the said notice the An employee referred to in sub­regulation may b) On receipt of a request under clause the appointing authority may subject to the provisions of sub­regulation consider such request for the period of notice will not cause any administrative inconvenience the appointing authority may relax the part of the pension before the expiry of the notice of 4) An employee who has elected to retire under this to the appointing authority. shall be precluded from 5) The qualifying service of an employee retiring that the total qualifying service rendered by such and it does not take him beyond the date of 6) The pension of an employee retiring under this defined under clause of regulation 2 of these his qualifying service. shall not entitle him to any 10. On a fair reading of Regulation 29 it emerges that an completed 20 years of qualifying service. He can apply for voluntary retirement by giving notice of not less than three However as per proviso to Sub­Regulationof Regulation 29 Sub­Regulation of Regulation 29 shall not apply to an employee who is on deputation or on study leave on abroad with and considered hereinbelow. It also appears that as per Sub­Regulation of Regulation 29 the notice of voluntary retirement given under Sub­Regulation shall require acceptance by the appointing authority. However as per the proviso to Sub­regulation the appointing authority has to take a decision before the expiry of the period specified in the the period specified in the notice there shall be deemed acceptance of the voluntary retirement application and the period mentioned in the notice. However at the same time as per Sub­Regulation 3(a) an employee may make a request in retirement of less than three months giving reasons thereof Sub­Regulation 3(b) provides that on receipt of a request for waiver of three months’ notice as per Sub­Regulation 3(a) the appointing authority may subject to the provisions of Sub­ that the curtailment of the period of notice will not cause any the employee shall not apply for commutation of a part of the present case the application of the employee submitting the notice of three months was absolutely in consonance with Regulation 29. The request made by the employee for notice may cause any administrative inconvenience the request for curtailment of the period of three months’ notice can be it does not reflect any compliance of Sub­Regulation 3(b) of Regulation 29. As such no reasons whatsoever have been assigned given except stating that the request is not in accordance with Pension Regulations 1995. Even otherwise it is required to be noted that even the communication dated 20.04.2004 was on the last day of the third month i.e. 90 th day not considered on merits. Therefore as rightly held by the The Division Bench of the High Court is absolutely justified in quashing and setting aside the communication dated proviso to Sub­Regulation of Regulation 29 as after he returned to India from Colombo Branch he did not serve for a not be applicable to the facts of the case on hand as in the Chief Manager Colombo Branch. It says that he is posted as Chief Manager Colombo Branch. Even when he was relieved from Colombo Branch to join at Defence Colony Branch New Delhi in the communication dated 25.08.2003it order of repatriation. Therefore proviso to Sub­Regulationto 12. Now so far as the submission on behalf of the employer that the acceptance or non­acceptance of the voluntary the period specified in the notice i.e. in the present case three months and the same was taken on the last date of the three period and date of decision communication is not material it is true that in the present case the decision was taken before the expiry of the period specified in the notice i.e. on or before three monthshowever as observed hereinabove the to be illegal and bad in law. Therefore the aforesaid shall not 20.04.2004 rejecting the voluntary retirement application was bad in law and contrary to Regulation 29. Therefore the other subsequent proceedings of departmental enquiry will be null and void and shall be non est as after the voluntary appeal fails and the same deserves to be dismissed and is accordingly dismissed. However there shall be no order as to

Courts to observe wide discretion whilst dealing with grievances of frontline workers: Delhi High Court

In matter of appointment in the nursing fraternity, the bench of Rajiv Sahai Endlaw J. and Amit Bansal J. exercised wide discretion while allowing the promotion of 52 nurses employed at AIIMS who initially had been appointed on an ad-hoc basis. The Delhi High Court in the above matter of All India Institute of Medical Sciences v Elsy Jacob [W.P.(C) 4755/2021], provided solidarity with the nurses who have been frontline workers during the pandemic by permitting the promotion by overlooking the technicalities. The respondents no.1 to 52 filed the O.A. aforesaid, pleading that (i) the respondents no.1 to 52, from time to time, on different dates, from the year 1996 onwards, were interviewed by the Competent Authority and appointed on ad hoc basis, to the temporary post of Sister Grade-II, in the petitioner AIIMS, initially for a period of 3 months, against leave vacancies etc. however the services of the respondents no.1 to 52 were continued, even after expiry of 3 months, without interruption; (iv) though after the date of such ad hoc appointment of respondents no.1 to 52, process of regular appointments to the post of Sister Grade-II in the petitioner AIIMS took place and though the respondents no.1 to 52 and/or some of them participated in the selection process for regular appointment, but none of them was selected or appointed; and, however in the year 2004, each of the respondents no.1 to 52 was appointed on a regular basis, on the terms and conditions mentioned in the letters of appointment then issued to each of them. It was argued before the bench that though the respondents no.1 to 52 were interviewed prior to their ad hoc appointment, but not by the Selection Committee in accordance with the Recruitment Rules; that the ad hoc appointment of the respondents no.1 to 52 was not in pursuance to any public advertisement or through Employment Exchange but through word of mouth. The respondents no.1 to 52 were not subjected to any probation and thus the period of their ad hoc service cannot be counted for the purposes of seniority and promotion and the same would be contrary to the Recruitment Rules. The court referred to its power of discretion under Art. 226 of the Constitution through cases Taherakhatoon Vs. Salambin Mohammad (1999) 2 SCC 635 whose ratio consistently followed in Chandra Singh Vs. State of Rajasthan (2003) 6 SCC 545 and Master Marine Services Pvt. Ltd. Vs. Metcalfe and Hodgkinson Pvt. Ltd. (2005) 6 SCC 138 wherein it had been held that Court is empowered not to strike down an illegal order, although it would be lawful to do so. The bench was reluctant, during the time when the entire citizenry was literally in the hands of the nursing profession to which the respondents no.1 to 52 belong, to take away from the respondents no.1 to 52 what has been granted to them by CAT. The court further added reasoning to its wide discretion by stating that during the prevalent pandemic which has been raging across the country now for the last more than one year and during which time the medical/healthcare professionals, particularly Nurses, to which profession the respondents no.1 to 52 belong, had been sacrificing their own personal comforts and life. Till now everyone had been expressing appreciation for the efforts of the medical/healthcare workers and gratitude to the nursing fraternity, only in words however.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 30th April 2021 W.P.(C) 4755 2021 ALL INDIA INSTITUTE OF MEDICAL SCIENCES ...Petitioner Through: Mr. Atul Kumar and Ms. Archana Kumari Advocates. ELSY JACOB & ORS. ..... Respondents Through: Dr. M.P. Raju Advocate for Mr. E. J. Varghese for R 1 to R 52. HON BLE MR. JUSTICE RAJIV SAHAI ENDLAW HON BLE MR. JUSTICE AMIT BANSAL RAJIV SAHAI ENDLAW J. VIA VIDEO CONFERENCING] CM No. 14640 2021Allowed subject to just exceptions and as per extant rules. The application is disposed of. W.P.(C) No.4755 2021 & CM No.14639 2021This petition under Article 226 of the Constitution of India impugns the order dated 31st October 2019 of the Central Administrative Tribunal CAT) Principal Bench New Delhi allowing O.A. No.4342 2014 preferred by the respondents no.1 to 52 being Nurses Grade II in the petitioner All India Institute of Medical SciencesNo.4755 2021 The respondents no.1 to 52 filed the O.A. aforesaid pleading thatthe respondents no.1 to 52 from time to time on different dates from the year 1996 onwards were interviewed by the Competent Authority and appointed on ad hoc basis to the temporary post of Sister Grade II in the petitioner AIIMS initially for a period of 3 months against leave vacancies etc. the letters of appointment issued to the respondents no.1 to 52 on such appointment besides providing that the appointment was ad hoc and initially for a period of 3 months further specified the monthly payand which monthly pay was “with usual allowances” of the subject pay scale it was also a stipulation in the appointment letter that the appointment was subject to the respondents no.1 to 52 having the prescribed qualification and furnishing documents in proof thereof however the services of the respondents no.1 to 52 were continued even after expiry of 3 months without interruption though after the date of such ad hoc appointment of respondents no.1 to 52 process of regular appointments to the post of Sister Grade II in the petitioner AIIMS took place and though the respondents no.1 to 52 and or some of them participated in the selection process for regular appointment but none of them was selected or appointed and however in the year 2004 each of the respondents no.1 to 52 was appointed on a regular basis on the terms and conditions mentioned in the letters of appointment then issued to each of them. Though the respondents no.1 to 52 claimed several reliefs in the O.A. from which this petition arises but at the time of hearing confined the reliefs to that of counting of the service rendered by the respondents W.P.(C) No.4755 2021 no.1 to 52 on ad hoc basis for fixation of seniority and consideration of the respondents no.1 to 52 for promotion to the post of Sister Grade I as per Recruitment Rules on the basis of such seniority. Since the reliefs with respect to seniority and promotion were also claimed in the O.A. the respondents no.1 to 52 who were applicants before CAT in their O.A. besides impleading the petitioner AIIMS also impleaded respondents no.53 to 62 herein who were are also holding the post of Sister Grade II in petitioner AIIMS but who were appointed on regular basis though after the date of ad hoc appointment of the respondents no.1 to 52 but before the date of regular appointment in the year 2004 of respondents no.1 to 52 since the said reliefs sought were likely to affect their seniority and promotion. A perusal of the impugned order of CAT does not show the respondents no.53 to 62 herein to have contested the claim of the respondents no.1 to 52 qua seniority and promotion and which relief was likely to affect the respondents no.53 to 62 herein. The counsel for the respondents no.1 to 52 appearing on advance notice caveat also on enquiry confirms that the respondents no.53 to 62 inspite of notice did not file any reply to the O.A. or otherwise contest the O.A. of the respondents no.1 to 52. The counsel for the petitioner as well as the counsel for the respondents no.1 to 52 are also ad idem that the respondents no.53 to 62 have also not impugned the order of CAT though affecting their seniority and promotion. W.P.(C) No.4755 2021 It can thus safely be assumed that the respondents no.53 to 62 whose seniority and time of promotion even if affected by the relief granted by CAT to respondents no.1 to 52 are not aggrieved therefrom. 11. CAT has allowed the aforesaid two reliefs claimed by the respondents no.1 to 52 and directed the petitioner AIIMS to count the services rendered by the respondents no.1 to 52 on ad hoc basis before their regular appointment in the year 2004 in fixing their seniority and for the purposes of promotion to higher grade etc. reasoning that from the letter of appointment of each of the respondents no.1 to 52 on ad hoc basis it was crystal clear that they were appointed in a pay scale and were given increments every year and that on regular appointment their pay was protected and fixed at a higher level than the entry level pay that in a meeting held on 18th January 2014 of the Nursing Union with the Director of petitioner AIIMS it was informed that the period of service rendered by the respondents no.1 to 52 on ad hoc basis followed by regular appointment would be counted for pensionary benefits allotment of accommodation etc. but not as qualifying service for voluntary retirement and not for the purposes of seniority and promotion that though usually seniority of an employee would be counted only from the date of his appointment as per Recruitment Rules but in view of the peculiar facts of the case i.e. of the respondents no.1 to 52 having beenappointed after an interview by a Competent Authority appointed in a pay scale given increments every year though their initial appointment was for 3 months only continued uninterruptedly till 2004 given a pay scale higher than the entry level pay scale on regular appointment in the year 2004 W.P.(C) No.4755 2021 taking into account all the increments they had earned from the date of initial appointment on ad hoc basis given protection of pay earned on ad hoc basis at the time of regular appointment given the benefit of period of ad hoc service for pensionary benefits and for allotment of accommodation and both of which also affected the respondents no.53 to 62 herein they were also entitled to the relief of seniority including for promotion and that the respondents no.53 to 62 herein inspite of service had not entered appearance or contested the claim of the respondents no.1 to 52 herein. 12. The counsel for the petitioner AIIMS has contended that though the respondents no.1 to 52 were interviewed prior to their ad hoc appointment but not by the Selection Committee in accordance with the Recruitment Rules that the ad hoc appointment of the respondents no.1 to 52 was not in pursuance to any public advertisement or through Employment Exchange but through word of mouth and that the respondents no.1 to 52 were not subjected to any probation and thus the period of their ad hoc service cannot be counted for the purposes of seniority and promotion and the same would be contrary to the Recruitment Rules. 13. We have however enquired from the counsel for petitioner AIIMS why the respondents no.1 to 52 at the time of regular appointment in the year 2004 were not subjected to probation. 14. No answer is forthcoming. W.P.(C) No.4755 2021 seniority. 15. The counsel for the petitioner AIIMS then contends that if the impugned order of CAT is sustained it would open a pandora’s box qua 16. The respondents no.1 to 52 in their O.A. before CAT impleaded respondents no.53 to 62 herein for the reason of the relief claimed qua seniority and promotion being prejudicial to respondents no.53 to 62. The respondents no.53 to 62 as aforesaid did not contest the claim of the respondents no.1 to 52 and have also not challenged the relief granted by CAT to respondents no.1 to 52. The petitioner AIIMS also though in this petition has pleaded that grant of seniority and promotion as aforesaid to the respondents no.1 to 52 will open a pandora’s box before CAT did not plead that there were any others besides the respondents no.53 to 62 whose seniority or promotion was likely to be affected by the relief claimed by the respondents no.1 to 52. Even in this petition a vague plea of pandora’s box being opened is taken without any particulars. The bogey of pandora’s box being opened unless the Court intervenes cannot be raised without laying down any foundation therefor. We are thus not inclined to agree with the said submission. 17. Be that as it may even if there were to be some legal merit in the contentions aforesaid of the counsel for the petitioner AIIMS this petition against the order dated 31st October 2019 of CAT has come up before this Bench during the prevalent pandemic which has been raging across the country now for the last more than one year and during which time the medical healthcare professionals particularly Nurses to which profession the respondents no.1 to 52 belong have sacrificing their own personal W.P.(C) No.4755 2021 comforts and life rendered immense services to the fellow citizens of Delhi and elsewhere. Till now the citizens of Delhi including us have been expressing appreciation the efforts of the medical healthcare workers professionals and our gratitude to the Nursing fraternity only in words. Today if on technicalities of law we set aside the relief granted by CAT to respondents no.1 to 52 Nurses and to grant of which relief the other Nurses i.e. respondents no.53 to 62 who alone would have been affected therefrom have not objected the words of appreciation and gratitude expressed till now would sound hollow and empty to the respondents no.1 to 52 and in these times when they are rendering services beyond their call of duty and much beyond the hours they are required to work affect their morale. It cannot also be lost sight of that the respondents no.1 to 52 have worked as Nurses and performed the same duties as regular appointees for the period of which they are claiming seniority. The technicality of law at this hour should not be allowed to come in their way. 18. Fortunately we are adjudicating this lis in exercise of our powers under Article 226 of the Constitution of India and in which jurisdiction as per dicta of the Supreme Court in Taherakhatoon Vs. Salambin Mohammad2 SCC 635 consistently followed in Chandra Singh Vs. State of Rajasthan 6 SCC 545 Master Marine Services Pvt. Ltd. Vs. Metcalfe and Hodgkinson Pvt. Ltd. 6 SCC 138 Filmistan Exhibitors Ltd. Vs. N.C.T. 131 DLT 648 Babu Ram Sagar Vs. Presiding Officer Labour Court 2006 SCC OnLine Del 1648 Pradeep Oil Corporation Vs. Union of India MANU DE 0281 2012 and Management of Municipal Corporation of Delhi Vs. Delhi Administration W.P.(C) No.4755 2021 MANU DE 0835 2010 the Court is empowered not to strike down an illegal order although it would be lawful to do so. We as a Court and as citizens of Delhi are reluctant during this time when the entire citizenry is literally in the hands of the nursing profession to which the respondents no.1 to 52 belong to take away from the respondents no.1 to 52 what has been granted to them by CAT. 19. We must also express our appreciation for the spirit of brotherhood sisterhood comradery demonstrated by the respondents no.53 to 62 herein who though possibly prejudiced from the relief granted by CAT in favour of respondents no.1 to 52 chose not to object thereto. Much can be learnt by members of other professions therefrom. 20. We thus in our discretion refuse to entertain the challenge by way of this writ petition to the order of CAT granting relief to respondent no.1 to 52 21. We however clarify that the aforesaid order having been made in the circumstances aforesaid shall not constitute a precedent on the proposition that period of ad hoc service is to be counted in computation of seniority for the purposes of promotion. APRIL 30 2021 W.P.(C) No.4755 2021 RAJIV SAHAI ENDLAW J. AMIT BANSAL J.

Plea for allowing live-body donation dismissed: Allahabad High Court

A plea seeking a direction to enable and make it lawful for the petitioner to perform Live Body Donation (Jeevit Deh Dan) of his human body and of all his living organs and tissues was dismissed by Allahabad High Court. The High Court presided over by J. S. Yadav and J. J Banerji dismissed the plea made in the case of Ranjan Srivastava vs. Union of India, [Public Interest Litigation No. 49 of 2021]. The facts of the case are that plea was filed by one Ranjan Srivastava to seek directions to enable and make it lawful for medical doctors/hospitals/institutions to perform the necessary medical procedures on him for his act of Live Body Donation. In his plea, he sought directions from the Court that living organs and tissues from the body of the petitioner could be transplanted into the bodies of the desperately suffering needy could be done. The Petitioner pleaded that the fundamental right under Article 21 of the Constitution gave the petitioner a right to walk into an operation theatre of a suitable facility at a suitable time and for making multiple gifts of life to desperately suffering and dying individuals. The Court, in this case, analysed the Transplantation of Human Organs and Tissues Act, 1994, which includes provisions for the regulation of removal, storage and transplantation of human organs and tissues for therapeutic purposes and for the prevention of commercial dealings in human organs and tissues and for matters connected therewith or incidental thereto. Further, Section 9 of the act includes restrictions on the removal and transplantation of human organs and tissues. The Court, in this case, was of the opinion that, “If we accede to the relief sought for by the petitioner in the present writ petition, the same would contrary to the restrictions imposed u/s 9 of the Act of 1994. It is further noticed from the provisions of the Act of 1994 that detail procedure is laid down under Chapter II of the Act of 1994 which deals with the manner for the removal of human organs or tissues or both.” The Court further held that “Since ample provisions have been made in the Act of 1994 as regard to removal, storage and transplantation of human organs and tissues for therapeutic purposes, we are not inclined to grant the relief as sought for by the petitioner in this petition being misconceived.” Click here to read the judgement

Court No. 9 Case : PUBLIC INTEREST LITIGATIONNo. 421 Petitioner : Ranjan Srivastava Respondent : Union of India Counsel for Petitioner : In Person Counsel for Respondent : A.S.G.I Hon ble Sanjay Yadav J Hon ble Jayant Banerji J The petitioner who appears in person in this public interest litigation seeks following reliefs I. Make a declaration and issue an express writ order and direction to enable and make it lawful for the petitioner to exercise his supreme right regarding his life and body whereby he makes performs Live Body Donation(Jeevit Deh Daan) of his human body and of all his living organ and tissues for the desperate and suffering needy by walking into an operation theater of a suitable facility at a suitable time and for making multiple gifts of life to desperately suffering and dying individuals. II. Make a declaration and issue an express writ order and direction to enable and make it lawful for medical doctors hospital institution to perform the necessary medical procedures on the petitioner for his act of Live Body Donation Jeevit Deh Daan) which will be necessary for the transplant of the living organ and tissues from the body of the petitioner into the bodies of the desperately suffering needy whereby there is an increase in the scope of the Hippocratic oath Taking note of the relief sought for by the petitioner and the contentions in furtherance thereto that it is fundamental right enshrined under Article 21 of the Constitution of India to walk into an operation theatre of a suitable facility at a suitable time and for making multiple gifts of life to desperately suffering and dying individuals. We are instantly reminded of the enactment passed by the Parliament i.e the Transplantation of Human Organs and Tissues Act 1994 which received assent of the President on 8.7.1994. It is an Act to provide for the regulation of removal storage and transplantation of human organs and tissues for therapeutic purposes and for the prevention of commercial dealings in human organs and tissues and for matters connected therewith or incidental thereto. Section 9 of the enactment stipulates restrictions on removal and transplantation of human organs and tissues or both. Section 9 of the Act of 1994 is 9 Restrictions on removal and transplantation of human organs or tissues or both. 1) Save as otherwise provided in sub sectionno human organ or tissue or both removed from the body of a donor before his death shall be transplanted into a recipient unless the donor is a near relative of the 1A) Where the donor or the recepient being near relative is a foreign national prior approval of the Authorisation Committee shall be required before removing or transplantation human organ or tissue or both Provided that the Authorisation Committee shall not approve such removal or transplantation if the recipient is a foreign national and the donor is an Indian national unless they are near relatives 1B) No human organs or tissues or both shall be removed from the body of a minor before his death for the purpose of transplantation except in the manner as may be prescribed 1C) No human organs or tissues or both shall be removed from the body of a mentally challenged person before his death for the purpose of Explanation. For the purpose of this sub section i) the expression "mentally challenged person" includes a person with mental illness or mental retardation as the case may be ii) the expression "mental illness" includes dementia schizophrenia and such other mental condition that makes a person intellectually disabled iii) the expression "mental retardation" shall have the same meaning as assigned to it in clauseof section 2 of the Persons With DisabilitiesAct 1995Where any donor authorises the removal of any of his human organs or tissues or both after his death under sub sectionof section 3 or any person competent or empowered to give authority for the removal of any human organ or tissue or both from the body of any deceased person authorises such removal the human organ or tissue or both may be removed and transplanted into the body of any recipient who may be in need of such human organ or tissue or both 3) If any donor authorises the removal of any of his human organs or tissues or both before his death under sub sectionof section 3 for transplantation into the body of such recipient not being a near relative as is specified by the donor by reason of affection or attachment towards the recipient or for any other special reasons such human organ or tissue or both shall not be removed and transplanted without the prior approval of the Authorisation 3A) Notwithstanding anything contained in sub sectionwhere a) any donor has agreed to make a donation of his human organ or tissue or both before his death to a recipient who is his near relative but such donor is not compatible biologically as a donor for the recipient and b) the second donor has agreed to make a donation of his human organ or tissue or both before his death to such recipient who is his near relative but such donor is not compatible biologically as a donor for such recipient then c) the first donor who is compatible biologically as a donor for the second recipient and the second donor is compatible biologically as a donor of a human organ or tissue or both for the first recipient and both donors and both recipients in the aforesaid group of donor and recipient have entered into a single agreement to donate and receive such human organ or tissue or both according to such biological compatibility in the group the removal and transplantation of the human organ or tissue or both as per the agreement referred to above shall not be done without prior approval of the Authorisation Committee 4)The composition of the Authorisation Committees shall be such as may be prescribed by the Central Government from time to time b) The State Government and the Union territories shall constitute by notification one or more Authorisation Committees consisting of such members as may be nominated by the State Governments and the Union territories on such terms and conditions as may be specified in the notification for the purposes of this section 5) On an application jointly made in such form and in such manner as may be prescribed by the donor and the recipient the Authorisation Committee shall after holding an inquiry and after satisfying itself that the applicants have complied with all the requirements of this Act and the rules made thereunder grant to the applicants approval for the removal and transplantation of the human organ 6) If after the inquiry and after giving an opportunity to the applicants of being heard the Authorisation Committee is satisfied that the applicants have not complied with the requirements of this Act and the rules made thereunder it shall for reasons to be recorded in writing reject the application for If we accede to the relief sought for by the petitioner in the present writ petition the same would contrary to the restrictions imposed u s 9 of the Act of 1994. It is further noticed from the provisions of the Act of 1994 that detail procedure is laid down under Chapter II of the Act of 1994 which deals with the manner for the removal of human organs or tissues or both. Since ample provisions have been made in the Act of 1994 as regard to removal storage and transplantation of human organs and tissues for therapeutic purposes we are not inclined to grant the relief as sought for by the petitioner in this petition being Consequently petition fails and is dismissed. Order Date : 21.1.2021 Jayant Banerji J) (Sanjay Yadav J

Transfer orders are to be issued by the Administrative head after independent application of mind: High Court of Himachal Pradesh

Whenever any transfer is ordered not by the departments but on the recommendations of a Minister or MP/MLA, then before ordering the transfer, the views of the administrative department must be ascertained, and only after ascertaining the views of the administrative department, the transfer may be ordered if approved by the administrative department, meaning thereby the views of the administrative department have essentially to be sought in the matters of transfer. This was held in Brij Lal Thakur v. Himachal Pradesh State Electricity Board Ltd. & Anr. [CWP No. 2427 of 2021] in the High Court of Himachal Pradesh by the division bench consisting of  Justice Tarlok Singh Chauhan, and Justice Chander Bhusan Barowalia. Facts are the State Government vide its notification dated decided to impose a complete ban on transfers and directed that no transfer or adjustment shall be ordered by the Departments/Boards/ Corporations/Universities during the ban period except in rarest of the rare cases that too with the prior approval of the Hon’ble Chief Minister. The petitioner has been ordered to be transferred from the office of SE (OP) Circle HPSEBL, Kangra to the office of SE (Elect.) Circle BVPCL Jogindernagar, the writ petition has been filed against the same. The Court made reference to the judgment of Division Bench of the court in Amir Chand versus State of Himachal Pradesh, wherein the following observation had been made, “ this Court cannot shut its eyes to the increasing number of transfers being made not for administrative reasons but only with a view to accommodate favored employees. As indicated by us earlier, an employee of the department is also a citizen of the country and is entitled to the equal protection of laws. Therefore, the State should always be fair to its employees. They must all be treated equally.” The Court also made reference to the judgment of Division Bench of the court in Sanjay Kumar vs. State of H.P. and Ors, wherein the issue of transfer at the instance of elected representatives had come for consideration,  the court made the following observation, “it is the head of Administrative Department who alone has jurisdiction to transfer the employee that too on the basis of subjective satisfaction. The authority making the transfer is to be guided by transfer policy in vogue.”

Hig h C o urt of H.P on 06 05 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLACWP No. 24221Reserved on: 30.04.2021Decided on: 04.05.2021____________________________________________________________ Brij Lal Thakur .....PetitionerVersusHimachal Pradesh State Electricity Board Ltd. & Anr. …..Respondents_____________________________________________________________CoramThe Hon’ble Mr. Justice Tarlok Singh Chauhan JudgeThe Hon ble Mr. Justice Chander Bhusan Barowalia Judge1 Whether approved for reporting Yes.______________________________________________________For the petitioner:Mr. K. D. Shreedhar Sr. Advocate withMr. Ramakant Sharma Advocate.For the respondents:Mr. Lakshay Thakur Advocate forrespondent No. 1.Mr. C. S. Thakur Advocate forrespondent No. 2.(Through Video Conferencing)Tarlok Singh Chauhan Judge It was the Government itself which vide letterdated 20th July 2019 had imposed complete ban on transferswith clear stipulations that no transfers or adjustments wouldbe ordered by any Departments Boards Corporations Universities etc. during the ban period without obtaining theprior approval of the Hon’ble Chief Minister to the concernedMinister in Charge that too in the circumstances specifically1 Whether reporters of Local Papers may be allowed to see the judgment Hig h C o urt of H.P on 06 05 HCHP provided under para 8 of the Comprehensive GuidingPrinciples 2013 circulated vide OM No.Per(AP B) E(3) 17 2012 dated 10.07.2013 which reads as under: “8.During the ban period: During the period of ban transfers will be ordered with the prior approval of theChief Minister if needed that too in the followingcircumstances: To fill up the required posts lying vacant intribal difficult hard area which need immediatefilling up in the public interest or such functionalposts in the absence of which the work issuffering.To fill up the vacancies arising on account ofretirement promotion and new creation.In the cases where employees are transferred onaccount of disciplinary proceedings vigilancecases criminal proceedings etc.(iv)To fill up the vacant posts in view theadministrative exigencies.(v)In the cases of exigencies and on administrativegrounds as well as priorities of the Government by recording reasons in writing the condition ofshort stay and short distance can be condoned.”2.After issuance of the aforesaid notification it wasnoticed by the Government that despite the instructionsfrequent transfers in other eventualities were being made bythe various Departments Boards Corporations Universitieswere still being made in violation of the instructions.Therefore the State Government vide its notification dated2 Hig h C o urt of H.P on 06 05 HCHP 23.07.2020 decided to impose complete ban on transfers anddirected that no transfer or adjustment shall be ordered bythe Departments Boards Corporations Universities during theban period except in rarest of the rare cases i.e. only onextreme medical grounds or on administrative exigencies thattoo with the prior approval of the Hon’ble Chief Ministerthrough the concerned Minister in Charge in accordance withthe Comprehensive Guiding Principles dated 10.07.2013.3.The aforesaid instructions were thereaftermodified vide notification dated 19.11.2020 by continuing theban on general transfers and permitting transfers only on thefollowing eventualities that too with the prior approval of thecompetent authority: 3. Broadly transfers may be ordered strictly withapproval of the competent authority only in thefollowing eventualities:To fill up vacant posts in tribal difficult hard areasTo fill up vacancies arising out of retirements promotions and creation of new postsTransfers necessitated on account of disciplinarymatters vigilance cases criminal proceedings etc.In cases involving administrative grounds andexigencies.4.It would however be noticed that despite theseinstructions the transfers are being effected by flouting andviolating these guidelines with impunity as a result whereof the Courts are flooded with the litigations of transfer.5.Despite the law on the subject being well settled 3 Hig h C o urt of H.P on 06 05 HCHP yet we find the same is being violated with impunity either bythe political executive or by the administrative authority constraining the employees to have initially approached theAdministrative Tribunal and on its closure this Court unnecessarily clogging its docket.6.It is trite that transfer is an incidence of serviceand as long as the authority acts keeping in view theadministrative exigency and taking into consideration thepublic interest as the paramount consideration it hasunfettered powers to effect transfer subject of course tocertain disciplines. Once it is admitted that the petitioner isState government employee and holds a transferable postthen he is liable to be transferred from one place to the otherwithin the District in case it is a District cadre post andthroughout the State in case he holds a State cadre post. Agovernment servant holding a transferable post has no vestedright to remain posted at one place or the other and courtsshould not ordinarily interfere with the orders of transferinstead affected party should approach the higher authoritiesin the department. Who should be transferred where and inwhat manner is for the appropriate authority to decide. Thecourts and tribunals are not expected to interdict the workingof the administrative system by transferring the officers to“proper place”. It is for the administration to take appropriatedecision.4 Hig h C o urt of H.P on 06 05 HCHP 7.Even the administrative guidelines for regulatingtransfers or containing transfer policies at best may afford anopportunity to the officer or servant concerned to approachtheir higher authorities for redressal but cannot have theconsequence of depriving or denying the competent authorityto transfer a particular officer servant to any place in publicinterest and as is found necessitated by exigencies of serviceas long as the official status is not affected adversely andthere is no infraction of any career prospects such asseniority scale of pay and secured emoluments. Even if theorder of transfer is made in transgression of administrativeguidelines the same cannot be interfered with as it does notconfer any legally enforceable rights unless the same isshown to have been vitiated by mala fides or made inviolation of any statutory provision. The government is thebest judge to decide how to distribute and utilize the servicesof its employees.8.However this power must be exercised honestly bonafide and reasonably. It should be exercised in publicinterest. If the exercise of power is based on extraneousconsiderations without any factual background foundation orfor achieving an alien purpose or an oblique motive it wouldamount to mala fide and colourable exercise of power. Atransfer is mala fide when it is made not for professedpurpose such as in normal course or in public or5 Hig h C o urt of H.P on 06 05 HCHP administrative interest or in the exigencies of service but forother purpose such as on the basis of complaints. It is thebasic principle of rule of law and good administration thateven administrative action should be just and fair. An order oftransfer is to satisfy the test of Articles 14 and 16 of theConstitution otherwise the same will be treated as arbitrary.9.Judicial review of the order of transfer ispermissible when the order is made on irrelevantconsideration. Even when the order of transfer whichotherwise appears to be innocuous on its face is passed onextraneous consideration then the court is competent to gointo the matter to find out the real foundation of transfer. Thecourt is competent to ascertain whether the order of transferpassed is bonafide or as a measure of punishment.10.The law regarding interference by Court intransfer posting of an employee as observed above is wellsettled and came up before the Hon’ble Supreme Court inU.O.I and Ors. vs. S.L. Abbas4 SCC 357 Mrs.Shilpi Bose and Ors. vs. State of Bihar and Ors. AIR1991 SC 532 State of Uttar Pradesh & Ors. vs.Gobardhan Lal 11 SCC 402 State of MadhyaPradesh & Anr. vs. S. S. Kourav & Ors. AIR 1995 SC1056 M. Sankaranarayanan IAS vs. State of Karnataka& Ors. AIR 1993 SC 763 N. K. Singh vs. Union of Indiaand Ors. AIR 1995 SC 423 and Airports Authority of6 Hig h C o urt of H.P on 06 05 HCHP India vs. Rajeev Ratan Pandey 2009SCC 337 and theconclusion may be summarised as under: “1. Transfer is a condition of service. 2. It does not adversely affect the status oremoluments or seniority of the employee. 3. The employee has no vested right to get a postingat a particular place or choose to serve at aparticular place for a particular time.4. It is within the exclusive domain of the employer todetermine as to at what place and for how long theservices of a particular employee are required. 5. Transfer order should be passed in public interest oradministrative exigency and not arbitrarily or forextraneous consideration or for victimization of theemployee nor it should be passed under politicalpressure. 6. There is a very little scope of judicial review byCourts Tribunals against the transfer order and thesame is restricted only if the transfer order is foundto be in contravention of the statutory Rules ormalafides are established. 7. In case of malafides the employee has to makespecific averments and should prove the same byadducing impeccable evidence. 8. The person against whom allegations of malafide ismade should be impleaded as a party by name. 9. Transfer policy or guidelines issued by the State oremployer does not have any statutory force as itmerely provides for guidelines for the understandingof the Department personnel. 10. The Court does not have the power to annul thetransfer order only on the ground that it will causepersonal inconvenience to the employee his familymembers and children as consideration of theseviews fall within the exclusive domain of theemployer. 7 Hig h C o urt of H.P on 06 05 HCHP 11. If the transfer order is made in mid academic sessionof the children of the employee the Court Tribunalcannot interfere. It is for the employer to considersuch a personal grievance.”11.However the moot question poised in the instantpetition is the scope of writ petition where the orders oftransfer are proposed generated by the Member of Parliament(MP) of the concerned Constituency giving a writtenrecommendation and thereafter the same gets implementedthrough the Hon’ble Chief Minister leaving virtually little or noscope for any discretion or taking any independent decisionfor the administrative department.12.Adverting to the facts of the case it would benoticed from the perusal of record that the Member ofParliamentaddressed a letter undated to theHon’ble Chief Minister recommending the transfer of privaterespondent in place of the petitioner and vice versa incondonation of short stay. The recommendations were sent bythe Special Secretary to the Hon’ble Chief Minister to theDepartment by U.O. Note dated 03.02.2021 by treating thesame to be the approval of the Hon’ble Chief Minister.However it was recorded in the department file that thepetitioner is working as Superintending Engineerinthe office of SECircle HPSEBL Kangra w.e.f. 07.06.2019and has not completed his normal stay there and respondentNo. 3 who is working as Superintending EngineerCircle BVPCL Jogindernagar w.e.f.14.12.2000 has completed only three months and the matterwas accordingly put up for consideration.13.Accordingly the respondent department made anadministrative proposal which is as under: “Administrative ProposalAs per col No. 4 above both the aforesaidofficers are in short stay in the respective offices. Theycan only be transferred on vice versa basis if thecondition of short stay & less than one year stay &home Circle condition of Er. Ajay Gautam SEisrelaxed by the Hon’ble Chief Minister in his case.The above proposal is submitted for the kindconsideration approval of the Hon’ble Chief Ministerplease.”14.The matter was thereafter placed before theDirectorwho appended the following note: “Besides above BVPCL too is important frequent shiftsof SE may not be prudent.”15.The matter was thereafter placed before theManaging Director who appended the following note: “The transfer will have an impact on the rehabilitation.May kindly pend for time being.”16.The proposal was then placed before the Hon’bleMinister concerned who appended the following note: “Home circle relaxed. May be implemented after 31stMarch 2021.”17.It is more than settled that an elected9 Hig h C o urt of H.P on 06 05 HCHP representative can only propose the transfer of an employee that too for genuine and cogent reasons and not by usurpingthe authority of the administrative department who alone iscompetent to issue the orders of transfer after due applicationof mind. Obviously the administrative department in suchcircumstances had no choice whatsoever but to implementthe recommendations made by the MP concerned as approvedaforesaid. 18. About four decades back a learned DivisionBench of this Court in Ram Krishan vs. District EducationOfficer ILR HP 1979 8 HIM 481 observed as under: “8. We hereby record our strong disapproval of such typeof interference from outsiders in day todayadministration of the State. If such interference is tobe allowed it would only mean that the governmentservants should run after those who are taking partin public life and in politics for getting better termsof service and a better place for their postings andshould do everything to please them and not toplease the department by their ability honesty andintegrity. It need not be emphasized that suchinterference of outsiders in day to dayadministration of the State is highly detrimental tothe public interest as it would result in nepotism andcorruption wherein only those who can wieldinfluence and purse can succeed. Therefore wewant by this judgment to bring it to the notice of allconcerned that sooner this type of interference isdiscouraged and stopped the better for theadministration and the people of this State.”19.In A.K. Vasudeva vs. State of H.P. and others 10 Hig h C o urt of H.P on 06 05 HCHP ILR(1981) 10 HIM 359 this court whiledealing with a case in which the transfer of a teacher hadbeen made at the behest of a Member of the LegislativeAssembly held as follows: “21. The practice of effecting transfers of teachers at thebehest of every M.L.A. and other influential personsseems to be rampant in the department of Educationin the State. The record is full of it. Indeed when thetransfer proposals are prepared there is a columnNo. 8 which is to show “recommended proposedby”. I find that a transfer as been made even at theinstance of the President Youth CongressSubathuof a teacher Alaxender from Kanda to Subathu. Itappears that no transfer is made except at theinstance of somebody. Why was Shri Chaman Lalreluctant to admit his role and why did he deposethat he had nothing to do with the posting andtransfer of any teacher I had expected him to comeout openly and frankly. He is not only a member ofthe Legislative Assembly but at the moment owns aresponsible position as Chairman of a publiccorporation.”20.Thereafter referring to the judgment in RamKrishan’s casethis court went on to hold as follows: “28. It is unfortunate indeed that despite theaforementioned pronouncement by this Court themalady of the politicians interfering in theadministration of the Education Department is asrampant as before if not worse. Apparently no one isbothered about any discipline in this department andthe teachers and others are perhaps encouraged bythis method to be beholden to the political personsinstead of relying on the honesty and the integrity of11 Hig h C o urt of H.P on 06 05 HCHP the Director of Education and other officers foradministering the department and orderingtransfers.”21.In Sant Ram Pant vs. State of H.P. andothers 2009Shim. L.C. 206 a Division Bench of thisCourt held as follows: “8. When transfers are made an employee may beaggrieved by his transfer. An employee has a right tomake a representation against such transfer. It isalso the right of the employer including the State tolook into the grievances of the employees and if thegrievance made by the employee is found to begenuine the State is well within its right to redressthe grievance of the employee and cancel the orderof transfer. However the grounds for passing anorder of cancellation within two weeks of the originalorder must be borne out from some material on therecord. In the present case despite twoopportunities being given the State has not producedany representation made by the respondent No. 3 orany other communication addressed to the office ofthe Hon ble Chief Minister on behalf of therespondent No.3 which would justify the issuance ofthe note dated 1.1.2009.”22.In CWP No.11006 titled SushilaSharma vs. State of H.P and others this court has held asfollows: “We however direct that a copy of this judgment besent to the Chief Secretary to the Govt. of H.P. whoshall ensure that a proper transfer policy isformulated to ensure that the transfers are madeonly on administrative grounds and not on any12 Hig h C o urt of H.P on 06 05 HCHP others grounds. In the policy to be framed it shall beensured that all the employees are treated fairly andequally and every employee during his tenure ofservice serves in tribal hard areas and also inremote rural areas. When transfers are made theadministrative department shall ensure that theemployees who have already served in tribal hardareas as well as remote rural areas are not againsent to these areas and there is a continuousprocess of change whereby all the employees have achance to serve in tribal hard areas as well asremote rural areas. In the policy so framed It shouldalso be ensured that the transfer orders are notcancelled without making reference to theadministrative department to put forth its views. Inthe policy measures shall be provided to ensure thatemployeeswho have managedto remain posted in the urban areas cities are postedto rural remote areas and hard tribal areas in thetransfer season when the transfers are made. Thetransfer policy should also ensure that people whoare posted in remote rural areas join their place ofpostings and do not manage to get their transferscancelled on frivolous grounds as has happened inthe present case. The policy be framed and filed inCourt within two months from today.” Consequent tothese directions a policy was framed but has beenobserved more in breach.”23.In CWP No.28410 titled Pratap SinghChauhan vs. State of H.P. & others decided on 18.6.2011 a learned Single Judge of this court after considering variousjudgments of Hon’ble Supreme Court held as follows: “10.We are governed by the Constitution of India. As perthe constitutional scheme there are three pillars of13 Hig h C o urt of H.P on 06 05 HCHP democracy the Legislature the Judiciary and theExecutive. Each has to work in its own sphere. This isa system of checks and balances where each cancheck the other but it must be clearly understoodthat none of the three organs can encroach upon thejurisdiction of the other. The jurisdiction vested inthis Court under Article 226 of the Constitution ofIndia is indeed very wide. Wider the jurisdiction more care should be taken to exercise it with greaterdiscretion so that questions are not raised about thefunctioning of the Judiciary. The Apex Court has in nouncertain terms laid down a note of caution thatCourts should not interfere in transfer mattersexcept on very strong grounds. 11.Having held so this Court is also not oblivious to thefactual position which exists on the spot and thesituation is that day in and day out this Court isflooded with writ petitions in which employeeschallenge the order of their transfer on variousgrounds. On more than one occasion this Court hasfound that there are notes sent by publicrepresentatives such as Members of the LegislativeAssembly recommending the transfers. No doubt public representatives have a right to makerecommendations but these can only berecommendations and cannot be taken to be thefinal word.”24.In CWP No.35311 titled Babita Thakurvs. State of H.P. and others a learned Single Judge of thiscourt held as follows: “9. It is true that it is for the employer to see where theGovernment servant is to be posted. However it isequally true that there is no arbitrariness in theaction. The transfer cannot be used as an instrument14 Hig h C o urt of H.P on 06 05 HCHP to accommodate adjust the persons without therebeing any administrative exigency. The underlineprinciple for transfer is public interest oradministrative exigency. In the instant case neitherthere was any public interest nor any administrativeexigency necessitating the transfer of the petitionerfrom government Primary School ChadyaraHLR(DB) 648 wherein the learned Division Bench of this Courtcommenced the judgment with the following observations: “1.This Court is flooded with litigation filed byemployees aggrieved by their transfer andsometimes even by their non transfer when they arenot shifted out of tribal areas. The time has comewhen we must lay down the law with regard to thepowers of the legislators to influence transfers.Should political pressure and political influence benecessary to run the administration Shouldtransfers be ordered on the asking of the legislators members of a particular ruling party personsbelonging to certain groups without even making areference to the administrative departmentconcerned Is the policy of transfer always bindingupon the Government and its employees or can theGovernment flout with impunity the policy framed byit No doubt the employer is the master and candecide which employee is to be posted at whichparticular place but we must remember that we aregoverned by the Constitution of India. Does not eachand every employee have a right to claim that he15 Hig h C o urt of H.P on 06 05 HCHP should be treated fairly Why is it that favouredemployees who are either well connected or canexercise political or bureaucratic clout are nevertransferred out of the main cities and thoseemployees who do not enjoy such political orbureaucratic patronage have to stay in remote tribalareas for years on end.2.Another disturbing feature which we have found isthat in the State of Himachal Pradesh after theperiod earmarked for normal transfers is over thetransfers have to be ordered only after approval ofthe competent authority which normally is theHon ble Chief Minister. We have found that peopledirectly approach the Hon ble Chief Minister usingpolitical influence and patronage without firstmaking a representation to the departmentconcerned. This is a total violation of the ConductRules. Despite this violation of the Conduct Rules these requests of the employees who are backed bypolitical patronage are accepted without evenconsidering what will be the effect of such transferson the people who are to be served by theseemployees or on those employees who may beaffected by such transfers.3. Does anybody care about the students who arestudying in the schools If no teacher is willing to goto the rural remote areas where will the students ofthese rural and remote areas study Does anybodycare in some remote areas dispensaries are withoutDoctors or paramedical staff whereas there is morethan the sanctioned number of doctors in the Stateand District headquarters. It was only after theintervention of the Court that the Female HealthWorkers who were to serve in the rural areas wereactually transferred there. Almost all the FemaleHealth Workers had been adjusted in Shimla townitself. This shows that neither the interest of the16 Hig h C o urt of H.P on 06 05 HCHP public at large nor that of the administration waskept in view while adjusting these Female HealthWorkers at Shimla. When the employees want a jobthen they are willing to join at any place. However soon thereafter political patronage is employed toget themselves transferred to a particular place.There is more than sufficient material before theCourts to prove that transfers are made forextraneous reasons without considering theadministrative exigencies and the interests of thestudents. 4. This does not speak well of the system of theadministration. We are clearly of the view thatnormally we would not like to interfere in transferorders passed in administrative interests. We arealso of the considered view that all the employees such as teachers doctors nurses etc. willnecessarily have to be posted in rural remote area atsome stage in their careers. The administration hasto be stern and strict in matters of transfers. At thesame time it also has to be fair and just and shouldtreat all the employees equally. It is only because theadministration itself is lax and transfer orders arepassed on extraneous considerations and theadministration reverses its decisions day in and dayout that the courts are forced to intervene. Thesetypes of cases clearly highlight the fact thattransfers are being made not on the basis ofadministrative exigencies but on other extraneousconsiderations. 5. Rule 20 of the Central Civil ServicesRules 1964 lays down that it will be misconduct for anemployee to bring in political pressure or getrecommendations from others in matters relating tohis service. It seems that both the administration aswell as the employees have forgotten that such arule exits. Our experience is that unless an employee17 Hig h C o urt of H.P on 06 05 HCHP gets a “suitable recommendation” or brings inpolitical pressure he can never get posted to astation of his choice. If action is taken against theemployee for breach of the Conduct Rules theemployee could very well say that he is damned if hedoes not use political pressure and damned if hedoes. 6. It would be apposite to quote a humorous poem fromShri A.S Bhatnagar s Commentary on Conduct Rules.‘Ban on recommendation’ a humorous poem Whoam I A victim to the jealousies of those Who to mehave been quite close Suspended from work And for no fault of mine. Oh Justice what a heavy fine ! Iam expected not to seek Help from one mighty orweak. They name it pressure or canvassing A fruitfrom the Forbidden Tree. Which to touch none is free.Is this bar justified When there are cases multiplied Where in favours have been done And ends foulhave been badly won ” 26.It was further observed that there can be nomanner of doubt that a legislator who is the electedrepresentative of the people has a right to place hisdifficulties before the Hon’ble Chief Minister or the Ministerconcerned. It would be well within his rights to complain tothe authorities concerned in case he finds that a particularemployee is not doing his job properly. The Court further wentto observe that transfer is never meant to be a punishmentbut nobody can deny the fact that many times incompetentand inconvenient officials are transferred. 27.The Court then discussed the judgments of thevarious High Courts including the one referred to above and18 Hig h C o urt of H.P on 06 05 HCHP observed as under: “33. From the files which this Court has seen includingthe files of these cases it is apparent that transfersare being made day in and day out at the behest ofpublic representatives. It is true that publicrepresentatives have a right to complain against theworking of government officials. However thesecomplaints must be verified by the administrativedepartment and final action has to be taken by theadministrative department. Transfer is not apunishment and if transfer is inflicted as a means ofpunishment then the whole purpose of makingtransfers in the public interest is set at naught. Anemployee who is rude or inefficient at one stationwill not become polite or efficient at another station.Transfer does not serve any purpose. If theallegations of the public representatives made in thecomplaints against the government servants arefound to be correct then disciplinary action shouldbe taken against such government employees. Welive in a democracy and our elected representativesunder the constitution are to work in the legislatureand not as administrators. They cannot startinterfering in the administration or the working ofthe Executive. This has already resulted ingovernment servants rushing to please the politicalmasters at the cost of doing their duties. This alsodemoralizes the officers who are in charge of theadministration of the department. It is they who arethe best judges to decide how the department has tobe administered and which employee should betransferred to which place. The politicians cannotdon the role of administrators. The earlier suchinherently illegal and improper practices are put toan end the better it would be for the smoothfunctioning of the administration of the State.19 Hig h C o urt of H.P on 06 05 HCHP 34. As far as the concept of judicial review is concerned the Apex Court again observed that the Court shouldbe reluctant in interfering in transfer orders. Thescope of judicial review in the matter of transfer of aGovernment employee is limited and the Courtshould not interfere in the transfer. The Court cannotsubstitute its own opinion for the opinion of theemployee. 35. After reviewing the entire law on the subject we canwithout any hesitation come to the conclusion thatthe scope of judicial review in transfer matters isvery limited. This court cannot interfere in the day today functioning of the Government departments andit is for the administrative heads to decide whichemployee should be posted at which place. Evenearlier we had clearly given a number of judgmentson these lines. 36. At the same time this Court cannot shut its eyes tothe increasing number of transfers being made notfor administrative reasons but only with a view toaccommodate favoured employees. As indicated byus earlier an employee of the department is also acitizen of the country and is entitled to the equalprotection of laws. Therefore the State shouldalways be fair to its employees. They must all betreated equally.”28.It is then that the following directions came to bepassed: “1. The State must amend its transfer policy andcategorize all the stations in the State underdifferent categories. At present there are only twocategories i.e. tribal hard areas and other areas. Wehave increasingly found that people who are sent tothe hard tribal areas find it very difficult to comeback because whenever a person is posted there he20 Hig h C o urt of H.P on 06 05 HCHP first manages to get orders staying his transfer byapproaching the political bosses and sometimeseven from the Courts. Why should the poor people ofsuch areas suffer on this count. We are therefore ofthe view that the Government should categorize allthe stations in the State in at least four or fivecategories i.e. A B C D and E also if the State sorequires. The most easy stations i.e. urban areaslike Shimla Dharamshala Mandi etc. may fall incategory A and the lowest category will be of themust difficult stations in the remote corners of theState such as Pangi Dodra Kawar Kaza etc. At thesame time the home town or area adjoining to hometown of the employee regardless of its category otherwise can be treated as category A or at least ina category higher than its actual category in whichthe employee would normally fall. For example if anemployee belongs to Ghumarwin which iscategorized in category B then if the employee isserving in and around Ghumarwin he will bedeemed to be in Category A. 2. After the stations have been categorized a databasemust be maintained of all the employees in differentdepartments as to in which category of station(s) aparticular employee has served throughout hiscareer. An effort should be made to ensure thatevery employee serves in every category of stations.Supposing the State decides to have four categories i.e. A B C D then an employee should be postedfrom category A to any of the other three categories but should not be again transferred to category Astation. If after category A he is transferred tocategory D station then his next posting must be incategory B or C. In case such a policy is followed there will be no scope for adjusting the favouritesand all employees will be treated equally and therewill be no heart burning between the employees. 21 Hig h C o urt of H.P on 06 05 HCHP 3. We make it clear that in certain hard cases keepingin view the problems of a particular employee anexception can be made but whenever such exceptionis made a reasoned order must be passed whypolicy is not being followed. 4. Coming to the issue of political patronage. On thebasis of the judgments cited hereinabove there canbe no manner of doubt that the electedrepresentative do have a right to complain about theworking of an official but once such a complaint ismade then it must be sent to the head of theadministrative department who should verify thecomplaint and if the complaint is found to be true then alone can the employee be transferred. 5. We are however of the view that the electedrepresentative cannot have a right to claim that aparticular employee should be posted at a particularstation. This choice has to be made by theadministrative head i.e. the Executive and not bythe legislators. Where an employee is to be postedmust be decided by the administration. It is for theofficers to show their independence by ensuring thatthey do not order transfers merely on the asking ofan MLA or Minister. They can always send back aproposal showing why the same cannot be accepted.6. We therefore direct that whenever any transfer isordered not by the departments but on therecommendations of a Minster or MLA then beforeordering the transfer views of the administrativedepartment must be ascertained. Only afterascertaining the views of the administrativedepartment the transfer may be ordered if approvedby the administrative department. 7. No transfer should be ordered at the behest of partyworkers or others who have no connection eitherwith the legislature or the executive. These personshave no right to recommend that an employee22 Hig h C o urt of H.P on 06 05 HCHP should be posted at a particular place. In case theywant to complain about the functioning of theemployees then the complaint must be made to theMinister In charge and or the Head of theDepartment. Only after the complaint is verifiedshould action be taken. We however reiterate thatno transfer should be made at the behest of partyworkers.”29.Yet again the issue of transfer at the instance ofelected representatives came for consideration before thelearned Division Bench of this Court in Sanjay Kumar vs.State of H.P. and Ors. Latest HLJ 20131051 wherein it was observed that it is the head of AdministrativeDepartment who alone has jurisdiction to transfer theemployee that too on the basis of subjective satisfaction. Theauthority making the transfer is to be guided by transferpolicy in vogue. 30.It shall be apposite to refer para 23 of thejudgment which reads as under: “23. Indeed the Head of Administrative Department hasjurisdiction to transfer employees on the basis of hissubjective satisfaction. The authority making thetransfer is to be guided by transfer policy in vogue.” 31.Similar issue thereafter came up before thelearned Division Bench of this Court in Raj Kumar vs. Stateof H.P. and Ors. 2015Him. L.R.567 and afterplacing reliance on the judgment Sanjay Kumar’s casethis Court observed as under: 23 Hig h C o urt of H.P on 06 05 HCHP “21. Tested on the touchstone of aforesaid exposition oflaw it can safely be concluded that the transfer ofthe petitioner cannot withstand judicial scrutiny asthe basis and foundation of the transfer happens tobe the various complaints made by the publicrepresentatives against the petitioner. The transferhas been made on the basis of the U.O. note issuedby the office of Hon’ble Chief Minister and whereas no proposal for transfer has been originated from theconcerned administrative department. Theimpugned transfer order therefore is notsustainable being arbitrary and vitiated because thesame has been issued under dictation.32.Lastly it was observed in para28 of thejudgment which reads as under: “28.This case reflects a dismal state of affairswhere despite repeated directions passed by thiscourt from time to time over the last three and halfdecades the respondents have shown scant regardto such directions and have not cared to follow themandate of law in matters of transfer. This court hasrepeatedly held that any person has a right to makea complaint against an employee regarding hisconduct to his superiors including the Hon’ble ChiefMinister and even request for his transfer. It is however only for the competent authority i.e.administrative department to consider the requestand take appropriate action in accordance with law.But when the administrative authorities do notperform their duties and resultantly fair play isdenied by the administrative authorities people turnup to the courts complaining of such blatant case ofadministrative excess compelling the courts tointervene in such matter. Once the Stategovernment has framed a transfer policy then it is24 Hig h C o urt of H.P on 06 05 HCHP its duty to implement the same because the verypurpose of framing a policy is to strike a balancebetween the rights of the employees and the Statein matters relating to transfer so that the same is notmisused.” Despite the aforesaid directions the things havereally not improved.33.As already observed above the Chief Minister andMinisters elected representatives may recommend thetransfer of an employee as has already been held by thisCourt in Sanjay Kumar and Amir Chand’s caseshowever the transfer orders are ultimately to be issued bythe Administrative head after independent application of mindthat too after subjective satisfaction without being influencedby the recommendations so made by the electedrepresentatives. 34.In the instant case there was no independentdecision taken by the Administrative Head rather there was noscope left for the said purpose and therefore the decisionhas been rendered vulnerable as being influenced by theproposal and recommendations made by the MP concerned. 35.As observed by this Court the Members of theParliament Legislative Assembly or the Minister concernedhave right to make recommendations but theserecommendations cannot be taken to be the final word. Theunderline principle for transfer is public interest or25 Hig h C o urt of H.P on 06 05 HCHP administrative exigency which is conspicuously absent in thepresent case. 36.As held by this Court in Amir Chand’s case(supra) we live in a democracy and our electedrepresentatives under the Constitution are to work in thelegislature and not as administrators. They cannot startinterfering in the administration or the working of theExecutive. It is theywho are the bestjudges to decide how the department has to be administeredand which employee should be transferred to which place.The politicians cannot don the role of administration. 37.It was further held that the electedrepresentatives cannot have a right to claim that a particularemployee should be posted at a particular station. The choicehas to be made by administrative head i.e. Executive and notby the legislators. Where an employee is to be posted must bedecided by the administration. It is for the officers to showtheir independence by ensuring that they do not ordertransfers merely on the asking of an MP MLA or Minister. Theycan always send back a proposal showing why the samecannot be accepted. 38.Lastly it is held that whenever any transfer isordered not by the departments but on the recommendationsof a Minister or MP MLA then before ordering the transfer theviews of the administrative department must be ascertained26 Hig h C o urt of H.P on 06 05 HCHP and only after ascertaining the views of the administrativedepartment the transfer may be ordered if approved by theadministrative department meaning thereby the views of theadministrative department have essentially to be sought inthe matters of transfer. What follows is that the views of theadministrative department must reflect subjective satisfactionand conscious application of mind that the transfer isessential on account of administrative exigency and or publicinterest or that the transfer of employee is necessary for theeffective utilization of his her services.39.Now picking the thread of discussion left behindfrom para 16 of this judgment we may observe that theadministrative department of its own has neither mooted theproposal of transfer nor was in favour of transfer either thepetitioner or the private respondent. The entire exerciseundertaken by the department was only to honour the U.O.note sent by the office of the Chief Minister based upon theD.O. note of the Member of Parliament. 40.Once the administrative department was not infavour of transfer then obviously the same could not havebeen given effect to only on the basis of the D. O. note.41.Moreover the transfer of the petitioner is incontravention of the instructions issued by the Governmenton 19.11.2020as the transfer does not fall in any oneof the eventuality as contemplated in para 3 of the27 Hig h C o urt of H.P on 06 05 HCHP instructions.42.Lastly and more importantly the transfer of theprivate respondent cannot be sustained as he has beenordered to be posted in his home Division which is contrary tothe Transfer Policy.43.The learned counsel for the respondent Board asalso private respondent are at pain to point out that as per theTransfer Policy framed by the respondent Board the Board iscompetent to relax any of the conditions of transfer and wouldplace strong reliance on note appearing below in Clause 23 ofthe Transfer Policy which reads as under: “23. .Notwithstanding above condition guidelines any officer official may be transferred on administrativeground public interest exigencies of Board work. Theexisting standing orders if in contravention of aboveshall stand amended accordingly.” 44.in light of the above conditions guidelines anyofficer official may be transferred on account ofadministrative ground public interest or exigency of service.The existing standing order if in contravention of above shallstand amended accordingly.45.We really do not find any merit in this contentionas the power to relax can be exercised only if it has effectedon administrative ground public interest or exigency ofservice. This is not the fact situation obtaining in the instantcase as the orders of transfer have been passed only to28 Hig h C o urt of H.P on 06 05 HCHP accommodate the private respondent that too on the basis ofthe representation that was made by him to the Member ofParliament.46.That apart it is more than settled that the powerto relax a provision requirement of law can be made only onthe satisfaction of the competent authority and suchsatisfaction is not subjective satisfaction but must be basedon objective consideration of the material placed before thecompetent authority and has to be reflected in the order itself.Whereas in the instant case there is no such satisfactionrecorded by the authority concerned as is evident from whathas been observed in para 16 of this judgmentwhereby the petitioner has been ordered tobe transferred from the office of SECircle HPSEBL Kangra to the office of SECircle BVPCL Jogindernagar 29 Hig h C o urt of H.P on 06 05 HCHP is quashed and set aside. The parties are left to bear theirown costs. 49.With these observations the writ petition isdisposed of so also pending miscellaneous application(s) ifany. Judge(Chander Bhusan Barowalia)4th May 2021 Judge 30

“Under S.19(1) of the RTI Act an aggrieved person may prefer the first appeal within thirty days from the receipt of the response from the CPIO of the concerned public authority.”: SEBI, Part 3.

In this context, reference is made to the matter of Shri S.P. Goyal vs. Shri Pragati Kumar & Ors. (order dated January 24, 2008), wherein the Hon’ble CIC held that “Further, the obligation of a respondent extends only to providing information which it “holds” or controls in terms of Section 2(f) of the RTI Act. If it can be established through evidence that a party/ applicant himself possesses an information which he has sought from a public authority, such information can be denied to him. This appellant has already been provided the judgement dated 30.3.2007 of the Income Tax Appellate Authority. The information, therefore, is already in appellant’s possession and cannot therefore be said to be “held”-much less “exclusively held”-by the public authority in terms of Section 2(j) of the RTI Act.” In view of these observations, Mr Baiwar is of the view that the respondent is not obliged to provide the information sought by the appellant. Without prejudice to the same, it was noted that the respondent has guided the appellant to approach the concerned stock exchange. Accordingly, the query number 1 of the application is adequately addressed. Therefore, no deficiency was found in the response by the appellate authority. On consideration of query number 2, Appellate Authority did not find any reason to disbelieve the observation of the respondent that the information sought is not available with SEBI. In this context, it was noted that the Hon’ble CIC in the matter of Sh. Pattipati Rama Murthy vs. CPIO, SEBI (Decision dated July 8, 2013), held: “… if it (SEBI) does not have any such information in its possession, the CPIO cannot obviously invent one for the benefit of the Appellant. There is simply no information to be given.” In view of these observations, it was found that the information sought by the appellant was not available with SEBI and therefore, the respondent cannot be obliged to provide such non–available information. After perusal of query numbers 3 and 4 and the response provided thereto. It was noted that the respondent has clearly informed regarding the availability of the IGRP order on the SCORES Portal since the complaint was lodged on the said portal. Further, the appellant was also advised to directly approach the exchange for the requisite data pertaining to the exchange. On consideration, it was also found that the respondent has adequately addressed the queries by providing the information available with him. Accordingly, Mr Baiwar did not find any deficiency in the response.

Appeal No. 43621 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43621 Geeta Khattar CPIO SEBI Mumbai The appellant had filed an application dated April 14 2021 under the Right to Information Act 2005 of the RTI Act an aggrieved person may prefer the first appeal within thirty days from the receipt of the response from the CPIO of the concerned public authority. In the instant case the impugned response from the respondent is dated May 07 2021. The appellant therefore should have filed the first appeal on or before expiry of thirty days from the date of receipt of the said response. As noted above the appellant has filed this first appeal on July 07 2021 i.e. approximately three weeks after the last date permissible under the RTI Act. In this appeal the appellant has neither requested for condonation of delay nor made any submission regarding the reason for the delay. In the absence of any reason that prevented the appellant from filing the first appeal in time I consider this appeal as time barred and hence liable to be dismissed. 3. Notwithstanding the above observation I consider the appeal on merit. I have carefully considered the application the responses and the Appeal and find that the matter can be decided based on the material 4. Queries in the application The appellant vide her application dated April 14 2021 sought the available on record. following information: 1. Upload here a copy of IGRP dated November 24 2015. Appeal No. 43621 2. Upload the Exchanges Complaint Form so that against which complaint details IGRP dated November 24 2015 was called by the Exchange. 3. Provide the Exchange official web link where the data of the same complaint IGRP dated November 24 2015 details is electronically saved by the Exchange. 4. Provide the Exchange weblink where copy of IGRP dated November 24 2015 is electronically saved by the Exchange. The respondent in response to query number 1 informed that in IGRP proceedings complainant is one of the party to the proceedings appellant is one of the party to the proceedings. Further as per process the exchange forwards the IGRP order to the complainant. In the instant cases IGRP order November 24 2015 has already been forwarded by exchange and SEBI also uploaded the same on SCORES portal. Hence the appellant was advised to approach the concerned stock exchange for copy of the IGRP order. In response to query number 2 the respondent observed that the information sought is not available with SEBI. In response to query numbers 3 and 4 the respondent informed that copy of IGRP order dated November 24 2015 was uploaded on SCORES pursuant to complaint lodged by the appellant on the SCORES Portal. The respondent also stated that the appellant may directly approach the exchange for the requisite data pertaining to the exchange. 6. Ground of appeal The appellant has filed an appeal on the ground that the access to the information requested was refused. 7. Query number 1 I have perused the query and the response provided thereto. I note that the appellant sought copy of order passed by the IGRP. It is understood that the copy of the said order has already been forwarded by the exchange to the complainant. Further the respondent also stated that the said order has been uploaded on the SCORES portal against complaint filed by the appellant. I find that the information sought can be accessed by the appellant herself. Further the information which is already in the possession of the citizen cannot be said to be “held” by the public authority. In this context reference is made to the matter of Shri S.P. Goyal vs. Shri Pragati Kumar & Ors.wherein the Hon’ble CIC held that “Further the obligation of a respondent extends only to providing information which it “holds” or controls in terms of Section 2(f) of the RTI Act. If it can be established through evidence that a party applicant himself possesses an information which he has sought from a public authority such information can be denied to him. This appellant has already been provided the judgement dated 30.3.2007 of the Income Tax Appellate Authority. The information therefore is already in appellant’s possession and cannot therefore be said to be “held” much less “exclusively held” by the public authority in terms of Section 2(j) of the RTI Act.” In view of these observations I am of the view that the respondent is not obliged to provide the information sought by Appeal No. 43621 the appellant. Without prejudice to the same I note that the respondent has guided the appellant to approach the concerned stock exchange. Accordingly the query number 1 of the application is adequately addressed. Therefore I do not find any deficiency in the response. 8. Query number 2 On consideration I do not find any reason to disbelieve the observation of the respondent that the information sought is not available with SEBI. In this context I note that the Hon’ble CIC in the matter of Sh. Pattipati Rama Murthy vs. CPIO SEBI held: “… if itdoes not have any such information in its possession the CPIO cannot obviously invent one for the benefit of the Appellant. There is simply no information to be given.” In view of these observations I find that the information sought by the appellant was not available with SEBI and therefore the respondent cannot be obliged to provide such nonavailable information. 9. Query numbers 3 and 4 I have perused query numbers 3 and 4 and the response provided thereto. I note that the respondent has clearly informed regarding the availability of the IGRP order on the SCORES Portal since the complaint was lodged on the said portal. Further the appellant was also advised to directly approach the exchange for the requisite data pertaining to the exchange. On consideration I find that the respondent has adequately addressed the queries by providing the information available with him. Accordingly I do not find any deficiency in the response. In view of the above observations I find that there is no need to interfere with the decision of the respondent. The Appeal is accordingly dismissed. Place: Mumbai Date: July 27 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

Necessary to comply with orders of court even without jurisdiction, non-compliance might lead to contempt proceedings: The High Court of Delhi

It is settled law that even orders passed by Court without jurisdiction have to be complied with and for violation of the same, Courts can proceed with contempt proceedings. The aforesaid has been laid down in the case of Tayabbhai M. Bagasarwalla & Anr. v. Hind Rubber Industries Pvt. Ltd. & Ors. (1997) 3 SCC 443 and has been sufficiently relied upon in the present case of Mr. Sanjeev Jai Narain Aeren & Anr. V. M/S Somani Worsted Limited [EFA(OS) (COMM) 5/2021 & CM APPLs. 12808-12809/2021] that was adjudicated by a two judge bench comprising Justice Manmohan and Justice Navin Chawla in the Delhi High Court on 1 June 2021. The aggrieved is an appellant who has filed an appeal challenging the order dated 26th February, 2021 passed by the learned Single Judge in a contempt petition being CCP (O) 34/2020 in OMP (Enf.) (Comm.) No.74/2019. Appellant seeks directions to the executing Court to decide objections and especially objection with regard to Section 35 of the Indian Stamp Act before proceeding with the enforcement and contempt petition.it is also evident to know that an Arbitral Award dated 28th December 2015 was pronounced by the Sole Arbitrator for a sum of Rs.168,05,56,182/- on plain paper against the Appellant. The arguments presented by the learned counsel on behalf of the appellant state that as the arbitral award is passed on a plain paper and requisite stamp duty was not paid at the time of passing of the award, therefore the award cannot be acted upon in view of the statutory bar contained in Section 35 of the Indian Stamp Act and thus the enforcement petition is not maintainable until the requisite stamp duty along with ten times penalty is deposited by the Decree Holder pursuant to the impounding of the award dated 28 December 2015. It was also highly emphasized by the counsel that since the decree/award was invalid, the executing court shall not have any jurisdiction to entertain any such execution or even proceed with such execution.

IN THE HIGH COURT OF DELHI AT NEW DELHI EFA(OS) 5 2021 & CM APPLs. 12808 12809 2021 MR. SANJEEV JAI NARAIN AEREN & ANR. Appellants Through: Mr. P. Nagesh Senior Advocate with Mr.Praveen K. Sharma and Mr. Sahil Nagpal Advocates. M S SOMANI WORSTED LIMITED THROUGH ITS AUTHORISED REPRESENTATIVE & ORS. Through: Mr Vivek Kohli Senior Advocate with Ms. Pankhuri Jain Ms. Kanika Saran Date of Decision: 01st June 2021 and Ms. Nikita Maheshwari Advocates. Respondents HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE NAVIN CHAWLA JUDGMENT MANMOHAN J34 2020 in OMP (Comm.) No.74 2019. Appellant seeks directions to the executing Court to decide objections and especially objection with regard to Section 35 of the Indian Stamp Act before proceeding with the enforcement and contempt petition. EFA(OS)(COMM) 5 2021 3. Learned counsel for the Appellant states that an Arbitral Award dated December 2015 was pronounced by the Sole Arbitrator for a sum of Rs.168 05 56 182 on plain paper against the Appellant. Learned senior counsel for the appellant submits that as the arbitral award is passed on a plain paper and requisite stamp duty was not paid at the time of passing of the award therefore the award cannot be acted upon in view of the statutory bar contained in Section 35 of the Indian Stamp Act and thus the enforcement petition is not maintainable until the requisite stamp duty along with ten times penalty is deposited by the Decree Holder pursuant to the impounding of the award dated 28 December 2015. He also emphasises that the learned Single Judge ought to have appreciated that proceedings before the Executing Court are without jurisdiction as the executing court gets its foundational jurisdiction from the decree award and when the same is invalid the executing court shall not have the jurisdiction to entertain any such execution or even proceed with such execution. However this Court finds that by the impugned order the learned Single Judge has primarily issued notice in contempt petition and directed appellant to file replies to E.As. Further the learned Single Judge has rightly rejected the objection with regard to Section 35 of the Indian Stamp Act before proceeding with the contempt petition by observing as under: “5. The said contention is wholly bereft of any merit. The question whether this Court has jurisdiction to enforce an arbitral award has little relevance as to the court s the jurisdiction to initiate contempt proceedings for wilful violation of its orders. The question in this petition is limited to examining whether the Judgment Debtors have wilfully violated the orders of this Court or have wilfully filed false affidavits before this EFA(OS)(COMM) 5 2021 court. This Court being a Court of Record has the jurisdiction in terms of Article 215 of the Constitution of India to take the necessary proceedings in this regard. This Court is of the view that it is not necessary to examine whether the arbitral award is adequately stamped in these proceedings because as noticed above the issue to be examined in this petition is limited to whether the Judgment Debtors have wilfully violated the orders of this Court and are liable to be proceeded against for the same. The merits of the execution petition are thus not relevant insofar as this petition is concerned. It is well settled that the matter of contempt is one that relates to administration of justice. It is essentially between the contemnors and the court the petitioner is only a realtor Also it is settled law that even orders passed by Court without jurisdiction have to be complied with and for violation of the same Courts can proceed with contempt proceedings.3 SCC 443]. This is more so in the case of a High Court when it is a Court of record under Article 215 of the Constitution. Accordingly the present appeal and applications being bereft of merits are dismissed. 10. The order be uploaded on the website forthwith. Copy of the order be also forwarded to the learned counsel through e mail. MANMOHAN J NAVIN CHAWLA J JUNE 1 2021 EFA(OS)(COMM) 5 2021

Bail is the judicial release of an accused charged with a certain offence by imposing some restrictions on him: High court of Sikkim

Bail is the conditional release of a person accused of a crime, for an amount, pledged for the appearance of the accused when the same is due in court. The person paying the money acts as the surety.. The bail is filed by the advocate on behalf of the accused is held by the High court of Sikkim through the learned bench led by Single Bench: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE.In the matter of Presently at State Jail, Rongyek  Versus State of Sikkim [BAIL APPL. No. 13 of 2021] dealt with an issue mentioned above.    Earlier, this court had vided judgment dated 25.01.2021 in Bail Application No. 12 of 2020 (Ganesh Sharma Gelal vs. the State of Sikkim), rejected a similar bail application moved by the applicant. While doing so, this court had examined the provision of section 18 of the Sikkim Anti Drugs Act, 2006 and arrived at a conclusion that it is in pari-materia to section 37 of the Narcotics Drugs and Psychotropic Substances Act, 1985. This court had also examined the judgments of the Supreme Court in Narcotics Control Bureau vs. Kishan Lal & Ors.1, Intelligence Officer, Narcotics C. Bureau v. Sambhu Sonkar & Anr.2, Narcotics Control Bureau vs. Dilip Pralhad Namade3 and Collector of Customs, New Delhi vs. Ahmadalieva Nodira. Mr Rahul Rathi, learned counsel for the applicant, had taken this court to the various depositions which have now been recorded by the learned trial court in the matter. It is his submission that due to the fact that various prosecution witnesses have been examined there is a change in circumstances and therefore, the applicant be granted bail. The court perused the facts and arguments presented in the case  According to the applicant, as of now, five witnesses have been examined. On examination of the evidence of Ongchyo Bhutia (PW-3), it is quite evident that what was alleged by the prosecution has been reiterated in the deposition of Ongchyo Bhutia (PW-3) that the applicant had been constantly calling the accused no.1 informing him that he was coming to receive the consignment.

THE HIGH COURT OF SIKKIM: GANGTOK Criminal Jurisdiction) Single Bench: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE BAIL APPL. No. 121 Ganesh Sharma alias Gelal S o Shri Shiva Lall Sharma Aged about 35 years. Permanent resident of Near Hotel Lemon Tree Lower Sichey P.O. & P.S. Gangtok East Sikkim. Presently at State Jail Rongyek .... Petitioner Applicant Versus State of Sikkim .... Respondent Application under section 439 read with section 482 of the Code of Criminal Procedure 1973 Mr. Rahul Rathi Advocate for the petitioner applicant. Mr. Yadev Sharma Additional Public Prosecutor for the State JUDGMENT03.12.2021) Bhaskar Raj Pradhan J. This is a second bail application moved under section 439 read with section 482 of the Code of Criminal Procedure 1973 by the applicant. It is being considered before issuance of notice upon the respondent however Mr. Yadev 2 Bail Appl. No. 121 Ganesh Sharma alias Gelal vs. State of Sikkim Sharma Additional Public Prosecutor is present on advance notice and opposes the application. Earlier this court had vide judgment dated 25.01.2021 in Bail Application No. 120rejected a similar bail application moved by the applicant. While doing so this court had examined the provision of section 18 of the Sikkim Anti Drugs Act 2006 and arrived at a conclusion that it is in pari materia to section 37 of the Narcotics Drugs and Psychotropic Substances Act 1985. This court had also examined the judgments of the Supreme Court in Narcotics Control Bureau vs. Kishan Lal & Ors.1 Intelligence Officer Narcotics C. Bureau v. Sambhu Sonkar & Anr.2 Narcotics Control Bureau vs. Dilip Pralhad Namade3 and Collector of Customs New Delhi vs. Ahmadalieva Nodira4. While examining the facts of the case for the limited extent of examining whether or not to grant bail to the applicant this court had also recorded the following at paragraphs 16 and 17. The same is reproduced below: “16. The records reveal that the learned Special Judge having found prima facie materials against the applicant framed charges under the SADA 2006 and the IPC. The order framing charge is not under challenge. The materials placed before this court are materials filed along with the charge sheet. It reveals prima facie that Sandeep Chettri accused no.1) was apprehended on 09.06.2020 while driving a truck at the Rangpo boarder check post and during his search and seizure various recovered. The substances were 11 SCC 705 22 SCC 562 33 SCC 619 4SCC834 3 Bail Appl. No. 121 Ganesh Sharma alias Gelal vs. State of Sikkim controlled substances were accordingly seized. It is the case of the prosecution that during this time the called Sandeep Chettri accused no.1) from his phone no informing him that he was coming to receive the consignment of controlled substances in his vehicle. According to the prosecution he was thereafter apprehended at IBM Rangpo after a team was dispatched. Besides the statements of the two seizure witnesses as pointed out by Mr. Rahul Rathi the statement of the complainant also implicates the applicant for the commission of the alleged offence. The words “reasonable grounds” under Section 18 of the SADA 2006 would have same meaning as has been explained by the Supreme Court vis à vis Section 37 of the NDPS Act 1985. It would connote substantial probable cause for believing that the accused is not guilty of the offences charged and that this reasonable belief contemplated in turn would point to the existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged. 17. This court has examined the materials which were placed before the learned Special Judge along with the charge sheet and the probable evidence which are required to be tested during trial. None of the materials placed would point to the existence of any facts or circumstances sufficient in themselves to justify the satisfaction that the applicant is not guilty of the offence charged. Contravention of Section 9(1)(c) and Section 9(4) of SADA 2006 entails punishment of rigorous imprisonment which shall not be less than 10 years but may extend to 14 years. Therefore in due consideration of the provisions of Section 439 and Section 18 of the SADA 2006 the materials against the applicant and the offences alleged to have been committed by the applicant this court is of the considered view that bail sought for by the applicant cannot be granted. The application is accordingly rejected.” Mr. Rahul Rathi learned counsel for the applicant had taken this court to the various depositions which have now been recorded by the learned trial court in the matter. It is his submission that due to the fact that various prosecution witnesses have been examined is a change circumstances and therefore the applicant be granted bail. It is his further submission that if one was to examine the evidence of 4 Bail Appl. No. 121 Ganesh Sharma alias Gelal vs. State of Sikkim the witnesses it would show that the applicant would be entitled to an acquittal. According to the applicant as of now five witnesses have been examined. On examination of the evidence of Ongchyo Bhutia it is quite evident that what was alleged by the prosecution has been reiterated in the deposition of Ongchyo Bhutiathat the applicant had been constantly calling the accused no.1 informing him that he was coming to receive the consignment. Although Mr. Rathi desired that this court examine the other depositions as well as the cross examinations it may not be correct to examine the effect of the depositions of the five witnesses as depositions of the other witnesses are yet to be recorded and any opinion by the court on it at this stage may affect the final decision of the learned trial court. Suffice it to say that at this stage the depositions placed before this court does not connote substantial probable cause for believing that the applicant is not guilty of the offences charged. The application for bail is rejected and disposed of accordingly with a request to the learned Special Judge to try and complete the trial as soon as possible. Approved for reporting : Yes No : Yes No Internet Bhaskar Raj Pradhan ) Judge

Pre-emptive rights are in the nature of “very weak rights”- SC

In the case of Raghunath (D) By Lrs. v. Radha Mohan (D) Thr. Lrs. &Ors, (CIVIL APPEAL NO. 1442 OF 2016), the Supreme Court had held that the right of pre-emption is a very weak right and it would not be appropriate or permissible to adopt legal reasoning that would make such a weak right, some kind of a right in perpetuity arising to a plaintiff every time there is a subsequent transaction or sale once the plaintiff has waived his right of pre-emption over the subject immovable property. The judges, in this case, were Justice Sanjay Kishan Kaul, Aniruddha Bose & Krishna Murari. The facts of the case primarily focus on the question of whether the limitation shall commence from the first sale deed after coming into force of the Rajasthan Pre-Emption Act, 1966, or from any other subsequent sale on the basis of Article 97 of the Limitation Act, 1963. This question arises in such a  proceeding in a situation where the original plaintiff sought to enforce such right after three sale transactions which had taken place in the past involving the subject immovable property in the years 1945, 1946, and 1966. On 5th November that year, the last transaction was effected., after the 1966 Act had become operational.  The factum of the plaintiff’s entitlement otherwise claims the right of pre-emption in terms of Section 6 of the 1966 Act is not in dispute in this proceeding. In the suit out of which this appeal arises, the plaintiff’s suit for pre-emption over a transaction effected on 21st January 1974 was resisted on the ground of being barred by limitation. Thus in this case first and foremost it was felt necessary by the court to decide the nature of the pre-emptive rights. On this behalf, the court had discussed the right of pre-emption in a recent judgment in Barasat Eye Hospital & Ors. v. Kaustabh Mondal,(2019) SCC Online SC 1351. The court held that the “We have given our thoughtful consideration to the aforesaid issue and in order to determine the same, we had, at the inception itself, set out the judgment in Barasat Eye Hospital case (supra).  We have, thus, referred to the earlier judicial view in para 10 of the judgment extracted aforesaid. The historical perspective of the right of pre-emption shows that it owes its originination to the advent of the Mohammedan rule, based on customs, which came to be accepted in various courts largely located in the north of India.  The pre-emptor has been held by the judicial pronouncements to have two rights.  Firstly, the inherent or primary right, which is the right to the offer of a thing about to be sold and the secondary or remedial right to follow the thing sold.  It is a secondary right, which is simply a right of substitution in place of the original vendee.  The pre-emptor is bound to show that he not only has a right as good as that of the vendee, but it is superior to that of the vendee; And that too at the time when the pre-emptor exercises his right.  In our view, it is relevant to note this observation and we once again emphasise that the right is a “very weak right” and is, thus, capable of being defeated by all legitimate methods including the claim of superior or equal right.” “In our view, it would not be appropriate or permissible to adopt legal reasoning making such a weak right, some kind of a right in perpetuity arising to a plaintiff every time there is a subsequent transaction or sale once the plaintiff has waived his right or pre-emption over the subject immovable property. The loss of right mandated under Section 9 of the Act is absolute. A plain reading of the said provision does not reveal that such right can re-arise to the person who waives his right of pre-emption in an earlier transaction.” “We suppose that the aforesaid answers the dilemma, i.e. whether the right of pre-emption can be enforced for an indefinite number of transactions or it is exercisable only the first time. We opine that it is only exercisable for the first time when the cause of such a right arises, in a situation where the plaintiff-pre-emptor chooses to waive such right after the 1966 Act becoming operational. Section 9 of the said Act operates as a bar on his exercising such right on a subsequent transaction relating to the same immovable property. We also wonder what really remains of this right of pre-emption after so many years in the facts of this case when the purchaser has been enjoying it for more than four decades!” “The result is the impugned order is set aside and the order of the trial court dated 01.02.1988 and the first appellate court dated 30.03.1989 are upheld. As the original plaintiff has not challenged the sale effected by him on 5th November, 1966, the suit of respondent No. 1 (original plaintiff, now represented by his legal representatives) is thus barred by limitation. This puts an end to the legal battle which began 45 years ago!”

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1442 OF 2016 RAGHUNATHBY LRS RADHA MOHANTHR. LRS & ORS.….RESPONDENTS JUDGMENT SANJAY KISHAN KAUL J The singular question this Court had framed for consideration in this appeal was whether the limitation shall commence from the first sale deed after coming into force of the Rajasthan Pre Emption Act 1966 or from any other subsequent sale on the basis of Article 97 of the Limitation Act 1963. This question arises in this proceeding in a situation where the original plaintiff sought to enforce such right after three sale transactions had taken place in the past involving the subject immovable property in the years 1945 1946 and 1966. The last transaction was effected on 5th November that year after the 1966 Act had become operational. The factum of the plaintiff’s entitlement otherwise claim right of pre emption in terms of Section 6 of the 1966 Act is not in dispute in this proceeding. In the suit out of which this appeal arises the plaintiff’s suit for pre emption over a transaction effected on 21st January 1974 was resisted on the ground of being barred by limitation. In order to determine the aforesaid question of law framed by this Court in terms of the order dated 05.01.2016 it is necessary to discuss the nature of the right of pre emption. In this behalf we had discussed the right of pre emption in a recent judgment in Barasat Eye Hospital & Ors v. Kaustabh Mondal1. The said judgment authored by one of usin its initial paragraph itself discusses this aspect and it would suffice to quote the same “1. The right of pre emption holds its origination to the advent of the Mohammedan rule based on customs which came to be accepted in various courts largely located in the north of India. This 1SCC Online SC 1351 law is stated to be largely absent in the south of India on account of the fact that it never formed a part of Hindu law in respect of property. However this law came to be incorporated in various statutes both prior to the Constitution of India coming into force and even post that.2 The constitutional validity of such laws of pre emption came to be debated before the Constitution Bench of this Court in Bhau Ram 3 There are different views expressed by the members of the Constitution Bench of five Judges and also dependent on the various State legislations in this regard. Even though there were views expressed that this right of pre emption is opposed to the principles of justice equity and good conscience it was felt that the reasonableness of these statutes has to be appreciated in the context of a society where there were certain privileged classes holding land and thus there may have been utility in allowing persons to prevent a stranger from acquiring property in an area which has been populated by a particular fraternity or class of people. This aspect was sought to be balanced with the constitutional scheme prohibiting discrimination against citizens on the grounds of only religion race caste sex place of birth or any of them under Article 15 of the Constitution and the guarantees given to every citizen to acquire hold and dispose of property subject only to the test of reasonable restriction and the interest of general public.” The judicial approach adopted towards this right of pre emption was thereafter discussed in the said judgment in the following terms “10. In order to appreciate the aforesaid provisions relating to the right of pre emption it would be appropriate to refer to an extremely lucid judgment of this Court by Justice K 2 Bhau Ram v. Baij Nath Singh AIR 1962 SC 1476 Subbaraosetting forth the contours of the right of pre emption in Bishan Singh v. Khazan Singh4 in a four Judge Bench judgement. The Bench proceeded to discuss the view of different Courts on this right of preemption as found in the following a. Plowden J. in Dhani Nath v. Budhu 5 b. Mahmood J. in Gobind Dayal v. Inayatullah 6 c. Mool Chand v. Ganga Jal 7 11. In view of the aforesaid elucidation it was opined that the preemptor has two rights: first the inherent or primary right i.e. right for the offer of a thing about to be sold and second the secondary or remedial right to follow the thing sold. The secondary right of preemption is simply a right of substitution in place of an original vendee and the pre emptor is bound to show not only that his right is as good as that of that vendee but that it is superior to that of the vendee. Such superior right has to subsist at the time when the pre emptor exercises his right. The position is thereafter summarized in the following terms “11. …..(1) The right of pre emption is not a right to the thing sold but a right to the offer of a thing about to be sold. This right is called the primary or inherent right.It is a right of substitution but not of re purchase i. e. the pre emptor takes the entire bargain and steps into the shoes of the original vendee.It is a right to acquire the whole of the property sold and not a share of the property sold.Preference being the essence of the right the plaintiff must have a superior right to that 4 AIR 1958 SC 838 5 136 P.R. 1894 6ILR 7 All 775 809 7ILR 11 Lahore258 273 of the vendee or the person substituted in his place.The right being a very weak right it can be defeated by all legitimate methods such as the vendee allowing the claimant of a superior or equal right being substituted in his On having set down the contours of the aforesaid right we turn to the facts of the present case The Rajasthan Pre Emption Act 1966was brought into force on 1.2.1966. In view of the rights conferred under the Act a suit was filed by the predecessor in interest of respondent No.1 seeking a decree of pre emption against the predecessor in interest of the appellant herein and respondent Nos. 4 to 6 herein on 10.1.1974 which was numbered as Civil Suit No. 40 1975. The property in question is situated in a building bearing AMC No. XV 290 situated in Kayasth Mohalla Ajmerand is predicated on account of having a common portion in the said property. The plaint stated that respondents 5 and 6 hereinwere owners and in possession of the part of the property which was sold to respondent No 4 hereinvide sale deed dated 10.01.1974 for a consideration of Rs. 4000 . respondent No. 4 further sold this property to the appellant hereinon 21.01.1974 once again for the same consideration. The other facts stated in the plaint are not required to be gone into nor pleaded except that there is an allegation that the two portions were part and parcel of the same house having main entrance lavatory and staircase in common and that no notice as provided for under Section 8 of the Act had been served which mandates a notice to pre emptors in their depositions. The second plea advanced was that if a plaintiff waived his right of pre emption by conduct no such right is available on a subsequent sale of the same property and the plaintiff is estopped from claiming any right of pre emption of subsequent sale In support of their contention learned counsel referred to the a) Prahlad Kumar vs. Kishan Chand & Ors.9 This judgment of the Rajasthan High Court while rejecting the right of pre emption based it on two aspects. The first was a factual one that it was not a case of sharing a common property. The relevant portion is the second aspect where it was held even if the right is presumed to have been established though not established in that case the plaintiff was estopped from claiming his right of pre emption as he had waived his right when the property was sold at an earlier date and pre emption was not claimed then. b) Mangti Ram vs. Onkar Sahai10 In this case the right of pre emption was held to have been given up on account of an earlier compromise deed to which the plaintiff had been a c) Kutina Bibi & Anr. vs. Baikuntha Chandra Dutta & Ors.11 This judgment once again dealt with the plea of pre emption against a subsequent sale where vide an earlier sale deed of 1950 the plaintiff 9 2009RLW 2441 101 RLW 55 cosharer’s share had been sold by her son and thus it was held that not having assailed the earlier sale deed the right of pre emption could not be claimed against the subsequent sale d) Ghulam Jilani vs. Hassan Khan & Ors.12 There was an earlier sale deed and a subsequent sale deed. At the stage of the initial sale deed the cosharer did not object. At the stage of the second sale deed the cosharer sought to object. The court debated the issue of competing rights of the cosharer and the subsequent buyer in pursuance to the first sale deed. It was opined while agreeing with the lower court that the plaintiff’s suit was barred by time having been instituted more than a year after the earlier sale which alone he was entitled to impugn e) Ghanshyam vs. Chand Bihari & Ors.13 The factual matrix shows there were many cosharers. Two of the cosharers transferred their rights to a third party. One by sale and one by gift. Third party in turn sought to transfer to another party. It is at that stage one of the cosharers claimed a right of pre emption. It was found on facts that when the said third party sought to transfer his right plaintiff never showed willingness to purchase the same as they were not having sufficient means 12 PLR 1905 338 132 RLW1011 It was opined that the plaintiff’s father never tried to assert his right in the matter of purchasing that portion earlier and subsequently also during his lifetime he never tried to enforce his right of pre emption. As such right of pre emption was said to have been waived by conduct. f) Rukmani Devivs. Prabhu Narayan & Ors.14 The pre emption right under Section 6 of the Act was discussed with an explanation that the right of pre emption is a weak right and thus if a plaintiff pre emptor waives or gives up his right without raising any objection to the sale in favour of the third party the court should not allow substitution in the sale deed at the instance of such plaintiff pre emptor who has already given up his right 10. On the other hand Ms. Christi Jain learned counsel for the respondent sought to support the impugned judgment on the plea that the limitation to enforce a right of pre emption under the Act is governed by Article 97 of the Limitation Act 1963 read with Section 21 of theAct Thus each sale deed is a separate cause of action. On a reading of Section 8 of the said Act it was contended that the seller is required to inform all persons as to the price he is proposing to sell at and thus the language of 144 RLW 2882 the provision is clear that it applies to all such incidents of sale. Thus it was pleaded that it cannot be said that if such a right is not exercised it would allow foreclosure for any subsequent sale since there is no provision in the said Act prohibiting the right of pre emption if the right is not exercised. It was also contended that the question of waiver is set out in Section 9 of the said Act which does not provide for an eventuality that the right of pre emption would not be applicable for a subsequent sale. The last aspect argued was that this right is based on substitution in place of the vendee on payment of the price and it does not challenge the sale but seeks substitution of the plaintiff in place of the vendee. There was thus no need to challenge the earlier sales and not challenging the earlier sales would not amount to waiver. 11. A reference was made to the following judgments: i) Bishan Singh & Ors. vs. Khazan Singh & Anr.15 The reference to the aforesaid judgment has been made in the context of the observations of Mahmood J. in Gobind Dayal casereferred to above that it is in relation to the right of substitution Barasat Eye Hospital & Ors. vs. Kaustabh Mondal16 15 AIR 1958 SC 838 This judgment has been relied upon again on the same aforesaid principle of right of substitution The view we adopt 12. We have given our thoughtful consideration to the aforesaid issue and in order to determine the same we had at the inception itself set out the judgment in Barasat Eye Hospital casewhich deals with the scenario where at the first instance the right was not exercised apparently on account of lack of financial means and that was held to be no ground to permit exercise of that right at the second stage. The consistent view taken by the Rajasthan High Court as reflected in not only Ghanshyam casebut also in Rukmani Deviand Prahlad Kumarhas been that the right of substitution is capable of being invoked only at the first instance and does not continue to substitution is capable of being invoked only at the first instance and does not continue to permeate for an indefinite period of time for each sale transaction. In the case of Ghanshyamfinding of the High Court was that the plaintiffs claiming pre emption had waived their rights. In the case of Rukmani Deviwhere the plaintiff raised the plea of pre emption on second sale transaction evidence was led by the defendant that the same plaintiff had earlier refused to purchase the subject property and had on the other hand participated in the sale process. In the case of Prahlad Kumarit was found that the plaintiff himself had waived his right of pre emption in respect of an earlier sale transaction involving the same property. Thus to this extent the view taken in the impugned order seems to charter a new course. The view of the Assam High Court in Kutina Bibi was consistently followed by the Rajasthan High In order to now appreciate the controversy as there appears to be no other view of this Court on this aspect we would first turn to the said Act itself. Right to pre emption is defined in Section 3 of the Act as under “Section 3: “Right of pre emption” defined The “right of pre emption” is the right accruing under section 4 of this Act upon a transfer of any immovable property to acquire such property and to be substituted as the transferee thereof in place of and in preference to the original transferee and “pre emptor” means a person having a right of pre emption.” Section 6 sets out the right of persons to whom the right pre emption accrues and it would suffice to reproduce sub sectionas the other sub sections deal with different classes of persons having such right Chapter III sets out the procedure for the exercise of the right of pre emption. Section 8 under the said Chapter mandates issuance of notice “Section 6: Persons to whom right of pre emption 1) Subject to the other provisions of this Act the right of pre emption in respect of any immovable property transferred shall accrue to and vest in the following classes of persons namely: i) co sharers of or partners in the property transferred ii) owners of other immovable property with a stair case or an entrance or other right or amenity common to such other property and the property transferred and iii) owners of property servient or dominant to the “Section 8: Notice to pre emptors 1) When any person proposes to sell or to foreclose the right to redeem any immovable property in respect of which any persons have a right of pre emption he shall give notice to all such persona as to the price at which he is proposing so to sell or as to the amount due in respect of the mortgage proposed to be foreclosed as the case 2) Such notice shall be given through the civil court within the local limits of whose jurisdiction the property concerned is situated shall clearly describe such property shall state the name and other particulars of the purchaser or the mortgagee and shall be served in the manner prescribed for service of summons in civil suits.” The limitation for exercise of the aforesaid right is stipulated in Section 21 which reads as under “Section 21: Special provision for limitation 1) Subject to the provisions contained in the proviso to sub sectionof section 5 the period of limitation in any case not provided for by article 97 of the First Schedule to the Limitation Act 1963for a suit to enforce the right of pre emption under this Act shall notwithstanding anything contained in article 113 of the said schedule of the said Act be one year from the date on which a) in the case of a sale made without a registered sale deed the purchaser takes under the sale physical possession of any part of the property sold and b) in the case of a foreclosure the final decree for foreclosure is passed 2) The period of limitation for a suit to enforce a right of pre emption which has accrued before the commencement of this Act shall notwithstanding anything contained in the said Limitation Act in no case exceed one year from the commencement of this Act.” In view of the fact that since Section 21 in turn refers to Article 97 of the First Schedule of the Limitation Act 1963 it would be appropriate to set forth the same as under 97. To enforce a right of pre emption whether the right is founded on law or general usage or on special When the purchaser takes under the sale sought to be impeached physical possession of the whole or part of the property sold or where the subject matter of the sale does not admit of physical possession of the whole or part of the property when the instrument of sale is registered The question has to be thus analysed in the context of a conjoint reading of Section 21 of the said Act and Article 97 of the First Schedule to the Limitation Act 1963. The stipulation in Section 21 is that the right of pre emption has to be exercised in case of a sale within one year from the date of sale and if the sale is not by a registered deed on the purchaser taking the physical possession of any part of the property sold. Since the period has to be as per Article 97 the wordings of the Article show that it is one year from the date when the sale is registeredis concerned the factual basis of that decision does not fit with the legal controversy involved in this proceeding. In that case by a previous transaction the entire land had been sold. It was held in that perspective that the plaintiff’s right as a co sharer had become disputed in absence of challenge to the previous transaction. We are of opinion that such a right is available once whether to take it or leave it to a person having a right of pre emption. If such person finds it is not worth once it is not an open right available for all times to come to that person. The aforesaid being the position this would itself be an impediment in exercise of the right of pre emption in a subsequent transaction. This is so since we find the right of waiver under section 9 of the said Act is relatable to the transaction and also the person. These provisions may not impede the right of pre emption in that particular transaction by a particular pre emptor and the factum of not having exercised such a right to an earlier transaction would amount to the surrender of the right of substitution to such intended pre emptor. The judgments referred to by the respondent of Bishan Singhare only for the proposition that the right of pre emption is a right of substitution no doubt exists over this proposition. The question is whether this right of substitution can be exercised recurringly or only once. Our answer to the query is ‘only once’ 21. We may also notice another judgment of this Court in Indira Bai vs Nand Kishore17. Once again in relation to the said ActThe question which was framed for decision in the case was “Is estoppel a good defence to ‘archaic’ right of pre emption which is a ‘weak right’ and can be defeated by any ‘legitimate’ method ” In the aforesaid context in para 5 it has been observed that the Act does not debar the pre emptor from giving up his right. Rather in case of its non exercise within two months may be for the financial reasons the right stands extinguished. “It does not pass on to anyone”. It was further observed “No social disturbance is caused. It settles in purchaser. Giving up such right expressly or impliedly cannot therefore be said to involve any interest of community or public welfare so as to be in mischief of public policy.” These observations once again in our view are based on the right being weak 22. We suppose that the aforesaid answers the dilemma i.e. whether the right of pre emption can be enforced for an indefinite number of 174 SCC 668 transactions or it is exercisable only the first time. We opine that it is only exercisable for the first time when the cause of such a right arises in a situation where the plaintiff pre emptor chooses to waive such right after the 1966 Act becoming operational. Section 9 of the said Act operates as a bar on his exercising such right on a subsequent transaction relating to the same immovable property. We also wonder what really remains of this right of pre emption after so many years in the facts of this case when the purchaser has been enjoying it for more than four decades The result is the impugned order is set aside and the order of the trial court dated 01.02.1988 and the first appellate court dated 30.03.1989 are upheld. As the original plaintiff has not challenged the sale effected by him on 5th November 1966 the suit of respondent No. 1is thus barred by limitation. This puts an end to the legal battle which began 45 years ago The appeal is accordingly allowed leaving the parties to bear their [SANJAY KISHAN KAUL [ANIRUDDHA BOSE OCTOBER 13 2020 [KRISHNA MURARI

The petitioner cannot be held liable for the irregularities under Mid-Day Meal Scheme as he constituted a committee for the same.: High court of Patna

The petitioner was taken into custody under Section 406 of the Indian Penal Code, “Punishment for criminal breach of trust with imprisonment of either description for a term which may extend to three years, or with fine, or with both”, section 420, “Cheating and dishonestly inducing delivery of property shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine”, section 34 IPC, “Acts done by several persons in furtherance of common intention”. This present petition is in connection with Rajauli PS Case No. 432 of 2020 dated 13.09.2020. In the high court of Judicature at Patna, this judgement was given by honourable Mr Justice Ahsanuddin Amanullah on the 21st of August 2021 in the case of Anil Kumar versus the state of Bihar criminal miscellaneous No. 6676 of 2021, Mr Arun Kumar Represented as the advocate for the petitioner, and Mr Anand Mohan represented the state of Bihar as the additional Public Prosecutor, the proceedings of the court were held via video conference. The following are the facts of the case, the petitioner was in charge as the headmaster of the upgraded middle school in Balia, Rajauli, he has been accused due to irregularities under the Mid-day meal scheme. According to the FIR was filed due to a viral video which shows the son of one of the cooks of the school with two bags of rice and the same person was running a Kirana shop in the same village. The counsel representing the petitioner held that the petitioner was only the headmaster of the school and was not directly affiliated with the affairs of the distribution of mid-day schemes during the covid-19 pandemic. The counsel held with respect to the district magistrate guidelines the petitioner appointed four teachers who were responsible for monitoring the distribution of food grains which included the co-accused have been recognized as they were directly involved in the distribution under the mid-day scheme. And even in the viral video the voice of the co-accused has been heard clearly and not the petitioner, actually, the cook asked the son to carry the bags of rice to a cooler storage place because otherwise it would have gone bad due to the sun and that’s why they haven’t been accused in this case. However, the viral video shows the son of the cook and not the petitioner therefore no such criminal liability can be held against the petitioner. Further, the counsel held that the school was a covid-19 quarantine centre for migrants who were entering the state from a different place and the premises and the cooks of the school for being utilized for the same, unutilized resources was also kept in store. The counsel held that the petitioner is in his last stage of employment and have never been involved in any criminal case and due to this false implication, the petitioner has been suspended and hence the counsel pleaded before the court for bail for the same. The additional public prosecutor held that the petitioner as he is the headmaster was in charge of all the activities that took place in the school directly or indirectly and were therefore also responsible for the irregularities in the distribution of the mid-day meal.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 66721 Arising Out of PS. Case No. 432 Year 2020 Thana RAJAOLI District Nawada Anil Kumar Male aged about 58 years Son of Late Baleshwar Singh Resident of Village Mahawatpur PS Sirdala District Nawadah at Present Incharge Head Master Upgrade Middle School Balia PS Rajauli District The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State Mr. Arun Kumar Advocate Mr. Anand Mohan Prasad Mehta APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 21 08 2021 The matter has been heard via video conferencing 2. The case has been taken up out of turn on the basis of motion slip filed by learned counsel for the petitioner on 09.08.2021 which was allowed. 3. Heard Mr. Arun Kumar learned counsel for the petitioner and Mr. Anand Mohan Prasad Mehta learned Additional Public Prosecutorhad been made In charge for distribution of rice under the Mid Day Scheme with effect from 10.08.2020. It was submitted that the incident shown in the viral clip is of 18.08.2020 i.e. after the constitution of the said Committee. Learned counsel submitted that even in the viral the voice is that of co accused Ajit Kumar who was member of the said Committee and not the petitioner. It was submitted that in the Patna High Court CR. MISC. No.66721 dt.21 08 2021 matter complicity of the cook has been ruled out as the explanation that she had asked her son to take the rice which was kept in the sun to ensure that it did not go bad to the storage room has been accepted and that is why neither she nor her son have been made accused in the present case. Thus it was submitted that once the main allegation of two bags containing rice shown in the viral video being against the son of the cook no criminal liability can be fastened against the petitioner at least in the present matter. Learned counsel submitted that even with regard to detection of excess rice as the school was a COVID quarantine centre for migrants who were coming from outside the State since foodgrains were being sent for their food which was also in the premises of the school and even the services of the cooks of the school were being utilized whatever was unutilized was also kept in the same store due to which more foodgrains have been found upon verification. It was submitted that the petitioner has never been involved in any other criminal case and he is at the last stage of employment and for this allegation he has been placed under suspension and departmental proceeding has also been initiated against him treating it as misconduct 7. Learned APP submitted that the petitioner being the In charge Headmaster was responsible for such irregularities Patna High Court CR. MISC. No.66721 dt.21 08 2021 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties in view of the petitioner having constituted a Committee of four teachers as per the guidelines of the District Magistrate Nawadah with regard to distribution of rice under the Mid Day Meal Scheme during the pandemic period and the explanation of the cook with regard to irregularity of two bags of rice being shown with her son having been accepted by the authorities and the petitioner having no past criminal antecedent the Court is inclined to allow the prayer for pre arrest bail 9. Accordingly in the event of arrest or surrender before the Court below within six weeks from today the petitioner be released on bail upon furnishing bail bonds of Rs. 25 000 twenty five thousand) with two sureties of the like amount each to the satisfaction of the learned Chief Judicial Magistrate Nawadah in Rajauli PS Case No. 432 of 2020 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and further that one of the bailors shall be a close relative of the petitioner andthat the petitioner shall co operate with the Court and police prosecution. Failure to co operate shall lead to cancellation of his bail bonds Patna High Court CR. MISC. No.66721 dt.21 08 2021 10. It shall also be open for the prosecution to bring any violation of the foregoing conditions by the petitioner to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the petitioner 11. The petition stands disposed of in the (Ahsanuddin Amanullah J

Clauses I and II of Section 195(1) (b) of CrPC cater to different offences mentioned in IPC: High Court of Kerala

Offences dealt under Section 195(1) (b)(i) and Section 195(1)(b)(ii) of the CrPC are distinct. Where the facts mentioned in a complaint attract the provisions of Section 191 to 193 of the IPC, Section 195(1)(b)(i) of the CrPC applies. However, the most important fact to be considered upon in case of dispute is the alleged offense should be committed to or in relation to any proceeding in any Court. The offense punishable here does not have to be committed only in any proceeding in any Court but can also be an offense alleged to have been committed in relation to any proceeding in any Court. This remarkable judgment was passed by the Kerala High Court in the matter of P. RADHAKRISHNAN V STATE OF KERALA [WP(C). No.7641 OF 2021] by Honourable Justice V.G.Arun. This writ petition was filed by the Deputy Director, Enforcement Directorate, Kochi Zonal Office, who was aggrieved by the registration by the Crime Branch wing of the State Police. The essential facts leading to the writ petition, are, a complaint was registered at the Customs Commissionerate (Preventive), Kochi, consequent to the seizure of 30 Kgs of gold worth Rs.14.82 Crores at the Thiruvananthapuram International Airport. The seizure was affected while the gold was being smuggled, camouflaging it as diplomatic baggage to the UAE Consulate. During the course of the investigation, it was revealed that the accused had committed offenses under the Unlawful Activities (Prevention) Act, 1967 (UAPA) also. This resulted in the National Investigation Agency registering a case against the very same accused, alleging commission of offenses under Sections 17 and 18 of the UAPA. Smt. Swapna Suresh was the second accused and Sri. Sandeep Nair the fourth accused. Later, Smt. Swapna Suresh, aired a video through an online media channel, wherein she alleged that the ED officials had made her sign the Section 50 statements without allowing her to read its contents and that, she had been compelled by the officials to implicate the Chief Minister of the State. IT was also alleged that ED officials coercing and cajoling the accused to give statements implicating the Chief Minister and others. Thus, the challenge against registration of the FIR and legality of the Crime Branch investigation is the issue in this case. The Court deliberated upon scope and ambit of Section 195 of Cr.P.C. and stated that “The reason behind bringing certain specified offenses under the purview of Section 195 of the Cr. P.C is because the commission of those offenses has a direct impact on an ongoing judicial proceeding and thereby, on the administration of justice. Section 193 of the IPC being one such offense, the prohibition under Section 195 of the Cr. P.C will apply.” While drawing a distinction between a distinction between Sections 195(1)(b)(i) and 195(1)(b)(ii) Court relied on State of Punjab v. Raj Singh and stated that, “Honourable Supreme Court held that from a plain reading of Section 195 Cr.PC, it is manifest that the prohibition comes into operation only at the stage when the court intends to take cognizance of an offense under Section 190(1) Cr.PC, and it has nothing to do with the statutory power of the police to investigate into an FIR which discloses a cognizable offence, even if the offence is alleged to have been committed in, or in relation to, any proceeding in court.” The Court also added, “The purpose behind the enactment of Section 195 being to ensure that the proceedings of the court are not sullied, nor the administration of justice not meddled with, if the other offences are interwoven and inseparable from the offences within the ambit of Section 195(1)(b)(i), necessarily, the prohibition will have to be extended to the other offenses also.” Thus, the Court stated that “the bar under Section 195(1)(b)(i) Cr. P.C being applicable to the offenses mentioned in the two FIRs, the allegations being to the effect that attempts were made to fabricate false evidence and to coerce and threaten the accused to give false statements. It may be pertinent to note that, if such attempts had fructified, it would have definitely sullied the proceedings of the court and impacted the administration of justice. Therefore, even though the other offenses alleged are under Section 167 and 195A of IPC, they are undoubtedly interwoven with and inseparable from the offense under Section 193 and therefore susceptible to the prohibition under Section 195(1)(b)(i) of Cr.P.C.”

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE V.G.ARUN FRIDAY THE 16TH DAY OF APRIL 2021 26TH CHAITHRA 1943 WP(C).No.7641 OF 2021(E AGED 51 YEARS DEPUTY DIRECTOR ENFORCEMENT DIRECTORATE KOCHI ZONAL OFFICE AK SESHADRI ROAD COCHIN 682 011 TUSHAR MEHTAASST.SGI FOR THE PETNRS ADV. HARIN P.RAVAL WITH SR.GP.SUMAN THIS WRIT PETITIONHAVING BEEN FINALLY HEARD ON 09 04 2021 ALONG WITH WP(C).8920 2021(L) THE COURT ON 16 04 2021 DELIVERED THE FOLLOWING WP(C).7641 & 8920 21 IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE V.G.ARUN FRIDAY THE 16TH DAY OF APRIL 2021 26TH CHAITHRA 1943 WP(C).No.8920 OF 2021(L AGED 51 YEARS S O.PAUL RAJ DEPUTY DIRECTOR ENFORCEMENT DIRECTORATE KOCHI ZONAL OFFICE AK SESHADRI ROAD COCHIN 682011 RESIDING AT 4L DD NEST KATHRIKKADAVU KALOOR P.O. COCHIN 17 TUSHAR MEHTAHAVING BEEN FINALLY HEARD ON 09 04 2021 ALONG WITH WP(C).7641 2021(E) THE COURT ON 16 04 2021 DELIVERED THE FOLLOWING WP(C).7641 & 8920 21 C.R V.G.ARUN J W.P(C).Nos. 7641 and 89221 Dated this the 16th day of April 2021 W.P(C).No.76421 The instant writ petition is filed by the Deputy Director Enforcement Directorate Kochi Zonal Office aggrieved by the registration of Exhibit P1 FIR by the Crime Branch wing of the State Police. The essential facts leading to the writ petition are as under On 06.07.2020 O.R.No.20 was registered at the Customs CommissionerateKochi consequent to seizure of 30 Kgs of gold worth Rs.14.82 Crores at the Thiruvananthapuram International Airport. The seizure was effected while the gold was being smuggled camouflaging it as diplomatic baggage to the UAE Consulate. During the course of investigation it was revealed that the accused had committed offences under the Unlawful Activities Act 1967also. This resulted in the National Investigation Agency NIA) registering a case against the very same accused alleging commission of offences under Sections 17 and 18 of the UAPA. As the investigation progressed further commission of the offence punishable WP(C).7641 & 8920 21 under Section 4 of the Prevention of Money Laundering Act 2002 PMLA) also came to light. Thereupon ECIR KCZO0 31 2020 was registered by the Enforcement Directorate on 13.07.2020 arraigning three persons as accused one Smt. Swapna Suresh being the second accused and Sri. Sandeep Nair the fourth accused. After registration of the case the ED filed Exhibit P5 complaint before the Special Court for PMLA cases of the Cr.P.C the very registration of the crime is illegal. Attention is drawn to the decision in Patel Laljibhai Somabhai v. State of Gujarat 2 SCC 376] wherein the Honourable Supreme Court has exposited on the purpose behind the enactment of Section 195 of the Cr.P.C 5. Sri.S.V.Raju contended that abetment of an offence punishable with imprisonment under Section 116 of the IPC would apply only on the ingredients of Section 107 being satisfied which as far as the instant case is concerned are completely absent. It is contended that in order to attract Section 167 of the IPC a public servant charged with WP(C).7641 & 8920 21 the preparation or translation of any document or electronic record should have framed prepared or translated that document or electronic document in a manner which he knows or believes to be incorrect. Further such framing preparation or translation should be with intention to cause or knowing that his action is likely to cause injury to any person. That in the absence of any allegation of the ED officials having framed or prepared any document or electronic document the offence under Section 167 of the IPC is not attracted. It is contended that none of the ingredients necessary to constitute the offence of fabricating false evidence under Section 192 of the IPC are made out and even in cases where the ingredients are made out the prohibition under Section 195 of the Cr.P.C would apply. As regards the offence under Section 195A of the IPC it is contended that only a witness or any other person can file a complaint in relation to the offence and the words “any other person” should be read ejusdem generis. Hence a person totally unconnected to the witness and the case cannot file the complaint. Reference is made to the statement of the second accused dated 13.08.2020 wherein to a query as to whether the Chief Minister of Kerala or his wife had called her personally and whether they were close to her the second accused had answered that they were neither close to her nor had they called her personally and that all her conversations with the Chief Minister had been for official purposes only. It is contended that if the intention WP(C).7641 & 8920 21 of the investigating officer was to implicate the Chief Minister that answer would not have been recorded. According to the learned Counsel falsity of the allegations is evident from the fact that in spite of the repeated opportunities available to appraise the jurisdictional court of the attempt to coerce her the second accused had never raised such a complaint. Reference is made to Exhibits P15 and P16 remand orders dated 11.08.2020 and 14.08.2020 wherein the Special Judge after interacting with accused Nos.1 2 and 4 had observed that the accused appeared to be in sound health and mind and had no complaints. Particular emphasis is laid on paragraph 7 of Exhibit P17 order wherein the learned counsel for Smt. Swapna Suresh had alleged that his client was tortured during questioning by the Enforcement Officials without the presence of a woman officer. It is hence contended that the unbelievable narrative about the presence of women civil police officers while Smt. Swapna Suresh was questioned by ED officials is nothing but a cooked up story 6. Sri. K.M.Nataraj focused on the bar under Section 195(1)(b)(i of the Cr.P.C and contended that the very purpose of that provision is to prevent instances like the one under consideration. That the alleged act of coercing the third accused to name innocent persons as her accomplices being in relation to a proceeding pending before the Special Court registration of the crime and investigation into such allegation is barred. The distinction between Sections 195(1)(b)(i) and WP(C).7641 & 8920 21 195(1)(b)(ii) is pointed out by emphasising on the import of the words “in relation to any proceeding in any court” in the former as against the words “in respect of a document produced or given in evidence in a proceeding in any court” in the latter. It is contended that the former expression is of much wider amplitude than the latter as held in Bhima Razu Prasad v. State and of the Supreme Court in Abhinandan Jha and Others v. Dinesh Mishra 3 SCR 668] State of Bihar and Another v. J.A.C.Saldanha and Others 1 SCC 554] and the Constitutional Bench decision in Lalita Kumari v Government of Uttar Pradesh and Others 2 SCC 1]. It is contended that the bar under Section 195 of the Cr.P.C is only against taking cognizance and does not interdict investigation by the Police Support for this argument is garnered from the decisions in State of Punjab v. Raj Singh and Another 2 SCC 391] M.Narayandas v. State of Karnataka and Others11 SCC WP(C).7641 & 8920 21 251] Shafi @ Kozhi Shafi v. Abdul Salam and Others and Nirmaljit Singh Hoon v. The State of West Bengal and Another3 SCC 753]. It is submitted that the attempt of the petitioner is to somehow thwart the investigation and prevent the truth from coming out which is evident from the undue haste with which the writ petition has been filed. That the petitioner and other officials of the ED had compelled and coerced the accused to give statements implicating highly placed personalities in the State Government which is a heinous offence that needs to be unearthed and the culprits brought to book. It is also contended the the statements of the accused recorded while they were in ED custody cannot be termed as statements under Section 50(3) of PMLA. The circumspection required while exercising the inherent power under Section 482 of the Cr.P.C and the well settled position of the High Court being not expected to sift the evidence for deciding factual issues involved while exercising such power is reiterated with the aid of W.P(C).No.89221 8. The challenge in this writ petition is against the registration of Crime No.98 CD ALP D 2021 at the Crime Branch Police Station Ernakulam vide Exhibit P1 FIR dated 27.03.2021. The short facts leading to the registration of the crime are as under WP(C).7641 & 8920 21 Sri.Sandeep Nair presently the fourth accused ECIR ACZO 31 2020 registered by the Enforcement Directorate had sent Exhibit P2 letter dated 05.03.2021 to the Special Judge alleging that he was compelled by the petitioner to name the Chief Minister and certain others as accomplices to the crime. News about the letter published in the visual media was noticed by Advocate R.Sunil Kumar a practising lawyer. Being of opinion that the deliberate attempt to drag the State’s Chief Minister and others into the crime should be investigated Advocate Sunil Kumar sent a complaint to the Additional Director General of Policewas registered for offences under Sections 116 167 192 193 and 195A of IPC. During the course of investigation of the crime the Crime Branch sought permission to question and record the statement of Sri. Sandeep Nair from the Central Prison Thiruvananthapuram and the request was allowed by the Special Court as per Exhibit P3 order. The challenge in this writ petition is against Exhibit P1 FIR and Exhibit P3 order and is founded on the same grounds as in W.P(C).No.7641 of 2021. The additional ground of challenge is that registration of a second crime based on the very same allegations as in the first crime is barred. In support of this challenge reference is made to the statement in the first crimeof another accused in the case Sri.Sandeep Nair having also written a similar complaint to the District and Sessions WP(C).7641 & 8920 21 Judge Ernakulam alleging threat and coercion to give false evidence against the Chief Minister and that the entire matter require an in depth investigation by registering an FIR. Countering the challenge learned counsel for the respondent State highlighted the marked differences between the incidents and the allegations in the two crimes which according to the learned counsel can by any stretch of imagination be treated to be the same or even similar. Elaborate legal contentions are put forth by both sides relying on the decisions of the Apex Court in Ram Lal Narang v. State 2 SCC 322] State of West Bengal v. Swapan Kumar Guha and Others1 SCC 561] T.T.Antony v. State of Kerala and Others 6 SCC 181] Upkar Singh v. Ved Prakash and Others13 SCC 292] etc 9. The legal issues arising for consideration in both writ petitions except the challenge on the ground that Exhibit P1 in W.P(C).89221 is the second FIR being common both writ petitions are being 10. The challenge against maintainability of the writ petition on the premise that the petitioner has filed the case in his individual capacity cannot hold good. Undoubtedly the writ petition is filed by the petitioner in his capacity as the Investigating Officer in ECIR ACZO 31 2020. The fact that the writ petition is filed with official WP(C).7641 & 8920 21 sanction is evident from the appearance of the learned Solicitor General. At the same time I find substance in the objection raised by the Sri. Raval against the manner in which the documents pertaining to the ED case is produced and persons who are not made parties named in the writ petition. The explanation offered for production of the documents is that they form part of Exhibit P5 complaint. If that be so the petitioner ought to have produced the entire set of documents appended to Exhibit P5 complaint rather than producing the documents of his choice. Even though the petitioner s action is liable to be deprecated that does not warrant dismissal of the writ petition 11. Moving on to the merits of the contentions urged the first and foremost is the contention based on the prohibition under Section 195 of the Cr.P.C. Needless to say that the finding on that contention will have an impact on the other legal points. Indisputably the crimes are registered for offences punishable under Sections 116 120B 167 192 193 and 195A of the IPC of which Section 193 is an offence falling within the ambit of Section 195(1)(b)(i) of the Cr.P.C. In order to understand the scope and ambit of Section 195 of Cr.P.C it is necessary to analyse and understand the provision “195. Prosecution for contempt of lawful authority of public servants for offences against public justice and for offences relating to documents given in WP(C).7641 & 8920 21 1) No Court shall take cognizance— a)(i) of any offence punishable under Sections 172 to 188 both inclusive) of the Indian Penal Codeor ii) of any abetment of or attempt to commit such offence or iii) of any criminal conspiracy to commit such offence except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate b)(i) of any offence punishable under any of the following sections of the Indian Penal Codenamely Sections 193 to 196199 200 205 to 211 both inclusive) and 228 when such offence is alleged to have been committed in or in relation to any proceeding in any Court or ii) of any offence described in Section 463 or punishable under Section 471 Section 475 or Section 476 of the said Code when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court or iii) of any criminal conspiracy to commit or attempt to commit or the abetment of any offence specified in sub clauseor sub clauseexcept on the complaint in writing of that Court 115[or by such officer of the Court as that Court may authorise in writing in this behalf] or of some other Court to which that Court is 2) Where a complaint has been made by a public WP(C).7641 & 8920 21 servant under clause of sub section any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court and upon its receipt by the Court no further proceedings shall be taken on the complaint Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded 3) In clause of sub section the term “Court” means a Civil Revenue or Criminal Court and includes a tribunal constituted by or under a Central Provincial or State Act if declared by that Act to be a Court for the purposes of 4) For the purposes of clause of sub section a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court or in the case of a Civil Court from whose decrees no appeal ordinarily lies to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate a) where appeals lie to more than one Court the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate b) where appeals lie to a Civil and also to a Revenue Court such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.” 12. The purpose of enacting Section 195 2 SCC 376]. The relevant portion of the said judgment reads as under “The underlying purpose of enacting Section 195(1)(b and and Section 476 seems to be to control the temptation on the part of the private parties considering themselves aggrieved by the offences mentioned in those sections to start criminal prosecutions on frivolous vexatious or insufficient grounds inspired by a revengeful desire to harass or spite their opponents. These offences have been selected for the court s control because of their direct impact on the judicial process. It is the judicial process in other words the administration of public justice which is the direct and immediate object or victim of those offence and it is only by misleading the courts and thereby perverting the due course of law and justice that the ultimate object of harming the private party is designed to be realised. As the purity of the proceedings of the court is directly sullied by the crime the Court is considered to be the only party entitled to consider the desirability of complaining against the guilty party. The private party designed ultimately to be injured through the offence against the administration of public justice is undoubtedly entitled to move the court for persuading it to file the complaint. But such party is deprived of the general right recognized by Section 190 CrPC of the aggrieved parties directly initiating the criminal proceedings The offences about which the court alone to the exclusion of the aggrieved private parties is clothed with the right to complain may therefore be appropriately considered to be only those offences committed by a party to a proceeding in WP(C).7641 & 8920 21 that court the commission of which has a reasonably close nexus with the proceedings in that court so that it can without embarking upon a completely independent and fresh inquiry satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party. It therefore appears to us to be more appropriate to adopt the strict construction of confining the prohibition contained in Section 196(1)(c) only to those cases in which the offences specified therein were committed by a party to the proceeding in the character as such party.” The reason behind bringing certain specified offences under the purview of Section 195 of the Cr.P.C is because the commission of those offences have direct impact on an ongoing judicial proceeding and thereby on the administration of justice. Section 193 of the IPC being one such offence the prohibition under Section 195 of the Cr.P.C 13. The next question is whether the prohibition under Section 195(1)(b)(i) of Cr.P.C is from taking cognizance only or whether the Police is interdicted from conducting investigation of the offences enumerated in the section. Senior Counsel Shri.Harin P. Rawal argued with the aid of precedents that Section 195(1)(b) does not prohibit registration of crimes and investigation by the police. This argument is countered by Senior Counsel Sri. K.M. Nataraj by drawing a distinction between Sections 195(1)(b)(i) and 195(1)(b)(ii). It is contended that all the offences mentioned in Section 195(1)(b)(i) are non cognizable and WP(C).7641 & 8920 21 hence the Police cannot register crime without following the procedure under Section 155 of the Cr.P.C and that the provision considered in the decisions cited by Mr.Raval was Section 195(1)(b)(ii) wherein the offences are cognisable. In order to address the contention it is necessary to consider the cited decisions 14. In Nirmaljit Singh Hoon v. State of W.B. 3 SCC 753 the offences were under Sections 463 471 475 476 of the IPC and hence the Apex Court held that police authorities have a statutory right under Sections 154 and 156 of the Code to investigate into a cognizable offence without requiring any sanction from a judicial authority and even the High Court has no inherent power under Section 561 A of the Codeto interfere with the exercise of that statutory power 15. In State of Punjab v. Raj Singh 2 SCC 391] the appeal had arisen from the order by which the High Court had quashed an FIR registered during the course of a civil suit alleging commission of offences under Sections 419 420 467 and 468 of the IPC. The FIR was quashed on the ground that Section 195(1)(b)(ii) of the Cr.PC prohibited entertainment of and investigation into the offences by the police. While interfering with that judgment the Honourable Supreme Court held that from a plain reading of Section 195 Cr.PC it is manifest that the prohibition comes into operation only at the stage when the WP(C).7641 & 8920 21 court intends to take cognizance of an offence under Section 190(1 Cr.PC and it has nothing to do with the statutory power of the police to investigate into an FIR which discloses a cognizable offence even if the offence is alleged to have been committed in or in relation to any proceeding in court. The Apex Court further held that the statutory power of the police to investigate under the Code is in no way controlled or circumscribed by Section 195 of the Cr.PC. That upon the charge sheetif any filed on completion of the investigation into such an offence the court would not be competent to take cognizance thereof in view of the embargo of Section 195(1)(b) of the Cr.PC but nothing therein deters the court from filing a complaint for the offence on the basis of the FIR and the materials collected during investigation provided it forms the requisite opinion and follows the procedure laid down in Section 340 of the Cr.PC 16. The distinction between Sections 195(1)(b)(i) and 195(1(b)(ii has been succinctly laid down in Narendra Kumar Srivastava v State of Bihar 3 SCC 318] in the following words “13. It is clear from sub section of Section 195 CrPC that the section deals with two separate set of offences i) of any offence punishable under Sections 193 to 196 both inclusive) 199 200 205 to 211and 228 IPC when such offence is alleged to have been committed in or in relation to any proceeding in any court of any offence described in Section 463 or punishable under Section 471 Section 475 or Section 476 IPC when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court.and Section 195(1)(b)(ii) are clearly distinct. The first category of offences refers to offences of false evidence and offences against public justice whereas the second category of offences relates to offences in respect of a document produced or given in evidence in a proceeding in any court 21. As already mentioned clauses under Section 195(1 b) CrPC i.e. sub section 195(1)(b)(i) and sub section 195(1)(b ii) cater to separate offences. Though Section 340 CrPC is a generic section for offences committed under Section 195(1 b) the same has different and exclusive application to clausesandof Section 195(1)(b) CrPC 23. In Sachida Nand Singh2 SCC 493 : 1998 SCC660] this Court had dealt with Section 195(1)(b)(ii) CrPC unlike the present case which is covered by the preceding clause of the section The category of offences which fall under Section 195(1)(b)(i CrPC refer to the offence of giving false evidence and offences against public justice which is distinctly different from those offences under Section 195(1)(b)(ii) CrPC where a dispute could arise whether the offence of forging a document was WP(C).7641 & 8920 21 committed outside the court or when it was in the custody of the court. Hence this decision has no application to the facts of the present case 24. The case in hand squarely falls within the category of cases falling under Section 195(1)(b)(i) CrPC as the offence is punishable under Section 193 IPC. Therefore the Magistrate has erred in taking cognizance of the offence on the basis of a private complaint. The High Court in our view has rightly set aside the order of the Magistrate. However having regard to the facts and circumstances of the case we deem it proper to set aside the costs imposed by the High Court.” 17. The Honourable Supreme Court had occasion to consider this question in Bandekar Brothers Pvt. Ltd and Anr v Prasad Vasudev Keni etc.the relevant portion of which is extracted hereunder “19. At this stage it is important to understand the difference between the offences mentioned in Section 195(1 b)(i) and Section 195(1)(b)(ii) of the CrPC. Where the facts mentioned in a complaint attracts the provisions of Section 191 to 193 of the IPC Section 195(1)(b)(i) of the CrPC applies. What is important is that once these sections of the IPC are attracted the offence should be alleged to have been committed in or in relation to any proceeding in any Court Thus what is clear is that the offence punishable under these sections does not have to be committed only in any proceeding in any Court but can also be an offence alleged to have been committed in relation to any proceeding in any Court 22. Contrasted with Section 195(1)(b)(i) Section 195(1 WP(C).7641 & 8920 21 b)(ii) of the CrPC speaks of offences described in Section 463 and punishable under Sections 471 475 or 476 of the IPC when such offences are alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court. What is conspicuous by its absence in Section 195(1)(b)(ii) are the words “or in relation to” making it clear that if the provisions of Section 195(1)(b)(ii) are attracted then the offence alleged to have been committed must be committed in respect of a document that is custodia legis and not an offence that may have occurred prior to the document being introduced in court proceedings. Indeed it is this distinction that is vital in understanding the sheet anchor of the Appellant s case namely this Court s judgment in Iqbal Singh Marwahof the CrPC is attracted the ratio of Iqbal Singh Marwahwhich approved Sachida Nand Singh v State of Bihar 2 SCC 493 is not attracted and that therefore if false evidence is created outside the Court premises attracting Sections 191 192 of the IPC the aforesaid ratio would not apply so as to validate a private complaint filed for offences made out under these sections.” 18. Recently in Bhima Razu Prasad v. Statethe Apex Court had occasion to consider the import of the words “in relation to” in Section 195(1)(b)(i). Paragraph 51 therein which is contextually relevant reads as under “51. The purpose of Explanation 2 to Section 193 IPC is evidently to ensure that a person who fabricates false WP(C).7641 & 8920 21 evidence before an investigating or inquiring authority prior to the trial of the case does not escape penalty. This encompasses all nature of proceedings whether civil or criminal. However whether the commission of such offence would require the complaint of a Court under Section 195(1)(b i) would depend upon the authority before whom such false evidence is given. For example if a person gives false evidence in an inquiry before the Magistrate under Section 200 CrPC that would undoubtedly be an offence committed before a Court under Section 195(1)(b)(i) CrPC. However this would not be the case where false evidence is led before an investigating officer prior to the Court having taken cognizance of the offence or the case being committed for 19. It may be pertinent to note that as far as the instant cases are concerned the Special Court has taken cognizance of the offences under the PMLA on 12.10.2020. As such recording of the accused’s statements would undoubtedly fall within the import of the words “in relation to any proceeding in any court” mentioned in Section 195(1)(b 20. The next question to be considered is whether the prohibition under Section 195(1)(b)(i) could be made applicable to all the offences or should be confined to the offences enumerated therein. The purpose behind the enactment of Section 195 being to ensure that the proceedings of the court are not sullied nor the administration of justice not meddled with if the other offences are interwoven and inseparable from the offences within ambit of Section 195(1)(b)(i) WP(C).7641 & 8920 21 necessarily the prohibition will have to be extended to the other offences also. This question was considered in Bandekar Brothers’ case and answered at paragraph 44 of the judgment as “44. Equally important to remember is that if in the course of the same transaction two separate offences are made out for one of which Section 195 of the CrPC is not attracted and it is not possible to split them up the drill of Section 195(1)(b) of the Cr.PC must be followed.” Basir ul Huq v. State of W.B. is yet another precedent which had considered the question of distinct offences disclosed by the same facts being clubbed along with offences falling within the ambit of Section 195. After holding that the bar would not apply to distinct offences the Apex Court clarified the position as “14. Though in our judgment Section 195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section it has also to be borne in mind that the provisions of that section cannot be evaded by resorting to devices or camouflages. The test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which a complaint of the court or of the public servant is required. In other words the provisions of the section cannot be evaded by the device of charging a person with an offence to which that section does not apply and WP(C).7641 & 8920 21 then convicting him of an offence to which it does upon the ground that such latter offence is a minor offence of the same character or by describing the offence as being one punishable under some other section of the Indian Penal Code though in truth and substance the offence falls in the category of sections mentioned in Section 195 of the Criminal Procedure Code. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of Section 195 prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it.” 21. The above discussion leads to the only possible conclusion of the bar under Section 195(1)(b)(i) Cr.P.C being applicable to the offences mentioned in the two FIRs the allegations being to the effect that attempts were made to fabricate false evidence and to coerce and threaten the accused to give false statements. It may be pertinent to note that if such attempts had fructified it would have definitely sullied the proceedings of the court and impacted administration of justice. Therefore even though the other offences alleged are under Section 167 and 195A of IPC they are undoubtedly interwoven with and inseparable from the offence under Section 193 and therefore susceptible to the prohibition under Section 195(1)(b)(i) of Cr.PC Adopting the same reasoning it has to be held that the offence under Section 193 IPC being a non cognisable offence the Crime Branch could not have registered the crimes without following the procedure under Section 155(1) Cr.P.C despite the deeming clause under Section 155(4). Hence the remedy of the aggrieved persons was to approach WP(C).7641 & 8920 21 the Special Court. Having held so it will be apposite to have a look at Section 340 of Cr.PC “340. Procedure in cases mentioned in Section 195.—(1) When upon an application made to it in this behalf or otherwise any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clauseof sub sectionof Section 195 which appears to have been committed in or in relation to a proceeding in that Court or as the case may be in respect of a document produced or given in evidence in a proceeding in that Court such Court may after such preliminary inquiry if any as it thinks necessary — a) record a finding to that effect b) make a complaint thereof in writing c) send it to a Magistrate of the first class having d) take sufficient security for the appearance of the accused before such Magistrate or if the alleged offence is non bailable and the Court thinks it necessary so to do send the accused in custody to such Magistrate and e) bind over any person to appear and give evidence before such Magistrate.” 22. From a reading of the Section it is evident that any aggrieved person can alert the court about commission of a crime committed WP(C).7641 & 8920 21 with intent to mislead the court or to scuttle the proceedings pending before it and that even in the absence of any complaint the court is at liberty to take action on receiving information regarding commission of offences enumerated under Section 195(1)(b). In N Natarajan v. B.K. Subba Rao2 SCC 76] the Apex Court has upheld the right of any aggrieved citizen to approach the jurisdictional court under Section 340 in the following words “8. In our view it is not necessary to pursue the approach of either of the parties. It is well settled that in criminal law a complaint can be lodged by anyone who has become aware of a crime having been committed and thereby set the law into motion. In respect of offences adverted to in Section 195 CrPC there is a restriction that the same cannot be entertained unless a complaint is made by a court because the offence is stated to have been committed in relation to the proceedings in that court. Section 340 CrPC is invoked to get over the bar imposed under Section 195 CrPC. In ordinary crimes not adverted to under Section 195 CrPC if in respect of any offence law can be set into motion by any citizen of this country we fail to see how any citizen of this country cannot approach even under Section 340 CrPC. For that matter the wording of Section 340 CrPC is significant. The court will have to act in the interest of justice on a complaint or otherwise Assuming that the complaint may have to be made at the instance of a party having an interest in the matter still the court can take action in the matter otherwise than on a complaint that is when it has received information as to a crime having been committed covered by the said provision Therefore it is wholly unnecessary to examine this aspect of the matter. We proceed on the basis that the respondent has WP(C).7641 & 8920 21 locus standi to present the complaint before the Designated The point that emerges is that either on being alerted through an application or on getting information regarding the commission of the offence under Section 195(1)(b) the jurisdictional court can conduct a preliminary enquiry and form the opinion whether it is expedient to conduct an enquiry. Further if convinced about the need for an enquiry the court can record its finding to that effect and make a complaint in writing and send it to the magistrate of first class having 23. As far as the instant cases are concerned the Special Court has already received a complaint from Sri.Sandeep Nair and has allowed the application submitted by the Crime Branch to question him in jail. The 161 statement of Sri.Sandeep Nair recorded thereafter was made available to me in a sealed cover. In my considered opinion while interdicting the Police from continuing the investigation interest of justice requires that the Special Judge be permitted to look into the materials collected by the Crime Branch treating it as the information mentioned in Section 340(1) so as to decide whether it is expedient to conduct an enquiry In the result the FIR and further proceedings in Crime Nos. 921 and 921 of Crime Branch Police Station are quashed. The Investigating Officers shall forthwith submit all records pertaining to the crimes before the Special Court in a sealed cover. The learned WP(C).7641 & 8920 21 Special Judge can look into those records and other materials if any available while deciding whether it is expedient to conduct an enquiry The writ petitions are disposed of as above Sd V.G.ARUN JUDGE WP(C).7641 & 8920 21 APPENDIX OF WP(C) 7641 2021 PETITIONER S S EXHIBITS TRUE COPY OF THE FIR NO.0094 2021 DATED 17.3.2021 OF CRIME BRANCH POLICE STATION JFCM II ERNAKULAM TRUE COPY OF THE JUDGMENT DATED 25.1.2021 PASSED BY THIS HON BLE COURT IN B A TRUE COPY OF THE ORDER DATED 5.3.2021 PASSED BY THE HON BLE SUPREME COURT IN SLP TRUE COPY OF THE ORDER DATED 21.8.2020 IN CRL.MC NO.1576 2020 OF THE COURT OF SESSIONS ERNAKULAM TRUE COPY OF THE COMPLAINT FILED UNDER S. 44 AND 45 AND PMLA BEFORE THE SPECIAL COURT ERNAKULAM DATED 6.10.2020 TRUE COPY OF THE ORDER DATED 15.10. 2020 PASSED BY THE HON BLE SPECIAL COURT FOR PMLA CASES ERNAKULAM IN CRL. M. C TRUE COPY OF THE ORDER DATED 29.10.2020 GRANTING CUSTODY OF SIVASANKAR IN CRL.M.P.NO.1588 OF 2020 TRUE COPY OF THE STATEMENT GIVEN BY MS. SWAPNA SURESH U S.50 OF PMLA DATED TRUE COPY OF THE STATEMENT OF MS. SWAPNA SURESH DATED 14.12.2020 TRUE COPY OF THE STATEMENT OF MS. SWAPNA SURESH DATED 15.12.2020 TRUE COPY OF THE STATEMENTS OF SANDEEP NAIR TRUE COPY OF THE STATEMENTS OF SANDEEP NAIR TRUE COPY OF THE ADDITIONAL STATEMENT OF SANDEEP NAIR DATED 10.8.2020 WP(C).7641 & 8920 21 EXHIBIT P13REMANDING TO JUDICIAL CUSTODY OF ACCOUSED 1 2 AND 4 TRUE COPY OF THE STATEMENT OF MS.SWAPNA SURESH DATED 13.8.2020 TRUE COPY OF THE ORDER DATED 15 10 2020 PASSED BY THE SPECIAL COURT PMLA IN CRL. MC NO.1920 2020 REJECTING BAIL APPLICATION OF TRUE COPY OF THE SUPPLEMENTARY COMPLAINT DATED 24.12.2020 SUBMITTED BEFORE THE WP(C).7641 & 8920 21 SPECIAL COURT OF PMLA UNDER S. 44 AND 45 OF TRUE COPY OF THE ORDER DATED 28.10.2020 PASSED BY THIS HON BLE COURT IN B.A.NO.6752 TRUE COPY OF THE ORDER DATED 17.11.2020 PASSED BY THE HON BLE SPECIAL COURT FOR PMLA CASES AT ERNAKULAM REJECTING BAIL APPLICATION OF M.SIVASANKAR TRUE COPY OF THE STATEMENT DATED 11.12.2020 OF SMT. SIJIVIJAYAN CIVIL POLICE OFFICER 9692) PALARIVATTOM POLICE STATION COCHIN CITY ATTACHED WITH READABLE COPY OF THE SAME AND THE TRUE ENGLISH TRANSLATION TRUE COPY OF THE PETITION DATED 5.3.2021 OF SH. SANDEEP NAIR FILED BEFORE THE HON BLE SESSIONS COURT ERNAKULAMDATED 4.3.2021 BEFORE THIS HON BLE COURT CRL MC 5743 OF 2020 TRUE COPY OF THE STATEMENT OF MS SWAPNAPRABHASURESH DATED 5.8.2020 RECORD BY THE ENFORCEMMENT DIRECTORATE U S 50 OF THE TRUE COPY OF THE STATEMENT OF MS. SWAPNA PRABHA SURESH DATED 6 8 2020 RECORDED BY THE ENFORCEMENT DIRECOTORATE US 50 OF THE TRUE COPY OF THE STATMENT F MS SWAPANA PRABHA SURESH DATED 7.8.2020 RECORDED BY THE ENFORCEMENT DIRECTORATE U S 50 OF THE TRUE COPY OF THE STATEMENT OF MS SWAPNA PRABHA SURESH DATED 8.8.2020 RECORDED BY THE ENFORMEMENT DIRECTORATE U S 50 OF THE WP(C).7641 & 8920 21 TRUE COPY OF THE STATEMENT OF MS SWAPNAPRABHA SURESH DATED 10.8.2020 RECORDED BY THE ENFORCEMENT DIRECTORATE U S 50 OF THE PMLA TRUE COPY OF THE STATEMENT OF MS SWAPNAPRABHA SURESH DATED 13.8.2020 RECORDED BY THE ENFORCEMENT DIRECOTRATE U S 50 OF THE PMLA TRUE COPY OF THE STATEMENT OF MS SWAPNAPRABHA SURESH DATED 15.8.2020 RECORDED BY THE ENFORCEMENT DIRECTORATE U S 50 OF THE PMLA EXHIBIT P35: COPY OF STATEMENT OF MS.SWAPNA PRABHA SURESH DATED 16.8.2020 EXHIBIT P36: COPY OF STATEMENT OF MS.SWAPNA PRABHA SURESH DATED 3.11.2020 RECORDED BY THE ENFORCEMENT DIRECTORATE U S.50 OF THE PMLA EXHIBIT P37: COPY OF STATEMENT OF MS.SWAPNA PRABHA SURESH DATED 10.11.2020 RECORDED BY THE ENFORCEMENT DIRECTORATE U S.50 OF THE PMLA EXHIBIT P38: COPY OF STATEMENT OF MS.SWAPNA PRABHA SURESH DATED 14.12.2020 RECORDED BY THE ENFORCEMENT DIRECTORATE U S.50 OF THE PMLA EXHIBIT P39: COPY OF STATEMENT OF MS.SWAPNA PRABHA SURESH DATED 15.12.2020 RECORDED BY THE ENFORCEMENT DIRECTORATE U S.50 OF THE PMLA EXHIBIT P40: COPY OF STATEMENT OF MS.SWAPNA PRABHA SURESH DATED 16.12.2020 RECORDED BY THE ENFORCEMENT DIRECTORATE U S.50 OF THE PMLA EXHIBIT P41: COPY OF CRL.MC.1576 OF 2020 OF THE PRINCIPAL SESSIONS COURT ERNAKULAM DATED 13.8.2020 EXHIBIT P42: COPY OF ORDER DATED 21.8.2020 IN CRL.MC.NO.1576 OF 2020 OF THE PRINCIPAL SESSIONS COURT ERNAKULAM EXHIBIT P43: COPY OF CRL.MC.NO.1899 OF 2020 OF THE PRINCIPAL SESSIONS COURT ERNAKULAM DATED 5.10.2020 EXHIBIT P44: COPY OF ORDER DATED 13.10.2020 IN CRL.MC.1899 OF 2020 OF THE PRINCIPAL SESSIONS COURT ERNAKULAM EXHIBIT P45: COPY OF CRL.MC.NO.1920 OF 2020 OF THE SESSIONS AND SPECIAL COURT FOR TRIAL FOR PMLA DATED 7.10.2020 EXHIBIT P46: COPY OF ORDER DATED 15.10.2020 IN CRL.MC.NO.1920 OF 2020 OF THE SESSIONS AND SPECIAL COURT FOR PMLA CASES EXHIBIT P47: COPY OF REGULAR BAIL APPLICATION IN CRL.M.P.NO.221 2021 IN SC.NO.610 OF 2020 OF SESSIONS COURT DATED 27.1.2021 EXHIBIT P48: COPY OF ORDER DATED 2.11.2020 IN CRL.M.P.NO.1593 OF 2020 OF THE SESSIONS AND SPECIAL COURT FOR PMLA EXHIBIT P49: COPY OF ORDER IN CRL.M.P.NO.1640 OF 2020 OF THE PRINCIPAL SESSIONS COURT ERNAKULAM DATED 9.11.2020 WP(C).7641 & 8920 21 EXHIBIT P50: COPY OF ORDER DATED 14.12.2020 IN CRL.M.P.NO.1808 OF 2020 OF THE PRINCIPAL SESSIONS COURT ERNAKULAM RESPONDENT S S EXHIBITS A TRUE COPY OF THE LETTER DATED 20.11.2020 WP(C).7641 & 8920 21 APPENDIX OF WP(C) 8920 2021 PETITIONER S S EXHIBITS TRUE COPY OF THE FIR NO.98 CB ALP D 2021 DATED 27.03.2021 WITH ENGLISH TRANSLATION TRUE COPY OF THE PETITION DATED 05.03.2021 SUBMITTED BEFORE THE HONOURABLE DISTRICT AND SESSIONS COURT ERNAKULAM TRUE COPY OF THE ORDER DATED 31.03.2021 IN CRL.M.P.NO.731 2021 IN SC NO.610 2020 OF SESSIONS COURT ERNAKULAM EXHIBIT P4: COPY OF APPLICATION DATED 31.3.2021 IN CRL.M.P.NO.731 OF 2021 IN SC.NO.610 OF 2020 ON THE FILES OF THE DISTRICT AND SESSIONS JUDG ERNAKULAM WITH ENGLISH TRANSLATION EXHIBIT P5: COPY OF PETITION DATED 3.4.2021 SEEKING RECORDING OF S.164 CRPC FILED BEFORE THE CJM ENRNAKULAM WITH ENGLISH TRANSLATION RESPONDENT S S EXHIBITS COPY OF LETTER DATED 20.11.2020 FORWARDING LETTER DATED 05 03 2021 BY THE SUPERINTENDENT CENTRAL PRISON ADDRESSED TO PRINCIPAL SESSIONS COURT ERNAKULAM

Seniority is determined on the basis of date of appointment: Supreme Court

Those selected and appointed through a prior selection would rank higher to those selected and appointed through a later selection process. The Supreme Court bench consisting of J. Indira Banerjee and J. S. Ravindra Bhat, decided upon the seniority in the appointment process as prescribed under Rule 27 of the Rajasthan Commercial Taxes Subordinate Services (General Branch) Rules, 1975 in the case of Manohar Lal Jat & Ors. Etc. v. The State Of Rajasthan & Ors. Etc. [Civil Appeal No. 3834 of 2020]. The Finance Department of the Government of Rajasthan granted approval for creation of 554 posts of Tax Assistants in accordance with the amendments to the Rajasthan Commercial Taxes Subordinate Services General Branch Rules, 1975. Later, the Departmental Selection Committee was constituted for recruitment of both categories and proceedings were initiated soon filling all for the 554 posts of Tax Assistants. In accordance with the rules, 80% quota of direct recruits to the extent of 443 vacancies and 111 from amongst DPs. Accordingly an advertisement was issued and a written examination, stipulated under the rules, was conducted for the recruitment. 356 candidates participated in the typing tests after which a list of successful candidates was written by the Commissioner, Department of Commercial Taxes to the police authorities, for due verification of their character and anecdotes. The DRs were appointed and the DPs had already been promoted. The Department later published a seniority list in which the DPs where shown as senior to the DR/appellants. The DRs objected to this to which another provisional list was issued, which was almost same to the previous one. The Direct Recruits (DRs) filed Writ Petitions contending that the seniority lists were contrary to law to which another list was issued with again, no change. Another proceeding was instituted wherein the prominent ground of attack in the writ petition was that the recruitments of the DRs and DPs took place simultaneously and that the departmental candidates were mala fide issued with appointment letter earlier, for no reason except to ensure that their dates of entry into the cadre of tax inspectors were earlier, in order to favour their further career progression. The High Court took notice of Rule 27(2) and decided against the appellants.  

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NONO(S). 26669 26670 2018) MANOHAR LAL JAT & ORS. ETC. ...APPELLANT(S) THE STATE OF RAJASTHAN & ORS. ETC. ...RESPONDENT(S) CIVIL APPEAL NO. _3834 OF 2020 ARISING OUT OF SLPNO. 26671 2018) JUDGMENT S. RAVINDRA BHAT J. Leave granted. With consent of all the counsel for parties the appeals were heard finally and judgement was reserved on 24th January 2020. These appeals challenge the common judgement of the Rajasthan High Court1. The Division Bench of the High Court by the impugned judgement set aside an order made by the learned single judge of that court and held that the present Appellantswere not entitled to claim seniority over and above the respondents hereafter called “departmental promotes” or “DPs”). The DRs had approached the High Court in 1Sitting at its Jaipur Bench in DB Special Appeal Writ Number 1053 2017 and DB Special Appeal Writ No. the first instance claiming that the seniority list showing the DPs in earlier positions was untenable the single judge allowed that petition. The Division Bench has however allowed the appellants to question the eligibility of DPs to be recruited. 2. The relevant facts are that on 01.09.2009 the Finance Department of the Government of Rajasthan granted approval for creation of 531 posts of Tax Assistants. This newly created post was augmented by further 23 posts which were added to the cadre the final tally of such newly created posts of Tax Assistants became 554. Amendments to the Rajasthan Commercial Taxes Subordinate Services General Branch Rules 1975 made with effect from 01.12.2010 prescribed the manner of filling of posts of Tax Assistants. Schedule I of the Amendment Rules defined the manner of filling of the posts in the following terms: “100% by direct recruitment: a) 80% by the appointing authority in accordance with Schedule III b) 20% by selection from amongst ministerial staff of the commercial taxes department that by way of departmental examination in accordance Schedule II” 3. On 4th October 2010 a Departmental Selection Committee was constituted for recruitment of both categories and proceedings were initiated soon filling all the for 554 posts of Tax Assistants. In accordance with the rules it was proposed to fill the 80% quota of direct recruits to the extent of 443 vacancies and 111 from amongst DPs. Accordingly on 25.01.2011 and advertisement was issued for recruitment of DRs. The written examination stipulated under the rules was conducted for recruitment of DR’s thereafter a typing test was conducted on 15.05.2011. 356 candidates participated in this typing test. On 16.05.2011 provisional results were declared for the test held for DRs. Thereafter letters were apparently written by the Commissioner Department of Commercial Taxes enclosing a list of successful candidates to the police authorities for due verification of their character and antecedents. On 24.05.2011 the department advertised for filling up of the 20% quota for DPs. Earlier the proposal was to hold the written examination for the DPs on 24.06.2011 however it was held earlier on 11.06.2011 and 12.06.2011. The results of these tests for the DPs were announced on 14.06.2011 and the department issued promotion letters on 23.06.2011. On 24.06.2011 the appellants were issued with letters for police verification and medical test. By this time however the DPs had already been promoted and had taken charge of their posts. The appointment orders of the DRs were issued subsequently on 04 07 2011. On 5th June 2013 the Commercial Taxes Department of the State of Rajasthan published a seniority list in which those appointed as DPs in the 20% quota were shown as senior to the DR the appellants. Apparently some of the DRs including the appellants objected to this placement and sought for correction of the seniority list2. Another provisional tentative seniority list was issued on 15 05 2014 in which the position was no different inasmuch as the DPs were shown above the DRs. The appellants again objected nevertheless on 18 09 2015 the Department substantially confirmed their previous positions in the final list published by it. The Direct Recruitsfiled one set of Writ Petitions3 contending that the seniority lists were contrary to law. Yet another seniority list was issued by the Department on 30.05.2016 in which the previous position of the DPs was left undisturbed. This became the subject matter of challenge before another proceeding4. Though the two writ proceedings had challenged the seniority position allotted to the DRs except the few DPs and official respondents no 2The third appellant Ankur Kumar Bansal objected through a representation dated 27.06.2013 in effect stating that the placement of DPs above the DRs was unjustified and contrary to the rules. 3 Manohar Lal Jat & Ors. vs. State of Rajasthan &Ors. 4 Gajendra Singh & Ors. vs. State of Rajasthan &Ors. CWP Np. 46317 others were impleaded. The prominent grounds of attack in the writ petition were that the recruitments of the DRs and DPs took place simultaneously and that the departmental candidates were mala fide issued with appointment letters earlier for no reason except to ensure that their dates of entry into the cadre of tax inspectors were earlier in order to favour their further career progression. A learned Single Judge of the High Court by Judgment dated 25.05.2017 considered Rule 27 of the concerned Rules which stated that those who undergo recruitment process in an earlier selection will be placed at senior positions to those who undergo recruitment in a selection by a later process. The Single Judge concluded as follows: “16. A glance of Rule 2 would reveal advertisement dated 25th January 2011 was issued with reference to the vacancies of the year 2010 2011. Obviously the advertisement dated 24th May 2011 would be a recruitment process with reference to the vacancies of the subsequent year 2011 2012. The respondents are curiously silent on this aspect in their counter affidavits as well as during the arguments. A conjoint reading of Rule 2(1) and 27 of the Rules of 1975 would leave no room of any doubt that the persons selected and appointed as a result of a selection process which is not subject matter to review and revision shall rank senior to the persons who are selected and appointed as a result of subsequent selection. Thus the phrase „subsequent selection‟ under Rule 27 read with Section 2(1) leads to logical conclusion that the petitioners are employees who were appointed in a previous selection and the private respondentsare the persons who were accorded appointment in a „subsequent selection‟. Hence those departmental candidates cannot be allowed to march over and above in the seniority to the petitioners who are the successful selected candidates of a previous selection process.” 5 Rajasthan Commercial Taxes Subordinate ServicesRules 1975 5 The DRs aggrieved by the Judgment of the learned Single Judge preferred appeals to the Division Bench Special Appeal Writ No. 10517 and Special Appeal Writ No. 12517. Since all the Departmental Promoteeswere not represented before the Single Judge many of them preferred third party appeals. The Division Bench by its impugned Judgment allowed these appeals by DPs after noticing that Rule 27 which had been relied upon by the Single Judge had been amended. The Division Bench took note of the fact that after amendment with the amendment provisos have been added. 10. The Court held that the main provision of the Rule 27 was amended on 10.10.2002 which added a second proviso and that the proviso would operate when two selections are for one and the same category. The relevant observations of the Division Bench are as follows: “In our opinion there is conflict between the main provision of rule 27 and second proviso. If proviso is applied taking into consideration the earlier and subsequent selection followed by appointment then in a given case where a selection was started earlier to subsequent but the appointment is given first to those selected pursuant to subsequent selection the relevance of the date of appointment gets nullified. It is because of appointment of the candidates pursuant to the subsequent selection prior to the appointment of the candidates out of earlier selection. They would not get seniority despite earlier appointment and thereby significance to the date of appointment given in Rule 27 would be violated. The proviso cannot nullify the main provision and in those circumstances consideration of two provisions has to be made. The proviso would operate when two selections are for one and the same category.” 11. According to the Division Bench thus the two categories DPs and DRs were different and it was not open to the DRs especially after a long lapse of time to question the placement in the seniority list of the DPs. However since the DRs Original Writ Petitioners had argued before the Division Bench about the ineligibility of DPsto participate in the selectionthat issue was kept open. Arguments of parties 12. Mrs. Aishwarya Bhati learned Senior Counsel and Mr. Prashant Bhushan appearing on behalf of the appellants argued that the Division Bench ignored the fact that recruitments in this case were conducted with two different advertisements for the same post the appellants who were from open category against 80% quota were selected earlier and the other set of departmental employees were recruited later. In terms the DR answered the description of having been selected earlier and having participated in an earlier recruitment process. On the other hand the DPS responded to a different advertisement issued later and underwent a separate selection process. Plainly having regard to the express terms of the rule i.e. Rule 27 the seniority of the direct recruits i.e. the appellants and others like them) had to be determined at posts earlier than or senior to the DPs who were selected later. It was argued that the mere incidence of issuance of earlier appointment letters could not have resulted in an undue and unfair advantage to the DPs as to deprive the DRs of earlier slots of the common seniority lists. Elaborating on this aspect learned counsel relied upon the observations of the Single Judge and stated that selection or recruitment for the DR quota were advertised on 25.01.2011 the test was conducted on 17.04.2011 and on 16.05.2011 the select list for the DR category was published. However the Commercial Taxes Department deliberately withheld issuing appointment letters and released another advertisement to fill up the DP 20% quota of the ministerial employees who were working in the same department. The departmental examination for the DP quota was conducted on two successive dates i.e. 11.06.2011 and 12.06.2011. The learned counsel highlighted that this was despite the fact that the departmental test was originally scheduled later. Having proceeded to schedule the test earlier the state proceeded with unusual speed and published the results of the DP category candidates for the 20% quota on 14.06.2011 and hastily issued appointment letters on 23.06.2011. It was only thereafter that the appointment letters of DR category candidates were issued. It was submitted that these circumstances ipso facto established malice against DRs and advertisement on the part of the State and its officers to grant undue and unfair advantage to the DP category of candidates. 14. Learned counsel highlighted that the representation letter by the General Secretary of the Departmental Employees Association had pressurised the Commercial Tax Department to recruit DPs earlier and relied upon a letter dated 19.05.2011. The conduct and action of the State in speeding up the process of selection of the DP quota to the utter disadvantage of the DR recruits was thus established from the record. The department in fact given unprecedented priority to select candidates for the 20% departmental quota. 15. Learned counsel also argued that the explanation given by the State for the delay that occurred in issuing appointment letters to the DR quota candidates has to be considered in the light of these established facts. The learned counsel emphasised that it was only after the appointment letters were issued to the DP candidates in the 20% category on 24.06.2011 that a mere 10 days later i.e. 14.07.2011 appointment letters were issued to the DR It was lastly argued that the Division Bench while ignoring the facts of the case interpreted the rules Rules 1975incorrectly. The original Rule 27 which was amended by notification dated 10.10.2002 which reckoned the seniority from the date of appointment. However the provisoof the Rules 27 was retained which clearly stipulates “that the persons selected and appointed as a result of selection which is not subjected to review and revision shall rank senior to the persons who are selected and appointed as a result of subsequent selection. Seniority inter se of persons selected on the basis of seniority cum merit and on the basis of merit in the same selection shall be same as in the next below grade”. It is argued that pertinently the intent of the rule in retaining the proviso 2) of the said rule was to avoid ambiguity in reckoning seniority in the cases wherein the selection for the same post i.e. “Tax Assistants’ is done through two different sources wherein the date of advertisements and selection processes are different. The proviso carves out an exception to the main provision and the function of the proviso is to limit the main part of the provision and carve out something which but for the proviso would have been within the operative part. This Court in various judgments such as S. Sundaram Pillai and others Vs. V. R. Pattabiraman and Others6 J.K. Industries Ltd. and & Ors Chief inspector of Factories and Boilers & Ors7 held “proviso is an exception to the main part of the section but it is recognized that in exceptional cases a proviso may be substantive provision itself.” It is urged that the amended rule 27 only speaks about the seniority on the basis of date of appointment however the provisoclarifies the rule for reckoning seniority when there are two advertisements for the same post filled through different categories of candidates. Therefore the main rule will only apply when the recruitment is through the same advertisement. It cannot be applied in a case where another advertisement is issued for the same post after the release of the results of the first advertisement and appointment order is given in the later case. This process of arbitrary recruitment will always deprive of the candidates in their order of seniority in their whole service tenure which is against the principles of Article 14. 6(1985) 1 SCC 591 71996) 6 SCC 665 19. Dr. Manish Singhvi the learned Additional Advocate General appearing on behalf of the State of Rajasthan and Mr. R. Venkatramani learned Senior Counsel appearing on behalf of the contesting respondents Departmental Promotee candidates made their submissions. It was argued on behalf of the State respondents that the permission for creation of 531 posts was given on 01.09.2009 and later 23 posts were added. The recruitments in question resorted to in 2011 through the two advertisements issuedwas the first recruitment drive to fill up these newly created posts which had hitherto not existed. It was urged on behalf of the State that these circumstances of the case are to be kept in mind from an important perspective i.e. the first attempt of the State to fill up a large number of posts after they were encadred and were lying unfilled for nearly two years. Learned counsel submitted that no doubt advertisements to fill up the DR vacancies were issued prior in point of time i.e. in January 201 however in response to this advertisement for the 80% vacancies no less than 15 352 applications were received these has to be screened to determine eligibility of the candidates thereafter the written examination was conducted on 17.04.2011. A typing test was also conducted on 15.05.2011 for 356 candidates. A provisional result was declared on 16.05.2011. The learned Additional Advocate General emphasized that the police verification and medical examination processes took a little while for such a large number of candidates and was eventually completed on 01.07.2011. It was urged that two months period for completing this process cannot be considered unreasonable for any stretch of imagination since Rajasthan is the largest State geographically and has about 35 districts. The advertisement for departmental candidates was in the meanwhile issued on 24.05.2011. For filling 111 vacancies 232 applications were received written test was held on two dates i.e. 11th and 12th June 2011. The DPs were not required to undergo any typing test nor require police verification and medical examination since they were working with the Government for a considerable period of time. The process for final appointment thus was relatively easy. In these circumstances their results were compiled and published on 14.06.2011 but having regard to the simplified and shortened nature of the selection process they were appointed on 24.06.2011. 21. The learned Additional Advocate General and Senior Counsel for the contesting respondents submitted that the Division Bench correctly concluded that the underlying idea behind Rule 27 and the principle of seniority indicated by it which is that those selected earlier would rank earlier to those selected later would apply in the case of recruits in the same category. Thus for instance if within the DR quota there are two sets of selections the Rule enunciated in Rule 27 squarely applied however that principle would be inapplicable where the recruits are appointed from different categories such as promotees and direct recruits. In such cases the main part of the Rule i.e. seniority based upon the entry into the cadre would squarely applied. 22. Learned senior counsel highlighted that the consistent view of this Court in several decisions has been to confine the proviso within the field of its operation and not allow it to supplant the main or enacted portion contained in the provision of which the proviso relates to. It is thus urged that the proviso cannot be interpreted as nullifying the enactment or taking away something conferred by the main section or provision. Learned counsel relied upon certain decisions in this regard8. The learned AAG emphasized that the facts on record show that the entire cadre was created for the first time by the single notification dated 01.12.2010. The recruitment to the two categories occurred as a first time measure. That advertisements were issued on different dates one for direct recruits and the other for direct promotees did not make them separate recruitment processes. They were contemporaneous in that the State 8Casio India Pvt. Ltd. v. State of Haryana 6 SCC 209 & Rohitash Kumar v. Om Prakash Sharma and Ors.11 SCC 451. 11 intended the selected candidates to man the same post. Thus it could not be argued that appointments made in the 80% quota for DR candidates was for a previous yeara different kind of advertisement with relevant eligibility conditions was issued. This did not mean that separate selection processes were held since the department had vacancies in a new post for the first time recruitment had to be considered common. Relevant rules: 24. Rule 27 of the Rajasthan Commercial Taxes Subordinate Services General Branch) Rules 1975 was taken note of by the learned Single Judge. The relevant extract of that Rule is reproduced below: “27. Seniority “Seniority of persons appointed to the lowest post of the Service or lowest categories of posts in each of the Group Sections of the Service as the case may be shall be determined from the date but in respect of persons appointed by promotion to other higher posts Rule 2 reads as follows: “Definition 2.In these rules unless the context otherwise requires: l) Year “means financial year”. in the Service or other higher categories of posts in each of the Groups Sections in the Service as the case may be shall be determined from the date of their regular selection to such posts. 1) That the seniority inter se of the persons appointed to the Service before the commencement of the rules and or in process of integration of the Services of the pre reorganisation of States of Rajasthan or the Services of the new State of Rajasthan established by the State Re organisation Act 1956 shall be determined modified or altered by the Appointing Authority on an ad hoc basis 2) That the persons selected and appointed as a result of a selection which is not subject to review and revision shall rank senior to the persons who are selected and appointed as a result of subsequent selection. Seniority inter se of persons selected on the basis of seniority cum merit and on the basis of merit in the same selection shall be the same as in the next below grade ” extracted below: 25. With effect from 10.10.2002 the main provision of Rule 27 was amended even while maintaining the two provisos below it. This was referred to by the Division Bench in its impugned judgment. The amendment to the Rule is “AMENDMENT: In the column of the Schedule attached herewith following words shall be substituted in place of every Service Rule Col. No.4 with regard to substantial provisions except their provisions) which means: „Seniority in respect of persons appointed on the posts included in the cadre of service shall be as per the provisions of these rules and shall be fixed from the date of their appointment. Those appointed on ad hoc or urgent temporary basis they shall not be considered after their regular selection.” 13 26. The following provisos to the above main provision were left intact: “Provided that 1) That the seniority inter se of the persons appointed to the Service before the commencement of the rules and or in process of integration of the Services of the pre reorganisation of States of Rajasthan or the Services of the new State of Rajasthan established by the State Re organisation Act 1956 shall be determined modified or altered by the Appointing Authority on an ad hoc basis 2) That the persons selected and appointed as a result of a selection which is not subject to review and revision shall rank senior to the persons who are selected and appointed as a result of subsequent selection. Seniority inter se of persons selected on the basis of seniority cum merit and on the basis of merit in the same selection shall be the same as in the next below grade ” 27. Thus the main provision was amended as to clearly provide that seniority in the cadre would be fixed from the dates of appointment of the employees or officers to the cadre. 28. The question to be decided here is having regard to the fact that the DPs were concededly appointed prior to the DRs where the latter as is argued by them appointed on the basis of merit “in the same selection”10 The DRs argument is that their appointment later than the DPs is the result of manipulation by the departmentwho wished to favor the DPs and that since their selections began before that of the DPs the second proviso is attracted for determination of inter se seniority. They also argue that the selection in terms of the rules “subsequent selection” necessarily refers to a chronologically later event in the present case the recruitment of the DRs began with the advertisement in January 2011 thus in the earlier financial year having regard to Rule 2 whereas the selection process for DPs began in May 2011. 29. On a plain reading of the entire ruleand the two provisos) what is evident is thatbefore the amendment of 2002 seniority of personnel appointed to the “lowest categories of posts” in any department was to be determined as from the date of appointment however for promotees it was to be from the date of selection after the amendment of 2002 seniority has to be fixedas on the date of appointment to the post or service however in the case of pre state integration of stateor pre integration of services seniority could be “modified or altered by the Appointing Authority on an ad hoc basis” this clearly was meant to be a “sunset” clause i.e. operative for a limited period the second proviso which is the one pressed into service by the DRs states that seniority of those selected earlier will be determined over those selected latter. 30. Plainly the principal mandate of the rule is that seniority is determined on the basis of date of appointment lists out two rules. The first is that those selected and appointed through a prior selection would rank senior to those selected and appointed through a later selection process. The High Court in this case was of the opinion that this rule applied to selections from the same source i.e. where two sets of direct recruits were appointed those selected through a previous recruitment process would rank senior to those recruited through a later recruitment process. This interpretation is in this court’s opinion salutary. There may be various reasons why the ultimate appointment of one batch of recruits may be delayed: challenges to some part of the recruitment process during which period a subsequent recruitment may be undertaken. To forestall any apprehensions as to which of the appointees would be senior and if those from the earlier process are appointed later the proviso clarifies that candidates from the earlier process would rank senior despite the main rule speaking of a date of appointment based seniority. The same logic would apply to departmental promotees as well if two batches of promotees are appointed through selection. The second limb of the second proviso clarifies that when merit based or seniority based promotions are resorted to the applicable norm would be seniority in the feeder cadre to forestall any debate about the rule of meritbeing the guiding principle. In Prem Kumar Verma v. Union of India11this court had to consider Rule 303 of the Railway Establishment Manual which was phrased like Rule 27 in the present case. The extract of the relevant discussion is as follows: “4. In view of the rival submissions at the Bar the first question that would arise for consideration is which Rule would govern the inter se seniority. It is undisputed that vacancies arose prior to July 1989 and advertisement for the said post had been issued earlier to July 1989 and finally the Railway Recruitment Board concluded its selection process and selected 29 candidates on 11 7 1989. Therefore the relevant Rules as existed then would govern the inter se seniority. The next question that arises for consideration is which is the relevant Rule that was in force in July 1989. From the materials produced before us it appears that para 303 of the Manual as it stood in July 1989 is to the following effect: “303. The seniority of candidates recruited through the Railway Service Commission or by any other recruiting authority should be determined as under: a) Candidates who are sent for initial training to training schools will rank in seniority in the relevant grade in the order of merit obtained at the examination held at the end of the training period before being posted against working posts. b) Candidates who do not have to undergo any training the seniority should be determined on the basis of the merit order assigned by the Railway Service Commission or other recruiting authority.” 11(1998) 5 SCC 457 16 Later on sometime in the year 1990 Rule 303(a) was amended by inserting the following expression: “Those who joined the subsequent course for any reasons whatsoever and those who passed the examination in the subsequent chance will rank junior to those who had passed the examination in earlier courses.” The aforesaid Rule stood further amended in 1993 which reads thus: “In case however persons belonging to the same RRB panel are sent for initial training in batches due to administrative reasons and not because of reasons attributable to the candidates the inter se seniority will be regulated batchwise provided persons higher up in the panel of RRB not sent for training in the appropriate batch due to administrative reasons shall be clubbed along with the candidates who took the training in the appropriate batch for the purpose of regularising the inter se seniority provided such persons pass the examination at the end of the training in the first 5. In view of our conclusion that the posts fell vacant prior to July 1989 and the process of selection was completed and the Recruitment Board selected the candidates on 11 7 1989 the amendment that was introduced on 5 5 1990 and the further amendment of 1993 will have no application and it is the unamended Rule 303(a) as it stood on 11 7 1989 that would govern the case of inter se seniority. The analysis of the provisions of para 303 indicates that where candidates are required to undergo some training after being selected through Railway Service Commission or any other recruiting authority their seniority is determined on the basis of their respective merit in the examination held at the end of the training period and where candidates do not have to undergo any training the seniority is determined on the basis of the merit assigned by the Railway Service Commission or other recruiting authority. In the present case the candidates had to undergo training and in fact they had undergone training in batches as already stated. In that view of the matter their seniority had rightly been determined by the Railway authority on the basis of their respective merit obtained in the examination held at the end of the training 17 period. The Tribunal committed error by altering the said seniority on the basis of a rule which was not in existence on the date the vacancy arose and on the date when the selection was 32. Keeping in mind that the advertisements were issued one after the other and more importantly that this was the first selection and recruitment to a newly created cadre the delay which occurred on account of administrative exigencies and also the completion of procedure such as verification of antecedents) the seniority of the promotees given on the basis of their dates of appointment is justified by Rule 27 in this case. The impugned judgment in the opinion of this court is not erroneous it does not call for interference. In view of the above discussion the appeals are dismissed without order on costs. New Delhi November 26 2020. [S. RAVINDRA BHAT]

Section 21(5) of SRA, 1963 makes it clear that no compensation will be awarded under this Section unless the plaintiff has claimed such compensation in his plaint: Delhi HC

The explanation of section 21 of Specific Relief Act, 1963 states that because the contract has become incapable of specific performance, it does not preclude the Court from exercising the jurisdiction conferred by this Section. This judgment was delivered by single bench comprising hon’ble Justice Rajiv Shakdher at Delhi High Court in the matter of Shri Vijay Israni v. Shri Salim Lalvani [CS (OS) – 1995 OF 2008]. The ATS concerns offer of half unified offer in a developed property situated at A-1/149, Safdarjung Enclave, New Delhi 110029 [hereafter alluded to as “suit property”] by Mr. Lalvani for Mr. Israni. The absolute thought which Mr. Israni was needed to pay Mr. Lalvani under the ATS was Rs. 4 crores. The ATS records that out of the all-out thought of Rs. 4 crores, Rs. 5,00,000 was paid by Mr. Israni to Mr. Lalvani at the hour of its execution. Besides, regarding Clause 2.1 of the ATS, inside 60 days of its execution, two concurrent advances hosted to be taken by the gatherings. Consequently, while Mr. Lalvani was needed to execute a General Power of Attorney [GPA] and uncommon intensity of lawyer [SPA] for Mr. Israni, the last for example Mr. Israni was needed to transmit Rs. 3,18,91,000/ – as “clear assets” to the predetermined ledger of Mr. Lalvani. The matter was taken up for hearing on 30.07.2020 on account of an application [i.e., I.A. No. 6053/2020] moved on behalf of Mr. Israni by Mr. Pragyan Sharma, Advocate. Although there was an affidavit of Mr. Israni dated 20.07.2020 on record, on that date, Mr. Pragyan Sharma sought time to file an affidavit in terms of order dated 09.07.2020 by 31.07.2020. The matter was directed to be listed on 04.08.2020. In the interregnum, Mr. Israni filed an affidavit dated 31.07.2020. On 04.08.2020, initially, there was no appearance on behalf of Mr. Israni.

J 1 IN THE HIGH COURT OF DELHI AT NEW DELHI Judgement reserved on 11.09.2020 Judgement pronounced on 11.12.2020 CS1995 2008 SHRI VIJAY ISRANI .....Plaintiff Through Mr. Kirti Uppal Senior Advocate Sharma with Mr. Advocate. SHRI SALIM LALVANI .....Defendant Through Ms. Rashi Bansal and Mr. Sameer Singh Advs. along with Mr. Salim Lalvani i.e. defendant in person. HON BLE MR. JUSTICE RAJIV SHAKDHER RAJIV SHAKDHER J.: Preface: The plaintiff is one Mr. Vijay Israni who has filed a suit for specific performance of an agreement to sell dated 19.04.2008 which was countersigned by the defendant on 29.04.20081995 2008 Background facts: The ATS concerns sale of 50% undivided share in a built up property located at A 1 149 Safdarjung Enclave New Delhi 110029by Mr. Lalvani in favour of Mr. Israni. 2.1. The total consideration which Mr. Israni was required to pay Mr. Lalvani under the ATS was Rs. 4 crores. The ATS records that out of the total consideration of Rs. 4 crores Rs. 5 00 000 was paid by Mr. Israni to Mr. Lalvani at the time of its execution. 2.2. Furthermore in terms of Clause 2.1 of the ATS within 60 days of its execution two simultaneous steps had to be taken by the parties. Thus while Mr. Lalvani was required to execute a General Power of Attorney and special power of attorneyin favour of Mr. Israni the latter i.e. Mr. Israni was required to remit Rs. 3 18 91 000 as “clear funds” to the specified bank account of Mr. Lalvani. 2.3. As per Clause 2.2 of the ATS Mr. Lalvani was required to have the GPA and the SPA attested from the Indian High Commission at London. 2.4. The last tranche or the balance amount i.e. Rs. 76 09 000 was required to be paid by Mr. Israni to Mr. Lalvani within 90 days of execution of the ATS. Simultaneously upon Mr. Lalvani receiving the amount he was obliged to execute all relevant deeds and documents which would then result in the consummation of the sale transaction in consonance with the provision made in Clause 2.3 of the ATS. 2.5. The record shows that Mr. Lalvani served a notice of default dated 02.07.2008 on Mr. Israni alleging that he had defaulted in paying the second tranche i.e. Rs. 3 18 91 000 . In this communication Mr. Lalvani referred to the fact that he had executed the GPA and the SPA. Consequently Mr. Lalvani CS(OS) 1995 2008 called upon Mr. Israni to make good the payment of Rs. 3 18 91 000 by 2.6. Five days before the expiry of the 15 day window provided by Mr. Lalvani Mr. Israni vide communication dated 12.07.2008 sent his response wherein he inter alia averred that he had not committed a breach of any of the terms of the ATS and that Mr. Lalvani had failed to furnish proof of execution and attestation of the GPA and SPA. 2.7. Mr. Lalvani responded by issuing a rejoinder dated 21.07.2008 via his advocates. The rejoinder in effect terminated the ATS. Mr. Israni in turn replied to this termination notice vide communication dated 24.07.2008. Via this communication Mr. Israni called upon Mr. Lalvani to perform his obligation under the ATS. It is in this background that Mr. Israni approached this Court with the instant action for specific performance. Summons in the suit were issued on 22.09.2008 whereupon an opportunity was given to Mr. Lalvani to file his written statement. Upon completion of pleadings and admission and denial of documents the following issues in the suit were framed at the hearing held on 13.08.2010. On the pleadings of the parties following issues are framed for consideration: 1. Whether the suit is barred under Section 14of the Specific Relief Act OPD. 2. Whether the Plaintiff was ready and willing to perform his part of the contract If so its effect. OPP. 3. Whether the Plaintiff is entitled to the relief of specific performance as prayed OPP. 4. Relief." CS(OS) 1995 2008 6. Thereafter evidence in the matter was recorded an exercise which was concluded on 08.02.2017. The matter was put in the category of finals on 02.03.2017. The matter was heard by a coordinate bench and released from part heard on 23.01.2020. It is in this backdrop that the matter was called out for hearing on 09.07.2020. On that date Mr. Israni s son one Mr. Sunny Israni joined the proceedings. After hearing him and Ms. Rashi Bansal counsel for Mr. Lalvani the following order was passed. 1. The captioned suit has been called out today. 2. Mr. Sunny Israni the son of the plaintiff has joined the proceedings. 2.1 Mr. Israni says that he has instructions to convey to the Court that the plaintiff is interested in purchasing the subject property albeit at the current market value. 2.2 Mr. Israni further submits that according to the plaintiff the current market value of the subject property is Rs. 14.50 crores. 3. To demonstrate his bona fides Mr. Israni says the plaintiff will deposit the said amount i.e. Rs. 14.50 crores with the Registry of this Court by way of a pay order demand draft drawn in favour of the Registrar General of this Court. 3.1 Mr. Israni further states that while the money lies with the Registry of this Court the Court could appoint a valuer to ascertain the current market value of the subject property. CS1995 2008 6. Accordingly the plaintiff will deposit Rs. 14.5 crores by way of a pay order demand draft drawn in favour of the Registrar General of this Court within three weeks from today. 6.1 Once the pay order demand draft is deposited the same will be encashed and the money will be invested in an interest bearing security maintained with a nationalized bank. 6.2 A valuer will be appointed by the Court to ascertain the current value of the subject property once the plaintiff deposits the said amount albeit in the manner indicated hereinabove. 6.3 The plaintiff will file an affidavit in terms of what has been indicated hereinabove by me within one week from today. 7. Renotify the matter on 04.08.2020." 7.1. The matter was taken up for hearing on 30.07.2020 on account of an application moved on behalf of Mr. Israni by Mr. Pragyan Sharma Advocate. Although there was an affidavit of Mr. Israni dated 20.07.2020 on record on that date Mr. Pragyan Sharma sought time to file an affidavit in terms of order dated 09.07.2020 by 31.07.2020. The matter was directed to be listed on 04.08.2020. In the interregnum Mr. Israni filed an affidavit dated 31.07.2020. 7.2. On 04.08.2020 initially there was no appearance on behalf of Mr. Israni. 7.3. Ms. Rashi Bansal who appeared on behalf of Mr. Lalvani submitted that the affidavit was not in terms of the order dated 09.07.2020 inasmuch as Mr. Israni had indicated in the affidavit that if he was unable to deposit Rs. 14.50 crores for the entire property then he would restrict his claim to the refund of Rs. 5 00 000 along with interest or compensation as may be ordered by the Court. 7.4. Ms. Bansal said that on the other hand on 09.07.2020 Mr. Israni had indicated that if he was unable to deposit Rs. 14.50 crores for securing interest in the entire property he would not press the instant suit any further. In other words according to Ms. Bansal the assertion made by Mr. Israni in his affidavit CS(OS) 1995 2008 dated 31.07.2020 that he would restrict his claim to refund of Rs. 5 00 000 along with interest or compensation as may be ordered by this Court was contrary to the position adopted by him on 09.07.2020. After the matter had concluded for the day Mr. Sunny Israni i.e. the plaintiff s son joined the hearing and accordingly he was apprised of what had transpired in the hearing and that the next date in the matter was fixed as 10.08.2020. It is in these circumstances that on 10.08.2020 the Court recorded the following. 1. Concededly Rs. 14.50 crores which the plaintiff had offered to deposit in terms of his affidavit dated 31.07.2020 has not been deposited with this Court. Therefore if nothing else the suit vis a vis relief for specific performance even according to the plaintiff cannot be pressed further as per the stand taken by him in the aforementioned affidavit. 3. Mr. Kirti Uppal learned senior counsel along with Mr. Pragyan Sharma who appear on behalf of the plaintiff say that the money could not be deposited as the plaintiff was bereaved. 4. Ms. Bansal on the other hand says that the timeline fixed for the purpose of deposit of Rs. 14.50 crores expired on 07.08.2020 and that even according to the plaintiff he was bereaved on 08.08.2020. The record shows that on 09.07.2020 the plaintiff via his son had offered to deposit Rs. 14.50 crores with the Registry of this Court in order to demonstrate his readiness and willingness to purchase the subject property at the current market value. 5.1 The matter was fixed for further proceedings on 04.08.2020. In the interregnum the plaintiff approached the Court on 24.07.2020 when Mr. Sharma sought time to obtain instructions directly from the plaintiff as to whether the plaintiff would be willing to deposit Rs. 14.50 crores as indicated to this Court by his son on 09.07.2020. At request of Mr. Sharma the matter was posted for further proceedings on 5.3 On 30.07.2020 Mr. Sharma sought a day s accommodation to file an affidavit in terms of the order dated 09.07.2020. It is in this backdrop that plaintiff filed an affidavit dated 31.07.2020. In the affidavit dated 31.07.2020 the plaintiff made a deviation from the position that was taken on 09.07.2020 inasmuch as it was indicated in the aforementioned affidavit that if there was a failure to CS(OS) 1995 2008 deposit Rs. 14.50 crores the plaintiff would restrict his relief to seek refund from the defendant. 5.5 The precise assertion made in the affidavit dated 31.07.2020 in this behalf reads as follows: 7 The Plaintiff further undertakes that in case the Plaintiff is not able to deposit the sum of Rs. 14 50 00 000 as stated in this affidavit or as may be directed by this Hon ble Court the Plaintiff shall not proceed with the specific performance of the agreement dated 19.4.2008 concluded on 29.4.2008) and restrict his claim only to refund of the amount of Rs. 5 00 000 paid by him with such interest as this Hon ble Court may deem just and proper." 5.6 Consequently the matter was taken up by me on 04.08.2020 which was the date fixed in the ordinary course. Since there was initially no appearance on behalf of the plaintiff on the said date when the matter was called out it was posted for today i.e. 10.08.2020. 5.7 However just after the matter was concluded plaintiffs son joined the proceedings which is when he was apprised of the order passed on the said date i.e. 04.08.2020. Given these circumstances I am not inclined to grant further time to the plaintiff. I am persuaded to proceed in this line manner not only given the history of the proceedings as noticed hereinabove but also given the fact that nothing has been brought on record except for submissions made across bar to show the fact that the plaintiff although ready and willing was in any way impeded in depositing the money qua which he otherwise had ample time. confined to specific performance. 7.1 Therefore in terms of the affidavit dated 31.07.2020 filed by the plaintiff the relief of specific performance is now not available to him. the plaint are rejected. Resultantly LA. 6053 2020 shall stand closed. 9. Mr. Uppal and Mr. Sharma say that they would want to address arguments on as to whether the plaintiff should be accorded the relief of 10. List the matter only for this purpose on 14.08.2020." Insofar as the relief sought in the instant suit is concerned it is Accordingly the reliefs sought in the prayer clause 19toof 7.6. To be noted in paragraph 5.5 of the order dated 10.08.2020 there is a reference to paragraph 7 of the affidavit dated 31.07.2020 filed by Mr. Israni. As a matter of fact paragraph 7 appears in the affidavit dated 20.07.2020 filed by Mr. Israni which is substantially same as paragraph 5 of the affidavit dated CS(OS) 1995 2008 31.07.2020 save and except that Mr. Israni has slipped in the word compensation apart from the expression refund. Paragraph 5.5 of the order dated 10.08.2020 was meant to advert to paragraph 5 of the order dated 31.07.2020. Submissions of counsels for the parties: Given the aforesaid circumstances counsels were heard thereafter not only on the aspect of refund but also on compensation. Counsel for Mr. Israni argued that since Mr. Israni had given up his claim for specific performance he was entitled to not only refund of Rs. 5 lakhs but also compensation in lieu of specific performance. An attempt was also made by the counsel for Mr. Israni to reopen the claim for specific performance by seeking to demonstrate that it was Mr. Lalvani who had breached his obligation to execute the GPA and SPA and have the same apostilled from the Indian High Commission at London before he could lay claim to the second tranche i.e. Rs. 3 18 91 000 . In support of the plea that Mr. Israni was always ready and willing to perform his part of the obligation his advocates sought to rely upon the fact that a demand draft and a bankers cheque dated 15.07.2008 and 16.07.2008respectively cumulatively amounting to Rs. 3 18 91 000 drawn on ICICI Bank Limited favouring Mr. Lalvani was prepared by Mr. Israni. 11. On the other hand Ms. Bansal on behalf of Mr. Lalvani had claimed that not only were the GPA and SPA executed and apostilled but also lay emphasis on the fact that as per Clause 2.1 of the ATS Mr. Israni was required to remit the second tranche to the specified bank account of Mr. Lalvani. As noticed above these arguments and counter arguments and the evidence led by each party lost significance since Mr. Israni himself had indicated that he was CS(OS) 1995 2008 interested in purchasing the entire property and not just Mr. Lalvani’s 50% share in the said property and that to demonstrate his ability he would deposit Rs. 14.50 crores with the Registry of this Court. Since Mr. Israni himself took the position that if he failed to deposit Rs. 14.50 crores he would not press the suit on 10.08.2020 the reliefs claimed in prayer clause 19toof the plaint were rejected. Analysis and Reasons: 12. Consequently at this stage all that I am required to consider is whether or not Mr. Israni is entitled to refund of Rs. 5 lakhs paid as advanceor compensation. 13. Let me first take the submission advanced on behalf of Mr. Israni concerning the refund of Rs. 5 00 000 . The claim for refund is pivoted in my view on two clauses of ATS i.e. Clause 1.2 and Clause 5.31. 13.1. While Clause 1.2 is suggestive of the fact that Rs. 5 00 000 was paid by Mr. Israni to Mr. Lalvani as an advance to be adjusted against full consideration payable qua the suit property Clause 5.3 states in no uncertain terms that in case Mr. Israni failed to rectify the default pointed out to him within 15 days of a written notice being issued in that behalf the ATS will stand terminated and Mr. Lalvani would not be liable to refund or return the amounts received up until the date of the notice of termination. 1 “1.2 The Second Party has paid an amount of Rs. 5 00 000 as advance payment out of the total Consideration Amount vide demand draft number 079546 dated 11.04.2008 drawn in favour of the First Party and the First Party acknowledges the receipt of the same. On occurring of the event of default the First Party shall give a written notice of 15 days to the Second Party and if the Second Party fails to rectify the default within the said period this Agreement shall stand terminated on the day following the 15th day and the First Party shall not be liable to refund return the amounts hereby received till the date of notice of CS(OS) 1995 2008 13.2. There is no dispute that the only amount received by Mr. Lalvani up until the date of issuance of the termination notice i.e. communication dated 21.07.2008 was Rs. 5 00 000 . The evidence on record shows that the amount was received in pound sterling by Mr. Lalvani in two instalments i.e. GBP 4 500 and GBP 500. 13.3. A plain reading of Clause 1.2 of the ATS would show that Rs. 5 00 000 was paid as an advance to be adjusted against the full consideration of Rs. 4 crores agreed to be paid qua the suit property. The following portion of Clause 1.2 of the ATS makes this amply evident. 1.2 The Second Party has paid an amount of Rs. 5 00 000 as advance payment out of the total Consideration Amount vide demand draft number 079546 dated 11.04.2008 drawn in favour of the First Party and the First Party acknowledges the receipt of the same." Emphasis is mine] 13.4. What is however peculiar about this particular ATS is the provision made in Clause 5.3 which empowers the vendor to retain amounts received by him up until the date of the notice of termination if the default pointed out therein was not cured by the 16th day of issuance of such notice. 13.5. Ordinarily such stipulation is found juxtaposed in such like agreements with amounts paid as earnest money . Earnest money is construed as part of the purchase price when the transaction is consummated and is forfeited by the vendor when the transaction falls through on account of the fault of the vendee.2 13.6. It is thus in the nature of a contract of security whose primary purpose is to guarantee performance and in that sense is strictly speaking different 2 See: Charanjeet Singh vs. Har Swarup AIR 1926 PC 1 CS(OS) 1995 2008 from the real agreement to sell. Therefore if the real agreement to sell is rescinded the contract of security still survives which is evidenced either by an express covenant of forfeiture or is implied by law.13.7. However as indicated above Rs. 5 00 000 was paid as advance to be adjusted against total consideration. Therefore sans the forfeiture clause i.e. Clause 5.3 of the ATS the said amount would have to be repaid by Mr. Lalvani to Mr. Israni notwithstanding the fact Mr. Israni had committed the breach of the obligation placed upon him under the ATS. In this case apart from anything else Mr. Israni has failed to demonstrate that he was ready and willing to pay the second tranche to Mr. Lalvani in terms of Clause 2.1 of the ATS. This clause required Mr. Israni to remit within 60 days of the execution of the ATS Rs. 3 18 91 000 as "clear funds" to the bank account specified by Mr. Lalvani. 13.8. Mr. Israni s attempt to show that he was ready with the demand drafts amounting to Rs. 3 18 91 000 on 15.07.2008 and 16.07.2008 before the 15 day notice period expired would be of no avail given the obligation placed on Mr. Israni to remit "clear funds" to the bank account provided by Mr. Lalvani. The evidence on record points in the direction that Mr. Israni was aware as to the account where monies had to be remitted since he had done so while remitting amounts in pound sterling equivalent to Rs. 5 00 000 as noticed above when advance payment was made. 13.9. Mr. Israni s attempt to muddy the waters by taking recourse to a ruse that Mr. Lalvani had not furnished him proof of execution and attestation of GPA and SPA must fail as Mr. Lalvani in his notice of default dated 02.07.2008 had in no uncertain terms indicated that he had executed the GPA and the CS(OS) 1995 2008 SPA. This is evident from the following portion of the notice of default dated 02.07.2008. You are fully aware that Our Client has fulfilled all obligations set out in Clause 2 of the Agreement including but not limited to the execution of a general power of attorney and a special power of attorney in terms of Clause 2 of the Agreement and has been awaiting payment from you." 14. Execution in the legal sense to my mind would include attestation. Thus Mr. Israni only to buy time it appears shot off the reply dated 12.07.2008 seeking proof of attestation and execution of GPA and SPA. 14.1. It was only after Mr. Lalvani had issued the notice of termination dated 24.07.2008 that Mr. Israni via a return communication dated 24.07.2008 informed Mr. Lalvani that he had prepared two demand drafts dated 15.07.2008 and 16.07.2008 amounting to Rs. 3 18 91 000 . Thus clearly to my mind Mr. Israni was in breach. 14.2. The possibility that Mr. Israni could establish to the contrary was completely foreclosed by virtue of the stand taken by him in his affidavit dated 31.07.2020 wherein he stated that if he was not able to deposit Rs. 14 50 00 000 on or before 07.08.2020 he would not proceed with the specific performance of the ATS. 14.3. That being said the logical sequitur in law is that even if the transaction falls through on account of the fault of the vendee monies paid as an advance towards sale consideration would have to be refunded to him. In the instant case as noticed above the vendor has a right to retain the money received as an advance. 14.4. Therefore what requires to be seen is whether the amount sought to be retained would be construed in law as reasonable compensation for the breach CS(OS) 1995 2008 committed by the vendee i.e. Mr. Israni or would it in the facts and circumstances of the case be penal 14.5. It is not as if the vendor can retain the entire amount unless he is in a position to show that he suffered an injury on account of the breach which in turn resulted in vendor i.e. Mr. Lalvani suffering damages. A somewhat similar situation arose in Fateh Chand vs. Balkishan Dass 1 SCR 515 where apart from the earnest money of Rs. 1 000 a further sum of Rs. 24 000 paid towards the total consideration agreed to between the parties was sought to be retained on account of the subsistence of the forfeiture clause3. In this behalf the following observations being apposite are extracted hereafter. 7. The Attorney General appearing on behalf of the defendant has not challenged the plaintiff s right to forfeit Rs 1 000 which were expressly named and paid as earnest money. He has however contended that the covenant which gave to the plaintiff the right to forfeit Rs 24 000 out of the amount paid by the defendant was a stipulation in the nature of penalty and the plaintiff can retain that amount or part thereof only if he establishes that in consequence of the breach by the defendant he suffered loss and in the view of the Court the amount or part thereof is reasonable compensation for that loss. We agree with the Attorney General that the amount of Rs 24 000 was not of the nature of earnest money. The agreement expressly provided for payment of Rs 1 000 as earnest money and that amount was paid by the defendant. The amount of Rs 24 000 was to be paid when vacant possession of the land and 3 "…The conditions of the agreement were: 1) I the executant shall deliver the actual possession i.e. complete vacant possession of kothi to the vendee on the 30th March 1949 and the vendee shall have to give another cheque for Rs 25 000 to me: out of the sale price. 2) Then the vendee shall have to get the sale registered by the 1st of June 1949. If on account of any reason the vendee fails to get the said sale deed registered by the 1st June 1949 then this sum of Rs 25 000 mentioned above shall be deemed to be forfeited and the agreement cancelled. Moreover the vendee shall have to deliver back the complete vacant possession of the kothi to me the executant. If due to certain reason any delay takes place on my part in the registration of the sale deed by the 1st June 1949 then I the executant shall be liable to pay a further sum of Rs 25 000 as damages apart from the aforesaid sum of Rs 25 000 to the vendee and the bargain shall be deemed to be cancelled."" CS(OS) 1995 2008 building was delivered and it was expressly referred to as "out of the sale price". If this amount was also to be regarded as earnest money there was no reason why the parties would not have so named it in the agreement of sale. We are unable to agree with the High Court that this amount was paid as security for due performance of the contract. No such case appears to have been made out in the plaint and the finding of the High Court on that point is based on no evidence. It cannot be assumed that because there is a stipulation for forfeiture the amount paid must bear the character of a deposit for due performance of the contract. 8. The claim made by the plaintiff to forfeit the amount of Rs 24 000 may be adjusted in the light of Section 74 of the Indian Contract Act which in its material part provides: When a contract has been broken if a sum is named in the contract as the amount to be paid in case of such breach or if the contract contains any other stipulation by way of penalty the party complaining of the breach is entitled whether or not actual damage or loss is proved to have been caused thereby to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or as the case may be the penalty stipulated for." The section is clearly an attempt to eliminate the sometime elaborate refinements made under the English common law in distinguishing between stipulations providing for payment of liquidated damages and stipulations in the nature of penalty. Under the common law a genuine pre estimate of damages by mutual agreement is regarded as a stipulation naming liquidated damages and binding between the parties: a stipulation in a contract in terrorem is a penalty and the Court refuses to enforce it awarding to the aggrieved party only reasonable compensation. The Indian Legislature has sought to cut across the web of rules and presumptions under the English common law by enacting a uniform principle applicable to all stipulations naming amounts to be paid in case of breach and stipulations by way of penalty." 14.6. Therefore ordinarily Mr. Lalvani would be required in law to repay Rs. 5 00 000 to Mr. Israni till such time he was able to demonstrate that he had suffered an injury on account of Mr. Lalvani’s breach and in turn suffered damages. Damages that Mr. Lalvani can seek in law can only be compensatory in law i.e. reasonable damages even though Clause 5.3 of the ATS allowed him CS(OS) 1995 2008 to retain all that he had received towards sale consideration up until the date of issuance of the notice of termination. 14.7. The difficulty which one is presented with in this case is that the plaintiff sought only one relief which was the relief of specific performance of the ATS. Mr. Lalvani did not seek at any stage an amendment to the plaintand therefore the issue concerning the refund of Rs. 5 00 000 was not brought to fore. 14.8. Therefore Mr. Lalvani at no point would have had the opportunity to lead evidence to show that he had suffered injury and damages to the extent of Rs. 5 00 000 or more. One may have perhaps ignored all this and still ordered refund but for the fact Mr. Israni had taken the position on 09.07.2020 that he would simply not press the suit if he failed to deposit Rs. 14 50 00 000 with the Registry of this Court. As noticed hereinabove the assertion for seeking refund or compensation was slipped in by Mr. Israni via affidavit dated 31.07.2020. 14.9. Therefore looking at the entirety of the facts which includes the period over which Mr. Lalvani had to hold on to the suit property the amount he would have spent over this period towards litigation expenses and the attempt of Mr. Israni to slip in a last minute plea of refund without giving him an opportunity of demonstrating that he had suffered injury and damages I am not inclined to grant this relief to Mr. Israni. Therefore the plea made in this behalf is rejected. 15. This brings me to the last submission which is that whether or not Mr. Israni should be allowed to press his plea for award of compensation damages. Section 21 of the Specific Relief Act 1963In a suit for a specific performance of a contract the plaintiff may also claim compensation for its breach either in addition to or in substitution of such performance. CS(OS) 1995 2008 claim compensation both in addition to or in substitution of specific performance of a contract. 15.1. However subsection of Section 21 makes it clear that no compensation will be awarded under this Section unless the plaintiff has claimed such compensation in his plaint. The proviso to subsectionvests a right in the plaintiff to seek an amendment of the plaint if the relief for compensation is not claimed in the first instance with a corresponding power vested in the Court to allow such amendment at any stage of the proceeding on such terms as those it may consider just. 15.2. Furthermore the explanation states that because the contract has become incapable of specific performance it does not preclude the Court from exercising the jurisdiction conferred by this Section. In the facts of the instant case as noticed above Mr. Israni at no stage sought amendment of the plaint he had only claimed the relief of specific performance. That right was available to Mr. Israni which for whatever reason he chose not to exercise. Mr. Israni 2) If in any such suit the court decides that specific performance ought not to be granted but that there is a contract between the parties which has been broken by the defendant and that the plaintiff is entitled to compensation for that breach it shall award him such compensation accordingly. 3) If in any such suit the court decides that specific performance ought to be granted but that it is not sufficient to satisfy the justice of the case and that some compensation for breach of the contract should also be made to the plaintiff it shall award him such compensation accordingly. 4) In determining the amount of any compensation awarded under this section the court shall be guided by the principles specified in section 73 of the Indian Contract Act 1872. 5) No compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint: PROVIDED that where the plaintiff has not claimed any such compensation in the plaint the court shall at any stage of the proceeding allow him to amend the plaint on such terms as may be just for including a claim for such compensation. Explanation: The circumstance that the contract has become incapable of specific performance does not preclude the court from exercising the jurisdiction conferred by this CS(OS) 1995 2008 abandoned his relief for specific performance once he was unable to deposit Rs. 14 50 00 000 with the Registry of this Court. 15.3. Clearly if the amendment for compensation damages was sought the parameters would have to be stricter. However at this stage it is only in the realm of speculation as to how one would have approached the matter if such a plea was raised.1 SCC 647] 15.4. Therefore in my opinion the submission advanced on behalf of Mr. Israni that he should be paid compensation damages in the facts of the instant case is misconceived and is consequently rejected. In any event any relief for compensation damages would require evidence for quantification if nothing else. There is concededly no such evidence on the record as Mr. Israni prosecuted the case on one single plank which was to claim the relief for specific performance. Conclusion: 16. Given the foregoing I find no merit in the case. 17. The suit is accordingly dismissed. Costs will follow the result in the suit. RAJIV SHAKDHER J DECEMBER 11 2020 Click here to check corrigendum if any 5 “16. So far as the proviso to sub sectionis concerned two positions must be kept clearly distinguished. If the amendment relates to the relief of compensation in lieu of or in addition to specific performance where the plaintiff has not abandoned his relief of specific performance the Court will allow the amendment at any stage of the proceeding. That is a claim for compensation falling under Section 21 of the Specific Relief Act 1963 and the amendment is one under the proviso to sub section in turn invokes Section 73 of the Indian Contract Act for the principles of quantification and assessment of compensation does not obliterate this CS(OS) 1995 2008

Pt. Parmanand Katara Vs Union Of India & Ors.

Human life is more  valuable  and must be preserved  at  all costs  and  that every member of  the  medical profession,  may, every human being, is  under an  obligation to provide such aid to  another as  may be necessary to help him survive  from near-fatal accidents. The petitioner who claims himself to be a ’small human right activist and fighting for the  good causes for the general public interest’ filed this  application  under  Article  32 of the Constitution  asking  for  a direction  to the Union of India that every injured  citizen brought for treatment should instantaneously be given  medical  aid  to  preserve life and  thereafter  the  procedural criminal law should be allowed to operate in order to  avoid negligent  death and in the event of breach of  such  direction,  apart  from any action that may be taken  to negligence,  appropriate  compensation should be  admissible. He appended to the writ petition a report entitled ’Law  helps the injured to die’ published in the Hindustan Times. In the said publication it was alleged that a scooterist  was knocked down by a speeding car. Seeing the profusely bleeding scooterist, a person who was on the road picked up  the injured  and took him to the nearest hospital.  The doctors refused to attend on the injured and told the man that he should take the patient to a named different hospital located some 20 kilometers away authorised to handle medico-legal cases. The samaritan carried the victim, lost no time to approach the other hospital but before he could reach, the victim succumbed to his injuries. PROCEDURAL HISTORY: The Secretary, Ministry of Health & Family Welfare of the Union  of India, the Medical Council of India  and  the Indian Medical Association were later impleaded as  respondents  and return to the rule has been made by each of  them.On behalf of the Union of India, the Under Secretary in  the Ministry  of  Health  & Family Welfare  filed  an  affidavit appending the proceedings of the meeting held on 29.5.  1986 in  which the Director-General of Health Services  acted  as Chairman.  Along  with the affidavit,  decisions  of  papers relating  to  the steps taken from time to time  in  matters relating to matters relevant to the application but confined to the Union Territory of Delhi were filed. A report in May, 1983,  submitted  by the Sub-Committee set up  by  the  Home Department  of  the  Delhi  Administration on  Medico-Legal Centers  and Medico-Legal Services has also  been  produced. ISSUE BEFORE THE COURT: The status of medico-legal case was discussed. RATIO OF THE COURT: The court observe from the proceedings it appears that the question of providing medico-legal facilities, at the upgraded primary health centres throughout the country was under consideration but the Committee was of the opinion  that time was not ripe to think of  providing  such facilities  at the upgraded primary health centres.  One of the  documents  which  forms part of the  Union  of  India’s affidavit  is  the copy of a letter dated 9th of  May,  1978 which  indicates  that a report on some  aspects  of  Medico Legal Practice in India had been prepared and a copy of such report  was furnished to the Health Secretaries of  all  the States and Union Territories more than eleven years back.   From these documents appended to the affidavit  of  the Union of India, it is clear that the matter has been  engaging  the attention of the Central Government as also of  the Governments of the States and the Union Territories for over a  decade.  No improvement of the  situation,  however,  is perceptible and the problem which led to the filing of  this petition  seems  to exist in hospitals and  private  nursing homes and clinics throughout the country.In course of the hearing, the court directed the petitioner to place on record for the consideration of the Court and  the respondents  a draft guideline which could be prescribed  to ease the situation keeping the professional ethics in  view. When the same was filed, copies thereof were circulated to the respondents and all parties have been heard on the basis of the guidelines submitted on behalf of the petitioner.The Medical Council of India has placed on record a copy of the Code of Medical Ethics and counsel has  made  a statement that there is no prohibition in law justifying the attitude of the doctors as complained. On the other hand, he stated that it is a part of the professional ethics to start treating the patient as soon as he is brought before the doctor for medical attention inasmuch as it is the paramount obligation of the doctor to save human life and bring  the patient out of the risk zone at the earliest with a view  to preserving  life.The court observed that there can be no second opinion that preservation of human life is of paramount importance. That is so on account of the fact that once life is lost, the status quo ante cannot be restored as resurrection is beyond the capacity of man. The patient whether he be an innocent person or be a criminal liable to punishment under the laws of the society, it is the obligation of those who are in charge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished.Social laws do not contemplate death by negligence to tantamount to legal punishment. Article 21 of the Constitution casts the obligation on the State to preserve life. The provision as explained by this Court in scores of decisions has emphasised and reiterated with  gradually increasing emphasis that  position.  A doctor at the Government hospital   positioned to meet this State obligation is, therefore, duty-bound to extend medical assistance for preserving life. Every doctor whether at a Government hospital or otherwise has the  professional obligation to extend his services with due  expertise for protecting lifeThe matter  is extremely urgent and in our view, brooks no delay to  remind every  doctor of his total obligation and assure him of  the position that he does not contravene the law of the land  by proceeding  to  treat the injured victim on  his  appearance before him either by himself or being carried by others. The court made it clear that zonal regulations  and  classifications  cannot  also  operate as fetters in  the  process  of discharge  of  the obligation and irrespective of  the  fact whether  under instructions or rules, the victim has  to  be sent  elsewhere  or how the police shall be  contacted,  the guideline  indicated in the 1985 decision of the  Committee, as extracted above, is to become operative.Justice Oza concurring observed It could not be forgotten that seeing an injured man in a miserable condition the human instinct of every citizen moves him to rush for help and do all that can be done to save the life. It could not be disputed that in spite of development economical, political and cultural still citizens are human beings and all the more when a man in such a miserable state hanging between life and death reaches the medical practitioner either in a hospital (run or managed by the State) public authority or a private person or a medical professional doing only private practice he is always called upon to rush to help such an injured person and to do all that is within his power to save life. So far as this duty of a medical professional is concerned its duty coupled with human instinct, it needs no decision nor any code of ethics nor any rule or law. Still in the Code of Medical Ethics framed by the Medical Council of India Item 13 specifically provides for it. DECISION HELD BY COURT: The court directed that this decision of ours shall be published in all journals reporting decisions of this Court and adequate publicity highlighting these aspects should be given by the national media as also through the Doordarshan and the All India Radio. The Registry shall forward adequate number of copies of this judgment to every High Court so that without delay the respective High Courts can forward them to every Sessions Judge within their respective jurisdictions and the Sessions Judges in their turn shall give due publicity to the same within their jurisdictions. The Medical Council of India shall forward copies of this judgment to every medical college affiliated to it. Copies of the judgment shall be forwarded to every State Government with a direction that wide publicity should be given about the relevant aspects so that every practising doctor would soon become aware of the position.In case the State Governments and the Union Territories which have not been heard file any representation against the direction, they shall have liberty to appear before this Court and ask for appropriate direction within three months from now. Applications filed after that date shall not be entertained by the Registry of this Court. Until altered, this judgment shall be followed.The petition disposed off accordingly.

PT. PARMANAND KATARA Vs UNION OF INDIA & ORS DATE OF JUDGMENT28 08 1989 OZA G.L.997 1989 SCC 286 JT 1989496 1989 SCALE Article 21 of the Constitution casts the obligation on the State to preserve life.There can be no second opinion that preservation of human life is of paramount importance. That is so on account of the fact that once life is lost the status quo ante cannot be restored as resurrection is beyond the capacity of The patient whether he be an innocent person or a criminal liable to punishment under the laws of the society it is the obligation of those who are incharge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished. Social laws do not contemplate death by negligence to tantamount to legal Every doctor whether at a Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life.No law or State action can intervene to avoid delay the discharge of the paramount obligation cast upon members of the medical profession. The obligation being total absolute and paramount laws of procedure whether in statute or otherwise which would interfere with the discharge of this obligation cannot be sustained and must therefore give way.The Court gave directions for giving adequate pub licity to the decision in this case by the national media the Doordarshan and the all India Radio as well as through the High Courts and the Sessions Judges.The Code of Medical Ethics framed by the Medical Council was approved on 23rd October 1970. This only re veals an unfortunate state of affairs where the decisions are taken at the highest level good intentioned and for public good but unfortunately do not reach the common man and it only remains a text good to read and attractive to quote.It is clear that there is no legal impediment for a medical professional when he is called upon or requested to attend to an injured person needing his medical assistance immediately. There is also no doubt that the effort to save the person should be the top priority not only of the medi cal professional but even of the police or any other citizen who happens to be connected with the matter or who happens to notice such an incident or a situation.The members of the legal profession our law courts and everyone concerned will also keep in mind that a man in the medical profession should not be unnecessarily harassed for purposes of interrogation or for any other formality and should not be dragged during investigations at the police station and it should be avoided as far as possible.Law courts will not summon a medical professional to give evidence unless the evidence is necessary and even if he is summoned attempt should be made to see that the men in this profession are not made to wait and waste time ORIGINAL JURISDICTION: Writ PetitionNo. 270 Under Article 32 of the Constitution of India Pt. Parmanand Katara in person A.D. Singh U.R. Lalitfor the Respondents The following Judgments of the Court were delivered RANGANATH MISRA J. The petitioner who claims himself to be a ’small human right activist and fighting for the good causes for the general public interest’ filed this applica tion under Article 32 of the Constitution asking for a direction to the Union of India that every injured citizen brought for treatment should instantaneously be given medi cal aid to preserve life and thereafter the procedural criminal law should be allowed to operate in order to avoid negligent death and in the event of breach of such direc tion apart from any action that may be taken tot negli gence appropriate compensation should be admissible. He appended to the writ petition a report entitled ’Law helps the injured to die’ published in the Hindustan Times. In the said publication it was alleged that a scooterist was knocked down by a speeding car. Seeing the profusely bleed ing scooterist a person who was on the road picked up the injured and took him to the nearest hospital. The doctors refused to attend on the injured and told the man that he should take the patient to a named different hospital locat ed some 20 kilometers away authorised to handle medico legal cases. The samaritan carried the victim lost no time to approach the other hospital but before he could reach the victim succumbed to his injuries The Secretary Ministry of Health & Family Welfare of the Union of India the Medical Council of India and the Indian Medical Association were later impleaded as respond ents and return to the rule has been made by each of them On behalf of the Union of India the Under Secretary in the Ministry of Health & Family Welfare filed an affidavit appending the proceedings of the meeting held on 29.5. 1986 in which the Director General of Health Services acted as Chairman. Along with the affidavit decisions of papers relating to the steps taken from time to time in matters relating to matters relevant to the application but confined to the Union Territory of Delhi were filed. A report in May 1983 submitted by the Sub Committee set up by the Home Department of the Delhi Administration on Medico Legal Centers and Medico Legal Services has also been produced The Secretary of the Medical Council of India in his affida vit referred to clauses 10 and 13 of the Code of Medical Ethics drawn up with the approval of the Central Government under s. 33 of the Act by the Council wherein it had been "10 . Obligations to the sick 1001 Though a physician is not bound to treat each and every one asking his services except in emergencies for the sake of humanity and the noble traditions of the profession he should not only be ever ready to respond to the calls of the sick and the injured but should be mindful of the high character of his mission and the responsibility he incurs in the discharge of his ministrations he should never forget that the health and the lives of those entrusted to his care depend on his skill and attention. A physician should endea vour to add to the comfort of the sick by making his visits at the hour indicated to the patients 13. The patient must not be neglected A physician is fee to choose whom he will serve. He should however respond to any request for his assistance in an emergency or whenever temperate public opinion expects the service. Once having undertaken a case the physician should not neglect the patient nor should he withdraw from the case without giving notice to the patient his relatives or his responsible friends sufficiently long in advance of his withdrawal to allow them to secure another medical attendant. No provi sionally or fully registered medical practi tioner shall wilfully commit an act of negli gence that may deprive his patient or patients from necessary medical care The affidavit has further stated "The Medical Council of India therefore ex pects that all medical practitioners must attend to sick and injured immediately and it is the duty of the medical practitioners to make immediate and timely medical care avail able to every injured person whether he is injured in accident or otherwise. It is also submitted that the formalities under the Criminal Procedure Code or any other local laws should not stand in the way of the medi cal practitioners attending an injured person It should be the duty of a doctor in each and every casualty department of the hospital to attend such person first and thereafter take care of the formalities under the Criminal Procedure Code. The life of a person is far more important than the legal formalities. In view of this the deponent feels that it is in 1002 the interest of general human life and welfare that the Government should immediately make such provisions in law and amendments in the existing laws if required so that immediate medical relief and care to injured persons and or serious patients are available without any delay and without waiting for legal for malities to be completed in the presence of the police officers. The doctor attending such patients should be indemnified under law from any action by the Government police authori ties any person for not waiting for legal formalities before giving relief as a doctor would be doing his professional duty for which he has taken oath as medical practition er It is further submitted that it is for the Government of India to take necessary and immediate steps to amend various provi sions of law which come in the way of Govern ment Doctors as well as other doctors in private hospitals or public hospitals to attend the injured serious persons immediately without waiting for the police report or completion of police formalities. They should be free from fear that they would be unneces sarily harassed or prosecuted for doing his duty without first complying with the police formalities .......... It is further submit ted that a doctor should not feel himself handicapped in extending immediate help in such cases fearing that he would be harassed by the Police or dragged to Court in such a case. It is submitted that Evidence Act should also be so amended as to provide that the Doctor’s diary maintained in regular course by him in respect of the accident cases would be accepted by the courts in evidence without insisting the doctors being present to prove the same or subject himself to cross examina tion harassment for long period of time The Indian Medical Association which is a society registered under Act 260 through its Secretary has stated in the affidavit that the number of deaths occurring on account of road accidents is on the increase due to lack of timely medical attention. In the affidavit it has further stated "The second reason is on account of the pre vailing police rules and Criminal Procedure Code which necessitate the fulfilment of several legal formalities before a victim can be rendered medical aid. The rationale behind this com 1003 plicated procedure is to keep all evidence intact. However time given to the fulfilment of these legal technicalities sometimes takes away the life of a person seriously injured Members of public escorting the injured to the nearest hospital are reluctant to disclose their name or identity as he is detained for eliciting information and may be required to be called for evidence to Courts in future Similarly the private practicing doctors are harassed by the police and are therefore reluctant to accept the roadside casualty It is submitted that human life is more valuable and must be preserved at all costs and that every member of the medical profession may every human being is under an obligation to provide such aid to another as may be necessary to help him survive from near fatal accidents The Committee under the Chairmanship of the Director General of Health Services re ferred to above had taken the following deci sions "1. Whenever any medico legal case attends the hospital the medical officer on duty should inform the Duty Constable name age sex of the patient and place and time of occurrence of the incident and should start the required treatment of the patient. It will be the duty of the Constable on duty to inform the con cerned Police Station or higher police func tionaries for further action Full medical report should be pre pared and given to the Police as soon as examination and treatment of the patient is over. The treatment of the patient would not wait .for the arrival of the Police or com pleting the legal formalities 2 Zonalisation as has been worked out for the hospitals to deal with medico legal cases will only apply to those cases brought by the Police. The medico legal cases coming to hospital of their ownwill not be denied the treatment by the hospital where the case reports nor the case will be referred to other hospital be cause the incident has occurred in the area which belongs to the zone of any other hospi tal. The same police formalities as given in para 1 above will be followed in these cases 1004 All Government Hospitals Medical Institutes should be asked to provide the immediate medical aid to all the cases irre spective of the fact whether they are medico legal cases or otherwise. The practice of certain Government institutions to refuse even the primary medical aid to the patient and referring them to other hospitals simply because they are medico legal cases is not desirable. However after providing the pri mary medical aid to the patient patient can be referred to the hospital if the expertise facilities required for the treatment are not available in that Institution held on 27.4.1985 have been appended. These minutes show that the Committee was a high powered one consisting of the Director General the Joint Secretary of the Ministry of Health of the Govern ment of India a Professor from the All Indian Institute of Medical Sciences the Professor of Forensic Medicine from Maulana Azad Medical College New Delhi the Director Professor of Forensic Medicine Bhopal the Deputy Director Central Forensic Science Laboratory Calcutta and certain officers of the Ministry. The proceedings indicate that the Director Generals of Police Tamil Nadu and Uttar Pradesh were also members of the Committee. From the proceedings it appears that the question of providing medico legal facili ties at the upgraded primary health centers throughout the country was under consideration but the Committee was of the opinion that time was not ripe to think of providing such facilities at the upgraded primary health centers. One of the documents which forms part of the Union of India’s affidavit is the copy of a letter dated 9th of May 1978 which indicates that a report on some aspects of Medico Legal Practice in India had been prepared and a copy of such report was furnished to the Health Secretaries of all the States and Union Territories more than eleven years back From these documents appended to the affidavit of the Union of India it is clear that the matter has been engag ing the attention of the Central Government as also of the Governments of the States and the Union Territories for over a decade. No improvement of the situation however is perceptible and the problem which led to the filing of this petition seems to exist in hospitals and private nursing homes and clinics throughout the country In course of the hearing we directed the petitioner to place on record for the consideration of the Court and the respondents a draft guideline which could be prescribed to ease the situation keeping the professional ethics in view When the same was filed copies thereof were circulated to the respondents and all parties have been heard on the basis of the guidelines submitted on behalf of the petitioner The Medical Council of India has placed on record a copy of the Code of Medical Ethics and counsel has made a statement that there is no prohibition in law justifying the attitude of the doctors as complained. On the other hand he stated that it is a part of the professional ethics to start treating the patient as soon as he is brought before the doctor for medical attention inasmuch as it is the paramount obligation of the doctor to save human life and bring the patient out of the risk zone at the earliest with a view to preserving life. In the affidavit filed on behalf of the Union of India on 3rd August 1989 it has been said "There are no provisions in the Indian Penal Code Criminal Procedure Code Motor Vehicles Act etc. which prevent Doctors from promptly attending seriously injured persons and acci dent case before the arrival of Police and their taking into cognisance of such cases preparation of F.I.R. and other formalities by the Police. However the deponent most humbly submits that the respondent shall always abide by the directions and guidelines given by the Hon’ble Court in the present case There can be no second opinion that preservation of human life is of paramount importance. That is so on account of the fact that once life is lost the status quo ante cannot be restored as resurrection is beyond the capacity of man. The patient whether he be an innocent person or be a criminal liable to punishment under the laws of the society it is the obligation of those who are in charge of the health of the community to preserve life so that the inno cent may be protected and the guilty may be punished. Social laws do not contemplate death by negligence to tantamount to Article 21 of the Constitution casts the obligation on the State to preserve life. The provision as explained by this Court in scores of decisions has emphasised and reiter ated with gradually increasing emphasis that position. A doctor at the Government hospital positioned to meet this State obligation is therefore duty bound to extend medical assistance for preserving life. Every doctor whether at a Government hospital or otherwise has the pro fessional obligation to extend his services with due exper tise for protecting life. No law or State action can inter vene to avoid delay the discharge of the paramount obliga tion cast upon members of the medical profession. The obli gation being total absolute and paramount laws of proce dure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained and must therefore give way. On this basis we have not issued notices to the States and Union Territories for affording them an opportunity of being heard before we accepted the statement made in the affidavit of the Union of India that there is no impediment in the law. The matter is extremely urgent and in our view brooks no delay to remind every doctor of his total obligation and assure him of the position that he does not contravene the law of the land by proceeding to treat the injured victim on his appearance before him either by himself or being carried by others. We must make it clear that zonal regulations and classifica tions cannot also operate as fetters in the process of discharge of the obligation and irrespective of the fact whether under instructions or rules the victim has to be sent elsewhere or how the police shall be contacted the guideline indicated in the 1985 decision of the Committee as extracted above is to become operative. We order accord We are of the view that every doctor wherever he be within the territory of India should forthwith be aware of this position and therefore we direct that this decision of ours shall be published in all journals reporting deci sions of this Court and adequate publicity highlighting these aspects should be given by the national media as also through the Doordarshan and the All India Radio. The Regis try shall forward adequate number of copies of this judgment to every High Court so that without delay the respective High Courts can forward them to every Sessions Judge within their respective jurisdictions and the Sessions Judges in their turn shall give due publicity to the same within their jurisdictions. The Medical Council of India shall forward copies of this judgment to every medical college affiliated to it. Copies of the judgment shall be forwarded to every State Government with a direction that wide publicity should be given about the relevant aspects so that every practicing doctor would soon become aware of the position In case the State Governments and the Union Territories which have not been heard file any representation against the direction they shall have liberty to appear before this Court and ask for appropriate direction within three months from now. Applications filed after that date shall not be entertained by the Registry of this Court. Until altered this judgment shall be followed Before we part with the case we place on record our appreciation of the services rendered by the petitioner by inviting the attention of the Court to the problem raised in this case. We must also place on record our appreciation of the cooperation and understanding exhibited by the Union of India in the relevant Ministry the Medical Council of India and the Indian Medical Association No order for costs OZA J. I entirely agree with what has been observed by my learned brother and also agree with the directions indi cated in the Order made by Hon’ble Shri Justice R.N. Misra but I would like to add As has been quoted by my learned brother a high power committee by the Government of India was appointed at a high level and this was long before and the proceedings of 29th May 1986 have been filed and have also been quoted. The Medical Council of India alongwith their affidavit have filed Code of Medical Ethics which everyone in the medical profession is expected to follow but still the news item which is the starting point of this petition is of 1988. The Code of Medical Ethics flamed by the Medical Council was approved on 23rd October 1970. This only reveals an unfor tunate state of affairs where the decisions are taken at the higher level good intentioned and for public good but unfor tunately do not reach the common man and it only remains a text good to read and attractive to quote It could not be forgotten that seeing an injured man in a miserable condition the human instinct of every citizen moves him to rush for help and do all that can be done to save the life. It could not be disputed that inspite of development economical political and cultural still citi zens are human beings and all the more when a man in such a miserable state hanging between life and death reaches the medical practitioner either in a hospitalpublic authority or a private person or a medical professional doing only private practice he is always called upon to rush to help such an injured person and to do all that is within his power to save life. So far as this duty of a medical professional is concerned its duty coupled with human instinct it needs no decision nor any code of ethics nor any rule or law. Still in the Code of Medical Ethics framed by the Medical Council of India Item 13 specifically provides for it. Item 13 reads as under "13. The patient must not be neglected A physician is free to choose whom he will serve. He should however respond to any request for his assistance in an emergency or whenever temperate public opinion expects the service. Once having undertaken a case the physician should not neglect the patient nor should he withdraw from the case without giving notice to the patient his relatives or his responsible friends sufficiently long in advance of his withdrawal to allow them to secure another medical attendant. No provi sionally or fully registered medical practi tioner shall wilfully commit an act of negli gence that may deprive his patient or patients from necessary medical care Medical profession is a very respectable profession Doctor is looked upon by common man as the only hope when a person is hanging between life and death but they avoid their duty to help a person when he is facing death when they know that it is a medico legal case. To know the re sponse of the medical profession the Medical Council of India and also the All India Medical Association were no ticed and were requested to put up their cases Some apprehensions were expressed because of some misun derstanding about the law of procedure and the police regu lations and the priorities in such situations. On the basis of the affidavit filed by the Union of India and considering the matter it is clear that there is no legal impediment for a medical professional when he is called upon or requested to attend to an injured person needing his medical assist ance immediately. There is also no doubt that the effort to save the person should be the top priority not only of the medical professional but even of the police or any other citizen who happens to be connected with the matter or who happens to notice such an incident or a situation. But on behalf of the medical profession there is one more apprehen sion which sometimes prevents a medical professional in spite of his desire to help the person as he apprehends that he will be witness and may have to face the police interrogation which sometimes may need going to the police station repeatedly and waiting and also to be a witness in a court of law where also he apprehends that he may have to go on number of days and may have to wait for a long time and may have to face sometimes long unnecessary cross examina tion which sometimes may even be humiliating for a man in the medical profession and in our opinion it is this appre hension which prevents a medi cal professional who is not entrusted with the duty of handling medico legal cases to do the needful he always tries to avoid and even if approached directs the person concerned to go to a State hospital and particularly to the person who is in charge of the medico legal cases. We there fore have no hesitation in assuring the persons in the medical profession that these apprehensions even if have some foundation should not prevent them from discharging their duty as a medical professional to save a human life and to do all that is necessary but at the same time. We hope and trust that with this expectation from the members of the medical profession the policy the members of the legal profession our law courts and everyone concerned will also keep in mind that a man in the medical profession should not be unnecessarily harassed for purposes of inter rogation or for any other formality and should not be dragged during investigations at the police station and it should be avoided as far as possible. We also hope and trust that our law courts will not summon a medical professional to give evidence unless the evidence is necessary and even if he is summoned attempt should be made to see that the men in this profession are not made to wait and waste time unnecessarily and it is known that our law courts always have respect for the men in the medical profession and they are called to give evidence when necessary and attempts are made so that they may not have to wait for long. We have no hesitation in saying that it is expected of the members of the legal profession which is the other honourable profes sion to honour the persons in the medical profession and see that they are not called to give evidence so long as it is not necessary. It is also expected that where the facts are so clear it is expected that necessary harassment of the members of the medical profession either by way of requests for adjournments or by cross examination should be avoided so that the apprehension that the men in the medical profes sion have which prevents them from discharging their duty to a suffering person who needs their assistance utmost is removed and a citizen needing the assistance of a man in the medical profession receives it We would also like to mention that whenever on such occasions a man of the medical profession is approached and if he finds that whatever assistance he could give is not sufficient really to save the life of the person but some better assistance is necessary it is also the duty of the man in the medical profession so approached to render all the help which he could and also see that the person reaches the proper expert as early as possible R.S.S. Petition disposed of

Complaint barred by limitation is an abuse to the process of law: Supreme Court of India

Any complaint that is ex facie barred by limitation and allowing proceedings to move forward on the basis of such a complaint amounts to an abuse in the process of law. This was held by the two-judge bench comprising of Hon’ble Justice Navin Sinha and Hon’ble Justice R. Subhash Reddy in the case of M/s. Cheminova India Ltd. & Anr. Vs. State of Punjab & Anr. [CRIMINAL APPEAL NO. 749 OF 2021] on the 04th of August, 2021 before the Hon’ble Supreme Court of India. The brief facts of the case are on 10.02.2011, Insecticide Inspector, Attari, District Amritsar, inspected the premises of firm – M/s. Navneet Singh – on Railway Road, Attari, District Amritsar where its sole proprietor Sh. Navneet Singh was present. M/s. Navneet Singh is a dealer of the first appellant company which is engaged in the manufacture of insecticides. On the day of inspection, Inspecting Officer found 60 tins of insecticide, viz., Trizophos 40% E.C. in the premises for sale. The Inspecting Officer has taken three tins, out of the 60 tins, as test samples and on the ground that samples sent for analysis were found to contain active ingredient to the extent of 34.70% only as against the labelled declaration of 40%, alleging that it amounts to ‘misbranding’ within the meaning of Section 3(k)(i) of the Act and sale of such item is an offence under Sections 17, 18 and 33 punishable under Section 29 of the Act, the second respondent has lodged the complaint before the Chief Judicial Magistrate, Amritsar in Complaint No.26 of 2014. This criminal appeal is filed, aggrieved by the order dated 12.05.2020 passed by the High Court of Punjab & Haryana at Chandigarh. By the aforesaid order, High Court has dismissed the petition in CRM­M No.1162­2020 (O&M) so far as the appellants are concerned. Appellants have approached the High Court seeking quashing of Complaint No.26 dated 25.03.2014 filed by the second respondent under Section 3(k)(i), 17, 18 and 33 punishable under Section 29 of the Insecticides Act, read with Rule 27(5) of the Insecticides Rules, 1971. The counsel for the appellant submits that there were abnormal delays in testing the samples, as such the timelines fixed under Section 24 which are mandatory are breached, thus, the complaint is fit to be quashed. Learned counsel, by referring to relevant provisions of the Act, has submitted that for the offence of misbranding, as alleged in the complaint, the maximum punishment is imprisonment for a term which may extend to two years or a fine which shall not be less than ten thousand rupees or with both. It is further submitted that the limitation for filing the complaint in such cases is three years from the date of commission of offence. It is submitted that limitation for lodging complaint from the date of report of analysis of Insecticide Testing Laboratory, Ludhiana was only upto 14.03.2014, however, the complaint was filed on 25.03.2014, which is beyond the period of limitation. The counsel for the respondent has however submitted that, though the first report of analysis from the Insecticide Testing Laboratory, Ludhiana was received on 14.03.2011, the appellants have made a request for sending the other sample to the Central Insecticide Testing Laboratory, Faridabad which was duly sent, after deposit of demand draft, on 02.05.2011 and the re­analysis on the second sample was received from the Central Insecticide Testing Laboratory, Faridabad on 09.12.2011. While referring to Section 24(4) of the Act, learned counsel has submitted that the report on such second sample shall be the conclusive evidence, as such, it cannot be said, the complaint is barred by limitation.

Crl.A.@S.L.P.(Crl.)No.41020 This criminal appeal is filed aggrieved by the order dated 12.05.2020 passed by the High Court of Punjab & Haryana at Chandigarh. By the aforesaid order High Court has dismissed the concerned. Appellants have approached the High Court seeking quashing of Complaint No.26 dated 25.03.2014 filed by the second respondent The Insecticide Inspector Attari District Amritsar under Crl.A.@S.L.P.(Crl.)No.41020 Section 3(k)(i) 17 18 and 33 punishable under Section 29 of the On 10.02.2011 Insecticide Inspector Attari District Railway Road Attari District Amritsar where its sole proprietor Sh Navneet Singh was present. M s. Navneet Singh is a dealer of the first appellant­company which is engaged in the manufacture of insecticides. On the day of inspection Inspecting Officer found 60 tins of insecticide viz. Trizophos 40% E.C. in the premises for sale The Inspecting Officer has taken three tins out of the 60 tins as test Chief Judicial Magistrate Amritsar in Complaint No.214. In seized the first appellant­company second appellant­Managing Crl.A.@S.L.P.(Crl.)No.41020 the complaint was ex facie barred by limitation and procedure breached thus the complaint is fit to be quashed. It was also the the appellants herein are not at all liable for prosecution and complaint was filed in a casual manner without examining the necessary aspects. It was also the case of the appellants that the 202 of the Code of Criminal Procedureof the Act the procedure as contemplated under Section 202 Cr.PC is not On the other hand Ms. Jaspreet Gogia learned counsel though the first report of analysis from the Insecticide Testing Laboratory Ludhiana was received on 14.03.2011 the appellants have made a request for sending the other sample to the Central Insecticide Testing Laboratory Faridabad which was duly sent after Crl.A.@S.L.P.(Crl.)No.41020 deposit of demand draft on 02.05.2011 and the re­analysis on the second sample was received from the Central Insecticide Testing of the Act learned counsel has submitted that the report on such second sample shall be the conclusive evidence as such it cannot be said the complaint is barred by limitation. Further it is the submission of the learned counsel that the timelines under Section Having heard the learned counsel for the parties we have not in dispute that report from Insecticide Testing Laboratory sought to be prosecuted on the ground of misbranding of the insecticide i.e. Trizophos 40% E.C. It is the allegation in the Crl.A.@S.L.P.(Crl.)No.41020 complaint that upon analysis of the sample same was found to the meaning of Section 3(k)(i) of the Act and selling of such misbranded item is in violation of Sections 17 18 and 33 punishable that the maximum punishment for such offence if it is first offence is to three years or with fine which shall not be less than fifteen thereof the period of limitation is three years if the offence is exceeding three years. Section 469 of Cr.PC deals with the the period of limitation in relation to an offender shall commence on Crl.A.@S.L.P.(Crl.)No.41020 In the present case it is not in dispute the complainant­2 nd Insecticide Testing Laboratory Ludhiana and the complaint was facts as such the complaint is within the period of limitation. We are no reason to seek computation of limitation only from the date of receipt of report of the Central Insecticide Testing Laboratory Faridabad. As per the procedure prescribed under the Statute i.e. Insecticide Act 1968 and the rules made thereunder the Insecticide the sample was sent on 17.02.2011 after drawing on 10.02.2011 and Crl.A.@S.L.P.(Crl.)No.41020 date is said to be the crucial date for commencement of period of the date of offence allegedly committed by the accused. Merely because a further request is made for sending the sample to the 24(4) of the Act which report was received on 09.12.2011 receipt of such analysis report on 09.12.2011 cannot be the basis for Insecticide Testing Laboratory Ludhiana on 14.03.2011 itself indicates misbranding as stated in the complaint thus the period of that the complaint filed is barred by limitation and allowing the proceedings to go on on such complaint which is ex facie barred by the learned counsel has also raised other grounds in support of quashing as we are persuaded to accept his submission that Crl.A.@S.L.P.(Crl.)No.41020 For the aforesaid reasons this criminal appeal is allowed set aside. Consequently Complaint No.26 dated 25.03.2014 filed by SLP(Crl.) No. 4144 of 2020 REPORTABLE IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 750 OF 20 Arising out of SLPNo.4144 OF 2020 M s. Cheminova India Limited & Anr. ...Appellant(s State of Punjab & Ors ...Respondent(s JUDGMENT R.SUBHASH REDDY J. This Criminal Appeal is filed by the Petitioners Accused nos. 3 and 4 in CRM M 12082 2016 before the High Court of Punjab Haryana at Chandigarh aggrieved by the Order dated 12.05.2020. By the aforesaid order the Petitioners’ application of quashing of Complaint No. 313 dated 19.08.2015 filed by the Respondent No.2 The SLP(Crl.) No. 4144 of 2020 Quality Control Inspector Bhikhiwind District Tarn Taran Punjab for offences under Sections 3(k)(i) 17 18 and 33 punishable under Section 29 of the Insecticides Act 1968 was dismissed. The petition was allowed by the High Court for other accused who was working as Godown Incharge and quashed the proceedings The 1st Appellant is a Company having its office in Mumbai which is engaged in manufacturing of insecticides. The 2nd Appellant was the Ex Managing Director of the Company. On 31.12.2013 Quality Control Inspector Bhikhiwind District Tarn Taran Punjab inspected the premises of M s. Dhillon Kheti Store in the presence of its sole Proprietor Shri Nishan Singh. The said Nishan Singh was the authorised dealer for 1st Appellant Company to sell its insecticides. At the time of inspection the inspecting officer found six boxes containing 25 packets each of Piroxofop Propanyl with each packet weighing 160 grams stocked in the premises. From the abovesaid stock samples were drawn and one of the samples was sent to Senior Analyst Insecticide Testing SLP(Crl.) No. 4144 of 2020 Laboratory Amritsar. When the report dated 15.01.2014 was received active ingredient of Piroxofop Propanyl was found only to the extent of 11.72% as against the labelled declaration of 15%. A copy of the report was sent to the dealer at Amritsar along with a Show Cause Notice. On production of copy of the invoice by the dealer indicating that he had purchased the insecticides in question from the 1st Appellant Company Show Cause Notice was also issued to the 1st Appellant Company which is having its manufacturing unit in Bharuch Gujarat and to other responsible officers of the Company. On receipt of the report the 2nd Appellant herein on behalf of the Company also made a request to send another sample to Central Insecticide Testing Laboratory at Faridabad vide letter dated 27.03.2014 and after depositing necessary charges another sample was sent to Central Insecticide Testing Laboratory which has reported that the sample was misbranded as the same was found to contain 10.09% of active ingredient only as against 15% as labelled on the packet. After obtaining necessary sanction from the competent authority a complaint was lodged before the Judicial SLP(Crl.) No. 4144 of 2020 Magistrate to prosecute the appellants and other accused for offences under Sections 3(k)(i) 17 18 and 33 punishable under Section 29 of the Act The appellants and other accused approached the High Court seeking quashing of the said complaint on various grounds. By impugned order High Court has dismissed the petition so far as appellants are concerned and allowed the application for the Godown Heard Mr. Sidharth Luthra learned Senior Counsel appearing for the Appellants and Ms Jaspreet Gogia learned Counsel appearing for the Learned Counsel for the appellants by referring to Section 33 of the Act has submitted that appellants have already filed an undertaking dated 22.01.2013 before the respondents nominating the incharge and responsible officers of the Company to maintain quality of the pesticides manufactured by the Company along with the resolution of the Company’s meeting held on 28.12.2012. Learned Counsel has submitted that by making vague and bald SLP(Crl.) No. 4144 of 2020 allegations the appellants who were the Company and the Managing Director are also sought to be It is submitted that unless there is a clear and categorical averment in the complaint indicating the role played by the appellants there cannot be any vicarious liability on the 1st Appellant Company and the 2nd AppellantManaging Director for commission of the alleged offence. In support of his arguments learned Senior Counsel has placed reliance on the judgment of this Court in the case of Managing Director Castrol India Limited vs. State of Karnataka & Anr.1 and also another judgment of this Court in the case of Shiv Kumar Jatia vs. State of NCT of Delhi2. It is also further contended by the learned Counsel that before taking cognizance of the offence on the complaint learned Magistrate has not followed the procedure contemplated under Section 24 of the Act and Section 202 of the Code of Criminal Procedure. It is submitted that though the 1 2018SCC 275 2019SCC 193 SLP(Crl.) No. 4144 of 2020 appellants are not residing within the jurisdiction of the Magistrate without making proper inquiry and ordering investigation cognizance of the offence is taken. Further it is submitted that the prosecution against the appellants is nothing but abuse of the process of law. The High Court has not considered various grounds raised by the appellants in proper perspective and dismissed their application for quashing the complaint. In support of his argument that the Magistrate has not followed the procedure under Section 202 of the Code of Criminal Procedure learned Senior Counsel has placed reliance on the judgment of this Court in Re: Expeditious Trial of Cases under Section 138 of N.I. Act 1881 No.20)3 On the other hand learned Counsel appearing for the Respondents has submitted that the High Court has considered all the grounds raised by the petitioners and rejected the petition to quash the proceedings. It is submitted that the 2nd Appellant being the Managing Director of the 1st Appellant Company which is the manufacturer of the product in 2021 SCC ONLINE SC 325 SLP(Crl.) No. 4144 of 2020 question was rightly prosecuted by the 2nd Respondent Quality Control Inspector Bhikhiwind District Tarn Taran Punjab. Learned Counsel has submitted that there is no violation of provision under Section 24 of the Act and Section 202 of the Code of Criminal Procedure and there are no grounds to interfere with the order of the High Court. It is submitted that the Appellant No.2 was the Managing Director of the Company at the relevant point of time as such he is overall responsible person for quality control of the products of the Company as such he is also liable for prosecution. Having heard the learned Counsels on both sides we have perused the impugned Order and other material placed on record Section 33 of the Act deals with ‘offences by companies’. A reading of Section 33(1) of the Act makes it clear that whenever an offence under this Act has been committed by a company every person who at the time the offence was committed was in charge of or was responsible to the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence SLP(Crl.) No. 4144 of 2020 and shall be liable to be proceeded against and punished accordingly. In the case on hand it is not in dispute that on behalf of the 1st Appellant Company 2nd Appellant Managing Director has furnished an undertaking dated 22.01.2013 indicating that Shri Madhukar R. Gite Manager of the Company has been nominated in the resolution passed by the Company on 28.12.2012 to be in charge of and responsible to the said Company to maintain the quality of the pesticides manufactured by the said Company and he was authorized to exercise all such powers and to take all such steps as may be necessary or expedient to prevent the commission of any offence under the Act. Filing of such undertaking with the respondent is not disputed. Even at Para 5.10 in the counter affidavit filed before this Court it is pleaded by the Respondents that by appointing persons responsible for affairs of the Company quality control etc. 2nd Appellant Managing Director cannot escape his liability from offences committed by 1st Appellant Company. In view of the specific provision in the Act dealing with the offences by companies which fixes the responsibility SLP(Crl.) No. 4144 of 2020 and the responsible person of the Company for conduct of its business by making bald and vague allegations 2nd Appellant Managing Director cannot be prosecuted on vague allegation that he being the Managing Director of the 1st Appellant Company is overall responsible person for the conduct of the business of the Company and of quality control etc In the instant case the Company has passed a resolution fixing responsibility of one of the Managers namely Mr. Madhukar R. Gite by way of a resolution and the same was furnished to the respondents by the 2nd Appellant in shape of an undertaking on 22.01.2013. When furnishing of such undertaking fixing the responsibility of the quality control of the products is not in dispute there is no reason or justification for prosecuting the 2nd Appellant Managing Director on the vague and spacious plea that he was the Managing Director of the Company at the relevant time. A reading of Section 33 of the Act also makes it clear that only responsible person of the Company as well as the Company alone shall be deemed to be guilty of the offence and shall be liable to be proceeded against SLP(Crl.) No. 4144 of 2020 Though the Managing Director is overall incharge of the affairs of the company whether such officer is to be prosecuted or not depends on the facts and circumstances of each case and the relevant provisions of law. Having regard to specific provision under Section 33 of the Act and the undertaking filed in the present case respondent cannot prosecute the 2nd Appellant herein. Thus we find force in the contention of Mr. Sidharth Luthra learned Senior Counsel that allowing the prosecution against 2nd Appellant Managing Director is nothing but abuse of the process of law. At the same time we do not find any ground at this stage to quash the proceedings against the 1st Appellant Company. 10. Further from the averments in the counter affidavit filed on behalf of Respondents 1 & 2 and other material placed on record we are of the view that no case is made out to quash the proceedings at this stage by accepting the plea of the appellants that the procedure contemplated under Section 24of the Act we are SLP(Crl.) No. 4144 of 2020 satisfied that after the 1st Appellant Company has deposited necessary Demand Draft for sending 2nd sample to the Central Insecticide Testing Laboratory steps were taken promptly and report was also sent by the Central Insecticide Testing Laboratory within the prescribed period of 30 days. Similarly with regard to the procedure contemplated under Section 202 of the Code of Criminal Procedure the same is to be viewed keeping in mind that the complainant is a public servant who has filed the complaint in discharge of his official duty. The legislature in its wisdom has itself placed the public servant on a different pedestal as would be evident from a perusal of proviso to Section 200 of the Code of Criminal Procedure. Object of holding an inquiry investigation before taking cognizance in cases where accused resides outside the territorial jurisdiction of such Magistrate is to ensure that innocents are not harassed unnecessarily. By virtue of proviso to Section 200 of Code of Criminal Procedure the Magistrate while taking cognizance need not record statement of such public servant who has filed the complaint in discharge of his official SLP(Crl.) No. 4144 of 2020 duty. Further by virtue of Section 293 of Code of Criminal Procedure report of the Government Scientific Expert is per se admissible in evidence The Code of Criminal Procedure itself provides for exemption from examination of such witnesses when the complaint is filed by a public servant. In the present case 2nd Respondent Public Servant in exercise of powers under provisions of the Insecticides Act 1968 has filed complaint enclosing several documents including reports of the Government Laboratories it is always open for the Magistrate to issue process on such complaint which is supported by documents. In any event we do not find any merit in the submissions of the learned Counsel that proceedings are to be quashed only on the ground that the Magistrate has taken cognizance without conducting inquiry and ordering investigation. In absence of showing any prejudice caused to the appellant at this stage the same is no ground to quash the proceedings in exercise of power under Section 482 of the Code of Criminal Procedure. 11. As all other nominated responsible persons of the Company are already accused in the Complaint we SLP(Crl.) No. 4144 of 2020 are of the view that there is no basis to proceed against the 2nd Appellant Managing Director to prosecute him for the alleged offences. The judgment of this Court relied on by Mr. Sidharth Luthra learned Senior Counsel which is with reference to provisions under Negotiable Instruments Act 1881 in Re: Expeditious Trial of Cases under Section 138 of N.I. Act 1881No.20)3 is also of not much help to the Appellants at this stage having regard to the facts and circumstances of the present case 12. For the aforesaid reasons this Criminal Appeal is partly allowed so far as the Appellant No.2 Managing Director is concerned and the impugned Order of the High Court dated 12.05.2020 passed by the High Court of Punjab & Haryana at Chandigarh in CRM M 12082 2016 is set aside. Consequently Complaint No. 313 dated 19.08.2015 filed by the 2nd Respondent Quality Control Inspector Bhikhiwind District Tarn Taran Punjab pending before the learned Judicial Magistrate First Class Patti stands quashed qua the Appellant No.2 namely Mr. Pramod N Karlekar Accused No.4. Further it is made clear SLP(Crl.) No. 4144 of 2020 that the observations and findings recorded in this order are made only for the purpose of disposal of this Appeal arising out of quash petition and it is open for the Trial Court to record its own findings based on the evidence on record and take such other steps in accordance with law (NAVIN SINHA J (R.SUBHASH REDDY J NEW DELHI August 4 2021

A man cannot benefit from the advantages of a de-facto marriage: Madras High Court

A broad and expansive interpretation must be given to the term “wife”, to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time. Strict proof of marriage should not be a pre-condition for grant of maintenance u/S. 125 Cr.P.C. A bench of Justice S Vaidyanathan, while adjudicating the matter in Malarkodi @Malar v. Chief Internal Audit Officer; [W.P.No.5706 of 2021], dealt with the issue of providing pensionary benefits to a woman in a live-in relationship. It is the case of the Petitioner that, after the death of her husband, Provident Fund and other amount from his Pension Account was not withdrawn from his Bank Account. Due to non-withdrawal of pension from his Account, the Bank has kept the Account as ‘Inactive’ and the same is in non-operational stage. As the Petitioner’s Application to the Respondents seeking withdrawal of pension amount from his Account, stood rejected, having no other alternative, she has approached this Court by way of the present Writ Petition. Admittedly, the Petitioner is the sister of her husband’s first wife. Though, it has been stated by the Petitioner that, her sister Susila was suffering from cancer and hence, she was asked to marry her husband, both the said Susila and the Petitioner herein lived together under one roof, after the marriage of the Petitioner with the deceased. It is not in dispute that, the first wife of the Petitioner’s husband pre-deceased the Petitioner’s husband, due to illness. Hence, according to the Petitioner, she is entitled to pension and other retirement benefits of her husband in terms of Rule 49 of the Tamil Nadu Pension Rules, 1978 (in short ‘Rules’). Also, it is stated that, the children of the deceased have no objection for the Petitioner getting the terminal benefits of the deceased, including pension. The Rule applicable to the employees of the Respondent Board is very old. But, Rule 49(7) of the said Rules states that, there should be a valid marriage. The Hindu Marriage Act, 1955 does not permit second marriage. Second marriage becomes valid, if solemnized after the demise of the first wife. But it cannot be lost out of sight that, after the enactment of the Domestic Violence Act, 2005, even without marriage, when the factum of live-in-relationship between a man and woman is established, it is held to be legally valid, and over a period of time, the woman attains the status of a wife. But, after the demise of the husband, if two wives are alive, the second one will not attain the legal status of ‘wife’ unless Personal Law permits. The issue whether presumption of marriage arises when parties are in a live-in relationship for a long period of time, which would give rise to a claim u/S. 125 Cr.P.C. came up for consideration in Chanmuniya vs. Virendra Kumar Singh Kushwaha before the Supreme Court. It was held that, where a man and a woman have cohabited for a long period of time, in the absence of legal necessities of a valid marriage, such a woman would be entitled to maintenance.

W.P.No.57021IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :09.03.2021CORAM : THE HONOURABLE MR.JUSTICE S.VAIDYANATHANW.P.No.57021Malarkodi @ Malar ... PetitionerVs.1.The Chief Internal Audit Officer Board Office Audit Branch TANGEDCO N.P.K.R.R. Maaligai First Floor 144 800 Anna Salai Chennai 600 002.2.The Executive Engineer Execution and Maintenance Tamil Nadu Electricity Board Thiruvidaimarudhur Main Road Kumbakonam 612 001.3.The Superintendent Engineer TANGEDCO Tanjore Taluk Vallam Road TNEB Tanjore.4.The Branch Manager Indian Overseas Bank Gandhi Salai Kumbakonam Branch. ... RespondentsPage No. https: www.mhc.tn.gov.in judis W.P.No.57021Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus calling for the records pertaining to pension by an order dated 25.11.2020 vide Ka.No.010206 411 Ni.Bi.2(2) Ko.Oivu 2020 passed by the 3rd Respondent and to quash the same and further direct the Respondents to disburse the family pension and other related pensionary benefits including the life time pending arrears to the Petitioner.For Petitioner: Ms.D.KalaivaniFor Respondents :Mr.Fakkir MohideenO R D E RPetitioner has come up with this Writ Petition seeking to quash the order dated 25.11.2020 passed by the 3rd Respondent vide Ka.No.010206 411 Ni.Bi.2(2) Ko.Oivu 2020 and for a direction to the Respondents to disburse family pension and other related pensionary benefits including the life time pending arrears to her.2.According to the Petitioner her husband Late S.Kaliyaperumal worked as Foreman I Grade in the Kumbakonam Branch of the Respondent TANGEDCO and after putting 33 years of service he retired on 31.03.2004. After his retirement he was receiving pension in his Bank Account from TANGEDCO Pensioners Family Security Fund and lifetime arrears of pension from TANGEDCO vide PP.O.No.52572 and his monthly Page No. https: www.mhc.tn.gov.in judis W.P.No.57021pension was credited to his S.B. Account in Indian Overseas Bank Gandhi Salai Branch Kumbakonam.3.It is further stated by the Petitioner that in the Pension Account her husband has mentioned one Mrs.Susila who is his first wife as his nominee. The said Susila is none other than the Petitioner’s own sister. As Susila predeceased the Petitioner s husband on 21.02.2009 due to illness the Petitioner s husband made an Application in 2015 for change in the details of nominee in his Account and requested for updating the name of the Petitioner in the nominee details in respect of his pension Account. While so the Petitioner s husband died on 11.01.2015 leaving behind him the Petitioner three sons and three daughters as his legal heirs. As all her sons and daughters got married and settled with their family the Petitioner is greatly dependent on her husband’s pensionary benefits.4.It is the case of the Petitioner that after the death of her husband Provident Fund and other amount from his Pension Account was not withdrawn from his Bank Account. Due to non withdrawal of pension from his Account the Bank has kept the Account as Inactive and the same is in non operational stage. As the Petitioner s Application to the Respondents Page No. https: www.mhc.tn.gov.in judis W.P.No.57021seeking withdrawal of pension amount from his Account stood rejected having no other alternative she has approached this Court by way of the present Writ Petition.5.Heard the learned counsel on either side and perused the material documents available on record.6.Admittedly the Petitioner is the sister of her husband s first wife. Though it has been stated by the Petitioner that her sister Susila was suffering from cancer and hence she was asked to marry her husband both the said Susila and the Petitioner herein lived together under one roof after the marriage of the Petitioner with the deceased. It is not in dispute that the first wife of the Petitioner s husband pre deceased the Petitioner s husband due to illness. Hence according to the Petitioner she is entitled to pension and other retirement benefits of her husband in terms of Rule 49 of the Tamil Nadu Pension Rules 1978of the said Rules states that there should be a valid marriage.Page No. https: www.mhc.tn.gov.in judis W.P.No.570217.For better appreciation Rule 49(7) of the Tamil Nadu Pension Rules 1978 is extracted hereunder: “(7)(i) Where family pension is payable to more widows than one the family pension shall be paid to widows in equal shares.On the death of widow her share of the family pension shall become payable to her eligible childWhere the deceased Government or pensioner is survived by a widow but has left behind eligible child or children from another wife who is not alive the eligible child or children shall be entitled to the share of family pension which the mother would have received if she had been alive at the time of the death of the Government servant or pensioner.[Explanation. For the purpose of this rule the second wife shall be eligible for the benefits of family pension only if the second marriagesolemnised as per the customary law prevailed among the community before the date of commencement of the Hindu Marriage Act 1955orPage No. https: www.mhc.tn.gov.in judis W.P.No.57021(ii) solemnised under the Mohammadan Law in which bigamy is permissible.]Where family pension is payable to more than one person each share containing a fraction of a rupee it shall be rounded off to the next higher rupeewhere the share of family pension as so rounded off under this sub rule when added causes an excess over the maximum limit such case shall be referred to the Government.](8)Except as provided in sub rule(7) the family pension shall not be payable to more than one member of the family at the same time.[Explanation. For the purpose of this rule the twin children born at a single birth shall be treated as of the same age and made eligible for family pension in equal shares".](ii) If a deceased Government servant or pensioner leaves behind a widow or widower the family pension shall become payable to the widow or widower failing which to the eligible child.[(iii)If sons and unmarried daughters are alive the eligible male or female children will be entitled for family pension in the order of their birth irrespective of the sex of the child and the immediate younger of him or her will be eligible for family pension only after the elder above him or her become ineligible for family pension.(b) In the case of twin children family pension is payable to such twin children in equal shares in the event of anyone of such children ceasing to be eligible for family pension his or her share of family pension will Page No. https: www.mhc.tn.gov.in judis W.P.No.57021become payable to the other such child and when both such children become ineligible for family pension the family pension will become payable to the next eligible child or twin children as the case may be.]8.The Hindu Marriage Act 1955 does not permit second marriage. Second marriage becomes valid if solemnized after the demise of the first wife. But it cannot be lost out of sight that after the enactment of the Domestic Violence Act 2005 even without marriage when the factum of live in relationship between a man and woman is established it is held to be legally valid and over a period of time the woman attains the status of a wife. But after the demise of the husband if two wives are alive the second one will not attain the legal status of wife unless Personal Law permits.9.The issue whether presumption of marriage arises when parties are in a live in relationship for a long period of time which would give rise to a claim u S. 125 Cr.P.C. came up for consideration in Chanmuniya vs. Virendra Kumar Singh Kushwaha before the Supreme Court. It was held that where a man and a woman have cohabited for a long period of time in the absence of legal necessities of a valid marriage such a woman would be entitled to maintenance. A man should not be allowed to benefit Page No. https: www.mhc.tn.gov.in judis W.P.No.57021from legal loopholes by enjoying the advantages of a defacto marriage without undertaking the duties and obligations of such marriage. A broad and expansive interpretation must be given to the term “wife” to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time. Strict proof of marriage should not be a pre condition for grant of maintenance u S. 125 Cr.P.C.10.The Parliament to protect the interest of women who ends up as a second wife or a concubine as a result of long live in relationship with a male companion has enacted the Protection of Women from Domestic Violence Act 2005. Section 2(f) of the said Act reads as follows:“Domestic Relationship means a relationship between two persons who live or have at any point of time lived together in a shared household when they are related by consanguinity marriage or through a relationship in the nature of marriage adoption or are family members living together as a joint family.”11.The Domestic Violence Act 2005 nowhere states that a married man cannot have a live in relationship with an unmarried woman so also a married woman cannot have relationship with any person more Page No. https: www.mhc.tn.gov.in judis W.P.No.57021particularly when Section 497 of the Indian Penal Code has been struck down by the Supreme Court. The Supreme Court has held that in a live in relationship between a male and female who do not have a spouse a situation like the present one on hand may arise only after the demise of the legally wedded person.12. The expression “relationship in the nature of marriage” as being akin to a common law or a defacto marriage came up for consideration in the case of D.Velusamy vs. D.Patchaiammal. It was opined that a common law marriage is one which requires that although a couple may not be formally married:the couple hold themselves out to society as being akin to spouses the parties must be of legal age to marry the parties must be otherwise qualified to enter into a legal marriage including being unmarried andthe parties must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time. However not all live in relationships would amount to a relationship in the nature of marriage to avail the benefit of Domestic Violence Act. Merely spending week ends together or a one night stand would not make it a “domestic relationship”.Page No. https: www.mhc.tn.gov.in judis W.P.No.5702113.When there is a specific enactment of the Domestic Violence Act 2005 Rule 49 of the Tamil Nadu Pension Rules 1978 will take a backseat as Domestic Violence Act 2005 will come to the driver’s seat and the woman will have to be given protection and the Rule cannot supersede the Statute mentioned supra. In the light of the Domestic Violence Act 2005 if the live in relationship is established then the woman attains the status of a wife. The march of law happens only while considering the co habitation that continues after the death of the first wife. 14.In a similar circumstance a learned Single Judge of this Court in the case of C.Sarojini Devi vs. The Director of Local Fund Audits Chennai has held that the second wife is entitled to payment of family pension after the death of the first wife. For better appreciation relevant portion of the said judgment is extracted below: “12. Even in the above judgment the petitioner therein had married the Government Employee during the subsistence of the first marriage. The only difference is that in that case the first marriage got dissolved in the year 2003 and the first wife died in the year 2005. This Court took into consideration the judgment of the Hon ble Supreme Court in Dhannulal s case. The Hon ble Supreme Court in the said case has held that Law presumes in favour of marriageand against concubinage Page No.1 https: www.mhc.tn.gov.in judis W.P.No.57021when a man and woman have co habitated continuously for a long time. By relying upon this judgment this Court held that after the dissolution of marriage with the first wife and after her death the petitioner therein was living with the deceased Government servant till his death. This was taken into consideration by this Court and this Court held that the petitioner therein must be considered to be the wife of the deceased Government servant atleast after the dissolution of the first marriage and the subsequent death of the first wife.13. This Court is in complete agreement with the proposition of law that has been enunciated in the above judgment. It is very easy to brand the petitioner as a concubine and deprive her of her livelihood. However the fact remains that the petitioner lived with the deceased Dr.A.Chinnasamy from the year 1975 up to his death in the year 2009. This means that she lived with him for nearly 34 years. The petitioner also gave birth to three children. If the petitioner had made this claim when the first wife is alive then obviously the petitioner will not be entitled for Family Pension since her relationship is not recognized by law.14. The march of law happens only while considering the co habitation that continues after the death of the first wife. That is the most crucial factor that was taken into consideration by this Court while granting the Family Pension to the petitioner in the case cited supra. Even in the present case the first wife died on 02.04.1997. Thereafter the petitioner lived with the deceased Dr.A.Chinnasamy till his death on 20.01.2009. During this period it can always be construed that the petitioner and the deceased Dr.A.Chinnasamy were living as husband and wife and their long co habitation itself raises that presumption of marriage. Added to that the deceased Dr.A.Chinnasamy had also nominated the petitioner on 11.05.1999 to receive the Family Pension after his death.Page No.1 https: www.mhc.tn.gov.in judis W.P.No.5702115. In the considered view of this Court this Court has to necessarily lean towards the presumption of marriage rather than branding the petitioner as a concubine. This will be the most appropriate way to deal with the facts of the present case if justice has to be done to the petitioner.16. In view of the above discussion this Court has no hesitation to quash the impugned order passed by the first respondent on 01.02.2016 and accordingly the same is quashed. The first respondent is directed to pass necessary orders and sanction Family Pension to the petitioner with effect from the date of death of Dr.A.Chinnasamy i.e. from 20.01.2009 and disburse the arrears of pension to the petitioner within a period of twelveweeks from the date of receipt of a copy of this order. The petitioner shall be continued to be paid with the Family Pension till her life time.”15.When the Rule specifically gives relief to more than one widow taking into account Personal Law the question of validity of the second marriage does not arise at all during the subsistence of the first marriage. I am of the view that the second wife attains the deeming status of a wife from the date of demise of the first wife in case the husband is alive on the date of demise of the first wife. Also when unknown relationship comes to be known after the demise of the husband such woman may not be entitled to any relief unless Personal Law permits more than one marriage or a declaration is obtained from the competent Judicial Forum with regard to her Page No.1 https: www.mhc.tn.gov.in judis W.P.No.57021legal status after making the first wife as a party if she is alive.16.It is more pertinent to refer to a Division Bench decision of this Court in the case of R.Rajathi vs. The Superintending Engineer TANGEDCO Nagapattinam Districtwherein in a similar circumstance regarding grant of pension to the second wife of the deceased employee it has been held as under:“43. We are therefore constrained to conclude that the judgments which conclude that a second wife would be entitled to family pension irrespective of her marriage being void under the provisions of their relevant Personal Law’s applicable to the parties do not reflect the correct position of law and therefore will stand overruled. The applicability of Sub Rule 7(a)(i) is confined only to cases where the second marriage is valid under the Personal Law applicable to the parties only in such cases widows of such marriages would be entitled to family pension.”17.Though I am bound by the Division Bench decision of this Court as the Domestic Violence Act has not been taken into account moreso when there are different judgments pertaining to the issue on hand including that of mine rendered in the case of S.Kamatchi vs. The Accountant General O o.Principal Accountant General Chennai as Page No.1 https: www.mhc.tn.gov.in judis W.P.No.57021early as on 06.08.2014 which has been dealt with by the Division Bench in paragraphs 13 17 and 35 of the judgment rendered in Rajathi s caseI am of the view that the matter has to be referred to a Larger Bench to arrive at a finality to the issue as to whetherRule 49 of the Tamil Nadu Pension Rules 1978 can take away the rights guaranteed for women under the Protection of Women from Domestic Violence Act 2005 anda concubine after the enactment of the Domestic Violence Act 2005 attains the status of a companion wife after the demise of the first wife during the lifetime of her husband and that due to continued live in relationship whether she attains the status of a wife in order to get pensionary and other terminal benefits due to the deceased person. 18.Taking note of the fact that women are to be respected and protected moreso in the light of the Protection of Women from Domestic Violence Act 2005 the issue certainly needs to be decided by the Larger Bench. Registry is directed to place the matter before the Hon’ble Chief Justice to constitute a Larger Bench for deciding the issue in question. 09.03.2021Index :Yes NoPage No.1 https: www.mhc.tn.gov.in judis W.P.No.57021Speaking Order :Yes No(aeb)S.VAIDYANATHAN J.(aeb) W.P.No.5702109.03.2021Page No.1

Proceedings under Contempt of Courts Act is to be exercised for maintenance of court’s dignity and majesty of law: Supreme Court of India.

Discretion given to the court in dealing with the proceedings under Contempt of Courts Act is to be exercised for maintenance of court’s dignity and majesty of law and further an aggrieved party has no right to insist that court should exercise such jurisdiction, in as much as contempt is between contemner and the court. This was observed by Hon’ble R. Subhash Reddy, J in the matter of M/s. Soorajmull Nagarmull vs. Sri Brijesh Mehrotra & Ors. – [C.P(C). Nos.726-728 of 2017]. In this case, there are contempt petitions filed under Section 12 of the Contempt of Courts Act, 1971 read with Article 129 of the Constitution of India and Rule 3(C) of the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975, alleging that   respondents have willfully and deliberately violated directions issued by the Supreme Court in order dated 17.08.2015, 29.08.2016 and 05.01.2017 passed in Civil Appeal Nos.10394­10396 of 2011 and in Contempt Petition(C)Nos.726­728 of 2015 & I.A.Nos.28­30 of 2016 in the said contempt petitions. Brief facts of the case are that land belonging to the petitioner was acquired under provisions of the Land Acquisition Act, 1894 (for short, ‘the Act’). Notification under Section 4(1) of the Act was issued at the first instance on 25.03.1981. Pursuant to the notification, possession of the land along with the structures was taken on 20.08.1981. Said land was subsequently declared as protected forest under Section 29 of the Indian Forest Act, 1927. A notification to that effect was issued under Indian Forest Act. As no award was passed pursuant to the notification issued under Section 4(1) of the Act, a fresh notification under Section 4(1) of the Act was issued on 24.05.1995 and there was also further notification to the same effect on 17.08.1996. It is the contention of the learned senior counsels for the petitioner that the respondents have violated deliberately and willfully, the   series   of   directions   issued   by   the Supreme Court. It was submitted that first land was acquired by invoking urgency clause, and despite directions for payment of compensation by following the provisions under Section 40 of the 2013 Act, respondents have passed the award without adhering to Section 40 of the 2013 Act and by treating the land as agricultural forest land. It is the case of the petitioner that land acquired was used for construction of office and residential buildings, and despite the same, contrary to various directions issued by this Court, land is treated as agricultural forest land, a concept unknown to law.  It is submitted   that   when the applications were filed for correction of the order dated 29.08.2016, the said applications were also dismissed vide order and benefits were not granted as per Section 40 of the 2013 Act. Counter affidavit is filed on behalf of the respondents. While denying various allegations made by the petitioner, it is the case of the respondents that in compliance of the directions issued by the SC a fresh notification was issued which was also declared as lapsed by this Court by recording the statement made on behalf of the State that a fresh notification would be issued.  In the said order SC has clarified that the court has not expressed any opinion on the nature of the land etc. and left open all the issues. It is the case of the respondents that if the petitioner is aggrieved by the determination of compensation, it is always open for the petitioner to avail remedy under Section 64 of the 2013 Act. Without availing such remedy under guise of contempt, petitioner is trying to enlarge the scope of directions issued by this Court. Supreme court after perusing the facts and arguments presented, held that – “The respondents have not invoked urgency clause at all. Without invoking urgency clause, the question of extending the benefits as per Section 40 of the 2013 Act will not arise. It is further observed that discretion given to the court in dealing with the proceedings under Contempt of Courts Act is to be exercised for maintenance of court’s dignity and majesty of law and further an aggrieved party has no right to insist that court should exercise such jurisdiction, in as much as contempt is between contemner and the court. Section 64 of the 2013 Act, makes it clear that any person interested, who has not accepted the award, by written application to the Collector may seek reference to the competent authority constituted under Section 66 of the 2013 Act. Even after adjudication made by such authority on reference, there is a further remedy available under Section 74 to the High Court.  In that view of the matter while it is open for the petitioner to pursue remedies available in law, we do not find any contempt as alleged by the respondents.”

C.P(C).Nos.726 7217 These contempt petitions are filed under Section 12 of Constitution of India and Rule 3(C) of the Rules to Regulate Proceedings for Contempt of the Supreme Court 1975 alleging that respondents have wilfully and deliberately violated C.P(C).Nos.726 7217 The land admeasuring 29.38 acres belonging to the petitioner situated at Bhagalpur Bihar was acquired under provisions of the Land Acquisition Act 1894will apply as much C.P(C).Nos.726 7217 Section 6 of the Act pursuant to subsequent notification. The and the respondent­State was directed to initiate fresh acquisition proceedings or to take any other action available Alleging wilful and deliberate violation of the directions issued in the aforesaid order passed on 17.08.2015 earlier contempt petitions were filed in Contempt Petition(C) Nos.726­ 2013 Act the contempt petitions were disposed of vide order “It has been submitted by the learned senior to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013 survive and therefore the learned senior counsel appearing for the petitioner seeks permission to C.P(C).Nos.726 7217 The respondent­State has subsequently filed I.A.Nos.28­30 of We have heard Dr. A.M. Singhvi and Mr. Gopal Sankarnarayanan learned senior advocates appearing for the wilfully the series of directions issued by this Court. It is urgency clause and inspite of directions for payment of to Section 40 of the 2013 Act and by treating the land as acquired was used for construction of office and residential C.P(C).Nos.726 7217 buildings and inspite of the same contrary to various directions issued by this Court land is treated as agricultural forest land a concept unknown to law. It is submitted that when the applications were filed for correction of the order dated Counter affidavit is filed on behalf of the respondents case of the respondents that in compliance of the directions issued by this Court in the order dated 17.08.2015 a fresh made on behalf of the State that a fresh notification would be left open all the issues. It is stated that in view of the order under Section 11 of the 2013 Act and after following the C.P(C).Nos.726 7217 there was no violation of any directions issued by the Court the determination of compensation it is always open for the petitioner to avail remedy under Section 64 of the 2013 Act Without availing such remedy under guise of contempt In the order dated 17.08.2015 passed by this Court in Civil Appeal Nos.10394­10396 of 2011 while quashing the acquisition proceedings on the ground that proceedings were in the Act respondent­State was directed to initiate fresh acquisition proceedings or to take any other action available under law. Consequent to abovesaid order dated 17.08.2015 respondents have issued fresh notification on 14.11.2015 C.P(C).Nos.726 7217 notification was issued thereafter on 14.02.2020. Pursuant to notification issued under Section 11 of the 2013 Act on 14.02.2020 award inquiry was conducted. Petitioner has filed In view of the order dated 10.02.2020 passed by this dated 12.11.2020 it cannot be said that respondents have violated the directions issued by this Court in the order dated same is pending. With regard to submission of Dr. Singhvi learned senior counsel that the respondents have not granted 2013 Act without invoking urgency clause the question of C.P(C).Nos.726 7217 arise. In the judgment in the case of J.S. Parihar v. Ganpat Kumar appearing for the respondents it is observed by this cause of action to seek redressal in an appropriate forum Further in the judgment of the Court in the case of Delhi equity and good conscience cannot be extended contrary to provisions of the Statute. In the judgment in the case of R.N that a decree obtained under Land Acquisition Act is an that weapon of contempt is not to be used in abundance or 16 SCC 291 25 SCC 339 34 SCC 400 C.P(C).Nos.726 7217 law and further an aggrieved party has no right to insist that the 2013 Act on 14.02.2020 and the award passed by the deliberately and intentionally violated any directions issued by this Court attracting the provisions of Contempt of Courts Act 1971. Though detailed submissions were advanced by the value while it is open to the petitioner to avail the remedies directions issued by this Court. Section 64 of the 2013 Act C.P(C).Nos.726 7217 the award by written application to the Collector may seek 66 of the 2013 Act. Even after adjudication made by such aforesaid reasons these contempt petitions are dismissed with no order as to costs. We make it clear that we have not on the determination of market value in the award dated

Under Section 37 NDPS Act, bail cannot be granted to an accused under NDPS Act involving commercial quantity: High Court of Tripura

The quantity was no doubt commercial quantity and the incriminating materials available against the petitioner had made out a good prima facie case against him. Such an opinion was held by The Hon’ble High Court of Tripura before The Hon’ble Mr. Justice S.G. Chattopadhyay in the matter of Shri Bikash Ray Vs. The State of Tripura [A.B. No. 78 of 2021].  The facts of the case were associated with an application for granting a pre-arrest bail under section 438 Cr.P.C to the petitioner. It was reported that a similar application was submitted previously but was rejected. It was stated by the counsel, representing the petitioner that he was granted a pre-arrest bail on the same allegations by an order dated 20.08.2021. The Counsel contended that no contraband item was found physically from the petitioner and thereby he urged the court for anticipatory bail to the petitioner.  The Counsel for the opposition opposed the statements of the petitioner’s counsel and contended that according to the CDR reports, it was found that the petitioner was in regular touch with the carrier of the contraband and that he is the principal accused of this case. The counsel for the opposition also stated that according to the stringent parameters laid down by the Apex Court regarding bail under NDPS Act, the petitioner does not deserve pre-arrest bail in this case. The Hon’ble Court considering all the facts stated that “In view of the parameters laid down by the Apex Court in several judicial pronouncements for granting anticipatory bail particularly in NDPS cases and all other facts and circumstances of the case, this court is of the view that the benefit of custodial immunity by granting pre-arrest bail cannot be allowed to the accused in the present case. Therefore, his bail application stands rejected and in terms of the above, the matter is disposed of.”

HIGH COURT OF TRIPURA A.B. No. 721 ..Petitioner(s) ..Respondent(s) Shri Bikash Ray The State of Tripura For Petitioner(s) For Respondent(s) Mr. S. Lodh Adv. Mr. R. Datta P.P. HON’BLE MR. JUSTICE S.G. CHATTOPADHYAY This is an application under section 438 Cr.P.C for granting pre arrest bail to Bikash Ray petitioner who is apprehending arrest in Bishalgarh PS case No.2021 BLG 059 which has been registered under sections 20(b)(ii)(C) 25 27A 29 and 32 of the NDPS Act 1985. 2] Similar application was earlier considered by this court in A.B 66 of 2021 and after consideration of the grounds advanced by the petitioner as well as the submissions of learned P.P the said application was rejected by an order dated 17.09.2021. 3] The facts of the case may be reproduced from the said order dated 17.09.2021 which is as under: “[3] The bare facts essential for disposal of the bail application is as under: Sri Parthanath Bhowmik Inspector of Police of Bishalgarh police station lodged suo motu written FIR with the Officer in Charge of Bishalgarh police station alleging inter alia that on 24.07.2021 he received an information from own source that a truck bearing registration No. TN47 AT 4858was coming towards Bishalgarh from Udaipur and the said vehicle was carrying dried ganja. Sri Bhowmik recorded the said information in the general diary of the police station vide GD entry No. 8 dated 24.07.2021 and procured permission from the jurisdictional Superintendent of Police to step into action. Then he along with required number of Officers and Staff left the police station vide GD entry No. 10 dated 24.07.2021 and started noticing the vehicles which were coming from the said direction. The suspected vehicle arrived in front of Bishalgarh police station at 05.45 am and the same was detained by the police team. Driver Selvaraj K of Tamil Nadu told the police team that the vehicle was carrying rubber sheet. When police undertook a search in the said vehicle the driver tried to flee away. He was however detained and brought to police station for interrogation. With the help of interpreter police interrogated him for about three hours and came to know that during the previous night rubber sheet was loaded in his vehicle from a place called Madhab Bari at Jirania. Thereafter he was taken to a place between Tepania and Killa in Gomati Tripura for loading dried ganja where he noticed huge quantity of dried ganja stored in a place and he learnt from the conversation of the people that Bishu Kumar Tripura was the owner of the said contraband. 3390 Kg dried ganja wrapped in rubber sheets was recovered from the said vehicle and the same was seized in presence of witnesses. 4] Pursuant to the said FIR lodged by Inspector Parthanath Bhowmik Bishalgarh PS case No. 2021 BLG 059 under Sections 20 25 27A 29 and 32 of the NDPS Act 1985 was registered and investigation of the case was taken 4] Heard Mr. S. Lodh learned counsel appearing for the petitioner. Also heard Mr. R. Datta learned P.P. representing the State 5] It is contended by Mr. Lodh learned counsel that on the same set of allegations and on the same set of incriminating materials accused Bishu Kumar Tripura was granted pre arrest bail by this court by an order dated 20.08.2021 passed in A.B 58 of 2021 and another accused namely Naithak Jamatia was also granted anticipatory bail by the Additional Sessions Judge Sepahijala District Bishalgarh by his order dated 31.08.2021 in Bail Application No. 33 of 2021. Counsel contends that the learned Additional Sessions Judge considered the materials available against the accused at length and by a detailed and reasoned order he granted anticipatory bail to Naithak Jamatia accused petitioner. Counsel therefore submits that the present accused namely Bikash Ray deserves equal treatment and his bail application may be considered by this court on the ground of parity. Counsel submits that no contraband was recovered from the physical possession of the present petitioner and the materials collected by the investigating agency do not even remotely connect him to the alleged crime. Learned counsel therefore urges the court to grant anticipatory bail to the 6] Opposing the contention of Mr. Lodh learned counsel Mr. R. Datta learned P.P. contends that the CDR analysis demonstrates that the petitioner was in regular touch with the carrier of the contraband namely Selvaraj K and the other accused persons involved in the case. Learned P.P submits that he is the principal accused of this case against whom there are genuine materials with regard to his involvement in the case. It is contended by Mr. Datta learned P.P that he is also involved in Manu PS case No. 2021 004 for similar offence in which he has been charge sheeted. Learned P.P submits that the racket consisting of the present petitioner and the other accused of this case is the most active racket in the state involved in drug peddling within the state and drug smuggling across the border. Learned P.P. submits that serious charges have been brought against the petitioner and therefore the petitioner does not deserve the extra ordinary relief under section 438 Cr.P.C. Learned P.P further refers to section 37 of the NDPS Act which puts strict restrictions with regard to grant of bail under the NDPS Act. In support of his contention Mr. Datta learned P.P has relied on the decision dated 22.09.2021 of the Apex Court in Criminal Appeal No. 10421wherein the Apex Court has held as “20 Based on the above precedent the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug trafficking in the country stringent parameters for the grant of bail under the NDPS Act have been prescribed.” 7] Learned P.P urges that in view of the stringent parameters laid down by the Apex Court with regard to grant of bail under NDPS Act petitioner does not deserve pre arrest bail in this case. 8] The detailed submissions of learned P.P and the defence counsel were also recorded by this court when similar application of bail is as under: was considered by this court in A.B 62 relevant extract of which “[6] Mr.J.Bhattacharjee learned counsel appearing for the petitioner contends that there is no material to justify arrest and detention of the present petitioner. The petitioner is not even named in the FIR. Only from the submission of the learned PP in the course of hearing of AB No.58 of 2021 his name transpired when learned PP submitted before the court that the investigating agency was also looking for the present petitioner. Therefore petitioner Bikah Roy is apprehending his arrest in the case for which he has moved this application under Section 438 Cr.P.C. 7] It is contended by Mr. Bhattacharjee learned counsel that even the FIR named accused persons have been released on bail in this case. The driver of the vehicle from whose physical possession the contraband was seized has also been released on bail. Counsel therefore submits that the present petitioner cannot be treated differently and he may also be released on bail. Counsel refers to the order dated 20.08.2021 of this court passed in AB 521 whereby accused Bishu Kumar Tripura of this case was released on anticipatory bail under similar circumstances. Learned counsel therefore urges for release of the petitioner on bail on any condition whatsoever. 8] Appearing for the prosecution Mr. Ratan Datta learned PP vehemently opposes the bail application and submits that the petitioner is a habitual drug peddler who has been charge sheeted for similar offences in Manu P.S. Case No. 2021 MANU 004. Relying on the case diary Mr.Ratan Datta learned PP also contends that it would emerge from the CDR collected by the investigating agency that the petitioner was having frequent conversation over cell phone with accused driver Selvaraj K when the said driver was proceeding towards Bishalgarh with the contraband in his vehicle. According to learned PP the said circumstance demonstrates that he was an active collaborator in smuggling the said contraband. 9] Relying on the decision of the Apex Court in STATE OF KERALA AND OTHERS Versus RAJESH AND OTHERS reported in 12 SCC 122 Mr.Datta learned PP submits that in the said case the Apex Court has succinctly held that liberal approach in the matter of bail under NDPS case is indeed uncalled for. Counsel submits that where the offence involves commercial quantity Section 37 of the NDPS Act will come into play and the restrictions put under Section 37 of the Act with regard to grant of bail shall apply. According to learned PP the Apex Court has laid down broad parameters with regard to grant of bail in NDPS cases in the said judgment which are as under: “19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC but is also subject to the limitation placed by Section 37 which commences with non obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application and the second is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied the ban for granting bail 20. The expression “reasonable grounds” means something more than prima facie for believing that the probable causes accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC or any in force regulating the grant of bail approach in the matter of bail under the NDPS Act is indeed uncalled for. law for the time being 21. We may further like to observe that the learned Single Judge has failed to record a finding mandated under Section 37 of the NDPS Act which is a sine qua non for granting bail to the accused under the NDPS 22. The submission made by learned counsel for the respondents that in Crime No. 14 of 2018 the bail has been granted to the other accused persons and no steps have been taken by the prosecution to challenge the grant of post arrest bail to the other accused persons is of no consequence the consideration prevailed upon the court to grant bail to the other accused persons will not absolve the act of the respondent accusedfrom the rigour of Section 37 of the NDPS Act.” 10] Also relying on the decision of the Apex Court in SATPAL SINGH Versus STATE OF PUNJAB reported in 13 SCC 813 Mr.Datta learned PP contends that in view of the restrictions under Section 37 NDPS Act bail cannot be granted to an accused under NDPS Act involving commercial quantity without recording the required level of satisfaction of the court about the innocence of the accused. Counsel has relied on paragraph 14 of the judgment which is as under: “14. Be that as it may the order dated 21 09 2017 passed by the High Court does not show that there is any reference to Section 37 of the NDPS Act. The quantity reportedly commercial. In the facts and circumstances of the case the High Court could not have and should not have passed the order under Section 438 or 439 CrPC without reference to Section 37 of the NDPS Act and without entering a finding on the required level of satisfaction in case the Court was otherwise inclined to grant the bail. Such a satisfaction having not being entered the order dated 21 09 2017 is only to be set aside and we do so.” 11] Leaned PP further argues that investigation is under progress and materials against the petitioner are forthcoming. Under these circumstances his release on anticipatory bail will frustrate the investigation of the case. It is contended by learned PP that in view of the growing number of cases of drug trafficking in the state and the materials available on record his bail petition may be turned down. to record the present context commercial quantity of 12] In investigating agency. contraband was seized by Prosecution has brought the past criminal antecedent of the petitioner. The fact that he has been charge sheeted in Manu P.S. Case No.2021 004 for similar offence is not disputed. The case diary also contains incriminating materials supporting the charges against him. The CDR investigating agency collected and produced by demonstrates that the accused had frequent and long telephonic conversation with the accused driver of the offending vehicle prior to seizure of the contraband from his vehicle. The materials available on record has thus made out a good prima facie case against the accused. There is merit in the submission of learned public prosecutor that if the accused is bailed out at this stage fair investigation would be impaired and collection of evidence against the accused would be obstructed. 13] In view of the legislative mandate of Section 37 of the NDPS Act and the judgments of the Apex Court cited to supra this court is of the view that in the facts and circumstances of the case it would not be appropriate to allow pre arrest bail to the accused.” 9] Learned P.P has produced the updated case diary in two volumes. Perused the case diary and all other materials available on record. Considered the submissions of the counsel representing the In the case of Union of India through Narcotics Control Bureau Lucknow the matter came up before the Hon’ble Supreme Court against the judgment of the learned Single Judge of the Lucknow bench of High Court of Judicature at Allahabad whereby the High Court granted bail to the accused who was charged with several offences under the NDPS Act. In this case while setting aside the order of the Hon’ble Allahabad High Court one of the crucial circumstances which was assessed by the Apex Court was that the CDR analysis of the mobile number used by the accused respondent indicated that the respondent was in regular touch with the other accused persons. Relying on the said observation of the Apex Court learned P.P has also referred to the CDR analysis made by the investigating agency in the case in hand from which it appears that the accused made several calls from his mobile to the other accused persons of the present case particularly Selvaraj K who was the carrier driver of the contraband and he also received several calls to his mobile from those accused persons. Contraband which has been seized in this case is dried ganja weighing 3390 Kg. The quantity is no doubt commercial quantity and the incriminating materials available against the petitioner has made out a good prima facie case against him. In view of the parameters laid down by the Apex Court in judicial pronouncements for granting anticipatory bail particularly in NDPS cases and all other facts and circumstances of the case this court is of the view that the benefit of custodial immunity by granting pre arrest bail cannot be allowed to the accused in the present case. Therefore his bail application stands rejected and in terms of the above the matter is disposed of. Return the case diary to Mr. R. Datta learned P.P. Rudradeep

NOC cannot be denied on the grounds that it was not applied through a proper channel : Delhi High Court

No Objection Certificate cannot be denied on the grounds that it was not applied for through a proper channel. The High Court bench consisting of J. Rajiv Sahai Endlaw and J. Asha Menon in the matter Krishna Kant Yadav v. Union of India & Ors. [W.P. (C) 8002/2020 & CM No. 26058/2020], issued mandamus directing Indian Air Force to comply with the pleas of the petitioner. The petitioner, an Airman of the respondents, Indian Air Force (IAF), filed the present writ petition seeking mandamus, directing the respondents, AIF to grant ‘No Objection Certificate’ (NOC) / Discharge Certificate to the petitioner, thereby allowing him to join the post for which he had selected in the recruitment process held by one of the respondents, Uttar Pradesh Public Service Commission (UPPSC), i.e. the post of Assistant Labour Commissioner in the Government of State of Uttar Pradesh. The writ petitioner first came up before the court on 15th October, 2020, when a notice thereof was ordered to be issued and the respondents restrained from revoking / cancelling the offer of appointment made to the petitioner, on the ground of non-submission of the NOC by the petitioner. The petitioner relying on CPL N.K. Jhakar v. Union of India [W.P. (C) No. 9088/2008], argued that “holding that not applying through proper channel cannot be a ground for denying NOC/Discharge Certificate”. The respondents on the other hand pleaded that firstly the court did not have jurisdiction to entertain this petition and that the petitioner had other statutory remedy under Section 26 of the Air Force Act, 1950 for redressal of his grievance. The respondents further argued that “considering the functionality of the respondents IAF, it requires well trained and experienced manpower and each Airman is trained for specific role and his continuance in the service is essential not only to make good the expenditure incurred on him by the nation on his training but also to man all the required posts at all levels, to achieve desired operational preparedness at all times”. Additionally it was stated by the respondents that “permission to apply for civil post as well as grant of NOC are privileges and hence cannot be claimed as a matter of right”.

IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 8002 2020 & CM No.26058 2020Date of decision: 12th January 2021. KRISHNA KANT YADAV ..... Petitioners Through: Mr. Ankur Chhibber Ms. Nandadevi Deka and Mr. Anshuman Advs. Through: Mr. Alok Singh Adv. For R 1 to 3. Mr. Anil Mittal Adv. for R 4&5. ..... Respondents UNION OF INDIA & ORS. HON BLE MR. JUSTICE RAJIV SAHAI ENDLAW HON BLE MS. JUSTICE ASHA MENON VIA VIDEO CONFERENCING] RAJIV SAHAI ENDLAW J. The petitioner an Airman in the respondents No.1 to 3 Indian Air Force has filed this petition seeking mandamus directing the respondents IAF to grant No Objection Certificate Discharge Certificate to the petitioner thereby allowing the petitioner to join the post for which he has been selected in the recruitment process held by respondent No.4 Uttar Pradesh Public Service Commission i.e. the post of Assistant Labour Commissioner in the respondent No.5 Government of State of Uttar Pradesh8002 2020 The writ petition came up first before this Court on 15th October 2020 when notice thereof was ordered to be issued and the respondents No.4&5 UPPSC and the Government of State of UP restrained from revoking cancelling the offer of appointment made to the petitioner on the ground of non submission by the petitioner of the NOC of the respondents IAF with which the petitioner was then and is presently employed. On 21st October 2020 and thereafter on 25th November 2020 this petition was taken up along with W.P.(C) No.5759 2019 and orders reserved in both the petitions. Finding the factual context of this writ petition to be different from that of W.P.(C) No.5759 2019 it was not deemed appropriate to pronounce orders in the two petitions by a common judgment and vide judgment reported as CPL Mukesh Singh Rajpoot Vs. Union of India & Ors. 2020 SCC OnLine Del 1599 W.P.(C) No.5759 2019 has been It is the case of the petitioner that the petitioner after completing his education till 10+2 stage applied for the post of Airman with the respondents IAF and on being successful was enrolled as an Airman on 1st October 2008 and underwent basic training and thereafter trade training of Accounts Assistant that on 27th April 2012 the petitioner was promoted to the rank of Corporal that the respondents IAF encourages career progression for all Airmen while in service of respondents IAF by making provision therefor in various orders that while the petitioner was in service Air Force OrderNo.14 2008 was in vogue which provided for permission to Airmen to apply for civil posts services under Central State Government and Public Sector Undertakings in Group A or W.P.(C) 8002 2020 equivalent posts on completion of 7 years of service with the respondents IAF that vide another AFO No.4 2012 dated 31st May 2012 eligibility and procedure for grant of permission to apply for civil posts services under Central State Government PSUs and Government of India Undertakings Corporations as well as for grant of NOC were provided that as per the said Policy any Airman who had completed 7 years of regular service was eligible to apply for any Group A post in Central State Government PSUs and Government of India Undertakings Corporations having the pay scale of Rs.15600 39100 with Grade Pay of Rs.5400 in Pay Band III was eligible for seeking discharge on being selected to the said post that the respondent UPPSC issued an advertisement dated 11th January 2016 inviting applications for recruitment to various posts carrying pay scale of Rs.9300 34800 with Grade Pay of Rs.4200 to Rs.15600 39100 with Grade Pay of Rs.5400 that the petitioner being eligible to apply in pursuance to the aforesaid advertisement sought permission of the respondents IAF to apply for the posts advertised by the respondent UPPSC and recruitment whereto was through Combined State Upper Subordinate Examination 2016 that the respondents IAF on 1st February 2016 granted such permission to the petitioner in accordance with AFO No.4 2012 that the petitioner participated in the recruitment process and the respondents IAF also issued NOC dated 12th December 2018 for the petitioner to appear at the interview stage of the said recruitment process xi) however the petitioner was not selected that the respondents IAF thereafter issued AFO No.33 2017 in supersession of AFO No.14 2008 and AFO No.4 2012 qua the procedure for discharge that AFO No.33 2017 drastically changed the procedure for Airmen to seek better W.P.(C) 8002 2020 career opportunities by imposing additional conditions on the eligibility criteria for applying for a civil post under Central State Government that under AFO No.33 2017 Airmen with minimum Skill Grade A and 7 years of service are entitled to Group A I and Group B II gazetted posts through Union Public Service Commissionand State Public Service Commission only that the imposition of additional conditions particularly the condition of possessing Skill Grade A along with minimum 7 years of service in AFO No.33 2017 is arbitrary that on 6th July 2018 respondent UPPSC issued an advertisement inviting applications for recruitment to various posts through Combined State Upper Subordinate Services Examination carrying pay scale of Rs.9300 34800 with Grade Pay of Rs.4600 to pay scale of Rs.15600 39100 with Grade Pay of Rs.5400 that the petitioner on 12th July 2018 applied online for permission to apply for the aforesaid posts advertised by the respondent UPPSC however since the petitioner did not possess Skill Grade A and was having Skill Grade B online application was not accepted compelling the petitioner to on 13th July 2018 apply offline for permission to apply for the civil post of Assistant Professor pursuant to the aforesaid advertisement dated 6th July 2018 however the respondents IAF refused to accept the offline application also that the petitioner with a view of not losing this once in a lifetime opportunity applied for the post of Assistant Professor in the State of UP and appeared in the preliminary examination and after succeeding therein appeared in the main examination and cleared the same also that in the interregnum the petitioner in an attempt to upgrade his skill level even took a skill upgradation examination of the respondents IAF but scored 118 marks i.e. 2 marks short of the cut off W.P.(C) 8002 2020 required for Skill Grade A that the petitioner in January to June 2020 yet again took the skill upgradation examination of the respondents IAF and at the time of filing of the petition result thereof was awaited xxii) that the petitioner on being called for interview on 16th July 2020 by the respondent UPPSC intimated the respondents IAF of the same and yet again applied to the respondents IAF for sitting in the interview to be held by the respondent UPPSC that the respondent UPPSC made the petitioner sign an undertaking stating that the petitioner will obtain and submit the NOC of the respondents IAF within 30 days of the date of the interview that the respondent UPPSC in the result of the recruitment process announced on 11th September 2020 declared the petitioner provisionally selected for the post of Assistant Labour Commissioner that the petitioner on 15th September 2020 yet again applied to the respondents IAF for issuance of a NOC Discharge Certificate so as to join the post for which the petitioner has been selected that though the Section Commander of the respondents IAF recommended favourable consideration of the application but no response was received thereto and xxvii) that the petitioner so as to save the job for which he has been selected has applied to the respondent UPPSC and the respondent State of UP for extension of time for submitting the NOC. The petitioner in the petition itself has relied on order judgment dated 21st October 2009 of this Court in W.P.(C) No.9088 2008 titled CPL N.K. Jhakar Vs. Union of India holding that not applying through proper channel cannot be a ground for denying NOC Discharge Certificate Charan Singh Bhanvariya Vs. Union of India 2010 SCC OnLine Del 2508 DB) judgment dated 30th May 2016 in W.P.(C) No.1465 2016 titled W.P.(C) 8002 2020 Rajeev Ranjan Vs. Union of India judgment dated 28th July 2016 in W.P.(C) No.5145 2016 titled CPL Ranjeet Kumar Vs. Union of India SLP(CC) No.22476 2016 preferred whereagainst was dismissed on 2nd December 2016) CPL Manoranjan Kumar Vs. Union of India 2017 SCC OnLine Del 11865 and several others wherein N.K. Jhakar was followed by this Court and mandamus issued to the IAF to issue NOC judgment dated 25th March 2019 of this Court in W.P.(C) No.6300 2018 titled Prakash Katiyar Vs. Union of India & Ors. where judgment dated 21st January 2019 in W.P.(C) No.567 2019 titled Sergeant Pradeep Kumar Rai Vs. Union of India was distinguished by holding that the NOC had been denied to the petitioner therein because he had been selected for a Group B and not a Group A post Subhash Chand Vs. Union of India MANU DE 0794 2020 where the condition in AFO No.33 2017 of having Skill Grade A was held to be arbitrary unreasonable and was struck down by a bench comprising one of usand in SLP(C) No.8061 2020 preferred whereagainst on 10th July 2020 though notice had been issued but no interim stay granted and other judgments of this bench where Subhash Chand supra was followed. It is not deemed necessary to record herein the grounds urged by the petitioner in support of his claim in the petition since the matter has been threshed out by one of usin Subhash Chand supra and by us in other judgments following Subhash Chand supra. The respondents IAF in their counter affidavit have pleaded that the jurisdiction of this Court to entertain the petition is barred by Section 14 of the Armed Forces Tribunal Act 2007 that the petitioner even W.P.(C) 8002 2020 otherwise has statutory remedy under Section 26 of the Air Force Act 1950 for redressal of his grievance that the petitioner was enrolled in the respondents IAF for an initial term of 20 years and had signed an undertaking to serve for 20 years and or till discharge that discharge of Airmen prior to completion of their regular engagement is bound to affect the manning level in the respective trades of the respondents IAF and has an adverse impact on the operational preparedness of the respondents IAF that considering the functionality of the respondents IAF it requires well trained and experienced manpower and each Airman is trained for specific role and his continuance in the service is essential not only to make good the expenditure incurred on him by the nation on his training but also to man all the required posts at all levels to achieve desired operational preparedness at all times that Airmen are inducted in the respondents IAF with basic educational qualification criteria of 10+2 Intermediate or equivalent and are subjected to training spanning 1 to 2 years before they are deployed independently on operational duties and the respondents IAF invests heavily on its workforce to mould the Airmen to meet its operational needs that administrative policies are framed from time to time for the purposes of carrying into effect the provisions of the Air Force Act that in order to regulate pre mature discharge of Airmen and at the same time balance some of their personal aspirations for better career progression in the civil life Air Force Orders are issued from time to time that earlier vide AFO No.18 2001 Airmen were permitted to apply for civil posts under Central State Government and equivalent jobs in PSUs after completion of 15 years of service vide AFO No.5 2003 it was decided to grant permission to Airmen for civil posts even after completion of 7 years of service that W.P.(C) 8002 2020 vide AFO No.4 2007 Airmen with 7 years of service were additionally permitted to apply for paramilitary forces that vide AFO No.14 2008 Airmen with 7 years of service were permitted to apply for civil posts under Central State Governments and equivalent posts in PSUs only that pursuant to implementation of Sixth Pay Commission and induction of grade based pay structure AFO No.14 2008 was superseded by AFO No.4 2012 whereunder Airmen with 7 years of service were entitled to apply for posts in Central State Governments and equivalent posts in PSUs and Government of India Undertakings Corporations that after implementation of the report of the Seventh Central Pay Commission which introduces pay matrix system and abolished grade system AFO No.33 2017 was issued that Skill Grade criteria has not only been made eligibility criteria for applying in civil service but since 2015 has also been incorporated in Annual Report Annual Confidential Report the Skill Grade criteria was introduced considering the casual approach of Airmen towards upgrading skill level skill level of an Airman is a direct measure of his professional capability to undertake tasks in his area of deployment and Airman Promotion Examinations are conducted in this regard that Airman of Skill Grade A are considered for selection as Ultra Skilled in Trade and Development it was observed that Airmen though capable of clearing civil services exams conducted by UPSC State Public Service Commission PSUs GATE NTA and other national level examinations but were not upgrading their skill as Airmen to achieve perfection in their trade work where they have been trained intensively and had served—they were not taking any interest to upgrade their skill level and rather concentrating for civil job the skill and perfection of airmen is required in handling highly W.P.(C) 8002 2020 sophisticated and specialized equipment and aircraft system that the skill grade system was evolved to motivate personnel to upgrade their skill to achieve operational preparedness that the respondents IAF has changed its policy for grant of NOC for civil posts as per changing scenario and in line with the pay structure in Civil Government Sector that the intent in granting permission to the Airmen possessing Skill Grade A to apply for the said civil posts is to give incentive to the personnel who achieve high skill grade by involving themselves in hard work such personnel are entitled to get benefit of career enhancement rather than the personnel who only desire career enhancement without dedication towards service that during 2015 to 2019 approximately 2706 trained Airmen left service before initial term of engagement of 20 years and which resulted in shortage of trained manpower and for which reason AFO No.33 2017 was brought out that the petitioner participated in the recruitment process of the respondent UPPSC without permission NOC of the respondents IAF that the application of the petitioner for issuance of NOC was examined in the light of AFO No.33 2017 and the petitioner was not found eligible for NOC in terms of AFO No.33 2017 because the petitioner had applied for the post without seeking permission of the respondents IAF and without possessing Skill Grade A that the Courts even if not satisfied with the policy ought not to make any modifications thereto and should leave it to the respondents IAF to take a call the Court ought not to substitute its opinion for that of the respondents IAF and that the facts of CPL Mukesh Singh Rajpoot supra are different as in that case grant of NOC Discharge Certificate was denied because of having not applied for civil post under UPSC or any State Public W.P.(C) 8002 2020 Service Commission. Reliance is placed on Amit Kumar Roy Vs. Union of India7 SCC 369. The counsel for the petitioner argued that the case of the petitioner is squarely covered by Subhash Chand supra. The counsel for the respondents IAF drew attention to paragraph 6 of AFO No.33 2017 laying down the condition of possession Skill Grade A and paragraph 7 laying down that permission to apply for civil post is a re requisite for grant of NOC and which permission is required to be in the format as per Annexure A to the AFO and argued that since the petitioner did not fulfill the conditions of the format for applying for permission to apply for civil post and was not eligible to apply and applied without permission the petitioner cannot seek mandamus for issuance of NOC Discharge Certificate. It was further argued that the petitioner never made submitted any application offline and the claim to that effect is false. It was further argued that issuance of NOC Discharge Certificate is not a matter of right. Attention is drawn to Clause 20 of AFO No.33 2017 providing that permission to apply for civil post as well as grant of NOC are privileges and hence cannot be claimed as a matter of right". 10. The counsel for the petitioner in rejoinder refuted that the petitioner did not submit any application it was stated that the application was submitted to the Section Officer of the respondents IAF but who did not forward the same. Else it was argued that the aspect of prior permission has already been considered in Subhash Chand supra. It was also informed that the petitioner since then has upgraded his skill grade to Grade A . W.P.(C) 8002 2020 11. Though the factual position in this case is squarely covered by Subhash Chand supra but we opted to hereinabove set out in detail the pleas of the respondents IAF only to demonstrate that the denial of NOC Discharge Certificate to the petitioner in the present case also is only on the grounds of the petitioner having participated in the recruitment process of the respondent UPPSC without obtaining permission therefor and the petitioner being not entitled to NOC Discharge Certificate for the reason of not possessing Skill Grade A . We emphasize that the respondents IAF though has filed a detailed counter affidavit has still not pleaded that the respondents IAF needs the petitioner or cannot let go of the petitioner and would have not granted the permission NOC Discharge Certificate to the petitioner even if fulfilled the requirement for the reason of being required needed by the respondents IAF for the service of the country. Had that been so then under Clause 20 of AFO No.33 2017 it could have been said that the petitioner is not entitled to a mandamus directing the respondents IAF to discharge the petitioner or to grant NOC to the petitioner inasmuch as there is no right of the petitioner to demand so notwithstanding that the petitioner fulfils all the conditions prescribed to apply for such permission. Clause 20 of AFO No.33 2017 also does not clearly provide so. Rather from the language and tenor of AFO No.33 2017 it appears that any Airman who fulfils the prescribed eligibility for applying for permission discharge is entitled thereto as a matter of right. Though the counsels for the respondents IAF in this petition as well in several other petitions entailing similar controversy have been arguing that it is not possible for the respondents IAF to grant permission to all who apply therefor even if fulfilling the eligibility conditions at the cost of depleting W.P.(C) 8002 2020 its own strength but till now we have not come across any case where the respondents IAF have denied permission in national interest or for the sake of its own operational preparedness. The denial even in this case is for the same reasons which did not find favour with this Court in Subhash Chand supra and other judgments where the same was followed. Though we have again heard the counsels at length on the said aspect in CPL Mukesh Singh Rajpoot supra arguments wherein were heard along with this petition but we did not find any reason to change our view. 12. We may notice another interesting aspect. Though the respondents IAF has pleaded that the condition of possessing Skill Grade A for seeking NOC Discharge Certificate after 7 years of service was introduced as an incentive to Airmen to upgrade their skill and which is pleaded to be in the interest of operational preparedness of the respondents IAF but surprisingly there is no condition that an Airman after upgrading his skill grade to Level A will serve the respondents IAF for any minimum period during which he will contribute with Skill Grade A to the benefit of the respondents IAF. Thus technically it follows that an Airman the very next day or shortly after upgrading his skill grade to Grade A would be entitled to be discharged from the respondents IAF much before his initial term of engagement of 20 years. We could have understood that if the incentive given to upgrade to Skill Grade A were to benefit the respondents IAF in any way. It is also not very clear that the said benefit of upgradation to Skill Level A of the respondents IAF would be of any use in the civil employment for joining which for career enhancement the Airman is being discharged. We thus remain of the opinion as taken in Subhash Chand W.P.(C) 8002 2020 supra regarding arbitrariness of the condition in AFO No.33 2017 of upgradation to Skill Grade A . 13. As far as the other reason pleaded for opposing grant of NOC Discharge Certificate of the petitioner having participated in the recruitment process of the respondent UPPSC without prior permission of the respondents IAF is concerned not only have we dealt therewith in Subhash Chand supra and the need to reiterate is not felt but we may add that the respondents IAF cannot be permitted to impose the condition of Skill Grade A which has been struck down in Subhash Chand supra by making it impossible for an Airman to apply for prior permission because of not having Skill Grade A and then contend that the Airman is not entitled to NOC discharge on the said ground. 14. Resultantly the petitioner succeeds and the petition is allowed. Mandamus is issued to the respondents IAF to forthwith within fifteen days grant NOC Discharge Certificate to the petitioner for joining employment as Assistant Labour Commissioner in the respondent No.5 Government of State of Uttar Pradesh pursuant to his selection in the recruitment process undertaken by the respondent No.4 UPPSC. Since during the pendency of this petition the respondents No.4&5 UPPSC and Government of State of Uttar Pradesh were restrained from revoking cancelling the offer of appointment made to the petitioner on the ground of non submission of NOC of the respondents IAF it follows that the petitioner on submission of such NOC Discharge Certificate would not be denied appointment by the respondents No.4&5 UPPSC and Government of State of Uttar Pradesh for the reason of delay in submission of NOC Discharge Certificate. W.P.(C) 8002 2020 15. The petition is disposed of. RAJIV SAHAI ENDLAW J. JANUARY 12 2021 ASHA MENON J. W.P.(C) 8002 2020

The principles of natural justice require a fair opportunity is provided to the aggrieved persons- Madras High Court

“If an aggrieved person contemplates a procedure of providing an opportunity before issuing a show cause notice ans such a procedure if accepted, would result in unnecessary complications as the show cause notice itself is a notice, providing an opportunity to the aggrieved person to submit their explanations/objections.” These were stated by the single bench of Honourable Mr. Justice S. M. Subramaniam in the case of Best & Crompton Engineering Project Limited v. The Corporation Bank (W.P.Nos.26640 to 26645 of 2014) Following is crux of the case the petitioners are Best & Crompton Engineering Project Limited, Represented by its Managing Director, and its Board of Directors. The history as narrated in the affidavit regarding the formation and development of the Company may not require an adjudication in the present writ petitions as the order under challenge is the order passed by the respondent Corporation Bank, now amalgamated with the Union Bank of India, declaring the petitioners as ‘Wilful defaulters’. The learned counsel for the petitioners mainly contended that the procedures followed for declaring the petitioners as ‘Wilful Defaulters’ are directly in violation of the Directives of the Hon’ble Supreme Court of India in the case of State Bank of India Vs Jah Developers Private Limited and Others, reported in (2019) 6 Supreme Court Cases 787. The learned counsel for the petitioners drew the attention of this Court with reference to the order impugned, which was issued by the Assistant General Manger as per the Directives of the Apex Court of India. The Assistant General Manager is not a competent authority and a decision must be taken by the Committee constituted by the Chairman and the General Managers and in the present case, such a procedure had not been followed and thus, the order impugned is in violation of the procedures as contemplated. Here in the case Honourable Mr. Justice S. M. Subramaniam stated that this being the procedures, which all are undoubtedly in consonance with the principles of natural justice and in-between procedures cannot be suggested nor be followed by the authorities for the purpose of taking any undue advantage. The principles of natural justice require a fair opportunity is provided to the aggrieved persons. Once the procedures followed are fair and reasonable and the persons aggrieved are provided with an opportunity to represent their case, the said procedure would be sufficient to meet out the requirement of the principles of natural justice and further, opportunity or otherwise or contemplation of in-between procedures are uncalled for and such procedures will destroy the very decision making process and on some occasions, it will provide undue advantage to such defaulters for the purpose of escaping from the clutches of law. Thus, Courts would not approve such procedures, which all are unnecessary, and Court must ensure that a person aggrieved is provided with a fair and reasonable opportunity to represent their grievances and the grievances represented are considered by the competent authorities and reasons are furnished for taking a decision. When these basic requirements are complied with, then there is no reason to interfere with the processes adopted by the competent authorities. In view of the facts and circumstances, the petitioners have not made out any acceptable ground for the purpose of interfering with the order impugned passed by the respondents and consequently, all the writ petitions stand dismissed. No costs. Consequently, connected miscellaneous petitions are closed.

W.P.Nos.26640 to 266414IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 16.12.2021CORAMTHE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAMW.P.Nos.26640 to 266414andM.P.Nos.14and 14W.P.No.266414:Best & Crompton Engineering Project Limited Rep by its Managing Director 57 PGP House 2nd Floor Sterling Road Nungambakkam Chennai....Petitioner Vs.1. The Corporation Bank Rep. By its Chairman and Managing Director Corporate Banking Branch 38 & 39 Whites Road Chennai 600 014.2. Grievance Redressal Committee Headed by the Chairman and Managing Director Corporation Bank Corporate Banking Branch 38 & 39 Whites Road Chennai 600 014.1 22 https: www.mhc.tn.gov.in judis W.P.Nos.26640 to 2664143. The Assistant General Manager Corporation Bank Corporate Banking Branch 38 & 39 Whites Road Chennai 600 014. ...RespondentsPRAYER : Writ Petition filed Under Article 226 of the Constitution of India to issue a Writ of Certiorari to call for the records on the file of the respondents and to quash the impugned order in OR:ADV:245:2014 15 dated 6.9.2014 passed by the 3rd respondent. For Petitioner:Mr.M.Vijayan[in all Wps] For M s.King and PartridgeFor Respondents:Mr.N.Sivabalan[in all Wps]COMMON ORDERThe relief sought for in all the present writ petitions is to quash the impugned order passed by the 3rd respondent in proceedings in OR:ADV:245:2014 15 dated 06.9.2014.2. The writs on hand have been instituted questioning the validity of the order dated 06.09.2014 passed by the third respondent declaring the writ petitioners as “Wilful defaulters”.2 22 https: www.mhc.tn.gov.in judis W.P.Nos.26640 to 2664143. The petitioners are Best & Crompton Engineering Project Limited Represented by its Managing Director and its Board of Directors. The history as narrated in the affidavit regarding the formation and development of the Company may not require an adjudication in the present writ petitions as the order under challenge is the order passed by the respondent Corporation Bank now amalgamated with the Union Bank of India declaring the petitioners as Wilful defaulters .4. The learned counsel for the petitioners mainly contended that the procedures followed for declaring the petitioners as Wilful Defaulters are directly in violation of the Directives of the Hon ble Supreme Court of India in the case of State Bank of India Vs Jah Developers Private Limited and Others reported in6 Supreme Court Cases 787.5. It is an admitted fact that the petitioners are defaulters and not paid the dues. However an opportunity must be provided to the petitioners and merely declaring the petitioners as Wilful defaulters will result in serious adverse consequences in running the Company and therefore the order 3 22 https: www.mhc.tn.gov.in judis W.P.Nos.26640 to 266414impugned is to be revisited with reference to the Directives issued by the Apex Court and accordingly the writ petitions are to be allowed.6. The learned counsel for the petitioners drew the attention of this Court with reference to the order impugned which was issued by the Assistant General Manger as per the Directives of the Apex Court of India. The Assistant General Manager is not a competent authority and a decision must be taken by the Committee constituted by the Chairman and the General Managers and in the present case such a procedure had not been followed and thus the order impugned is in violation of the procedures as contemplated.7. No doubt a Show Cause Notice had been issued and the petitioners also responded to the Show Cause Notice by submitting their explanations. Regarding initiation of Wilful default proceedings the respondent Bank issued a letter about Mechanism for Redressal of the Grievance. However they have not followed the procedures as contemplated.4 22 https: www.mhc.tn.gov.in judis W.P.Nos.26640 to 2664148. The learned counsel for the petitioner solicited the attention of this Court with reference to the serious consequences in the event of classifying a Company as a Wilful defaulter . In view of the fact that the petitioners have been declared as defaulters no additional facilities to be granted by any Bank Financial institutions Entrepreneurs Promoters would be barred from institutional finance for a period of 5 years Any legal proceedings can be initiated including Criminal complaints Banks Financial institutions to adopt a proactive approach in changing the management of the Wilful defaulter Promoter Director of wilful defaulter shall not be inducted by another borrowing company. As per Section 29 A of the Insolvency and Bankruptcy Code 2016 a wilful defaulter cannot be a resolution applicant.9. This being the serious consequences of declaring the petitioners as the Wilful defaulters the respondent Bank ought to have taken adequate care to ensure that the procedures had been followed strictly in consonance with the Directives issued by the Supreme Court of India. But in the present case its is not followed and thus the order impugned is liable to be set aside. 5 22 https: www.mhc.tn.gov.in judis W.P.Nos.26640 to 26641410. The learned counsel appearing on behalf of the respondent Bank objected the said contentions raised on behalf of the petitioners by stating that all the procedures as contemplated were scrupulously followed and there is no infirmity as such in respect of the order impugned. Even now the petitioners are defaulters committed default to the tune of Rs.120 Crores and the fact regarding the default is not disputed. The only question raised by the petitioners is the procedures followed by the Bank. The Committee of Executive Director Assistant General Manager Deputy General Manager and two General Mangers was constituted who in turn convened a meeting on 28.10.2013 at the Chamber of the Executive Director at Head Office to examine of the Wilful Default . Agenda No.1 deals with the Petitioner M s.Best & Crompton Engineering Projects Ltd. CBB Chennai. Paragraph 1.4 the committee arrived a conclusion that as the borrower has defaulted in meeting its payment repayment obligations to the Bank and in view of the above observations the Committee resolved to treat the borrowal company as well as its directors guarantors as “Wilful Defaulters”. Thus a decision was taken by the competent Committee and such Committee examined the documents as well as the prevailing situations during the relevant point of 6 22 https: www.mhc.tn.gov.in judis W.P.Nos.26640 to 266414time and taken a decision and passed a resolution resolving to treat the borrowal company as well as its directors guarantors as Wilful Defaulters . Thereafter the show cause notice was issued to the writ petitioners in proceedings dated 28.11.2013. Perusal of the show cause notice reveals that the reasons recorded by the Competent committee was communicated to the petitioners through the show cause notice. The reasons for classifying the writ petitioners as Wilful Defaulter has communicated in the show cause notice which reads as under:(i) Unit has defaulted in meeting its payment repayment obligations to the Bank even when it has the capacity to honour the said obligations.(ii) Unit has defaulted in meeting its payment repayment obligations to the Bank and has not utilized the finance from the Bank for the specific purposes for which finance was availed of but has diverted the funds for other purposes.(iii) Unit had defaulted in meeting its payment repayment obligations to the Bank and has siphoned off the funds so that the funds have not been utilized for the specific purpose for which finance was availed of nor are the funds available with the unit in the form of other assets.7 22 https: www.mhc.tn.gov.in judis W.P.Nos.26640 to 266414In case you intend to make a representation against the above proposal to declare you as a “Wilful Defaulter” you may make a representation to Grievance Redressal Committee headed by the Chairman & Managing Director of the Bank within 15 days from the date of receipt of this letter. On receipt of your representation if any you will be given a hearing by this Committee at our Head Office before a final decision to declare you as “Wilful Defaulter” are taken by the Bank.”11. On receipt of the show cause notice the petitioner submitted its objections explanations and thereafter in letter dated 20.12.2013 the respondent issued a letter stating about the Mechanism for redressal of the grievances. The respondent Bank requested the petitioner to attend for the personal hearing before the Grievance Redressal Committee headed by the Chairman and the Managing Director of the Respondent Bank at Bank s Corporate Office Mangalore on 31.12.2013 at 10.30 a.m. to hear the representation submitted by the writ petitioner. Thus an opportunity of personal hearing was provided to the writ petitioner after taking a decision by the competent Committee classifying the petitioners as “Wilful Defaulters”. In letter dated 03.04.2014 the respondent Bank again 8 22 https: www.mhc.tn.gov.in judis W.P.Nos.26640 to 266414communicated that the loan account standing in the name of the petitioner Company have become NPA on 15.10.2012 and the petitioner was identified as Wilful Defaulter by the Committee for Examination of Wilful Default on 28.10.2013 as per the RBI circular on Wilful Default.12. It is further communicated that the Grievances Redressal Committee meeting was held 31.12.2013 at the Head Office and the petitioner company was represented by Mr.K.Srinivas Kalyan Rao Chairman and Mr.Narayana Swamy Director. 13. In view of the submissions made by the petitioner company the Grievances Rederssal Committee decided to re examine the issue of observation of Wilful default taken by the competent Committee in its resolution dated 28.10.2013 the Grievances Redressal Committee convened meeting on 30.06.2014 and CMD and Charmian of the Grievances Redressal Committee was the Chairman of the meeting two General Managers were the members of the Committee. The Deputy General Manager was the Convener and the Executive Director and the General 9 22 https: www.mhc.tn.gov.in judis W.P.Nos.26640 to 266414Manager participated as invitees. The Grievances Redressal Committee again considered the decision taken by the Committee for examination of Wilful Default on 28.10.2013 and the representations submitted by the writ petitioners and accordingly taken a decision confirming the resolution passed by the Committee for examination of Wilful Defaulter on 28.10.2013. Accordingly the writ petitioners were finally declared as Wilful Defaulter and the final decision of the Committee was communicated to the writ petitioners through the impugned order by the Assistant General Manager.14. Let us now examine the Directives of the Hon ble Supreme Court of India in the case of State Bank of India Vs Jah Developers Private LimitedThe unit has defaulted in meeting its payment repayment obligations to the lender even when it has the capacity to honour the said obligations.(b) The unit has defaulted in meeting its payment repayment obligations to the lender and has not utilised the finance from the lender for the specific purposes for which finance was availed of but has diverted the funds for other purposes.(c) The unit has defaulted in meeting its payment repayment obligations to the lender and has siphoned off the funds so that the funds have not been utilised for the specific purpose for which finance was availed of nor are the funds available with the unit in the form of other assets.(d) The unit has defaulted in meeting its payment repayment obligations to the lender and has also disposed off or removed the movable fixed assets or immovable property given by him or it for the purpose of securing a term loan without the knowledge of the bank lender.”4. The grievance redressal mechanism is set out in Para 3 of the Master Circular as follows:“3. Grievances Redressal Mechanism.—Banks FIs should take the following measures in identifying and reporting 11 22 https: www.mhc.tn.gov.in judis W.P.Nos.26640 to 266414instances of wilful default:(i) With a view to imparting more objectivity in identifying cases of wilful default decisions to classify the borrower as wilful defaulter should be entrusted to a Committee of higher functionaries headed by the Executive Director and consisting of two GMs DGMs as decided by the Board of the bank FI concerned.(ii) The decision taken on classification of wilful defaulters should be well documented and supported by requisite evidence. The decision should clearly spell out the reasons for which the borrower has been declared as wilful defaulter vis à vis RBI guidelines.(iii) The borrower should thereafter be suitably advised about the proposal to classify him as wilful defaulter along with the reasons therefor. The borrower concerned should be provided reasonable timefor making representation against such decision if he so desires to a Grievance Redressal Committee headed by the Chairman and Managing Director and consisting of two other senior officials.(iv) Further the above Grievance Redressal Committee should also give a hearing to the borrower if he represents that he has been wrongly classified as wilful defaulter.(v) A final declaration as “wilful defaulter” should be made 12 22 https: www.mhc.tn.gov.in judis W.P.Nos.26640 to 266414after a view is taken by the Committee on the representation and the borrower should be suitably advised.”15. Regarding the definition of Wilful Default no doubt the petitioners have not paid the dues and the documents placed before the Committee was considered by the said Committee and a decision was taken classifying the petitioners as Wilful Defaulters . The violations raised by the petitioners are regarding the procedures followed with reference to Paragraph 4 of the judgment which speaks about Grievances Redressal Mechanism. Accordingly the Bank should take measures in identifying and reporting instances of Wilful default to classify the borrower as the wilful defaulter should be entrusted to a Committee of higher functionaries headed by the Executive Director and consisting of two GMs DGMs as decided by the Board of the Bank. The second step would be the decision taken on classification of wilful defaulters should be well documented and supported by requisite evidence. Such a decision should clearly spell out the reasons for which the borrower has been declared as wilful defaulter vis à vis RBI guidelines.13 22 https: www.mhc.tn.gov.in judis W.P.Nos.26640 to 26641416. The borrower should thereafter be suitably advised about the proposal to classify him as wilful defaulter along with the reasonsfor making representation. The Hon ble Supreme Court of India further proceeded by stating that if he so desires to a Grievance Redressal Committee headed by the Chairman and Managing Director and consisting of two other senior officials. The Grievance Redressal Committee should also give a hearing to the borrower if he represents that he has been wrongly classified as wilful defaulter.17. In this context we have to examine the procedures followed by the Bank in the present case. Admittedly the committee for examination of Wilful Default held on 28.10.2013. The petitioner s company has been included in the Agenda No.1 and the reasons are also stated for forming an opinion and the said Committee for examination of Wilful Default arrived a conclusion and resolved to treat the borrower company as well as its Directors Guarantors as Wilful Defaulters. Thus the Committee for examination of Wilful Default examined the document included the 14 22 https: www.mhc.tn.gov.in judis W.P.Nos.26640 to 266414Petitioner s Company in Agenda No.1 furnished reason took a decision and passed a resolution. Based on the resolution passed by the Committee show cause notice was issued to the petitioner in proceedings dated 28.11.2013.18. The committee s decision as well as the reasons for passing a Resolution classifying the petitioners as Wilful Defaulters also furnished in the show cause notice issued to the petitioners. Thus the petitioners were provided with an opportunity to understand the reasons and the basis for classifying the petitioners as Wilful Defaulters and responding the said notice the petitioner submitted its explanations objections. Further the notices were communicated to the Directors of the company also in proceedings dated 28.11.2013. The said notice also indicates that the reasons furnished by the Committee was communicated to the Directors. Thereafter the matter was referred to the Grievances Redressal Committee and the representation submitted by the petitioner was considered. The objections also considered and matter was referred to the Grievances Redressal Committee constituted by the CMD and Chairman of Grievance Redressal committee and two General Mangers who in turn convened a 15 22 https: www.mhc.tn.gov.in judis W.P.Nos.26640 to 266414meeting on 30.06.2014 and considered the decision taken by the Committee for examination of Wilful Default objections submitted by the petitioner and other documents and accordingly confirmed the decision taken by the Committee for examination of Wilful default. The said decision of the Grievance Committee was communicated to the writ petitioner by the Assistant General Manager in proceedings dated 06.09.2014 which is impugned in the present writ petitions.19. The learned counsel for the petitioners emphasized that Paragraph 3 of the Master Circular on Wilful Defaulters issued by the Reserve Bank of India dated 01.07.2014 has been violated in this case more specifically the procedures contemplated in Paragraph 3 of the Master Circular are violated.20. The learned counsel for the petitioner failed to note that the very same Paragraph 3 of the Reserve Bank of India Master Circular grievance redressal mechanism had been considered by the Hon ble Supreme Court of India in the case of State Bank of India (cited supra). The Apex Court extracted Clause 3 of the Master Circular and the present facts and 16 22 https: www.mhc.tn.gov.in judis W.P.Nos.26640 to 266414circumstances also considered with reference to the Master Circular of the Reserve Bank of India and also the ruling of the Hon ble Supreme Court. Thus the very contention raised by the learned counsel for the petitioner is misconceived as the Apex Court considered the Reserve Bank of India Master Circular for the purpose of declaring a person as Wilful Defaulter . Thus the Reserve Bank of India Master Circular as well as the Directives issued by the Apex Court of India are followed and the principles of natural justice has been complied in respect of the present case on hand.21. The learned counsel for the petitioners made a submission that even before issuing a show cause notice an opportunity must be provided to the petitioners. Such an idea mooted out neither contemplated nor necessary. If an aggrieved person contemplates a procedure of providing an opportunity before issuing a show cause notice ans such a procedure if accepted would result in unnecessary complications as the show cause notice itself is a notice providing an opportunity to the aggrieved person to submit their explanations objections. Thus new contemplation made by the petitioners deserve no merit consideration. The Hon ble Supreme Court of 17 22 https: www.mhc.tn.gov.in judis W.P.Nos.26640 to 266414India in unequivocal terms set out the procedures. Accordingly in identifying cases of Wilful default the committee of higher functionaries must be allowed to take a decision and in the present case the Higher level committee had taken a decision classifying the petitioners as Wilful defaulters . Thereafter the decision taken along with the reasons were communicated to the writ petitioners as per the RBI guidelines through a notice. On receipt of notice the petitioners also submitted their explanations objections which was also taken into consideration and thereafter the matter was referred to the Grievances Redressal Committee constituted by the CMD and Chairman of the Grievances Redressal Committee along with two General Managers. 22. The Grievances Redressal Committee also considered the issues reasons documents along with the objections explanations submitted by the petitioners and formed the decision taken by the Committee classifying the petitioners as Wilful defaulters .18 22 https: www.mhc.tn.gov.in judis W.P.Nos.26640 to 26641423. This being the procedures which all are undoubtedly in consonance with the principles of natural justice and in between procedures cannot be suggested nor be followed by the authorities for the purpose of taking any undue advantage. The principles of natural justice require a fair opportunity is provided to the aggrieved persons. Once the procedures followed are fair and reasonable and the persons aggrieved are provided with an opportunity to represent their case the said procedure would be sufficient to meet out the requirement of the principles of natural justice and further opportunity or otherwise or contemplation of in between procedures are uncalled for and such procedures will destroy the very decision making process and on some occasions it will provide undue advantage to such defaulters for the purpose of escaping from the clutches of law. Thus Courts would not approve such procedures which all are unnecessary and Court must ensure that a person aggrieved is provided with a fair and reasonable opportunity to represent their grievances and the grievances represented are considered by the competent authorities and reasons are furnished for taking a decision. When these basic requirements are complied with then there is no reason to interfere with the processes adopted by the 19 22 https: www.mhc.tn.gov.in judis W.P.Nos.26640 to 266414competent authorities. 24. In view of the facts and circumstances the petitioners have not made out any acceptable ground for the purpose of interfering with the order impugned passed by the respondents and consequently all the writ petitions stand dismissed. No costs. Consequently connected miscellaneous petitions are closed.16.12.2021Internet:YesIndex : YesSpeaking Order:YeskakTo1. The Chairman and Managing Director The Corporation Bank Corporate Banking Branch 38 & 39 Whites Road Chennai 600 014.2. The Chairman and Managing Director Grievance Redressal Committee Corporation Bank Corporate Banking Branch 38 & 39 Whites Road Chennai 600 014.20 22 https: www.mhc.tn.gov.in judis W.P.Nos.26640 to 2664143. The Assistant General Manager Corporation Bank Corporate Banking Branch 38 & 39 Whites Road Chennai 600 014. 21 22 https: www.mhc.tn.gov.in judis W.P.Nos.26640 to 266414S.M.SUBRAMANIAM J.kakW.P.Nos.26640 to 266414 16.12.202122 22

The condition necessary for an act to constitute an offence under Section 415 of the Penal Code is that there was dishonest inducement by the accused.

There must be an initial deception on the part of accused so as to induce the person so deceived to deliver any property to any person or to consent that any person shall retain any property or intentionally induces the person so deceived to do or omit to anything which he would not do or omit if he was not so deceived. The aforesaid has been established by the High Court of Jammu &Kashmir and Ladakh while adjudicating the case of M/s Indian Academy of Sciences and Another Vs Indu Bhushan and others [CRMC No. 297/2013 (O&M)] which was decided upon by a single judge bench comprising Justice Puneet Gupta on 24th November 2021. The facts of the case are as follows. respondent Nos. 2 and 3 submitted their manuscripts titled Synthesis and Characterization of RuddlesdenPoper(RP) type phase LaSr2MnCrO7 on 5th February 2010 and revised it on 22nd April 2010 as per reviewer(s) recommendations and the paper was accepted by the petitioner’s board for publication in the Journal on 4 th May 2010 and the same was published in journal of Chemical Sciences (vol. 122 No. 6 Nov 2010 PP 807-811). After two years of its publication, a complaint of plagiarism was received by the petitioners from respondent No. 1 alleging that the complainant i.e. respondent No. 1 is one of the co-authors of manuscript and while sending the manuscript for publication, name of respondent No. 1 has been deliberately omitted. the only allegation against the petitioners is that they published the manuscript without the name of respondent No. 1 and when the same was brought to their notice, the same was not removed. The present petition has been filed by the petitioners under Section 561-A Cr.P.C. (now 482 Cr.P.C) for quashing of criminal proceedings in complaint titled “Professor Indu Bhushan Sharma Vs Dr Devinder Singh and others” pending before the Court of learned Special Mobile Magistrate (Passenger Tax Shops and Establishment Act) (hereinafter to be referred as the trial court) filed under sections 417,420, 120-B. The court perused the facts and arguments presented. It was of the opinion that “ The only grievance of the respondent against the petitioners is that, the petitioners even after the receipt of his notice did not get the said article removed from their website and the journal of Chemical Science of Indian Academy of Science, as mentioned in para 10 of the complaint. It by no stretch of imagination constitutes offence of cheating as defined under Section 415 RPC. The respondent at the most could have resorted to the remedies under civil law but could not have taken recourse to criminal proceedings against the petitioners. The respondent No:1 may or may not have any cause against respondent Nos. 2 and 3 but so far as petitioners are concerned, no offence has been committed by them that necessitates their prosecution by respondent No. 1, as such the continuance of criminal proceedings against the petitioner shall be nothing but an abuse of process of law. In view of this, the present petition is allowed and the criminal proceedings in complaint filed under sections 417,420, 120-B titled as Professor Indu Bhushan Sharma Vs Dr Devinder Singh and others pending before the Court of learned Special Mobile Magistrate (Passenger Tax Shops and establishment Act) stands quashed, qua the petitioners only.”

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Reserved on : 21.10.2021 Pronounced on : 12.11.2021 CRMC No. 297 2013M s Indian Academy of Sciences and …..Appellant(s) Petitioner(s) Through: Mr. Sachin Gupta Advocate. …. Respondent(s) Prof. Indu Bhushan and others Through: Mr. Anil Khajuria Advocate for R 1 Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL JUDGE The present petition has been filed by the petitioners under Section 561 A Cr.P.C.for quashing of criminal proceedings in complaint titled “Professor Indu Bhushan Sharma Vs Dr Devinder Singh and others” pending before the Court of learned Special Mobile Magistrate(hereinafter to be referred as the trial court) filed under sections 417 420 120 B. It is stated that petitioner No. 1 is a society registered under the Societies Registration Act and is based in Bangalore. The Society was established by a renowned scientist Sir C. V. Raman and its aim is to disseminate science to the mankind. The petitioner No. 2 is the editor whose role is to find the suitable and competent reviewers to access the 2 CRMC No. 297 2013 suitability of the paper received for publication as per the policy and guidelines stipulated by the Academy. It is further stated that proforma respondent Nos. 2 and 3 submitted their manuscripts titled Synthesis and Characterization of Ruddlesden Poper(RP) type phase LaSr2MnCrO7 on 5th February 2010 and revised it on 22nd April 2010 as per reviewer(s) recommendations and the paper was accepted by the petitioner’s board for publication in the Journal on 4th May 2010 and the same was published in journal of Chemical Sciences16 SCC 739 the Apex Court has observed: “15. Section 415 of the Penal Code reads thus: “415. Cheating.—Whoever by deceiving any person fraudulently or dishonestly induces the person so deceived to deliver any property to any person or to consent that any person shall retain any property or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body mind reputation or property is said to “cheat”.” 16. The ingredients to constitute an offence of cheating are as follows: 16.1. There should be fraudulent or dishonest inducement of a person by deceiving him: 16.1.1. The person so induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property or 16.1.2. The person so induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived and 16.2. In cases covered by 16.1.2. above the act or omission should be one which caused or is likely to cause damage or harm to the person induced in body mind reputation or property. 17. A fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating. 18. Section 420 of the Penal Code reads thus: “420. Cheating and dishonestly inducing delivery of property.— Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person or to make alter or destroy the whole or any part of a valuable security or anything which is signed or sealed and which is capable of being converted into a valuable security 6 CRMC No. 297 2013 shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.” 20. Cheating is an essential ingredient for an act to constitute an offence under Section 420. 19.2. The person cheated must be dishonestly induced to a) deliver property to any person or b) make alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security. 23. The condition necessary for an act to constitute an offence under Section 415 of the Penal Code is that there was dishonest inducement by the accused. The first respondent admitted that the disputed sum was transferred by the son of the appellants to her bank account on 17 2 2010. She alleges that she transferred the money belonging to the son of the appellants at his behest. No act on part of the appellants has been alleged that discloses an intention to induce the delivery of any property to the appellants by the first respondent. There is thus nothing on the face of the complaint to indicate that the appellants dishonestly induced the first respondent to deliver any property to them. Cheating is an essential ingredient to an offence under Section 420 of the Penal Code. The ingredient necessary to constitute the offence of cheating is not made out from the face of the complaint and consequently no offence under Section 420 is made out.” Thus there must be an initial deception on the part of accused so as to induce the person so deceived to deliver any property to any person or to consent that any person shall retain any property or intentionally induces the person so deceived to do or omit to anything which he would not do or omit if he was not so deceived. So far as the petitioners are concerned they have simply published the manuscript submitted by the respondent Nos. 2 and 3 and it is not even the case of respondent No:1 that the petitioners have fraudulently or dishonestly induced him to deliver manuscript or to retain that as such the very basic ingredients of cheating are absent in the instant case. The only grievance of the respondent against the petitioners is that the petitioners even after the receipt of his notice did not get the said article 7 CRMC No. 297 2013 removed from their website and the journal of Chemical Science of Indian Academy of Science as mentioned in para 10 of the complaint. It by no stretch of imagination constitutes offence of cheating as defined under Section 415 RPC. The respondent at the most could have resorted to the remedies under civil law but could not have taken recourse to criminal proceedings against the petitioners. The respondent No:1 may or may not have any cause against respondent Nos. 2 and 3 but so far as petitioners are concerned no offence has been committed by them that necessitates their prosecution by respondent No. 1 as such the continuance of criminal proceedings against the petitioner shall be nothing but an abuse of process of law. In view of this the present petition is allowed and the criminal proceedings in complaint filed under sections 417 420 120 B titled as Professor Indu Bhushan Sharma Vs Dr Devinder Singh and others pending before the Court of learned Special Mobile Magistrate Passenger Tax Shops and establishment Act) stands quashed qua the petitioners only. JUDGE Whether the order is speaking: Whether the order is reportable: Sahil Padha

Relief under Article 226 can be exercised when litigant approaches the Court with clean hands: Karnataka High Court

Discretionary relief under Article 226 of the Constitution of India shall not be granted if the conduct of the litigant is not with clean hands. A single judge bench comprising of Justice P.S. Dinesh Kumar while adjudicating the matter in Mr Balakrishna Boob v. Bank of Maharashtra; [WRIT PETITION No. 1267 OF 2021 (GM-RES)], dealt with the issue of One Time Settlement under various schemes of the government. M/s. Bhagwan Cotton Ginners Pvt. Ltd., has borrowed money from Bank of Maharashtra during 2014. Bank has initiated recovery proceedings. Property mortgaged to the Bank has been brought to auction. The owner of the mortgaged property has presented this writ petition with a prayer inter alia to direct respondent – Bank to consider petitioner’s OTS (One time settlement) offer made in his representation in terms of ‘Maha Rahat Yojana 2020-21’ and ‘Maha Samadhan Yojna 2020-21’. Shri. Dhyan Chinnappa submitted that petitioner has submitted his representation with an offer to pay ₹4.4 Crores under the OTS Scheme. Since Bank has not considered the OTS proposal, petitioner has presented this writ petition. He submitted that the new OTS Scheme is non-discriminatory and non-discretionary in nature. As per the scheme, borrower’s NPA account falls under the category ‘Doubtful’ which requires payment of 70% of the secured portion and 35% of the unsecured portion of the loan. Bank is duty bound to consider the OTS proposal. The counsel appearing for the petitioner contended that the OTS scheme is non-discriminatory and nondiscretionary. Once the Scheme is in place, a borrower or guarantor is entitled to the benefit of the Scheme. Bank has rejected the OTS offers made by both Company and petitioner without proper application of mind. The counsel appearing for the respondent contended that under the OTS Scheme, petitioner is liable to pay 70% on the secured portion and 35% on the unsecured portion. It is not understandable as to why a borrower is permitted to pay only 70% on the secured portion and the remaining 30% is waived. This means even when a security can realize more money, borrowers are absolved by paying only 70% value. Though this is a policy matter and not under challenge, it is appropriate for those concerned in the Ministry of Finance and RBI to have a re-look into the Scheme.

W.P No.1267 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF FEBRUARY 2021 THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR WRIT PETITION No. 1267 OF 2021BETWEEN : MR. BALKISHAN BOOB S O LATE JAIKISHAN BOOB AGED ABOUT 69 YEARS RESIDING AT NO.1162 PHOENIX ONE BANGALORE WEST NO.1 DR. RAJKUMAR ROAD BENGALURU 560 010 … PETITIONER BY SHRI. DHYAN CHINNAPPA SENIOR ADVOCATE FOR SHRI. ANAND MUTTALLI ADVOCATE) AND : BANK OF MAHARASHTRA BANGALORE ZONAL OFFICE NO.15 POLICE STATION ROAD BENGALURU 560 004 REPRESENTED BY ITS CHIEF MANAGER AND AUTHORIZED OFFICER MR. SRINIVAS SAJJAN … RESPONDENT BY SHRI. D.S. RAMACHANDRA REDDY FOR SHRI. K. PRAKASHA HEGDE ADVOCATES) . . . THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENT TO CONSIDER THE ONE TIME SETTLEMENT OFFER OF THE PETITIONER IN W.P No.1267 2021 TERMS OF THE MAHA RAHAT YOJANA 2020 21 AND MAHA SAMADHAN YOJANA 2020 21 DATED 29.05.2020 ANNEXURE L AS PER THE REPRESENTATION DATED 16.01.2021 ANNEXURE S. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 23.02.2021 COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY THE COURT PRONOUNCED THE FOLLOWING: Heard Shri. Dhyan Chinnappa learned Senior Advocate ORDER for petitioner and Shri. D.S. Ramachandra Reddy learned Advocate for respondent. 2. M s. Bhagwan Cotton Ginners Pvt. Ltd. has borrowed money from Bank of Maharashtra during 2014. Bank has recovery proceedings. Property mortgaged to the Bank has been brought to auction. The owner of the mortgaged property has presented this writ petition with a prayer inter alia to direct respondent Bank to consider petitioner s OTS offer made in his representation dated January 16 2021 in terms of Maha Rahat Yojana 2020 21 and Maha Samadhan Yojna 2020 21 . Shri. Dhyan Chinnappa submitted that petitioner has submitted his representation on January 16 2021 W.P No.1267 2021 Annexure S) with an offer to pay 4.4 Crores under the OTS Scheme. Since Bank has not considered the OTS proposal petitioner has presented this writ petition. He submitted that the new OTS Scheme is non discriminatory and non discretionary in nature. As per the scheme borrower s NPA account falls under the category Doubtful III which requires payment of 70% of the secured portion and 35% of the unsecured portion of the loan. Bank is duty bound to consider the OTS proposal. On January 27 2021 this Court has directed petitioner to deposit One Crore in two installments on or before February 3 2021. Petitioner has paid the said amount and submitted another representation to the Bank on February 2 2021 to consider OTS for 5.05 Crores. However the Bank has rejected the said offer on February 3 2021. Petitioner has filed an application to amend the writ petition. Bank. Shri. D.S. Ramachandra Reddy learned Advocate for the Bank submitted that the Company has borrowed 1.87 W.P No.1267 2021 Crores on August 30 2014 and 8 Crores on September 30 2014. Industrial Plot measuring 2 acres 9 guntas situated in the Industrial area Hyderabad Road Raichur has been mortgaged to the Bank. On December 21 2016 both accounts were clubbed and declared as NPA . Bank initiated recovery proceedings and a Possession Notice was issued by the Bank. The Company challenged Possession Notice by filing an application under Section 17(1) of the SARFAESI Act 2002 and it has been dismissed by the DRT vide order dated November 18 2019. The said order has attained finality. 5. On December 24 2018 Bank offered One Time Settlement as per the ledger balance of 8.57 Crores and offered to receive 6.05 Crores before February 28 2019. Borrower has paid 10% deposit amount and did not pay the balance. 6. On March 25 2019 petitioner gave a representation for extension of OTS and the Bank rejected it on the same day and called upon petitioner to deposit the W.P No.1267 2021 balance amount of 5.44 Crores on or before March 31 pending. filed Writ No.201729 2019 before Kalaburagi Bench of this Court and the same has been dismissed. The Company has filed writ appeal thereon in W.A. No.200064 2019 and the same is In the meanwhile time to pay under the scheme was extended till June 30 2019 but neither the Company nor the petitioner have paid any money. 9. On August 20 2019 Bank again offered another OTS under Maha Riyayat 2019 2020 and called upon the Company to pay 5.64 Crores based on the ledger balance of 7.97 Crores. The amount was required to be paid on or before September 30 2019. Petitioner did not avail this offer also. The time was again extended till March 31 2020. Yet neither did the Company nor the petitioner pay any money. W.P No.1267 2021 10. Bank brought the property for sale by issuing Sale notice on December 19 2020. The auction was scheduled on January 28 2021. The Company again submitted a representation on January 16 2021 offering to 4.40 Crores under the aforementioned Maha Samadhan Yojana 2020 21 OTS Scheme. Bank has rejected the said offer. It has taken possession of the property. Petitioner after obtaining an interim order from this Court has submitted another OTS proposal for 5.05 Crores on February 2 2021 and it has also been rejected. 11. Shri. Reddy further submitted that the amount due and payable by the Company as on date is 14.50 Crores. Petitioner owns properties worth more than 50 Crores in Bengaluru and Raichur. With these submissions Shri. Reddy prayed for dismissal of this writ petition. 12. I have carefully considered rival contentions and perused the records. W.P No.1267 2021 13. The principal argument of Shri. Dhyan Chinnappa is that the OTS scheme is non discriminatory and non discretionary. Once the Scheme is in place a borrower or guarantor is entitled to the benefit of the Scheme. Bank has rejected the OTS offers made by both Company and petitioner without proper application of mind. 14. Shri. Reddy has adverted to various documents filed along with the Statement of objections. Annexure R1 is a Memorandum of documents for sanctioning loan of 1 87 50 000 Annexure R2 the Memorandum of documents for sanction of 8 Crores to M s. Bhagwan Cotton Ginners Pvt. Ltd. Following persons are described as Directors borrowers and guarantors in the said Memoranda: Shri. Ramnivas Boob Shri. Balkishan Boob Shri. Vinod Kumar Boob 4. Shri. Vishal Kumar Boob Shri. Vikas Kumar Boob 15. Thus borrower is a family owned Private Limited Company. The accounts have been clubbed and declared as W.P No.1267 2021 NPA in 2016. Petitioner Shri. Balkishan Boob has been corresponding with the Bank. He has appended communications marked as Annexures A B E J K L N & S to this writ petition. It is interesting to note that every communication from 2018 till 2021 is sent in the letter head of M s. Bhagwan Cotton Ginners Pvt. Ltd. and signed by the petitioner describing him as guarantor mortgager. He has also sent emails to the Bank. A portion of the email produced as Annexure Q at page 57 of the writ petition is disturbing and it reads as follows: From:Balkishan boobSent:Thursday December 03 2020 2:20 PM To: ED Y N RAO zmbengaluru@mahabank.co.in Subject:OTS accounts Bhagwan cotton ginners pvt ltd. Raichur Good morning sir I am Balkishan boob of Bhagwan cotton ginners pvt ltd Raichur and I spoke to ZM madam yesterday and she asked me to talk to rajeshwari madam legal and spoke to her and briefed her what happened in our discussion today with ZM and also meeting held on 19th nov. Bank was supposed to get the buyer as per the version of ZM and she said will talk to ZM madam and to you and get back to me but no response till now. My sincere request is I can try to get the buyer by doing OTS with me at the price what I said during the discussion for which bank has to issue OTS expression of interest letter to me and also condition is that bank has to take possession of the property than only any buyer will buy from bank but the bank is going very slowly and not serious. W.P No.1267 2021 As per my confidential information my brothers have managed in the magistrate office and kept the file in abeyance so bank has to act fast and if we do like this sir we may not be able to finalise fast and will not be possible for the bank to recover before march. So please think seriously and I will call after two days. I hope you will understand how serious I am to resolve and if necessary you feel you can reply or call me for discussion and finalisation anyhow I am doing my duty and let the bank decide. Now the ball is in banks court. Thanks and regards Balkishan boob mob 988020022 16. In substance though petitioner has sought to distance himself by stating in paragraph No.2 of the writ petition that he has ceased to be a Director on the Board of the Company since 2016 the tone and tenor of the letters and emails noted herein unambiguously establish that he is actively involved in the affairs of the Company and his brothers are in manipulating the Court proceedings. This conduct without anything more should entail dismissal of this writ petition in limine. 17. As recorded hereinabove in 2018 the borrower has paid only 10% of the amount payable under Maha W.P No.1267 2021 Riyayat OTS Scheme 2018 19 and failed to pay the balance amount but sought for extension of time. Again in 2019 borrower and the petitioner failed to pay the OTS amount under Maha Riyayat OTS Scheme 2019 20 . 18. Petitioner has again approached the Bank under Maha Riyayat Yojana Scheme 2020 21 and the same has been rejected. 19. Borrower Company has filed a writ petition in Kalaburagi Bench of this Court. Upon its dismissal Company has filed a writ appeal. Parallely petitioner has filed this writ petition. Shri. Reddy urged that there is no reference to the writ petition and writ appeal filed by the Borrower Company in this petition and thus petitioner has suppressed material facts. In reply Shri. Dhyan Chinnappa submitted that this petition is filed by the guarantor and he is not a Director on the Board of the Company. But the records of the case clearly disclose that petitioner has been W.P No.1267 2021 involved with the Company actively and the severance from the Company is only namesake. 20. Thus in substance as and when a new OTS Scheme is announced the borrower Company and the petitioner have only given an impression that the account would be settled by availing OTS but in fact have only procrastinated by in correspondence and approaching the Courts. 21. Shri. Dhyan Chinnappa relied upon paragraphs No. 6 and 34 in Sardar Associates and others Vs. Punjab and Sind Bank and Others1 and argued that a right is created in a borrower based on the guidelines issued by the RBI and therefore petitioner is entitled for grant of OTS. 22. Shri. Reddy relied upon paragraphs No. 9 11 and 16 in Authorized Officer State Bank of Travancore and another Vs. Mathew K.C2 and submitted that both borrower and guarantor have not repaid the debt in terms of the 1Writ petition is dismissed. b) Petitioner is directed to pay cost of 1 00 000 Rupees One Lakh) to the Bank and 1 00 000 in the name of Registrar General of this Court within four weeks from today. 29. In view of disposal of this petition all pending interlocutary applications do not survive for consideration and the same stand disposed of. Sd