Calcutta High Court Monthly Digest: July 2023

NOMINAL INDEX (Citations 180-201)

1. The New India Assurance Co. Ltd. v Winsome International Ltd. 2023 LiveLaw (Cal) 180
2. State Of West Bengal And Ors. Vs Sirajul Islam Gharami And Ors. 2023 LiveLaw (Cal) 181
3. National Human Rights Commission and Ors v The State of West Bengal 2023 LiveLaw (Cal) 182
4. Texmaco Rail and Engineering Limited & Anr v Union of India and Ors 2023 LiveLaw (Cal) 183
5. Tushar Manna v Ananda Sarkar 2023 LiveLaw (Cal) 184
6. Ujjwal Trivedi v The State Of West Bengal and Ors with Save Democracy And Ors v The State Of West Bengal And Ors 2023 LiveLaw (Cal) 185
7. Dipu Bar and Ors. Vs Union Of India and Ors. 2023 LiveLaw (Cal) 186
8. Smt. Shanta Paul v The State Of West Bengal And Others 2023 LiveLaw (Cal) 187
9. Dhirarastra Dutta Vs State of West Bengal and Ors. 2023 LiveLaw (Cal) 188
10. Srei Equipment Finance Limited v. Seirra Infraventure Private Limited 2023 LiveLaw (Cal) 189
11. State of West Bengal & Ors. v. Asit Das & Ors. & connected appeals 2023 LiveLaw (Cal) 190
12. Jaya Industries v Mother Dairy Calcutta & Anr. 2023 LiveLaw (Cal) 191
13. Auroma Coke Limited v Coal India Limited and others 2023 LiveLaw (Cal) 192
14. The State of West Bengal & Ors. Vs. M/s. BBM Enterprise 2023 LiveLaw (Cal) 193
15. Tanushree Hazra Vs State of West Bengal And Ors. 2023 LiveLaw (Cal) 194
16. Shreekant Sharma Vs. The State of West Bengal & Anr 2023 LiveLaw (Cal) 195
17. Somnath Gupta Vs. State of West Bengal & Orr 2023 LiveLaw (Cal) 196
18. Shagufta Sulaiman v State of WB and ors 2023 LiveLaw (Cal) 197
19. Shivani Mishra Vs. The Union of India and others 2023 LiveLaw (Cal) 198
20. Rabin Tudu vs. State of West Bengal & ors and connected applications 2023 LiveLaw (Cal) 199
21. Biresh Poddar and another v State of West Bengal and others 2023 LiveLaw (Cal) 200
22. Nazia Elahi Khan vs State of West Bengal and Ors. 2023 LiveLaw (Cal) 201

1. MSMED Act | Defaulting Buyer Not Liable To Pay Interest At 3 Times Bank Rate If Supplier Is A Medium Enterprise: Calcutta High Court

Case: The New India Assurance Co. Ltd. v Winsome International Ltd.

Citation: 2023 LiveLaw (Cal) 180

The Calcutta High Court has ruled that where the supplier is a “medium enterprise” under Section 16 of the Micro, Small and Medium Enterprises Development Act, 2006 (MSMED Act), the rate of interest levied on the arbitral award would be at the bank rate notified by the RBI, and not three-times of such rate, as would have been the case if it were a Micro, or Small enterprise under Section 16 of the MSMED Act.

Justice Moushumi Bhattacharya was hearing a petition by New India Assurance Co Ltd for a stay of the arbitral award of Rs 24,11,07,449.15 imposed on them by a sole-Arbitrator, on the grounds that the Arbitrator had set the rate of interest at 24.6%, which was three-times the bank rate notified by the RBI, in spite of the respondents being a “medium enterprise.”

The court said three kinds of enterprises are defined in three distinct ways under MSMED Act and cannot be viewed as a common set of similar enterprise.

2. Calcutta High Court Criticizes Party For Invoking Writ Jurisdiction For Registration Of FIR Against Police Officials Over Alleged Violence

Case: State Of West Bengal And Ors. Vs Sirajul Islam Gharami And Ors.

Citation: 2023 LiveLaw (Cal) 181

The Calcutta High Court set aside a single-judge order directing registration of FIR against certain police officials of Baruipur district for alleged violence, while exercising writ jurisdiction under Article 226 of the Constitution.

Questioning the perpetual practise of approaching the High Court under Writ Jurisdiction when there are alternate remedies available under other statutes, a bench of Chief Justice T.S. Sivgananam and Justice Hiranmay Bhattacharya orally remarked:

“How is your writ maintainable? Why do you not avail remedy (under 156(3) CrPC)? Why short circuit to the writ court? The remedy is under a statute, and you go before a judicial magistrate. Here in writ jurisdiction, on affidavits, how can we give a positive direction for registration of FIR? This has become a routine affair. You have virtually converted the single-bench residuary determination to a Magistrates court. Day in and day out we are seeing…it is a surprise for me…this process in unknown to law. There are umpteen decisions of the SC, rendered by Justice Markandey Katju who says these cases should not be entertained under 226. The magistrate is there to ascertain the facts of a case…he can monitor investigation or issue any positive directions.”

3. Panchayat Elections: Calcutta High Court Dismisses NHRC's Appeal For Appointment Of “Human Rights Observers”

Case: National Human Rights Commission and Ors v The State of West Bengal

Citation: 2023 LiveLaw (Cal) 182

The Calcutta High Court has dismissed the appeal preferred by the National Human Rights Commission (NHRC) against a single-judge’s order which set aside appointment of observers and other related directions issued by the Commission “to protect human rights” in the course of the 2023 Panchayat Elections, on the basis of a media reports on wide-spread violence.

In dismissing the appeal, a Division Bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya held that, being a body sui juris as pointed out by the single-judge as well as the Advocates for the SEC, the NHRC would have to trace the validity of its actions to its parent statute, viz. the Human Rights Act, 1993 (“Act”), which was not done in this case.

“NHRC being a statutory authority constituted under the 1993 Act has to act within the forecorners of the said statute and the regulations framed thereunder subject to the limitations imposed upon it by the statute and the regulations thereunder. It is the duty of the SEC, being a constitutional authority to appoint observers in accordance with the provisions of the 2003 Act. Therefore, the NHRC cannot encroach upon the jurisdiction of the SEC by appointing observers” it was held.

4. Tender Process By Public Undertaking Must Be Transparent To Ensure Best Competitor Is Chosen: Calcutta High Court

Case: Texmaco Rail and Engineering Limited & Anr v Union of India and Ors

Citation: 2023 LiveLaw (Cal) 183

The Calcutta High Court has observed that to ensure that the best competitor is chosen, the process of selection adopted by a public undertaking is required to be transparent.

A single-judge bench of Justice Sabyasachi Bhattacharya observed thus set aside the rejection of tender submitted by petitioners Texmaco Rail & Engineering Ltd., on the grounds that such a rejection by the respondent-Railway authorities, was arbitrary and mala fide.

In directing the respondents to accept the petitioner's bid, and conduct the tendering process afresh, from the reverse-auction stage, the Court observed,

“There was no basis for such rejection, as apparent ex facie from the materials furnished by the petitioner. The same was arbitrary and de hors the tender terms. More importantly, the impugned rejection would imply that the reverse auction contemplated under the tender would be avoided altogether, which bodes ill for the tender process, by curtailing wider participation, fair competition and transparency. In order to ensure that the best competitor is chosen, the process of selection adopted by a public undertaking is required to be transparent. As such, the impugned rejection cannot be sustained.”

5. Calcutta High Court Quashes Trespass Charges Against Bank's Debt Manager, Says Visit To Defaulter's House Was In Due Course Of Official Duty

Case: Tushar Manna v Ananda Sarkar

Citation: 2023 LiveLaw (Cal) 184

The Calcutta High Court recently quashed the criminal proceedings for trespass and intimidation initiated against ICICI Bank's debt manager who had visited the house of a credit card holder in connection with pending dues.

A single-judge bench of Justice Shampa Dutt (Paul) held,

“The petitioner being the Debt Manager of the bank's separate wing, with appropriate training as per RBI guidelines to facilitate the bank in its recovery process, allegedly went to the house of the complainant on 17.12.2019 at 2 pm to recover the bank's dues. The said act of the petitioner is part of his job and the time of going to the petitioner's house is also appropriate. Considering the time to be 2pm, it is apparent that the petitioner did not intend to act in an unlawful manner. The outstanding dues of the complainant is admitted. Thus, the conduct of the petitioner was in due course of his official duty and he has been empowered to do so as per RBI Guidelines. If every Authorised Officer of a bank/institution has to face criminal charges levelled by a defaulter, for acting in accordance with law, then it is clearly an abuse of the process of law and such proceeding should not be allowed to continue in the interest of justice.”

6. State Election Commissioner Independent Constitutional Body, Plea For Removal Not Maintainable: Calcutta High Court

Case: Ujjwal Trivedi v The State Of West Bengal and Ors with Save Democracy And Ors v The State Of West Bengal And Ors

Citation: 2023 LiveLaw (Cal) 185

The Calcutta High Court has dismissed pleas filed against the West Bengal State Election Commission, for inter alia re-conduct of elections in areas where seats were uncontested, extension of dates for filing nominations and removal of the State Election Commissioner, among other ancillary reliefs.

A division bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya held that prayer for the removal of the Election Commissioner would not be maintainable since, it is an independent constitutional body which has been vested with the powers of “superintendence, directions and control” of the election process in terms of Article 243K of the Constitution of India read with provisions of the West Bengal State Election Commission Act, 1994. The Bench opined:

“In terms of Article 243K (2), the State Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment. In the light of the said constitutional provisions, the prayer made by the writ petitioners to remove the State Election Commissioner is not maintainable and the same is rejected.”

7. Calcutta High Court Directs South 24 Parganas DM To Enquire Into Alleged Misallocation Of Funds Under PM Awas Yojana

Case Title: Dipu Bar and Ors. Vs Union Of India and Ors.

Citation: 2023 LiveLaw (Cal) 186

The Calcutta High Court recently directed the District Magistrate of South 24 Parganas district to inquire into alleged discrepancies in allocation of public funds under the Pradhan Mantri Awas Yojana.

While disposing of a petition alleging “large scale illegalities” in the Yojana, a Division bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya ordered:

“...without going into to the allegations, the District Magistrate, South 24 Parganas district, to is directed to consider the representation and investigate the matter, call for the necessary records, issue notices to all those concerned, and after a thorough enquiry, to take all action in accordance to law. In case public money has been found to be siphoned off, the DM is directed to take immediate remedial action and criminal actions against those who have siphoned off public funds. The above direction be complied with, within a period of 6 weeks.”

The petitioners approached the Court alleging that the State machinery, including the Block Development Officer in South 24 Parganas district, had misallocated public funds under the aforesaid scheme, such that those who were undeserving of such public funds, were allocated benefits under the same.

8. S.11 CPC | Second Writ Petition On Identical Grounds Not Maintainable: Calcutta High Court Upholds Appointment Of Kazi Nazrul University Registrar

Case Title: Smt. Shanta Paul v The State Of West Bengal And Others

Citation: 2023 LiveLaw (Cal) 187

The Calcutta High Court dismissed a Public Interest Litigation seeking to nullify the appointment of the Registrar of Kazi Nazrul University, West Bengal, on the grounds that such an appointment was made on the basis of an erroneous advertisement, which did not conform to the UGC Regulations, 2018 or the All India Council for Technical Education (“AICTE”) Regulations, 2010.

A division bench of Chief Justice T.S. Sivagnanam and Justice Ajay Kumar Gupta noted that while there was no inconsistency between the UGC/AICTE Regulations and the impugned notification, identical reliefs had earlier been sought for in another writ petition, which had already been dismissed on merits.

In holding that a second writ petition on the same grounds would be barred under the principles of res judicata, the Bench opined:

“In the said writ petition, which was the public interest litigation, prayer was made to issue a writ of quo warranto against the 6th respondent and the challenge was to his qualification qua the AICTE Regulation/UGC Regulations. The matter was considered on merits and the writ petition was dismissed by order dated 05.06.2023. The said order has become final. Therefore, a second writ petition for the very same relief is not maintainable, more so when the grounds raised in the present writ petition also touches upon the eligibility/qualification of the 6th respondent. The petitioner cannot be permitted to have a piece-meal challenge of the appointment of the 6th respondent on the ground that certain grounds ought to have been raised in the earlier writ petition. Therefore, the present writ petition is clearly barred by the principles of res judicata.”

9. Calcutta High Court Restrains Man Registered With 'Alternate Medical Council' From Using Prefix ‘Doctor’, Orders Probe

Case Title: Dhirarastra Dutta Vs State of West Bengal and Ors.

Citation: 2023 LiveLaw (Cal) 188

The Calcutta High Court recently restrained an individual registered with the “Alternate Medical Council, Kolkata” from using the prefix ‘Doctor’ and directed the West Bengal Medical Council to investigate into issues concerning illegal and unauthorised handing out certificates of ‘registered medical practitioners’.

In holding that no individual could be certified as a ‘registered medical practitioner’ outside the rules as prescribed by the Indian Medical Council, a division-bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya held:

“The petitioner has flagged an important issue which directly impacts the general public…the allegation is against the 8th respondent who portrays himself as a doctor and uses the prefix “Dr” before his name, and is carrying out medical practise. In terms of earlier decisions of this Court, a person who does not possess the requisite qualification in terms of the Indian Medical Council Act, 1956, and whose name does not appear in the register of medical practitioner as contemplated in the aforesaid act, is not entitled to use the prefix doctor, or ‘Dr.’ Admittedly, the petitioner does not possess any medical degree from any recognised medical institution, but would refer to a certificate issued by the Alternate Medical Council, stating that he is registered as per the bye-laws of Bowbazar Society for Alternate Medicine as a registered medical practitioner in an [alternate] system of medicine. The institute of alternate medical sciences cannot award a degree or certificate recognising anyone as an RMP. Therefore, action to be taken against the [aforesaid] institute… The certificate clearly shows that it is a bogus institution, and on the basis of this certificate, the respondent cannot practise medicine in any form.”

10. Party’s Right To Choose Arbitrator Cannot Be Revived Once It Is Surrendered To Court U/S 11(6) Arbitration Act: Calcutta High Court

Case Title: Srei Equipment Finance Limited v. Seirra Infraventure Private Limited

Citation: 2023 LiveLaw (Cal) 189

The Calcutta High Court has recently held that when a party forfeits its right to appoint an arbitrator in accordance with Section 11 of the Arbitration & Conciliation Act, 1996 (“Arbitration act”), then it cannot subsequently “trace back its steps” to revive such a right, for the substitution of a fresh panel of arbitrators, when the existing arbitrator becomes de jure/de facto unable to discharge their duties.

In holding that the substitution of a new panel would be done by the Court under Sections 14 and 15 of the Arbitration Act, and that the entire arbitration process could not be permitted to go back to the stage of the parties conferring to appoint arbitrators mutually, under Article 11 of the Act, a single-bench of Justice Moushumi Bhattacharya held:

“After all, the intent of the 1996 Act, with all the amendments up to 2019, is to speed up the process of arbitration. The intent cannot be to retrace the steps from sections 15 to section 11 whenever an arbitrator is required to be substituted…The right to choose an arbitrator was relinquished in favour of the Court appointing an arbitrator which the Court did on 22.2.2022. The respondent cannot revive that right once the arbitrator became de jure / de facto unable to act under section 14. The above discussion must and invariably tilt towards the Court appointing new arbitrators in the same manner as was done on the previous occasion on 22.2.2022 when the parties approached the Court under Section 14 of the Act. There is no statutory basis to send the parties back to the section 11(5) position.”

11. State’s Duty To Compensate For Land Acquisition, Can’t Contend Landowner’s Right Forfeited Due To Delay In Approaching Court: Calcutta HC

Case Title: State of West Bengal & Ors. v. Asit Das & Ors. & connected appeals

Citation: 2023 LiveLaw (Cal) 190

Once government utilizes a person’s land, it is duty bound to follow land acquisition laws; why would the citizen who has been deprived of his property be required to approach the Court for seeking compensation, the Calcutta High Court said recently.

The remarks were made while dismissing multiple appeals preferred by the West Bengal government against orders of a Single-judge in 2017, directing the Land Acquisition Collector to compensate the respondent-landowners.

The division bench of Justice Arijit Banerjee and Justice Apurba Sinha Ray observed:

“While right to property may not be a fundamental right any more, it is still a constitutional right. Article 300A of the constitution provides that no person shall be deprived of his property save by authority of law. In fact, right to property has now been recognised as a human right. Expropriation by the State without compensating the owner of the land is not permitted under the laws of the country...Any responsible Government must act fairly, reasonably and not arbitrarily and should on its own ensure that due compensation is paid to a citizen for the loss of his land which has been utilised by the Government, albeit for a public purpose. It would be preposterous if the State is permitted to contend that since the land looser was sleeping over his rights and did not approach a legal forum promptly, he forfeits the right to receive compensation for the land that the Government has taken over and is not in a position to return the same to the owner thereof.”

12. Hearing Of Interim Application U/S 9(1) Arbitration Act Not Barred By Constitution Of Arbitral Tribunal If Court Has Already ‘Entertained’ It: Calcutta HC

Case Title: Jaya Industries v Mother Dairy Calcutta & Anr.

Citation: 2023 LiveLaw (Cal) 191

The Calcutta High Court has recently held that that the power of a Court to continue hearing an application for interim relief under Section 9(1) of the Arbitration and Conciliation Act, 1996, (“1996 Act”) would not be “fettered” under Section 9(3) after the constitution of an arbitral tribunal, if the court has already entertained the application.

A single-judge bench of Justice Moushumi Bhattacharya held, that while Section 9(3) barred the Court from taking up any interim application after the due constitution of the arbitral tribunal, the same could not fetter the power of a Court to continue hearing an application, which it had already entertained prior to constitution of such a tribunal. It was held:

“The Supreme Court considered the expression “entertain” and held that if the Court had already applied its mind to the issues raised, then the Court can proceed to adjudicate the application notwithstanding the bar of section 9(3)."

The bench was referring to Supreme Court's decision in Arcelor Mittal Nippon Steel India Limited vs. Essar Bulk Terminal Limited.

Court said the intended object of section 9(3) is to allow the arbitral tribunal to consider the prayer for interim relief once the tribunal has been constituted. Section 9(3) aims to prevent multiple levels of hearing for the same relief and envisages a clockwise motion of considerations of the matter after an arbitral tribunal has been constituted.

Accordingly, it was held that the Court would continue hearing the interim application under Section 9(1), notwithstanding the constitution of the Arbitral tribunal, since it would not fall under the bar under Section 9(3) due to having already ‘entertained’ the dispute previously.

13. Calcutta High Court Criticizes "Indefinite" Ban On Bidder Pending Criminal Trial

Case: Auroma Coke Limited v Coal India Limited and others

Citation: 2023 LiveLaw (Cal) 192

The Calcutta High Court has allowed a writ petition for the lifting of a ban imposed on Auroma Coke Ltd (“petitioners”) from taking part in the Non-regulated Sector (“NRS”) Linkage auctions organised by Coal India Limited (“CIL”).

The petitioners were blacklisted by CIL in the year 2011 upon a communication by the Central Bureau of Investigation (“CBI”) regarding alleged mis-utilisation of coal carried out by the petitioners. The CBI had since filed a chargesheet in the matter in 2012 and an ongoing criminal trial had since ensued before a sessions court in Dhanbad.

Upon purposively constructing the “Scheme Document of November 2022”, released by CIL, in order to interpret the sections on blacklisting in NRS Linkage auctions, a single-judge Bench of Justice Sabyasachi Bhattacharya held that the tender document itself stipulated a maximum blacklisting period of 5 years, even if there existed an ongoing criminal investigation or order of conviction against the petitioner.

14. Court May Permit Award-Holder To Withdraw Security Deposited By Award-Debtor Pending Challenge To Arbitral Award U/S 34: Calcutta High Court

Case: The State of West Bengal & Ors. Vs. M/s. BBM Enterprise

Citation: 2023 LiveLaw (Cal) 193

The Calcutta High Court has recently allowed an application filed by the State of West Bengal, as an award-holder in AP 808 of 2022, under the Arbitration and Conciliation Act, 1996 (“1996 Act”) to withdraw a security of Rs 9 crore furnished by BBM Enterprises (“award debtor”) in lieu of the arbitral award, during the pendency of setting aside proceedings on the impugned award, initiated by the award-debtor.

In holding that an award-holder required no statutory sanction or a separate application in the stay proceedings for withdrawing the secured amount, a single-bench of Justice Moushumi Bhattacharya directed the State to furnish a bank guarantee of an equivalent amount to the Registrar, Original Side, Calcutta High Court, before withdrawing the amount, and opined that withdrawal of the amount would not prejudice the rights of the award-debtor, during the pendency of the setting-aside proceedings.

15. Calcutta High Court Directs Pollution Control Board To Conduct Surprise Inspection On Rice Mills Allegedly Discharging Toxic Effluents

Case: Tanushree Hazra Vs State of West Bengal And Ors.

Citation: 2023 LiveLaw (Cal) 194

The Calcutta High Court directed the West Bengal Pollution Control Board (“PCB”), to carry out surprise inspections on certain rice-mills in Arambagh allegedly discharging toxic effluents into a kuchha ‘drain’ along the side of a busy National Highway.

Upon noting that the PCB had previously ordered the closure of the aforesaid rice mills due to their illegal and polluting actions, a division bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya observed:

“As long as the order of PCB has not been revoked, altered or modified, the private respondent rice mills are not entitled to carry on their actions It is not clear as to why the PCB has not made any further inspection in the matter. Therefore, there will be a direction to the appropriate authority of the WB PCB to conduct an immediate surprise inspection of all the respondent rice mills. If it is found that despite the order of closure, or in non-compliance with any directions issued by PCB, the mills are operating, then immediate action must be taken against them. If they are complying with direction by establishing effluent treatment plant among other conditions, then only will the PCB be entitled to permit them to carry on business. The surprise inspection shall be carried out not later than ten days from the communication of the server copy of this order.”

16. Calcutta High Court Refuses To Quash POCSO FIR Against ‘Priest’ Grand-Uncle, Says No Time Limit Can Be Prescribed For Filing Such Complaints

Case: Shreekant Sharma Vs. The State of West Bengal & Anr

Citation: 2023 LiveLaw (Cal) 195

The Calcutta High Court has refused to quash the criminal proceedings under the Protection of Children from Sexual Offences Act (“POCSO Act”) initiated by a minor girl against her grand-uncle, a priest, accusing him of committing various acts of sexual assault upon her, when she was 15-16 years old.

In refuting the contentions raised by the petitioners, including the delay in filing of FIR, a single-judge bench of Justice Bibek Chaudhuri noted that the social stigmatisation of rape and sexual assault survivors often leads to them being unable to report such crimes, and held:

“There are a plethora of reasons why victims of sexual assault do not come forward with allegations. Firstly, they are discouraged from filing F.I.R. and are not believed by the authorities. This is coupled with the social stigma that a woman and her family face from society when such an act is committed against her. More importantly, sexual harassment and rapes are crimes which can cause lifelong trauma to the victims and it is impossible to mathematically calculate or prescribe a time limit as to when a person would recover and would be comfortable with filing a complaint.

17. Can't Order Further Investigation For Second Time If Relevant Materials Already On Record: Calcutta High Court

Case: Somnath Gupta Vs. State of West Bengal & Orr

Citation: 2023 LiveLaw (Cal) 196

The Calcutta High Court dismissed the revision petition filed by film director Somnath Gupta against Sessions Court order dismissing his prayer for second further investigation into alleged ‘piracy’ of his film “O-Kay…? At Night in the Forest”.

The criminal case was registered in 2015 under various provisions of the IPC and the Indian Copyright Act, 1957. Gupta claimed the initial probe into the origin of pirated CD was not proper and alleged that police were unwilling to investigate even after the first order for further investigation.

However, a single-bench of Justice Shampa (Dutt) Paul held that further investigation could not be ordered for the second time, if sufficient relevant material had already been placed on record.

18. Continuous Drum Beating Impermissible, No Religious Tenet Says You Do This: Calcutta High Court Issues Directions Ahead Of Muharram

Case Title: Shagufta Sulaiman v State of WB and ors

Citation: 2023 LiveLaw (Cal) 197

Ahead of Muharram, the Calcutta High Court issued directions to the West Bengal Police and the State's Pollution Control Board to regulate instances of public nuisance caused by alleged drum-beating and open-air kitchens.

A division bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya said the State ought to counterbalance the right to enjoyment of religion under Article 25(1) of the Constitution with the Right to Life under Article 19(1)(a). "On proper construction, it cannot be said that a citizen should be coerced to hear something he does not like or require," it orally remarked.

Court said drum beating cannot go on continuously and directed the police to immediately issue public notice, regulating the timing for beating of drums. It suggested that permission should be given for two hours in the morning and two hours in the evening. "[Drum beating] should not start before 8am. There will be school going children, exams are there, old and ill people...normally you give permission for two hours in the morning, two hours in the evening. But after 7pm it shouldn’t happen," the Chief Justice said.

19. Passport | Police Verification Only To Ascertain Genuineness Of Documents, Applicant Cannot Suffer Indefinitely For Its Inaction: Calcutta High Court

Case: Shivani Mishra Vs. The Union of India and others

Citation: 2023 LiveLaw (Cal) 198

The Calcutta High Court has held that during the ‘police verification’ process for the issuance of passport, the responsibility of the police is limited to ascertaining the genuineness of documents produced for verification by the applicant, and that the applicant should not be made to suffer indefinitely for inaction by the police authorities.

In allowing a writ-petition, directing the police authorities to expeditiously conclude the verification process of the petitioner’s birth certificate, a single-bench of Justice Sabyasachi Bhattacharya held:

"It transpires from the annexure at page-17, regarding Passport Verification Status that the list of documents to be submitted at the Police Station for police verification only requires two of the documents, as stated therein, to be produced as citizenship proof. Since the petitioner has already submitted more than two such documents, no further documents are required to be furnished by the petitioner with the police authorities. The lookout of the Police is only to ascertain whether the documents produced by the petitioner are genuine. The petitioner cannot suffer indefinitely for such inaction on the part of the Police authorities. Accordingly, WPA No. 16452 of 2023 is allowed, thereby directing the respondent no.2-authorities to immediately ascertain as to the outcome of the e-mail allegedly sent to the respondent no.3-authorities, with regard to the verification of the birth certificate produced by the petitioner.”

20. Transferring School Teacher Not Violation Of Right To Life, Dignity: Calcutta High Court Upholds Provision Under WBSSC Act

Case: Rabin Tudu vs. State of West Bengal & ors and connected applications

Citation: 2023 LiveLaw (Cal) 199

The Calcutta High Court has upheld the constitutional validity of Section 10C of the West Bengal School Service Commission Act, 1997 (“1997 Act”) which was introduced vide an amendment in the year 2017 enabling transfer of a teacher from one school to another.

A division-bench of Justice Harish Tandon and Justice Prasenjit Biswas were assigned to decide the common question of constitutional validity that had arisen in several writ petitions, pending before different benches.

Section 10C had been challenged in a slew of writ petitions filed by teachers of various state aided schools, against their alleged “illegal transfers” by the State under the aforesaid provision. The Division bench held,

“Every service in the public employment unless forbidden by law is transferable. A teacher which is placed in a school if transferred to another school, it does not affect the right to life as he or she is conscious that the service is transferable. In every transferable service, if a person is transferred from one place to another he may contend that his dignity is impaired as steadiness and he is entitled to live a life in stress-free atmosphere; and in such event none of the employee in the public employment would be transferred from one place to another. We do not find any substance in the stand that the transfer of teacher from one school to another offends the constitutional guarantee of right to life under Article 21 of the Constitution. We, thus, do not find that Section 10C can be declared ultra vires to the constitution.”

21. Calcutta High Court Directs Sentence Review Board To Reconsider Plea For Remission Of Man Who Has Spent 23 Yrs In Jail

Case: Biresh Poddar and another v State of West Bengal and others

Citation: 2023 LiveLaw (Cal) 200

The Calcutta High Court has recently directed the West Bengal State Sentence Review Board (“the Board”) to reconsider the plea of a petitioner, who has spent 23 years in incarceration, for remission of sentence, upon noting that the Board which had considered the plea was not only improperly constituted, but had also failed to consider the National Human Rights Commission (“NHRC”) Guidelines on early-release of prisoners.

In finding that not only did the Board lack the presence of a District judge, as was statutorily mandated, a single-bench of Justice Sabyasachi Bhattacharya also observed that it had failed to consider crucial tests for early release of prisoners, such as behaviour during incarceration, likelihood of committing similar crimes, etc.

22. Calcutta High Court Dismisses PIL To Restrain CM Mamata Banerjee From Making Allegedly “Provocative Speeches” At Eid Gathering

Case: Nazia Elahi Khan vs State of West Bengal and Ors.

Citation: 2023 LiveLaw (Cal) 201

The Calcutta High Court today dismissed a PIL filed against West Bengal Chief Minister Mamata Banerjee (“private respondent”) for restraining her from using allegedly “provocative speeches” at the “Red Road religious congregation” on the occasion of Eid-u-Fitr, next year.

A division bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya orally remarked:

“A similar matter had come earlier…we didn’t entertain…and this is already over. Now what to do? We should issue an injunction against the private respondent? Who is the petitioner? How did she come to know of the speeches? Through a news paper report? Ah, the foundation of the PIL is only a newspaper report. You have to do some research. If it is hate speech according to you, the CrPC provides you sufficient remedies.”