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All High Courts Weekly Roundup: May 9- May 15, 2022

Shrutika Pandey
16 May 2022 12:30 PM GMT
All High Courts Weekly Roundup: May 9- May 15, 2022
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Allahabad High Court NOMINAL INDEX Lavkush v. State of U.P.Thru.Prin.Secy.Home Lko. and connected matters 2022 LiveLaw (AB) 235 Mohammad Azam Khan v. State Of U.P. 2022 LiveLaw (AB) 236 Dr Rajneesh Singh v Union of India and Ors 2022 LiveLaw (AB) 237 Akhilesh v. State of U.P 2022 LiveLaw (AB) 238 Bhagwan Shri Krishna Virajman And Another v. U.P. Sunni Central Waqf Board...

Allahabad High Court

NOMINAL INDEX

Lavkush v. State of U.P.Thru.Prin.Secy.Home Lko. and connected matters 2022 LiveLaw (AB) 235

Mohammad Azam Khan v. State Of U.P. 2022 LiveLaw (AB) 236

Dr Rajneesh Singh v Union of India and Ors 2022 LiveLaw (AB) 237

Akhilesh v. State of U.P 2022 LiveLaw (AB) 238

Bhagwan Shri Krishna Virajman And Another v. U.P. Sunni Central Waqf Board And 3 Others 2022 LiveLaw (AB) 239

Gulam Sarvar v. State of U.P 2022 LiveLaw (AB) 240

Prakash Chandra Agrawal v. State Of U.P. Thru. Addl. Chief Secy./Prin. Secy. Deptt. Of Home U.P. Lko. And Another 2022 LiveLaw (AB) 241

Orders/Judgments of the week

"Had Union Minister Not Made Alleged Utterances Threatening Farmers, Lakhimpur Kheri Violence Might Not Have Happened": Allahabad HC Denies Bail To 4 Accused

Case Title - Lavkush v. State of U.P.Thru.Prin.Secy.Home Lko. and connected matters

Citation: 2022 LiveLaw (AB) 235

Denying bail to 4 prime accused in the Lakhimpur Kheri Violence incident, the High Court observed that incident might not have taken place if the Union Minister of State for Home had not made alleged utterances threatening farmers to chase them away from District Kheri.

"Political persons holding high offices, should make public utterances in a decent language considering its repercussions in the Society. They should not make irresponsible statements as they are required to conduct themselves befitting their status and dignity of high office which they hold," the Bench of Justice Dinesh Kumar Singh said.

Enemy Property Case: Allahabad High Court Grants Bail To Samajwadi Party MLA Azam Khan

Case title - Mohammad Azam Khan v. State Of U.P.

Case Citation: 2022 LiveLaw (AB) 236

Granting bail to Samajwadi Party Leader and UP MLA Azam Khan in an alleged case of grabbing Enemy Property and using it for the construction of the Mohammed Ali Jauhar University, the High Court made some stern remarks against the former Cabinet Minister in the UP Government.

Perusing the pleadings of the affidavits, submissions advanced and pleadings exchanged, the Bench of Justice Rahul Chaturvedi remarked that it was well established that Khan was out and out for anyhow grab the property which was earmarked as Enemy Property by exploiting his position as a Cabinet Minister.

BREAKING| Allahabad HC Dismisses Plea For Fact-Finding Committee To Study "Real History" Of Taj Mahal

Case Title: Dr Rajneesh Singh v Union of India and Ors

Case Citation: 2022 LiveLaw (AB) 237

The High Court dismissed a petition seeking the constitution of a fact-finding committee to research on the "real history" behind Taj Mahal. Petitioner disputed that Taj Mahal was a Mughal structure.

The petitioner also sought a direction to the Archaeological Survey of India (ASI) to open the sealed doors of over 20 rooms inside the Taj Mahal premises so that the alleged controversy pertaining to the "history of Taj Mahal" can be put to rest.

Also read: Are We Here To Decide Who Built Taj Mahal?Tomorrow You Will Want To Go Inside Judges' Chambers : Allahabad High Court Pulls Up Petitioner

"Young Lawyers Advised To Take Up Such Cases": Allahabad High Court Grants Bail To Undertrial In Jail For Over 11 Years

Case title - Akhilesh v. State of U.P

Case Citation: 2022 LiveLaw (AB) 238

The High Court granted bail to an undertrial prisoner who has been in jail for over 11 years in connection with an attempt to murder case. The court also gave a piece of advice to young lawyers to take up the cases of such prisoners who can't approach courts due to their adverse pecuniary position.

The Bench of Justice Saurabh Shyam Shamshery also took into account the recent observations made by the Supreme Court in the case of Saudan Singh Vs. State of Uttar Pradesh (Crl.Appeal No.308/ 2022), wherein the Top Court had reiterated that long incarceration of undertrials is violation of their rights provided under Article 21 of the Constitution of India.

Sri Krishna Janambhumi Dispute: Allahabad High Court Directs Mathura Court To Decide 2 Pending Applications Within 4 Months

Case title - Bhagwan Shri Krishna Virajman And Another v. U.P. Sunni Central Waqf Board And 3 Others

Case Citation: 2022 LiveLaw (AB) 239

The High Court has directed a local court in Mathura to decide two applications pending before it, filed in connection with the Sri Krishna Janambhumi Dispute, within 4 months.

The Bench of Justice Salil Kumar Rai issued this order on a plea made by Bhagwan Shri Krishna Virajman And Another by observing thus:

"The Civil Judge (Senior Division), Mathura is directed to decide the aforesaid applications expeditiously preferably within a period of four months from the date a certified copy of this order is produced before him and after giving an opportunity of hearing to the affected parties, in case there is no legal impediment in deciding the aforesaid applications."

"Nobody Dares To Depose Against Dreaded Criminals Out Of Fear": Allahabad HC Denies Bail To Atique Ahmad's Aid In Abduction Case

Case title - Gulam Sarvar v. State of U.P [CRIMINAL MISC. BAIL APPLICATION No. - 5491 of 2019]

Case Citation: 2022 LiveLaw (AB) 240

The High Court denied bail to the prime associate of former MP Atique Ahmad (who is currently lodged in Deoria Jail) in connection with an Abduction-Extortion case.

While doing so, the Bench of Justice Krishan Pahal also stressed that in the changing social circumstances, it has now become obvious that nobody dares to depose against the dreaded and hardened criminals out of fear.

Allahabad HC Orders Compulsory Training Of Inquiry Officers, Disciplinary Authorities Involved In Holding Departmental Enquiries

Case title - Prakash Chandra Agrawal v. State Of U.P. Thru. Addl. Chief Secy./Prin. Secy. Deptt. Of Home U.P. Lko. And Another

Case Citation: 2022 LiveLaw (AB) 241

The High Court directed the Director, JTRI to prepare an appropriate program for the training of inquiry officers and disciplinary authorities to ensure compliance with UP Government Servants (Discipline and Appeal) Rules, 1999 in conducting departmental inquiries.

The Bench of Justice Vivek Chaudhary was dealing with the plea of one Prakash Chandra Agrawal challenging the punishment order passed against himself who was awarded censure entry.

Weekly updates from the High Court

Allahabad HC Recalls Order Issuing Non-Bailable Warrant Against Mathura's DM In View Of Compliance Affidavit Filed By Him

Case title - Braj Mohan Sharma And 3 Others v. Mr. Navneet Chahal D.M. Mathura

The High Court has recalled its order issuing a non-bailable warrant against the District Magistrate of Mathura, Navneet Singh Chahal in a case of a contempt plea filed over non-compliance with the Court's order. The order was recalled after the DM filed an affidavit stating that he has complied with the Court's order.

The Bench of Justice Saral Srivastava had issued the warrant on April 26 and had ordered the police to produce Chahal before the Court on May 12 for 'disrespecting' the court's September 2021 order.

Lakhimpur Kheri Violence: Complainant Granted 2 Weeks' Time To File Counter Affidavit In Ashish Mishra's Bail Plea Before Allahabad HC

The High Court granted two weeks' time to the informant/complainant in the Lakhimpur Kheri Violence case to file his counter-affidavit in bail plea moved by Prime Accused and Union Ministers's Son, Ashish Mishra/Monu.

Mishra's bail plea was remanded back to the High Court for fresh consideration by the Supreme Court last month while allowing the appeal filed by the victims challenging the bail order of Allahabad High Court.

Senior Advocate Ajay Mishra To Be The New Advocate General For Uttar Pradesh

Senior Advocate Ajay Mishra to be the new Advocate General for the State of Uttar Pradesh. As per the report of PTI, State Finance Minister Suresh Khanna told reporters yesterday that Ajay Kumar Mishra has been appointed as the new Advocate General of U.P.

This development came days after the Allahabad High Court directed the State Government to take a decision on the appointment of AG by May 16, 2022.

Funds Misappropriation Case Against Ex-MLA Mukhtar Ansari | Allahabad HC Directs DM To Conduct Physical Survey Of School

The High Court directed the District Magistrate, Mau to conduct an on-spot physical survey of the school which is at the center of a case registered against former MLA Mukhtar Ansari (presently in jail) over misappropriation of MLA Funds fund in the year 2012-13.

Essentially, an FIR was lodged last year against Ansari mentioning therein that Ansari, as an M.L.A., in the years 2012, 2013 & 2014, allocated Rs. 25 Lacs from his M.L.A. fund to a school, however, when the inspection was done, it was found that the money had not been properly utilized by the said School.

Allahabad High Court Stays GST Demand On Payment Of Royalty To Conduct Mining Activity

The High Court bench of Justice Saumitra Dayal Singh has stayed the GST demand on payment of royalty to conduct mining activity.

The petitioner/assessee has assailed the appeal order. Since the Tribunal was yet to be constituted, the writ petition was entertained. The First Appeal Order arising from the earlier order under Section 73 of the U.P. GST Act, 2017 was also challenged. The petitioner has also challenged the ex parte order passed by the State GST authorities pursuant to a notice. Both proceedings were stated to be for the same tax period, being Financial Year 2017-18.

Allahabad High Court Puts A Stay On Issuance Of Eligibility Certificates In Favour Of Successful UPTET-2021 Candidates

The High Court put a stay on the issuance of eligibility certificates to B.Ed degree holders who have qualified for the UPTET (Primary level) Examination, 2021.

The Bench of Justice Siddharth has issued this order in a writ plea moved by Prateek Mishra and 4 others praying not to declare the result of B.Ed. qualified candidates, who appeared in the Uttar Pradesh Teacher Eligibility Test (Primary Level), 2021.

The Counsel for the Petitioners, Taniya Pandey submitted that the B.Ed. degree holders have been declared ineligible for appointment to the post of Assistant Teacher in primary schools (Classes I to V) by the Rajasthan High Court in its November 2021 decision.

It was her further submission that the Rajasthan High Court has set aside the order of NCTE (National Council for Teacher Education) dated June 28, 2018, in which B.Ed degree holders were also considered eligible to teach in primary schools.

Andhra Pradesh High Court

1. Magistrate Has To Apply His Mind While Referring Matter To Police U/S 156(3) CrPC If There Is Delay In Filing Of Complaint: Andhra Pradesh HC

Case Title: M.SHYAMA SUNDAR NAIDU, CHITTOOR DT; 2 OTRS., Versus THE STATE OF AP., REP PP AND ANR.

Citation: 2022 LiveLaw (AP) 78

The Andhra Pradesh High Court recently held that criminal law set into motion vide Section 156(3) of Criminal Procedure Code (Cr. P.C.) without application of mind and for the unexplained delay in lodging the complaint was liable to be quashed under Section 482 CrPC.

Case Title: VR Commodities Private Limited versus Norvic Shipping Asia Pte. Ltd.

Citation: 2022 LiveLaw (AP) 79

The Andhra Pradesh High Court has ruled that an arbitration clause contained in a substantive agreement is an independent and autonomous clause, and even if the substantive agreement is not duly stamped as per the Indian Stamp Act, 1899, the arbitration clause is admissible in evidence before the Court who can take into consideration the arbitration clause to decide an application for grant of interim measures under Section 9 of the Arbitration and Conciliation Act, 1996 (A&C Act).

Bombay High Court

Nominal Index

The State of Maharashtra Vs Guddu Krish Yadav, 2022 LiveLaw (Bom) 181

Ansari Mohammed Zaki vs The State of Maharashtra 2022 LiveLaw (Bom) 182

Adani Electricity Mumbai Ltd. vs The Chief Conciliator, under Maharashtra Industrial Relations Act, 1946 and Ors., 2022 LiveLaw (Bom) 183

Sandeep Dwellers Private Limited Vs The State of Maharashtra & ors, 2022 LiveLaw (Bom) 184

Bafna Motors Private Limited versus Amanulla Khan, 2022 LiveLaw (Bom) 185

M/s Atul & Arkade Realty v. I.A. & I.C. Pvt. Ltd., Arbitration Application No. 72 of 2013, 2022 LiveLaw (Bom) 186

Prajith Thayyil Kallil S/o Jogesh K J Versus The State of Maharashtra, 2022 LiveLaw (Bom) 187

Vapi Infrastructure and Industrial Township LLP Versus Income Tax Officer Ward, 2022 LiveLaw (Bom) 188

ABC Versus The State of Maharashtra and Anr., 2022 LiveLaw (Bom) 189

ROUND-UP

1. Can't Get Carried Away By Heinousness Of Crime – Bombay High Court Acquits Man on Death Row

Case Title: The State of Maharashtra Vs Guddu Krish Yadav

Citation: 2022 LiveLaw (Bom) 181

The court acquitted a man sentenced to death by a sessions court in 2015 for the double murder of a colleague and his wife by pouring acid on the sleeping couple as revenge tactic for complaining to about him their employer.

"Merely because the crime is heinous and brutal, it would not be just to get carried away sans any legal proof required to substantiate the charge of murder on the accused," the bench observed noting that the police seems to have fabricated the dying declaration.

2. "Sell Builder's Property In 15 Days If No Settlement With Buyer": Bombay High Court On Unexecuted MAHARera Orders

Case Title: Ansari Mohammed Zaki vs The State of Maharashtra

Citation: 2022 LiveLaw (Bom) 182

Cracking the whip against revenue authorities who failed to execute MahaRERA orders in favour of a flat purchaser, the Bombay High Court directed the attachment and sale of a builder's property within merely 15 days if settlement talks fail.

3. Bombay High Court Imposes 2 Lakh Cost On Adani Electricity For Workers Union, Says Law So Unambiguous Even Reliance Or BSES Didn't Raise Dispute

Case Title: Adani Electricity Mumbai Ltd. vs The Chief Conciliator, under Maharashtra Industrial Relations Act, 1946 and Ors.

Citation: 2022 LiveLaw (Bom) 183

The Court imposed costs of Rs. 2 lakh on Adani Electricity Limited payable to Mumbai Electric Workers' Union while dismissing a petition in which the company claimed it was no covered under Maharashtra Industrial Relations Act, 1946 (MIR Act).

4. Stamp Duty Refund Also Applicable To All Development Agreements Signed Between Sep, 2020- March 2021 - Bombay High Court

Case Title: M/s. Sandeep Dwellers Private Limited Vs The State of Maharashtra & ors

Citation: 2022 LiveLaw (Bom) 184

All Development Agreements signed between September 1, 2020 and March 31, 2021 would qualify for 1.5-2% refund of stamp duty as per the scheme announced by the Maharashtra Government during the Covid-19 pandemic in the year 2020, the Bombay High Court ruled.

In the landmark judgement, the HC held that the stamp duty payable on a Development Agreement is as per the duty payable on a Conveyance under Article 25 of the Maharashtra Stamp Act, 1958 and, therefore, Development Agreement would have to be treated at par with an instrument of Conveyance.

5. Claim For Recovery Of Security Deposit Or Damages Under License Agreement Is Arbitrable & Not Barred By Section 41 Of The Small Cause Courts Act: Bombay High Court

Case Title: Bafna Motors Private Limited versus Amanulla Khan

Citation: 2022 LiveLaw (Bom) 185

The Bombay High Court reiterated that where the parties to a Leave and License Agreement are governed by an Arbitration Agreement, determination of the dispute relating to recovery of the security deposit under the said License Agreement through arbitration is legally permissible.

The Single Bench of held that the expression "charges" as provided under Section 41 of the Presidency Small Cause Courts Act, 1882, which confers exclusive jurisdiction to the Small Causes Court with respect to a dispute between a licensor and a licensee relating to recovery of an immovable property situated in Greater Bombay or recovery of licence fee, charges or rent, cannot subsume in its fold a claim for damages.

6. The Court Shall Refer The Parties To Arbitration When There Is A Duality Of Expert Opinion As To The Genuineness Of The Agreement: Bombay High Court

Case Title: M/s Atul & Arkade Realty v. I.A. & I.C. Pvt. Ltd., Arbitration Application No. 72 of 2013.

Citation: 2022 LiveLaw (Bom) 186

The Bombay High Court held that when an allegation as to the fraud and forgery committed in the execution of the agreement is made and there is a duality of expert opinion on the genuineness of the agreement, the court shall refer the matter to the arbitrator.

The Single Bench of Justice N.J. Jamadar has held that when the underlying document in which the arbitration agreement is contained is alleged to be affected by fraud and forgery and there is uncertainty as to the veracity of the signatures on the agreement, the Court shall appoint the arbitrator to decide on the dispute.

7. Can Transit Anticipatory Bail Be Granted For Offences In Other States? Bombay High Court Refers To Larger Bench

Case Title: Prajith Thayyil Kallil S/o Jogesh K J Versus The State of Maharashtra, and connected matters

Citation: 2022 LiveLaw (Bom) 187

The division bench of the Bombay High Court referred to a full bench the question whether the trial courts or High Courts can grant transit anticipatory bail to an accused when the offence against him is registered in another state, beyond the court's jurisdiction.

A division bench of Justices S S Shinde and S V Kotwal widened the scope of the reference by adding issues like whether such courts are empowered to grant permanent anticipatory bail or if protection can be granted under Article 226 of the Constitution.

8. Credit Worthiness Of The Creditor And Genuineness Of Transaction Explained By The Assessee: Bombay High Court Quashes Re-assessment Notice

Case Title: Vapi Infrastructure and Industrial Township LLP Versus Income Tax Officer Ward

Citation: 2022 LiveLaw (Bom) 188

The Bombay High Court quashed a reassessment notice after the assessee explained the credit worthiness of the creditor and the genuineness of the transaction.

The division bench observed that the re-opening proposed was purely based on a change of opinion. The assessing officer was also satisfied with the credit worthiness and details provided by third party lenders.

9. Maharashtra Govt Agrees To Consider Appointment Of Woman To Police Department Three Yrs After Medical Test Declared Her 'Male'

Case Title: ABC Versus The State of Maharashtra and Anr.

Citation: 2022 LiveLaw (Bom) 189

The Bombay High Court disposed of a petition after the State Government assured the court that it would sympathetically and expeditiously consider the case of a young woman for appointment to a non-constabulary post in the police department, three years after a medical test declared her a "male."

The woman had qualified with flying colours in 2018 from the Nashik Rural Police Recruitment drive from the Scheduled Caste category but based on her medical test, her marks didn't make the cut off for the men's category.

CALCUTTA HIGH COURT

Nominal Index [Citations 163 To 176]

In the matter of Dunlop India Ltd 2022 LiveLaw (Cal) 163

Damodar Valley Corporation versus Reliance Infrastructure Ltd 2022 LiveLaw (Cal) 164

Bhaskar Banerjee v. Central Bureau of Investigation & Anr 2022 LiveLaw (Cal) 165

Indian Jute Mills Association and Anr v. Union of India and Ors 2022 LiveLaw (Cal) 166

Sanghamitra Bhattacharya v. Sudeshna Kar & Ors 2022 Live Law (Cal) 167

Aminul Islam @ Amenur Molla v. The State of West Bengal 2022 LiveLaw (Cal) 168

Suraj Singh v. State of West Bengal & Anr 2022 LiveLaw (Cal) 169

The Court on its own Motion In re: The Brutal Incident of Bogtui Village, Rampurhat, Birbhum 2022 LiveLaw (Cal) 170

Ali Hossain Sk. @ Ali Hussain Seikh v. Narcotics Control Bureau 2022 LiveLaw (Cal) 171

Chitta Biswas v. The State of West Bengal & Anr 2022 LiveLaw (Cal) 172

Anita Nigam v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 173

Soma Sinha v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 174

Sanchita Kundu & Anr. Vs. The Assistant Commissioner of State Tax, Bureau of Investigation, South Bengal & Ors 2022 LiveLaw (Cal) 175

Govardhan Commodities Pvt. Ltd. Vs. Assistant/Deputy Commissioner of Income Tax 2022 LiveLaw (Cal) 176

Orders/Judgments

1. Cannot Turn Back On Obligations On Pretext Of Mistake: Calcutta HC Orders Payment Of Compensation For Mistakenly Increasing Intending Bid By 10 Times

Case Title: In the matter of Dunlop India Ltd

Case Citation: 2022 LiveLaw (Cal) 163

The Calcutta High Court has recently observed that a person cannot turn back on his obligations on the pretext of an act mistakenly committed especially where the mistake has resulted in certain irreversible consequences or consequences which may be reversed but at substantial cost to the other party to the act. Justice Moushumi Bhattacharya was adjudicating upon an application filed by an individual carrying on business under the name and style of Texworth International for an injunction restraining the Official Liquidator from treating the last bid submitted by the applicant for Rs. 418.11 crores as the applicant's bid against an e-auction Sale Notice for Lot-1 of the property mentioned in the concerned Notice. The Court further noted that Sections 20, 21 and 22 of The Indian Contract Act, 1872, contemplate situations where both the parties to an agreement have proceeded on a mistaken belief of a fact essential to the agreement and contemplate that a contract is not voidable because it was caused by a mistake as to any law in force. "Although, the present case is not one of contract, the principle which emerges from the statute and case-law is that a person cannot turn back on his obligations on the pretext of an act mistakenly committed. This is particularly true where the mistake has resulted in certain irreversible consequences or consequences which may be reversed but at substantial cost to the other party to the act", the Court underscored further.

2. Order Passed By Court Under Section 36 Of A&C Act Is An Interim Order, Can Be Modified On Grounds Of Financial Hardship: Calcutta High Court

Case Title: Damodar Valley Corporation versus Reliance Infrastructure Ltd

Case Citation: 2022 LiveLaw (Cal) 164

The Calcutta High Court has ruled that financial hardship and financial indebtedness are sufficient grounds for modifying an order passed under Section 36 of the Arbitration and Conciliation Act, 1996 (A&C Act) to direct the award debtor to deposit the awarded amount by way of cash security. The Single Bench of Justice Ravi Krishan Kapur held that the security directed to be deposited by a Court under Section 36 of the A&C Act should be real and realisable, and it ought not to be illusory. The Court added that once a Court exercises its jurisdiction under Section 36 of the A&C Act and directs furnishing of security in a particular mode and manner, it always retains jurisdiction in respect of such security. The Court ruled that an order passed by the Court under Section 36 is an interim order and is subject to alteration and modification. The High Court observed that under Section 36 of the A&C Act, the award debtor is obliged to furnish security in order to obtain stay of the arbitral award. The Court added that the purpose of furnishing security was to ensure and facilitate the fulfilment and enjoyment of a right or a potential right vested in the award holder. The Court ruled that each case is to be decided on its merits and the Court is not bound to order security in each and every case. The Court added that there may be cases where an award debtor is entitled to an unconditional stay of the award, for instance where an award is so perverse, irrational and patently illegal that it ought to be stayed unconditionally.

3. 'Lawyer Not Criminally Liable For Improper Legal Advice': Calcutta High Court Quashes Criminal Proceedings Against Lawyer

Case Title: Bhaskar Banerjee v. Central Bureau of Investigation & Anr

Case Citation: 2022 LiveLaw (Cal) 165

The Calcutta High Court has recently quashed criminal proceedings initiated against a lawyer for providing allegedly false and improper legal advice which was instrumental in sanction of a bank loan to a company which was later declared as Non Performing Asset (NPA) with an outstanding due of Rs. 2.57 crores. Justice Ananda Kumar Mukherjee observed that merely because the lawyer's opinion was not acceptable, criminal proceedings cannot be initiated against him especially in the absence of any tangible evidence that he was associated with other conspirators. "..it is beyond doubt that a lawyer owes an "unremitting loyalty" to the interests of the client and it is the lawyer's responsibility to act in a manner that would best advance the interest of the client. Merely because his opinion may not be acceptable, he cannot be mulcted with the criminal prosecution, particularly, in the absence of tangible evidence that he associated with other conspirators. At the most, he may be liable for gross negligence or professional misconduct if it is established by acceptable evidence and cannot be charged for the offence under sections 420 and 109 IPC along with other conspirators without proper and acceptable link between them", the Court observed.

4. Black Marketers Taking Advantage Of Differences Between State And Centre: Calcutta HC Directs Jute Commissioner To Review Rate Of Raw Jute To Curb Price Hike

Case Title: Indian Jute Mills Association and Anr v. Union of India and Ors

Case Citation: 2022 LiveLaw (Cal) 166

The Calcutta High Court on Wednesday has directed the Jute Commissioner to review and re-fix the rate of raw jute if the notified rate cannot be adhered to. Justice Amrita Sinha observed, "The Jute Commissioner is directed to take positive steps and adopt stringent measures to implement the notified rate, but despite all efforts, if it appears that the notified rate cannot be adhered to, then the Jute Commissioner shall review and re-fix the rate taking into consideration the relevant factors as mentioned in the Control Order, 2016." The Court further ordered the Jute Commissioner to collect first-hand information with regards to the rate at which jute is available to the mill owners and thereafter notify the rate after taking into consideration the freight, transportation, handling and storage charges. "The rate should not be fixed upon extraneous consideration and the same must be reviewed at frequent intervals considering the ground realities. The Jute Commissioner should realise that the rate fixed should not be meant only for the purpose of publishing it in the official gazette but for the purpose of practical implementation of the same. Regular raids, search and seizure should be conducted to prevent illegal hoarding or any nefarious activity sending out false signals of scarcity. Stern action should be taken against any /all persons found indulging in any illegal activity and acting with vested interest leading to the rise in the price of raw jute", the Court directed further.

5. Writ Court Cannot Impose Penalty Not Contemplated In Statute In Exercise Of Plenary Jurisdiction: Calcutta High Court

Case Title: Sanghamitra Bhattacharya v. Sudeshna Kar & Ors

Case Citation: 2022 Live Law (Cal) 167

The Calcutta High Court on Wednesday has observed that a writ Court in exercise of its powers under Article 226 of the Constitution cannot impose a penalty which is not contemplated in the concerned statutory rules in exercise of its so called plenary jurisdiction. A Bench comprising Justice Harish Tandon and Justice Rabindranath Samanta observed, "..the writ court discharges his solemn duties to uphold the law and render justice in accordance with law and not to break or bend it. The penalty which is not contemplated in the said disciplinary Rule cannot be imposed in exercise of so-called plenary jurisdiction which has a different concept and cannot be assumed to show wide or even wider power to overreach the provision of law." The Court further observed that a writ court cannot assume the jurisdiction of the disciplinary authority and proceed in violation of the statutory provisions by inflicting the penalties not contemplated in the statutory Rules.

6. Medical Evidence Of Nature Of Injury Prevails Over Victim's Ocular Evidence: Calcutta High Court Sets Aside Conviction U/S 324 IPC

Case Title: Aminul Islam @ Amenur Molla v. The State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 168

The Calcutta High Court has recently set aside a conviction under Section 324 of the IPC (voluntarily causing hurt by dangerous weapons or means) by observing that the medical evidence pertaining to the nature of the injury sustained would prevail over the ocular evidence of the victim. Justice Bibek Chaudhuri was adjudicating upon an appeal moved against an order of conviction passed by the concerned trial court under Section 324 IPC and the sentence of imprisonment imposed for a term of one year along with a fine of Rs.1,000 and in default, to suffer simple imprisonment for further 3 months. "The Court cannot deny that P.W.4 received cut injury on his head but in order to ascertain the nature of injury, the evidence of expert can only be relied on. When the medical officer stated that P.W.4 sustained lacerated injury, the said injury cannot be treated as incised wound on the basis of ocular testimony of P.W.4", the Court observed. The Court further observed that if the victim had been assaulted with the help of a Hasua on his head, there would have been an incised wound whoever no such incised wound was found on his head. Thus, it was held that when the allegation of the prosecution is that the appellant had assaulted the victim with a hasua, in the absence incised cut injury, the appellant cannot be connected with the injury sustained by the victim.

7. 'No Evidence That Victim Was Enticed, She Was Fully Aware Of Consequences': Calcutta HC Sets Aside Conviction For Kidnapping Minor

Case Title: Suraj Singh v. State of West Bengal & Anr

Case Citation: 2022 LiveLaw (Cal) 169

The Calcutta High Court has recently set aside the conviction of an accused for commission of the offence under Section 361 of the IPC (kidnapping from lawful guardianship) after observing that the minor victim was fully aware of the consequences of her going away with the accused and that there is no evidence that she was induced or enticed by the accused. Justice Bibek Chaudhuri observed, "In the instant case, there is absolutely no evidence that the victim girl was induced or enticed by the appellant. For the reasons stated above and in view of the fact that the victim was fully aware of the consequences of her going away with the appellant, the appellant cannot be held liable under Section 361 of the Indian Penal Code punishable under Section 363 of the Indian Penal Code." The Court further noted, "Neither the victim girl, nor the de facto complainant made any allegation against the appellant to the effect that the victim girl was compelled to marry any person against her will or that she was forced or seduced to illicit intercourse", the Court noted further.

8. Birbhum Massacre| Avail Remedy Under S.102 Of Juvenile Justice Act: Calcutta HC Dismisses CBI's Plea Seeking Cancellation Of Bail Of Two Juvenile Accused

Case Title: The Court on its own Motion In re: The Brutal Incident of Bogtui Village, Rampurhat, Birbhum

Case Citation: 2022 LiveLaw (Cal) 170

The Calcutta High Court on Friday dismissed a prayer seeking cancellation of bail granted to two minor accused persons by the Principal Magistrate, Juvenile Justice Board, Birbhum at Suri in the case pertaining to the violence in Birbhum district of West Bengal, in which ten persons were killed allegedly in retaliation to the murder of local All India Trinamool Congress (TMC) leader Bhadu Sheikh. The Central Bureau of Investigation (CBI) is currently probing the case. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj observed that since the aggrieved parties have the remedy of filing a revision petition before the High Court under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (2015 Act) such a plea seeking cancellation of bail cannot be entertained. "Since an appropriate remedy of revision against the orders in question is available, therefore, this Court is of the opinion that in the facts of the present case, it would be more appropriate for the parties to avail that remedy. All the grounds which have been raised before this Court assailing the orders of the JJB can be raised in the revision petition and we are hopeful that if any such revision petition is filed, the same will be duly considered and decided in accordance with law after considering the grounds raised therein", the Court observed.

9. Gazetted Officer Who Is Part Of Raid Is Not 'Independent', Personal Search Conducted By Him Does Not Constitute Compliance Of S.50 NDPS Act: Calcutta HC

Case Title: Ali Hossain Sk. @ Ali Hussain Seikh v. Narcotics Control Bureau

Case Citation: 2022 LiveLaw (Cal) 171

The Calcutta High Court has recently observed that a Gazetted Officer who is a member of the raiding party cannot be said to be an independent person and thus a desire expressed by accused persons to be searched by such an officer does not constitute a voluntary relinquishment of the right enshrined under Section 50 of the Narcotic Drugs and Psychotropic Substance Act. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi was adjudicating upon an appeal moved against an order passed by the concerned lower Court convicting the appellants for commission of offence punishable under Section 22(c) read with Section 29 of the NDPS Act. Opining further that such a Gazetted Officer cannot be said to be an independent person before whom such a search can be conducted under Section 50 of the NDPS Act, the Court underscored, "A Gazetted Officer who had proceeded to the place of occurrence after entertaining reasonable belief that the accused persons may be carrying narcotic substance cannot be said to be an independent person before whom the law contemplates a search. In this backdrop, acceptance of the offer by the appellants to be searched before an officer who is a member of the raiding party cannot be said to be a voluntary expression of their desire to be searched before such officer."

10. Making Victim Naked Proves Culpable Mental State, Touching Private Part Not Required: Calcutta HC Upholds Conviction For Aggravated Sexual Assault In POCSO Case

Case Title: Chitta Biswas v. The State of West Bengal & Anr

Case Citation: 2022 LiveLaw (Cal) 172

The Calcutta High Court on Friday upheld conviction for the offence of aggravated sexual assault under Section 10 of the Protection of Children from Sexual Offences Act (POCSO Act) by opining that surrounding circumstances like the accused making the minor victim girl naked prove the culpable mental state of the accused. Justice Bibek Chaudhuri also rejected the argument that since nobody saw the accused touch the private part of the victim girl, it would not constitute the offence of sexual assault. "Learned Advocate for the appellant submits that nobody saw the accused touching private part of the victim and from the evidence of PW3 it is found that the accused was sitting by the side of the victim girl who was lying on the varanda of PW3 in naked condition, the accused ought to have been convicted under Section 11 of the POCSO Act for the offence of sexual harassment. I am not in a position to accept such submission made by the learned Advocate for the appellant because there was no reason for not to treat the specific acts by the appellant as the acts of sexual assault within the meaning of Section 7 of the POCSO Act", the Court observed. Opining that the sexual intent of the victim has been proved beyond any shadow of doubt, the Court further underscored, "The surrounding circumstances like the accused having taken the victim to the house of PW3 when she was not present, pulling down her pant, making her naked amply prove culpable mental state of the accused and in such a case, the court is entitled to raise statutory presumption about the culpable mental state of the accused as permitted under Section 30 of the POCSO Act. The said presumption has not been rebutted by the accused by proving that he has no such mental state. Therefore, sexual intent of the accused is established beyond any shadow of doubt."

11. 'Overreached The Court': Calcutta HC Sets Aside Termination Order Of School Teacher, Orders WBBSE To Withdraw School's Affiliation

Case Title: Anita Nigam v. The State of West Bengal & Ors

Case Citation: 2022 LiveLaw (Cal) 173

The Calcutta High Court recently came down heavily on Convent of Our Lady Providence Girls' High School in Kolkata for unlawfully terminating the service of an Assistant Teacher in violation of the order of the West Bengal Board of Secondary Education (WBBSE). Justice Abhijit Gangopadhyay was adjudicating upon a plea moved by the petitioner seeking the setting aside of an order terminating her service and quashing of disciplinary proceedings initiated against her. "From the action of the school it is found that the school does not care the direction of the court for exchange of affidavits and a final hearing or the decision of the Board, which is a statutory authority, in respect of suspension of the petitioner and in respect of the observation of the Board as to gross violation of notification dated 8th March, 2018, i.e., the existing Rules. The school does not care this court's order dated 01.04.2022, does not care the order of the Board dated 20.02.2017 and does not care the Board's letter dated 29.04.2019", the Court observed. Opining further that the school had 'overreached the Court' by issuing a termination order despite the matter being sub-judice, the Court underscored, "When the matter was kept pending with direction of this court for filing affidavits, the order passed by the school for termination of the petitioner during the pendency of the matter, i.e., in a sub-judice matter, in my view, is clearly an act of overreaching the court. The school never approached the court before passing such termination order, which judicial decorum and discipline demands. Ignoring the court is unforgivable. The school is of this habit, as will appear from the facts stated above, of ignoring the statutory authority, i.e., the Board."

12. SLST Recruitment Scam: Calcutta HC Orders WBSSC To Publish Merit List With Marks Break-Up Within 10 Days, Stays Recruitment Process Till June 17

Case Title: Soma Sinha v. The State of West Bengal & Ors

Case Citation: 2022 LiveLaw (Cal) 174

The Calcutta High Court imposed a stay till June 17 the recruitment process of assistant teachers for Class 9 and Class 10 in State run schools pertaining to the West Bengal State Level Selection Test (SLST). The West Bengal School Service Commission was further ordered to publish within 10 days the merit list of the State Level Selection Test, 2016 with clear break-up of marks secured in written test, academic and professional score and personality test. Justice Abhijit Gangopadhyay was adjudicating upon a plea moved by petitioner Soma Sinha alleging lack of transparency in the merit list. She had stated that she had cleared the written test and had also completed the first phase of the verification process. She had further submitted that although she had appeared both for the personality test and the interview, she had found her name in the waiting list. Directing the Commission to publics a breakup of marks by May 20, the Court observed, " I direct the West Bengal Central School Service Commission to publish the breakup of marks of the empanelled and waitlisted candidates against written test, academic and professional score and personality test by 20th May, 2022 and to upload the online application forms of the empanelled and waitlisted candidates and to come up with such a list with breakup of marks and to come up with preparation to demonstrate that online application forms of the empanelled and waitlisted candidates in respect of 1st State Level Selection Test, 2016 (Classes IX and X) has been uploaded." Imposing a stay on the recruitment process till June 17 to prevent further complications, the Court ordered, "The Commission is further directed not to take any further step for initiation of recruitment or selection process of State Level Selection Test for Assistant Teachers for the Classes IX and X till 17th June, 2022 as after publication of the marks it has to be checked and verified by the petitioner and all other concerned persons to see whether the panel and the waitlist is to be completely recast or not. If a recruitment process is initiated in the meantime before doing that, a further complicated situation will arise in the future recruitment process as vacancies are to be published and Rule 18 of the said Rules provide for carry forward of vacancy."

13. Genuine Transactions With Suppliers Whose GST Registration Cancelled: Calcutta High Court Allows GST ITC To Assessee

Case Title: Sanchita Kundu & Anr. Vs. The Assistant Commissioner of State Tax, Bureau of Investigation, South Bengal & Ors.

Case Citation: 2022 LiveLaw (Cal) 175

The Calcutta High Court bench of Justice Md. Nizamuddin has held that the Input Tax Credit (ITC) cannot be denied on genuine transactions with suppliers whose GST registration was cancelled after the transaction. The petitioners/assessee were aggrieved by the action of the department denying the benefit of the Input Tax Credit (ITC). The ITC was denied the purchase of the goods in question from the suppliers and asked the petitioners to pay the penalty and interest under the provisions of the GST Act. The penalty and interest were demanded on the ground that the registration of the suppliers in question had already been cancelled with retrospective effect, covering the transaction period in question. The petitioner ​​contended that the transactions were genuine and valid. The petitioners, with their due diligence, have verified the genuineness and identity of the suppliers. The names of those suppliers as registered taxable persons were available at the government portal, showing their registrations as valid and existing at the time of transactions.

14. Reassessment Order Passed Without Issuance of Section 148 Notice Is Not Valid: Calcutta High Court

Case Title: Govardhan Commodities Pvt. Ltd. Vs. Assistant/Deputy Commissioner of Income Tax

Case Citation: 2022 LiveLaw (Cal) 176

The Calcutta High Court bench of Justice Md. Nizamuddin has ruled that the reassessment order passed without issuance of notice under Section 148 of the Income Tax Act is not valid. The petitioner/assessee challenged the assessment order on the ground that it was passed without serving any notice under Section 148 of the Income Tax Act, 1961 which is a condition precedent for initiating proceedings under Section 147 of the Act. The petitioner after getting the assessment order has made several correspondences asking the Assessing Officer to provide documents in support of proof of service of the notice under Section 148 of the Act. The Assessing Officer failed to provide any such document to establish that the impugned notice under Section 148 of the Income Tax Act was served upon the petitioner before passing the assessment order.

Important Developments

1. Death Of BJP Youth Wing Leader: Calcutta HC Takes On Record Post-Mortem Report Which Indicates Death By Hanging, Probe To Be Continued By State Police

Case Title: Amrita Pandey v. The Union of India and others

The Calcutta High Court on Tuesday took on record the post-mortem examination report pertaining to the death of Bharatiya Janata Party (BJP) West Bengal youth leader Arjun Chowrasia who was found hanging inside a building in North Kolkata's Ghosh Bagan area. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj was adjudicating upon a Public Interest Litigation (PIL) petition seeking judicial intervention into the incident of unnatural death on allegations of foul play. Pursuant to the perusal of the post-mortem examination report, the Court noted that the finding of the report stipulated that the cause of death is due to hanging and that the ligature marks are ante-mortem. "..the cause of death to the best of our knowledge is hanging. Ligature mark is ante-mortem", the Court recorded in the order quoting the report. Furthermore, the Court ordered that the post-mortem report along with other envelopes containing the photographs, X-ray should be handed over to Advocate General S.N Mookherjee. The Court further directed that the preserved viscera should also be handed over to the concerned State investigating agency for the purpose of investigation.

2. Birbhum Massacre| Calcutta HC Reserves Order On Plea Seeking Cancellation Of Bail Of Two Juvenile Accused Allegedly Granted Bail Without Inspecting Case Diary

Case Title: The Court on its own Motion In re: The Brutal Incident of Bogtui Village, Rampurhat, Birbhum

The Calcutta High Court reserved its order on plea seeking cancellation of bail of two juvenile persons accused in the case pertaining to the violence in Birbhum district of West Bengal, in which ten persons were killed allegedly in retaliation to the murder of local All India Trinamool Congress (TMC) leader Bhadu Sheikh. The Central Bureau of Investigation (CBI) is currently probing the case. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj on the last date of hearing had been apprised that two juvenile accused persons in the case had been granted bail in an improper manner and hence a prayer had been made for the Court to take up the issue of cancellation for bail in exercise of its suo motu powers. On Tuesday, the counsel appearing for the CBI apprised the Court that the Juvenile Justice Board in Suri had last earlier granted bail to the two minors without calling for the case diary and without any notice to the CBI. The Court was further informed that the name of one of the accused persons who had been granted bail had been mentioned in the dying declaration of the victim. Accordingly, a prayer was made to issue notice to the concerned Juvenile Board as to how it could have passed the impugned orders granting bail without calling for the case diary pertaining to the investigation. Pursuant to the submissions, the Chief Justice orally remarked, "we will examine the issues and pass order".

3. 'Completely Motivated': WB Gov Objects To Maintainability Of PIL Before HC Seeking Joint Probe By CBI & ED Into Alleged Irregularities In TET 2014

Case Title: Tarunjyoti Tiwari v. Union of India

The Calcutta High Court on Tuesday directed the State government to raise its preliminary objection in writing to the maintainability of the Public Interest Litigation (PIL) petition seeking a joint probe by the Central Bureau of Investigation (CBI) and Enforcement Directorate (ED) into the alleged irregularities in the 2014 Teacher Eligibility Test (TET) in West Bengal. TET 2014 was conducted on October 11, 2015, with over 2.3 million candidates. Several TET 2014 candidates had approached the High Court in 2019, alleging discrepancy in the recruitment process. Thereafter, the Court had cancelled the entire selection process after hearing the matter. The PIL filed by petitioner Tapas Ghosh through advocate Tarunjyoti Tiwari alleged that the eligible candidates had not been selected in the examination and that only candidates who had paid money to the members of the ruling party had been recommended for section by the concerned authority. During the proceedings, Advocate General S.N Mookerjee raised a preliminary objection to the maintainability of the petition before a Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj. Terming the petition to be 'completely motivated', the Advocate General remarked further, "These kind of writ petitions are not even maintainable at the face of it". Pursuant to the submissions, the Court directed the State government to raise its preliminary objection in writing so that petitioner can have adequate opportunity to respond to it. Accordingly, the Court was directed to submit its affidavit-in-opposition within a period of 2 weeks.

4. WB Post Poll Violence: Calcutta High Court Raps CBI Counsel For Being Unaware Of Facts, Failing To Render Any Assistance

The Calcutta High Court on Tuesday pulled up the counsel appearing for the Central Bureau of Investigation (CBI) for not being aware of the facts in the West Bengal post-poll violence case. A Bench comprising Justice Debangsu Basak and Justice Bibhas Ranjan De observed on Tuesday, "It is unfortunate that the petitioner is being represented by an Advocate who is unaware as to the facts of the case. He is unable to render any assistance to the Court" In the instant case, the CBI had filed applications for cancellation of bail of accused persons Ajoy Bar, Rajesh Sardar, Chiranjit Roy, Sujay Bar, Anup Mondal and Pintu Bar. The Alipore court had granted bail to the accused persons in October 2021 which was confirmed in January 2022. Thereafter, challenging this impugned order the CBI had filed an application for cancellation of bail before the High Court in April 2022.

5. SSC Recruitment Scam: Calcutta High Court Appointed Committee Seeks Action Against State Govt Officials, Judgment On May 18

Case Title: Dr Santi Prasad Sinha v. Laxmi Tunga and other connected matters

A committee constituted by the Calcutta High Court on Friday submitted a report on the alleged irregularities in appointments of Group-C posts in the state government-run schools in West Bengal on the purported recommendation by the West Bengal School Service Commission (WBSSC). A Division Bench had earlier set up an inquiry committee headed by Justice Ranjit Kumar Bagh, former judge of the Calcutta High Court to probe into the recruitment scam. The other members of the committee includes Asutosh Ghosh, Member of West Bengal School Service Commission, Paromita Roy, Deputy Secretary (Administration), West Bengal Board of Secondary Education and advocate Arunava Banerjee, a practicing lawyer of the High Court. The Court appointed committee apprised a Bench comprising Justice Ananda Kumar Mukherjee and Justice Subrata Talukdar that 381 appointments for Group-C posts in the state government-run schools in West Bengal were made illegally. Furthermore, the committee recommended criminal proceedings against four ex-state SSC officials and the incumbent president of the West Bengal Board of Secondary Education. It also sought disciplinary proceedings against six other former senior SSC officials.

6. Centre Notifies Appointment Of Three Additional Judges To Calcutta High Court

The Central Government has notified the appointment of three Additional Judges to the Calcutta High Court for a period of two years with effect from the date they assume charge of their respective offices. They are as follows- 1. Ananva Bandyopadhyay, Judicial Officer 2. Rai Chattopadhyay, Judicial Officer 3. Subhendu Samanta, Judicial Officer. "In exercise of the power conferred by clause (1) of Article 224 of the Constitution of India, the President is pleased to appoint (i) Ms. Ananya Bandyopadhyay, (ii) Smt. Rai Chattopadhyay and (iii) Shri Subhendu Samanta, to be Additional Judges of the Calcutta High Court, in that order of seniority, for a period of two years with effect from the date they assume charge of their respective offices", the notification issued by the Department of Justice, Ministry of Law and Justice, Government of India stated.

CHHATTISGARH HIGH COURT

1. RERA Act | Under Section 71(1), The Adjudicating Authority Can Decide The Compensation Alone. : Chhattisgarh High Court

Case Title: M/s. Gold Bricks Infrastructures Pvt. Ltd v. Atit Agrawal and other connected matters

Citation: 2022 LiveLaw (Chh) 45

The Chhattisgarh High Court recently held that under Section 71(1) of the Real Estate (Regulation & Development) Act, 2016, the adjudicating authority can decide the compensation alone. A Division Bench of Justices Goutam Bhaduri and Sanjay S. Aggarwal remarked that reading Section 71(1) of the RERA Act, 2016 would show that the power of adjudicating officers is to adjudicate compensation. As a necessary corollary to decide the quantum of compensation, the adjudicating officer may hold an inquiry after giving a person concerned a reasonable opportunity of being heard to find out the degree of development to be carried out. The said appointment of the adjudicating officer is also in conformity to the object of the legislation to decide the compensation.

DELHI HIGH COURT

NOMINAL INDEX

Citations 2022 LiveLaw (Del) 425 TO 2022 LiveLaw (Del) 449

Case Title: BELA CREATION PVT LTD v. ANUJ TEXTILES 2022 LiveLaw (Del) 425

Case Title: Amit Gupta Vs Directorate General of GST Intelligence Headquarters 2022 LiveLaw (Del) 426

Title: NIKITA CHANDEL v. STATE OF NCT OF DELHI and other connected matters 2022 LiveLaw (Del) 427

Title: GEETA SINGH v. PRADEEP SINGH 2022 LiveLaw (Del) 428

Title: STARBUCKS CORPORATION v. TEAQUILA A FASHION CAFE & ANR. 2022 LiveLaw (Del) 429

Case Title: Youth Against Crime v. Union of India & Ors. 2022 LiveLaw (Del) 430

Title: KRISHNAN SUBRAMANIAN v. STATE OF NCT OF DELHI 2022 LiveLaw (Del) 431

Title: LAXMI & ANR v. SHYAM PRATAP & ANR 2022 LiveLaw (Del) 432

Case Title: RIT Foundation v. UOI and other connected matters 2022 LiveLaw (Del) 433

Case Title: Kedar Nath Babbar Versus Assistant Commissioner of Income Tax 2022 LiveLaw (Del) 434

Case Title: Union of India versus Delhi State Consumer Co Operative Federation Ltd. 2022 LiveLaw (Del) 435

Case Title: Millennium School v. Pawan Dawar, O.M.P. (COMM) 590/2020 2022 LiveLaw (Del) 436

Case Title: PEPSICO INC. & ANR. versus JAGPIN BREWERIES LIMITED & ANR. 2022 LiveLaw (Del) 437

Case Title: Extramarks Education India Private Limited V. MES Central School, ARB. P. 327 OF 2022 2022 LiveLaw (Del) 438

Case Title: Kiran Infra Engineers Limited versus Northern Railway 2022 LiveLaw (Del) 439

Title: AZHAR RASHEED v. STATE NCT OF DELHI AND ORS. 2022 LiveLaw (Del) 440

Title: x v. Y 2022 LiveLaw (Del) 441

Title: GOVT OF NCT OF DELHI v. SATBIR & ANR 2022 LiveLaw (Del) 442

Case Title: GAIL (India) Ltd. V. Trivendi Engineering & Industries LTD. 2022 LiveLaw (Del) 443

Case Title: Gujarat Gas Ltd. v. Vedanta Ltd and Ors., O.M.P.(I)(COMM) 125 of 2022 2022 LiveLaw (Del) 444

Case Title: MALVINDER MOHAN SINGH v. ENFORCEMENT DIRECTORATE & ANR 2022 LiveLaw (Del) 445

Case Title: NIRMAL JINDAL v. SHYAM SUNDER TYAGI & ORS 2022 LiveLaw (Del) 446

Title: JASBIR SINGH v. STATE 2022 LiveLaw (Del) 447

Case Title: SHRI HARI SHAMSHER KAUSHIK v. SHRI JASBIR SINGH, MANAGING DIRECTOR, M/S ACCURA CARE PHARMACEUTICALS PVT. LTD. 2022 LiveLaw (Del) 448

Case Title: MILLENNIUM EDUCATION FOUNDATION V. EDUCOMP INFRASTRUCTURE AND SCHOOL MANAGEMENT LIMITED 2022 LiveLaw (Del) 449

1. Bounden Duty Of Counsel To Ensure That Pleadings Filed Before Court Are Intelligible: Delhi High Court Expresses Word Of Caution

Case Title: BELA CREATION PVT LTD v. ANUJ TEXTILES

Citation: 2022 LiveLaw (Del) 425

The Delhi High Court has observed that in cases where parties are represented by counsel, the said counsel have a bounden duty to ensure that pleadings, filed before a Court, are intelligible.

Giving a word of caution, Justice C Hari Shankar expressed displeasure over filing of an application of the petitioner under Order VII Rule 14 of Code of Civil Procedure after opining that the same did not contain a single sentence which was grammatically or syntactically correct.

Thus, the Court rejected a plea challenging an impugned order dated 24th February, 2022 wherein the Trial Court had rejected an application under Order VII Rule 14 filed by the petitioner, defendant in the civil suit, with costs of Rs. 5000.

2. Bail Amount Can Be Paid By Cash Ledger, Debit Ledger Of ITC: Delhi High Court Refuses To Cancel Bail Of A Person Accused of Fraudulently Availing ITC

Case Title: Amit Gupta Vs Directorate General of GST Intelligence Headquarters

Citation: 2022 LiveLaw (Del) 426

The Delhi High Court bench of Justice Mukta Gupta has ruled that the bail amount can be paid by cash ledger and debit ledger of the Input Tax Credit (ITC).

It has been alleged by the department that the petitioner is one of the directors/key persons in M/s Brilliant Metals Pvt. Ltd., M/s Progressive Alloys India Pvt. Ltd. and M/s JBN Impex Pvt. Ltd. and allegedly the mastermind behind devising a mechanism of availing ITC on the strength of bills of various suppliers which were non-existing and fictitious, thus availing fraudulent ITC worth Rs. 27.05 crores, which he further passed on. The petitioner received a total of Rs. 260 crores in ITC from the three companies.

3. Every Lawyer Appearing For Client Has A Right Of Fair Hearing Irrespective Of Who The Complainant Is: Delhi High Court

Title: NIKITA CHANDEL v. STATE OF NCT OF DELHI and other connected matters

Citation: 2022 LiveLaw (Del) 427

Every lawyer, who appears for his client, has a right of fair hearing, irrespective of who the complainant is," the Delhi High Court has recently observed recently.

Justice Talwant Singh was dealing with a plea filed by seven accused persons seeking anticipatory bail directly in the High Court after claiming that since the complainant was an advocate, a fair hearing before the District Court was not possible because their counsels may be heckled during arguments.

4. Company Has To Be Proceeded Against By Giving An Opportunity To Be Heard Where It Has Also Been Accused, No Liability Only Qua Private Persons: Delhi HC

Title: GEETA SINGH v. PRADEEP SINGH

Citation: 2022 LiveLaw (Del) 428

The Delhi High Court has observed that in a case where the Company has also been accused, the liability cannot be said to have been arisen only qua the private person and that the Company has to be proceeded against legally by giving it an opportunity to be heard.

Justice Chandra Dhari Singh added that the liability of a private person, in his capacity of a Director or any other authority to act on behalf of the Company, if has to be severed from the liability of the Company, cannot arise against him when the Company itself is also an accused.

"Such liability against the person would arise when the accused person has issued the cheque in his personal capacity which is distinguishable from his capacity as an employee or Director of a company. Where the Company has also been accused, the liability cannot be said to have been arisen only qua the private person and the Company has to be proceeded against legally by giving it an opportunity to be heard," the Court said.

5. Trademark Infringement Suit: Delhi High Court Awards 2 Lakhs Damages & Over 9 Lakhs Cost In Favour Of Starbucks

Title: STARBUCKS CORPORATION v. TEAQUILA A FASHION CAFE & ANR.

Citation: 2022 LiveLaw (Del) 429

The Delhi High Court has awarded Rs. 2 lakhs damages and an amount of Rs. 9,60,100 in favour of Starbucks Corporation in a trademark infringement suit filed by it over the usage of its registered trademark'FRAPPUCCINO'.

Justice Jyoti Singh was dealing with the suit filed by the plaintiff, Starbucks Corporation against one Teaquilla A Fashion Cafe, seeking a decree of permanent injunction restraining the Defendants from infringing it's registered trademark "FRAPPUCCINO" either alone or with any prefix or suffix or any other confusing and deceptively similar trademark in relation to their goods, services and business as well as passing off.

6. Delhi High Court Clears Release Of Jayeshbhai Jordaar Film As Makers Assure To Insert Disclaimers Over Criminality Of Pre-Natal Sex Determination

Case Title: Youth Against Crime v. Union of India & Ors.

Citation: 2022 LiveLaw (Del) 430

The Delhi High Court on Tuesday cleared the release of Ranveer Singh starrer Yashraj film "Jayeshbhai Jordaar" after it was assured by the producers that relevant disclaimers, to the effect that Pre-natal sex determination is a criminal offence, shall be depicted in relation to an ultrasound scene and another connected scene.

A division bench comprising of Justice Navin Chawla and Justice Manoj Kumar Ohri disposed of a plea filed by an NGO namely Youth Against Crime, challenging the film over depiction of a prenatal sex-determination scene in the trailer. The film is set to hit the theatres on May 13.

The Delhi High Court on Tuesday cleared the release of Ranveer Singh starrer Yashraj film "Jayeshbhai Jordaar" after it was assured by the producers that relevant disclaimers, to the effect that Pre-natal sex determination is a criminal offence, shall be depicted in relation to an ultrasound scene and another connected scene.

A division bench comprising of Justice Navin Chawla and Justice Manoj Kumar Ohri disposed of a plea filed by an NGO namely Youth Against Crime, challenging the film over depiction of a prenatal sex-determination scene in the trailer. The film is set to hit the theatres on May 13.

7. Delhi High Court Grants Bail To Former Religare CFO Krishnan Subramanian In RFL Scam Case

Title: KRISHNAN SUBRAMANIAN v. STATE OF NCT OF DELHI

Citation: 2022 LiveLaw (Del) 431

The Delhi High Court has granted bail to Krishnan Subramanian, former CFO of Religare Enterprises Limited, in connection with the Fortis Religare Scam case involving the alleged financial scam of disbursal of loans worth thousands of crores to shell entities having no financial strength.

Justice Chandra Dhari Singh granted bail to Subramanian subject to Subramanian furnishing a personal bond in the sum of Rs. 1 Lac with two sureties each of the like amount.

8. Daughter In Law Can Claim Maintenance From Her Father In Law If She Inherited Some Estate From Her Husband: Delhi High Court

Title: LAXMI & ANR v. SHYAM PRATAP & ANR

Citation: 2022 LiveLaw (Del) 432

The Delhi High Court has observed that the daughter-in-law can claim maintenance from her father-in-law provided she has inherited some estate of her husband.

A division bench comprising of Justice Mukta Gupta and Justice Neena Bansal Krishna dismissed a plea filed by a widowed daughter-in-law and grand-daughter under sec. 19 of the Family Court Act, 1984 against the order dated 3rd May, 2019 deferring their claim for interim maintenance in a petition under sec. 19 of the Hindu Adoption and Maintenance Act, 1956.

9. Delhi High Court Passes Split Verdict On Criminalizing Marital Rape, Justice Rajiv Shakdher Holds Exception 2 Of Section 375 IPC Unconstitutional

Case Title: RIT Foundation v. UOI and other connected matters

Citation: 2022 LiveLaw (Del) 433

The Delhi High Court has passed a split verdict on a batch of petitions challenging the exception to Section 375 of the Indian Penal Code, which exempts forceful sexual intercourse by a man with his own wife from the offence of rape.

Justice Rajiv Shakdher has held that the exemption to the husband from the offence of marital rape is unconstitutional. Exception 2 of 375, 376B IPC was therefore struck down by him as violative of Article 14.

"The impugned provisions in so far as they concern a husband having intercourse with his wife without consent are violative of Article 14 and are therefore struck down", Justice Shankdher held.

However, Justice C Hari Shankar said that he does not agree with Justice Shakdher. Justice Harisankar has held that Exception 2 to Section 375 does not violate Constitution and that the exception is based on an intelligible differentia.

Also Read: Forced Sex By Husband On Wife Should Be Labelled Rape; Right To Withdraw Consent Part Of Woman's Right To Life & Liberty : Justice Rajiv Shakdher On Marital Rape

Also Read: 5 Reasons Why Striking Down Marital Rape Exception Will Not Create A New Offence : Justice Rajiv Shakdher Explains

Also Read:Assumption That Wife Forced To Have Sex With Husband Feels Same Degree Of Outrage As Woman Raped By Stranger Is Unrealistic : Justice Hari Shankar

Also Read: Striking Down Marital Rape Exception Will Result In Creation Of New Offence: Justice C Hari Shankar Differs With Justice Shakdher

Also Read: Rape Laws Should Be Gender Neutral, Steps Required To Be Taken By Legislature Or Executive: Justice Shakdher In Marital Rape Judgment

10. Sufficiency Of The Correctness Of Material Is Not To Be Considered While Issuing Reassessment Notice: Delhi High Court

Case Title: Kedar Nath Babbar Versus Assistant Commissioner of Income Tax

Citation: 2022 LiveLaw (Del) 434

The Delhi High Court held that the court was only required to see whether there was prima facie some material on the basis of which the department could reopen the assessment. The sufficiency of the correctness of the material cannot be considered while issuing the reassessment notice.

The division bench of Justice Manmohan and Justice Dinesh Kumar Sharma observed that the courts should exercise their writ jurisdiction very sparingly if there is an "alternative efficacious remedy." The petitioner cannot be allowed to short circuit the procedure merely out of convenience. If a statutory forum is created by law for the redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.

11. Order Terminating Arbitral Proceedings Without Issuing Show Cause Notice Is Unsustainable And Perverse: Delhi HC

Case Title: Union of India versus Delhi State Consumer Co Operative Federation Ltd.

Citation: 2022 LiveLaw (Del) 435

The Delhi High Court has ruled that abrupt issuance of orders by the Arbitral Tribunal terminating the arbitral proceedings under Section 25 (a) of the Arbitration and Conciliation Act, 1996 (A&C Act), without holding any hearing and without issuing any show cause notice, is unsustainable and suffers from perversity of approach.

The Single Bench of Justice Prateek Jalan held that to ensure that an Arbitral Tribunal performs the duty entrusted to it is a core aspect of the supervisory function of the High Court, and thus where the Arbitral Tribunal has failed to decide the review applications filed by the claimant seeking recall of the order terminating the arbitral proceedings, the Court can invoke Article 227 of the Constitution of India.

12. Section 65-B Of Indian Evidence Act Does Not Apply To Arbitral Proceedings: Delhi High Court

Case Title: Millennium School v. Pawan Dawar, O.M.P. (COMM) 590/2020

Citation: 2022 LiveLaw (Del) 436

The High Court of Delhi has held that Section 65-B of the Indian Evidence Act, 1872 does not apply to arbitral proceedings.

The Single Bench of Justice Vibhu Bakhru held that although the principles of the Evidence Act usually apply, sensu stricto, the specific provisions of the Act do not apply.

The Court further held that an objection as to the non-compliance with the requirement of Section 65-B shall be raised at the earliest opportunity. Failure to take such an objection at the material time deprives the other party to take such an objection at a later stage.

13. Delhi High Court Grants Ex Parte Injunction In Pepsico's Plea Against Liquor Company Using Their Trademark 'Mirinda'

Case Title: PEPSICO INC. & ANR. versus JAGPIN BREWERIES LIMITED & ANR.

Citation: 2022 LiveLaw (Del) 437

The Delhi High Court recently granted an ex parte injunction in favour of Pepsico against a liquor company allegedly using their mark i.e. Mirinda.

A bench of Justice Jyoti Singh observed that Pepsico had successfully made out a prima facie case for an ad-interim injunction since the balance of convenience lies in their favour. :

"This Court is of the view that Plaintiffs have made out a prima facie case for grant of ex parte ad-interim injunction. Balance of convenience lies in favour of the Plaintiffs and they are likely to suffer irreparable harm in case the injunction, as prayed for, is not granted."

14. Mere Filing Of Written Statement Qua An Independent Transaction Would Not Amount To Waiver Of Right To Invoke Arbitration: Delhi High Court

Case Title: Extramarks Education India Private Limited V. MES Central School, ARB. P. 327 OF 2022

Citation: 2022 LiveLaw (Del) 438

The High Court of Delhi has held that a party cannot be deemed to have waived its right to invoke arbitration merely because it has filed a written statement in respect of disputes that are not covered under the agreement.

The Single Bench of Justice Sanjeev Sachdeva held that a suit in respect of a dispute that is not governed by the arbitration agreement is not an impediment to the invocation of the arbitration.

15. Supplementary Agreement Rescinding Arbitration Clause; Whether Agreement Contrary To Law, To Be Decided By Arbitrator: Delhi High Court

Case Title: Kiran Infra Engineers Limited versus Northern Railway

Citation: 2022 LiveLaw (Del) 439

The Delhi High Court has held that whether a supplementary agreement between the parties, rescinding the arbitration clause contained in the principal contract, is contrary to law or not in view of taking away the right of a party to invoke arbitration, is required to be decided by the arbitrator himself.

The Single Bench of Justice Sanjeev Sachdeva ruled that the disputes raised by the party contending that the supplementary agreement was hit by Section 17 and Section 23 of the Indian Contract Act, 1872, since it was signed by the party under duress and undue influence, are disputes which the Arbitral Tribunal is competent to rule upon.

16. Delhi High Court Bats For Framing Protocols At National Level For Medical Practitioners Doing Aesthetic Surgeries, Hair Transplant Procedures

Title: AZHAR RASHEED v. STATE NCT OF DELHI AND ORS.

Citation: 2022 LiveLaw (Del) 440

The Delhi High Court has called for framing of medical protocols at national level for guidance of medical practitioners doing aesthetic surgeries and hair transplantation procedures.

Justice Anoop Kumar Mendiratta directed the Centre as well as the Delhi Government to take steps for ensuring that "mushrooming Salons" carrying hair transplantation procedures under unprofessional hands without requisite qualification and in absence of medical supervision, are checked.

The Court also directed the Commissioner of Police, Delhi to take necessary measures to ensure that incidents of medical malpractice are not repeated and action is taken against such Salons wheresoever the hair transplantation treatment or aesthetic surgery is being extended at the hands of technicians or unqualified professionals without any medical supervision in defiance of established protocols and norms.

17. Overall Development Of Children Involves Both Parents, Settlement Agreement Must Reflect The Same: Delhi High Court

Title: x v. Y

Citation: 2022 LiveLaw (Del) 441

The Delhi High Court has observed that the overall development of the children should ideally involve both the parents and that the settlement agreement should reflect the same.

Justice Subramonium Prasad was dealing with a contempt plea filed by a wife for the alleged non-compliance of the order passed by the Family Court.

It was stated by the counsel appearing for the Petitioner wife that the Respondent husband had violated the order dated which was based on a settlement agreement inasmuch as the husband was neither coming forward for second motion nor was he fulfilling his obligations with regard to the monetary settlement of the child.

18. Jurisprudence Does Not Extend To Condoning All Inordinate/Unjustifiable Delays By Governmental Agencies: Delhi High Court

Title: GOVT OF NCT OF DELHI v. SATBIR & ANR

Citation: 2022 LiveLaw (Del) 442

The Delhi High Court has observed that the jurisprudence does not extend to accommodating and condoning all inordinate or unjustifiable delays by the governmental agencies while adding that each case of such delay has to be examined on its individual merits.

A division bench comprising Justice Najmi Waziri and Justice Swarna Kanta Sharma observed thus:

"Although courts would take an accommodative view apropos appeals or reviews filed by Government departments, as there could be administrative delays, for which the Government's interest and the overall public interest should not suffer."

19. Liquidated Damages Can't Be Imposed When The Engineer-In-Charge Holds That The Cause Of Delay Is Explained: Delhi High Court

Case Title: GAIL (India) Ltd. V. Trivendi Engineering & Industries LTD.

Citation: 2022 LiveLaw (Del) 443

The High Court of Delhi has held that liquidated damages can't be imposed when the Engineer-in-Charge holds that the cause of delay is explained.

The Single Bench of Justice Vibhu Bakhru held that when the Engineer-in-Charge was entrusted with the task of examining the causes of delay, and it had analysed and accepted the justification provided by the contractor and recommended several extensions without the imposition of LD, it was not open for the employer to levy LD when the delay was not attributable to the contractor and so was determined by the Engineer-in-Charge.

20. Right To First Refusal Cannot Be Exercised After Making A Counter-Offer To The Seller: Delhi High Court

Case Title: Gujarat Gas Ltd. v. Vedanta Ltd and Ors., O.M.P.(I)(COMM) 125 of 2022

Citation: 2022 LiveLaw (Del) 444

The High Court of Delhi has held that a party cannot demand its 'Right to First Refusal' after making a counter-offer to the seller.

The Single Bench of Justice Anup Jairam Bhambhani has held that when the party that has been given the right to first refusal (RoFR) makes a counter-offer, the seller becomes entitled to sell the subject goods to the third parties.

The Court further held that the court while exercising powers under Section 9 of the A&C Act cannot grant interim relief in the nature of specific performance when it will undoubtedly and obviously be the essential claim and relief that the petitioner will seek in the arbitral proceedings.

21. Extraordinary Power U/S 482 CrPC Can't Be Exercised At Disposal Of Affluent Accused Who Arm-Twists Law To Achieve Scrupulous Ends: Delhi High Court

Case Title: MALVINDER MOHAN SINGH v. ENFORCEMENT DIRECTORATE & ANR

Citation: 2022 LiveLaw (Del) 445

The Delhi High Court has observed that extraordinary powers of High Court under Section 482 of Code of Criminal Procedure are not meant to be exercised at the disposal of the affluent accused who do not leave any stone unturned to arm-twist the law of the land and administrative machinery to achieve their scrupulous ends.

Justice Chandra Dhari Singh dismissed a plea filed by Religare Finvest's ex Promoter, Malvinder Mohan Singh in connection with Religare Finvest scam case, challenging the order dated 7th December 2021 passed by the Trial Court which had dismissed his request to consult physically with his lawyers outside jail premises, while in custody, in order to prepare for proceedings before the Supreme Court, High Court and various district courts.

22. [Contempt] Democratic Fabric Of Society Will Suffer If Respect For Judiciary Is Undermined: Delhi High Court

Case Title: NIRMAL JINDAL v. SHYAM SUNDER TYAGI & ORS

Citation: 2022 LiveLaw (Del) 446

Observing that the purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law, the Delhi High Court has said that the democratic fabric of society will suffer if respect for the judiciary is undermined.

Justice Subramonium Prasad observed thus:

"The purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law, since the respect and authority commanded by the courts of law are the greatest guarantee to an ordinary citizen and the democratic fabric of society will suffer if respect for the judiciary is undermined."

23. Fairness Assured By Article 21 Would Receive A Jolt If Period Of Deprivation Pending Trial Or Disposal Of Appeal Becomes Unduly Long: Delhi High Court

Title: JASBIR SINGH v. STATE

Citation: 2022 LiveLaw (Del) 447

The Delhi High Court has observed that if the period of deprivation pending trial or disposal of criminal appeal becomes unduly long, the fairness assured by Article 21 of the Constitution of India would receive a jolt.

Justice Chandra Dhari Singh further added that the delay in disposal of criminal appeals pending in the High Court is matter of serious concern to all those involved in the administration of criminal justice.

24. Directors & Other Persons Responsible For Conduct Of Business Can't Be Held Liable If No Offence Is Attributed To Company: Delhi High Court

Case Title: SHRI HARI SHAMSHER KAUSHIK v. SHRI JASBIR SINGH, MANAGING DIRECTOR, M/S ACCURA CARE PHARMACEUTICALS PVT. LTD.

Citation: 2022 LiveLaw (Del) 448

The Delhi High Court has observed that if no offence is attributed to the company, it is but the natural corollary, that its Directors and other persons responsible for the conduct of its business cannot be saddled with any liability.

Observing that the Company being arrayed as the accused must be found to have committed an offence, Justice Asha Menon added:

"Thereafter, through the legal fiction created by Section 141 of the N.I. Act, the Directors and other persons responsible for the conduct of its business also become vicarious liable."

25. Mere Pendency Of An Insolvency Petition Is Not A Bar To The Appointment Of The Arbitrator: Delhi High Court

Case Title: MILLENNIUM EDUCATION FOUNDATION V. EDUCOMP INFRASTRUCTURE AND SCHOOL MANAGEMENT LIMITED, ARB.P. 326 of 2022

Citation: 2022 LiveLaw (Del) 449

The High Court of Delhi has held that the mere pendency of an insolvency petition under Section 9 of the IBC is not a bar to the appointment of an arbitrator.

The Single Bench of Justice Sanjeev Sachdeva has held that merely because an insolvency petition is pending, it cannot be an embargo on the power of the Court to decide arbitration applications. It is only when the insolvency petition is admitted and the moratorium is declared that the proceedings under the Arbitration Act would be non-maintainable.

The Court further held merits or validity of the demand notice are not to be decided by the Court while exercising power under Section 11 of the A&C Act.

GAUHATI HIGH COURT

1. Can't Withhold Pensionary Benefits In The Absence Of Departmental Proceedings Even If Employee Was Not Qualified When Appointed: Gauhati High Court

Case Title: SYED MOHBUBUL MAJID v THE STATE OF ASSAM AND 5 ORS

Citation: 2022 LiveLaw (Gau) 32

The Gauhati High Court recently directed a Secondary Education Department to process the pensionary benefits of a person who was denied the same on the ground that he did not have the necessary qualification at the time of appointment.

Justice Achintya Malla Bujor Barua observed that there was no departmental enquiry into the same during his tenure and that the cause of action of the misconduct occurred in 1988.

Case Title: Smti. Protiva Devi v State of Assam & Ors.

Citation: 2022 LiveLaw (Gau) 33

While reiterating that the right to promotion is not a Fundamental Right, the Gauhati High Court has recently dismissed a petition filed by a Graduate Teacher challenging the vires of Rule 14(2) of the Assam Secondary Education (Provincialisation) Service Rules, 2003 on grounds that she was not promoted to the position of the headmistress.

A division bench of Chief Justice Sudhanshu Dhulia and Justice Soumitra Saikia relied on a judgement passed by the co-ordinate bench in Kripa Sindhu Das Vs. State of Assam & Ors it was held :

"The right to be considered for promotion is a fundamental right, while the right to promotion is (not) fundamental right. It was held that the right of the Assistant Head Master to be promoted to the post of Head Master is not denied or diminished as he still can be promoted to the post of Head Master by taking into account his seniority in the cadre of Graduate Teacher and therefore his chance of getting promoted to the post of Head Master is not lost."

Case Title: AMAL DAS v THE STATE OF ASSAM

Citation: 2022 LiveLaw (Gau) 34

The Gauhati High Court recently denied anticipatory bail to a person in connection with a case registered under Section 21(c) / 29 of NDPS Act, 1985 holding that recovery or seizure of the contraband is not mandatory for their arrest, detention or even their conviction.

Justice Sanjay Kumar Medhi observed that this was so because the offences under the Act were part of an organised crime and any convincing and corroborating material in favour of the prosecution would be sufficient to establish their guilt.

Case Title: Bistirna Hazarika and Ors. v The State of Assam & Anr., with connected matters

Citation: 2022 LiveLaw (Gau) 35

The Gauhati High Court recently dismissed a petition filed by a student challenging his college policy for allotment of marks to students who were scheduled to appear in the Higher Secondary Final examination, 2021 finding that unless found to be contrary to law, academic experts have the liberty to frame policies in the best interest of students.

A Bench comprising Chief Justice Sudhanshu Dhulia and Justice Soumitra Saikia observed that :

"It is a well settled in law that unless it is shown to be contrary to a statute or the Rules, the academic authorities should be given their liberty to frame the policies which are based suited for conducting their functions and in the interest of the student community."

Case Title : Shri Jibon Kalita and Ors. v State of Assam and Ors.

Citation: 2022 LiveLaw (Gau) 36

The High Court of Gauhati recently directed the State government to issue appointment orders to all persons selected pursuant to their last employment advertisement, even though the government had recently issued new advertisement for the same vacancies.

Justice Michael Zothankhuma observed that :

"The amendment made to the Executive Instructions vide Notification dated 10.04.2018 has not been given any retrospective effect and as such, the doing away with the selection process that has been completed prior to the Notification dated 10.04.2018 is patently unfair and unreasonable."

Case Title: APURBA KR CHOUDHURY AND 13 ORS versus THE STATE OF ASSAM AND ANR

Citation: 2022 LiveLaw (Gau) 37

The Gauhati High Court recently observed that the powers of the High Court under Section 482 of CrPC need to be used sparingly and in rarest of rare cases while dealing with a petition seeking quashing of FIR.

The observation came from Justice Sanjay Kumar Medhi:

"The overall reading of the aforesaid case of Bhajan Lal (Supra), would lead to the conclusion that the power to quash is to be exercised very sparingly and in rarest of the rare cases. The remedies available in law for false and vexatious charges have also been highlighted in the said judgment to dissuade the High Courts from exercising powers under Section 482 CrPC."

GUJARAT HIGH COURT

NOMINAL INDEX

Bajaj Finance Ltd. Through Authorised Officer, Aniket Pareshbhai Desai versus Ld. District Collector, Navsari & 1 other(s) Citation: 2022 LiveLaw (Guj) 154

Vijay Arvind Jariwala Versus Umang Jatin Gandhi Citation: 2022 LiveLaw (Guj) 155

Godrej Agrovet Limited & 1 Other(S) Versus State Of Gujarat & 1 Other(S) 2022 LiveLaw (Guj) 156

Parekh Jaisalkumar Vinodbhai Versus State Of Gujarat 2022 LiveLaw (Guj) 157

Dhabriya Polywood Limited Vs Union of India 2022 LiveLaw (Guj) 158

Principal Commissioner Versus Reliance Industries 2022 LiveLaw (Guj) 159

Vasaya Yunusali Alarakhabhai Versus State Of Gujarat 2022 LiveLaw (Guj) 160

Harshad D Santoki S/O Devjibhai Versus State Of Gujarat 2022 LiveLaw (Guj) 161

Shree Vikas Co.Op. Bank ltd, (liq.) Through Sunil Laxmanrao Powle v. State Of Gujarat & 2 Other(s) 2022 LiveLaw (Guj) 162

Nathiben Lalitbhai Vegada Versus State Of Gujarat 2022 LiveLaw (Guj) 163

Panchal Zalakben Hardikbhai D/O Sanjaybhai Bhagubhai Panchal Versus State Of Gujarat 2022 LiveLaw (Guj) 164

Leepee Enterprise versus Mehul Industries 2022 LiveLaw (Guj) 165

Vijaybhai Punabhai Chavda Versus State Of Gujarat & 13 Other(S) 2022 LiveLaw (Guj) 166

Chief Project Manager Versus Firoz Saheb Dargah Through Trustee Shaikh Onali Ismailji Visawaarvala 2022 LiveLaw (Guj) 167

Orders/Judgments of the week

District Magistrate Not Vested With Adjudicatory Powers U/S 14 SARFAESI Act, Can Only Render Ministerial Assistance To Creditors: Gujarat High Court

Case Title: bajaj finance ltd. Through authorised officer, aniket pareshbhai desai versus ld. District collector, navsari & 1 other(s)

Citation: 2022 LiveLaw (Guj) 154

Explaining that under Section 26E of the SARFAESI Act, the secured creditor has the first claim over the sale proceeds of secured assets and that the District Magistrate has to provide assistance under Section 14 to the secured creditor to take possession of the asset, the Gujarat High Court has quashed a communication which prohibited the Petitioner-bank from proceedings against the borrower-company.

Can Third Parties To An Arbitration Agreement Be Impleaded As Parties In Proceedings U/S 9 Arbitration Act?: Gujarat High Court Answers

Case Title: Vijay Arvind Jariwala Versus Umang Jatin Gandhi

Citation: 2022 LiveLaw (Guj) 155

"In the proceedings of section 11, a person who is not a party to the agreement, has no association in eye of law. On the same footing, a third party cannot be a party in the proceedings under section 9 of the Act for interim measures wherein by very nature of the proceedings, third party cannot be said to have a legal participatory right", the Gujarat High Court has recently observed.

The Bench comprising Justice NV Anjaria and Justice Samir Davehas been hearing an application under Section 9 of the Arbitration and Conciliation Act, 1996. The application was filed by one partner of a partnership firm (Blue Feathers Infracon) against the other wherein the Petitioner filed the interim application to implead a retired partner of the firm and his wife as respondent parties.

Sample Analysis Report Of Central Insecticides Lab U/S 24(4) Of Insecticides Act Is 'Conclusive Evidence': Gujarat High Court

Case Title: Godrej Agrovet Limited & 1 Other(S) Versus State Of Gujarat & 1 Other(S)

Citation: 2022 LiveLaw (Guj) 156

The Gujarat High Court has held that the sample analysis report received from the Central Insecticides Laboratory under Section 24(4) of the Insecticides Act, 1968 is a 'conclusive proof' of facts involved.

Section 24(4) makes provision for a sampel to be sent for test or analysis to the Central Insecticides Laboratory, which shall file its report within 30 days, in writing, signed by or under the authority of the Director of the Laboratory and the report shall be conclusive evidence of the facts stated therein.

Gujarat High Court Directs Wife To Pay ₹10K To Husband As She Deserted Him Over Difference In Their Sub-Castes

Case title - Parekh Jaisalkumar Vinodbhai Versus State Of Gujarat

Case Citation: 2022 LiveLaw (Guj) 157

The High Court directed a woman who deserted her husband under the influence of her family on the ground that he belongs to a different sub casere, to pay Rs. 10,000/- to her husband.

"We find it extremely unfortunate that the educated couple needs to end the relationship in such a fashion just because there is a strong resistance on the part of the parents and taken in exert this kind of influence," the Bench of Justice Sonia Gokani and Justice Mauna Bhatt remarked.

Bonafide Mistake In Selection Of Wrong ODC Vehicle Type While Generating E-Way Bill: Gujarat High Court Quashes Detention Order

Case Title: Dhabriya Polywood Limited Vs Union of India

Citation: 2022 LiveLaw (Guj) 158

The High Court has quashed the detention order as there was a bonafide mistake in the selection of the wrong ODC vehicle type while generating the e-way bill.

The division bench of Justice J.B. Pardiwala (as then was) and Justice Nisha M. Thakore observed that the goods were in transit with all the necessary documents, including the E-way bill generated from the GST portal. The goods were moved by a truck whose registration number was also correct. The only mistake in this case was the selection of the wrong ODC vehicle type while generating the e-Way Bill.

Methanol Arises As A Result Of Chemical Reaction And Not As A By- Product, No Excise Duty Payable: Gujarat High Court

Case Title: Principal Commissioner Versus Reliance Industries

Citation: 2022 LiveLaw (Guj) 159

The High Court bench of Justice J.B. Pardiwala (as then was) and Justice Nisha M. Thankore has held that methanol is not excisable as it is a result of a chemical reaction and not as a result of any by-product.

The respondent-assessee, Reliance Industries, is in the business of manufacturing excisable goods like Motor Spirit, High Speed Diesel, LPG etc. It is the case of the appellant that the respondent has been availing credit of duty paid on the input and capital goods and input services in terms of the provisions of the CENVAT Credit Rules, 2004. The refund claim was made in respect of the CENVAT Credit Reversed or Paid under Rule 6(3) of the CENVAT Credit Rules, 2004 for the period between April, 2015 and March, 2016 on the removal of the LPG under the Domestic Subsidy Scheme

Police Atrocities| Gujarat High Court Urges State To Install CCTV Cameras, Follow DK Basu Guidelines

Case Title: Vasaya Yunusali Alarakhabhai Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 160

The High Court recently recommended that the State government take initiatives to implement the guidelines issued by the Apex Court in the DK Basu v. State of West Bengal and to install CCTV cameras with night vision and maintain their records for 6 months to deal with police atrocities in the region.

A Bench comprising Justice Sonia Gokani and Justice Mauna Bhatt was hearing a habeas corpus petition involving an inter-religious couple when it came down heavily on the Gujarat police and directed the concerned authorities to intimate all police stations about the guidelines issued in the Paramvir Singh Saini case.

Can't Deny Academic Grade Pay To An Asst. Professor Citing 'Adverse Remarks' For A Brief Period: Gujarat High Court

Case Title: Harshad D Santoki S/O Devjibhai Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 161

In a major relief to an Assistant Professor at the Industrial Engineering Department of LE College, Morbi, the Gujarat High Court has directed the respondent authorities to grant him an Academic Grade Pay (AGP) of Rs. 8,000 from 2010 onwards and consequential benefits of INR 9,000 from 2013.

Justice Vaishnav noted that except for certain adverse remarks from 2009-10, there were no adverse remarks against the Petitioner in the 19 years of service that he had rendered. The issue of unauthorised pay was an aspect of penalty even as the other remarks regarding his ability to decisions or lack of initiative were not so grave so as to deprive him of the AGP. The High Court remarked:

"For these two purported adverse instances the financial loss that has occurred to the petitioner is denial of AGPs consequentially based on the communication of 2019."

'No Misuse Of Liberty Or Violation Of Bail Conditions': Gujarat High Court Explains Law On Cancellation Of Anticipatory Bail

Case Title: Shree Vikas Co.Op. Bank ltd, (liq.) Through Sunil Laxmanrao Powle v. State Of Gujarat & 2 Other(s)

Citation: 2022 LiveLaw (Guj) 162

The Gujarat High Court Bench comprising Justice Ashutosh Shastri recently dismissed an application seeking cancellation of bail while noting that there was no violation of any bail conditions or misuse of liberty could be made out against the accused persons.

There were 20 FIRs registered against the Accused persons for offences punishable under Sections 409, 420, 467, 468, 471, 114, 34 and 120(B) of the IPC. The main accused person in these FIRs being the Vice-Chairman of the Shree Vikas Cooperative Bank Limited ('Applicant Bank') was accused of having sanctioned different loans for his relatives without proper security even as the relatives failed to repay the loan with interest in due time.

'No Positive Material': Gujarat High Court Refuses To Exercise Contempt Jurisdiction In Case Involving False Allegations Of Police Brutality

Case Title: Nathiben Lalitbhai Vegada Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 163

"It is trite law that initiation of contempt proceedings is a serious step; same cannot be exercised in a routine manner. Unless there is a definite material and clear case made out, this Court would refuse to exercise contempt jurisdiction", the Gujarat High Court has held while dismissing a false application filed under Section 10 of the Contempt of Courts Act by the applicant through her sister (minor).

The Applicant herein had approached the Court to initiate contempt proceedings against the State authorities for the wilful and deliberate disobedience of the guidelines laid down by the Supreme Court in DK Basu vs State of West Bengal for the alleged physical abuse endured by her sister and herself.

It was averred that the an Activa vehicle belonging to the employee of the Applicant's sister was detained by the traffic police. On the subsequent payment of the fine, the sister reached the police station to take possession of the vehicle along with the Applicant wherein the authorities delivered blows on them resulting in serious injuries. After being admitted to the hospital, the Applicant claimed that an FIR was lodged against them along with two other Accused persons for offences under Section 447, 379 and 114 of the IPC. The Applicant insisted that no theft or trespass was committed by her.

Gujarat HC Grants Custody Of 4-Yr-Old To Mother In Writ Jurisdiction, Suspends Father's Visitation Rights For 6 Months Citing Unruly Behaviour

Case Title: Panchal Zalakben Hardikbhai D/O Sanjaybhai Bhagubhai Panchal Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 164

Considering the well settled principle of paramount welfare of child, the Gujarat High Court recently exercised its extraordinary powers under Section 226 of the Constitution and granted custody of the corpus, a 4 old year boy, to his mother (Petitioner herein).

The child was said to be taken away from the mother by the child's father, following a matrimonial dispute. After the judgment was pronounced in Petitioner's favour, the Bench comprising Justices Sonia Gokani and Mauna M Bhatt noted the father's attempt to create an unruly atmosphere in the Court. Thus, it suspended his visitation rights for a period of six months.

"We allow this petition giving the custody of child to the mother. Let the same be handed-over peacefully to the mother...the father would have visitation right...After the judgement was pronounced, respondent-father of the child tried to create unruly atmosphere in the Court premise leading to unmanageable situation for Campus Administration. His intimidating behaviour make us suspend the visitation rights for six months from today," the order stated.

Party Failing To Raise The Issue Of Jurisdiction At Section 11 Notice Stage Or During The Arbitral Proceedings, Ground Not Available Under Section 34: Gujarat High Court

Case Title: Leepee Enterprise versus Mehul Industries

Citation: 2022 LiveLaw (Guj) 165

The High Court has ruled that the issue of jurisdiction of the Arbitrator ought to be raised at the first available opportunity, i.e., when the notice under Section 11 of the Arbitration and Conciliation Act, 1996 (A&C Act) is served for appointment of Arbitrator.

The Single Bench of Justice A.G. Uraizee rejected the contention that the issue of jurisdiction being a legal issue can be raised at any stage. The Court held that since the party had not raised the issue of lack of jurisdiction of the Arbitrator by responding to the notice issued under Section 11 of the A&C Act nor had it participated in the arbitral proceedings to raise the said issue, the arbitral award could not be set aside on the ground of lack of jurisdiction of the Arbitrator.

No Untoward Incident Has Occured: Gujarat High Court Dismisses Plea For Cancellation Of Bail Of Accused Under SC/ST Act

Case Title: Vijaybhai Punabhai Chavda Versus State Of Gujarat & 13 Other(S)

Citation: 2022 LiveLaw (Guj) 166

Observing that no untoward incident has taken place since the persons accused under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 were released on bail, the Gujarat High Court has refused to entertain an application preferred by the complainant for cancellation of bail.

Bench comprising Justice Ashutosh Shastri observed,

"Trial is already set on motion and the case has already been fixed on 20.6.2022, and further, there is no untoward incident has taken place after June 2017 nor any case is made out of breach of any of the conditions of grant of bail, hence this Court is not inclined to exercise discretion to cancel the bail which has been granted."

Gujarat High Court Sets Aside Injunction Passed By State Waqf Tribunal On Construction Of Railway Tracks Near Dargah

Case Title: Chief Project Manager Versus Firoz Saheb Dargah Through Trustee Shaikh Onali Ismailji Visawaarvala

Citation: 2022 LiveLaw (Guj) 167

The High Court held that merely because a Dargah is situated in a railway land and not disturbed or removed because of its devotees and followers, does not mean that the surrounding land of the Dargah becomes the Dargah's property.

Observing thus, the Bench comprising Justice Umesh Trivedi set aside an order of the State Waqf Tribunal which granted injunction in favour of the Trustee of the concerned Dargah, halting the construction of railway line near the Dargah.

Weekly updates from the High Court

Khambat Communal Riots| Victims Move Gujarat High Court Seeking Transfer Of Investigation To CID

The victims of communal Violence at Khambhat have moved the Gujarat High Court seeking a transfer of investigation to State CID citing that the police showed its religious bias and that police, directly and indirectly, encouraged the mob.

The petition seeks the court's intervention "to initiate departmental, civil and criminal action against erring officers responsible for non-transparent, unfair, discriminatory treatment in connection with both the FIRs.".

They state that pursuant to the Ram Navmi procession and the Shobha Yatra several incidents of looting and burning of the private properties, houses, shops and other places took place causing substantial damage of irreversible nature. Religious places were also consciously and deliberately damaged. It is said that the petitioners are victims of the communal violence and have suffered on account of looting and burning of their houses and their shops.

Senior Advocate Yatin Oza Extends Apology To Justice RM Chhaya For Remarks Made Against Him

While congratulating Justice RM Chhaya over his proposed elevation as the Chief Justice of Gauhati High Court, Senior Advocate Yatin Oza, in a letter written to Justice Chhaya, has apologized for his 'remarks' made against him in June 2020.

It may be noted that as of now, there has been no 'official' communication regarding the recommendation made by the Supreme Court Collegium to elevate Justice Chhaya as the Chief Justice of Gauhati High Court. However, several reports have made claims in this regard.

HIMACHAL PRADESH HIGH COURT

1. Gravity Can Only Beget Length of Sentence: Himachal Pradesh High Court Grants Bail In A Case For Misappropriation Of Government Scholarship Scheme Funds

Case Title: Vikas Bansal v. Central Bureau of Investigation

Citation: 2022 LiveLaw (HP) 9

The Himachal Pradesh High Court has recently held that even if there strong evidence about a socio-economic offence of serious magnitude, 'gravity can only beget length of the sentence' provided in law after the trial. Granting bail in a case of misappropriation of a government scholarship fund Justice Jyotsna Rewal Dua noted that,

"Grant of bail cannot be thwarted merely by asserting that offence is grave and therefore, petitioner should remain in custody till the investigation of all the private educational institutes is completed, regarding timeline of which, respondent apparently has no clue."

Case Title : Adil Farooq Mir v State of J&K and others

Citation: 2022 LiveLaw (JKL) 27

The Jammu and Kashmir High Court recently released a detained person while observing that it is necessary to supply documents related to detention to the detenues while adding that refusing such documents and thereby keeping them in the dark was illegal and a violation of their constitutional right.

The observation came from Justice Rajnesh Oswal:

"It is only after the petitioner is supplied all the material that he can make an effective representation to the Detaining Authority and also to the Government and if the same is not done, he is deprived of his valuable constitutional right. Failure on the part of the respondent No. 2 to supply material relied upon by him while passing the detention order renders it illegal."

Case Title: Muzaffar Ahmad Dar v Commissioner Secretary and Ors.

Citation: 2022 LiveLaw (JKL) 28

The High Court of Jammu and Kashmir recently reprimanded a party for challenging an order that is the subject matter of challenge in some other court.

Justice Sanjeev Kumar observed:

"This Court is at loss to understand as to how the petitioner could dare to challenge the same order before this court. Nobody is permitted under law to pursue two remedies simultaneously. The writ petition of the petitioner, in so far as it throws challenge to the order dated 06.10.2018, is grossly misconceived and deserves to be dismissed."

Case Title: Chetan Adesera & Ors v. The State of Jharkhand

Citation: 2022 LiveLaw (Jha) 50

The Jharkhand High Court has held that merely because there is a case and a counter case between the parties or merely because there has been a title suit amongst the parties, the same is not sufficient to quash the criminal proceedings instituted by one of them against the other.

Justice Anubha Rawat Choudhary referred to the judgment of the State of Haryana and Ors. Vs. Bhajan Lal and Ors, which lays the foundational principle to interfere in the criminal proceedings under Section 482 of Cr.P.C. In the said case, an illustrative list has been given for exercise of power by the Court under Article 226.

Case Title: State Bank of India v. Premlata Devi & Ors and other connected matters

Citation: 2022 LiveLaw (Jha) 51

The Jharkhand High Court has recently observed that the entry in revenue records is not conclusive evidence of possession. Referring to Uttam Chand v. Nathu Ram, Gautam Kumar Chaudhary noted that,
"As stated earlier any entry obtained on the basis of the agreement to sell that has never been produced before the court for judicial scrutiny cannot be considered as evidence of possession. Hon'ble Supreme Court in Uttam Chand v. Nathu Ram, (2020) 11 SCC 263 held that the payment of tax and mere possession for some years was found insufficient to claim adverse possession."
Karnataka High Court

Nominal Index

The Management Of Ksrtc v. K.Shivaram, 2022 LiveLaw (Kar) 153

Banu Begum W/O Khajasab Alias Mehaboobsab and Others v. State of Karnataka, 2022 LiveLaw (Kar) 154

Savithri v. State of Karnataka, 2022 LiveLaw (Kar) 155

Pooja S v. Abhishek Shetty, 2022 LiveLaw (Kar) 156

Praveen Kumar Adyapady and Anr. v. State of Karnataka, 2022 LiveLaw (Kar) 157

Indian Council For Cultural Relations & Others v. Ajay Merchant & Anr, 2022 LiveLaw (Kar) 158

Rashmi Tandon & Anr v. The State Of Karnataka, 2022 LiveLaw (Kar) 159

Judgments/Orders/Reports

1. Labour Court Has No Jurisdiction To Adjudicate Workman's Claim U/S 33C(2) ID Act In An Undetermined Claim: Karnataka High Court

Case Title: The Management Of KSRTC v. K.Shivaram Case No: Writ Petition No.17583/2017 (L-KSRTC)

Citation: 2022 LiveLaw (Kar) 153

The Karnataka High Court has said that a workman who claims compensation due to injuries suffered during the course of employment, his claims under the Employees Compensation Act 1923, would lie before the Employees Compensation Commissioner and not before the Labour Court.

2. Adopting Child Directly From Biological Parents Not An Offence U/S 80 Juvenile Justice Act: Karnataka High Court

Case Title: BANU BEGUM W/O KHAJASAB ALIAS MEHABOOBSAB and Others Versus State of Karnataka

Case No: CRIMINAL PETITION NO. 100659 OF 2021

Citation: 2022 LiveLaw (Kar) 154

The Karnataka High Court has said that in the absence of a declaration that a child is deserted by his biological or adoptive parents or guardians, filing of chargesheet under section 80 of the Juvenile Justice (Care And Protection Of Children) Act 2015, is without any substance.

3. Karnataka HC Quashes Criminal Proceedings Against 68-Year-Old Woman Charged Under SC/ST Act

Case Title: Savithri v. State of Karnataka Case No: Criminal Petition 8857/2018

Citation: 2022 LiveLaw (Kar) 155

Observing that, "She had no criminal intention in the initial stage while obtaining the (caste) certificate and seeking reservation and got (job) appointment, but she bonafidely believed that she will get the caste of her husband in view of marrying the person who belongs to member of SC/ST," the Karnataka High Court recently quashed the criminal proceedings pending against a 68-year-old woman (Brahmin by birth), who was charged under provisions of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.

4. Husband Initiates Marriage Dissolution Proceedings, Karnataka High Court Asks Him To Pay Wife Rs 25K As Litigation Expenses

Case Title: POOJA S v. ABHISHEK SHETTY Case No: WRIT PETITION NO.24220 OF 2021

Citation: 2022 LiveLaw (Kar) 156

The Karnataka High Court recently directed a husband to pay Rs 25,000 as litigation expenses to allow the wife to engage an advocate and to contest the proceedings filed by him seeking dissolution of marriage.

5. S.13 Notaries Act | Can't Take Cognizance Of Offences Committed By Advocate, Notary Unless Sanctioned By Centre/State: Karnataka High Court

Case Title: Praveen Kumar Adyapady and ANR v. State of Karnataka Case No: Criminal Petition 888/2018

Citation: 2022 LiveLaw (Kar) 157

The Karnataka High Court has ruled that as per Section 13 of the Notaries Act, there is a bar for taking cognizance by the Court for offences committed by an advocate and notary while adding that under the Act, the police have to obtain the permission of the Central Government or State Government for filing the charge sheet and taking cognizance.

6. ICCR Can Investigate & Take Disciplinary Action Against British Council Library Employees On Complaint Of Misconduct: Karnataka High Court

Case Title: INDIAN COUNCIL FOR CULTURAL RELATIONS & others v. AJAY MERCHANT & Anr Case No: W.P. No.32335 OF 2017

Citation: 2022 LiveLaw (Kar) 158

The Karnataka High Court has said that a person appointed by the Indian Council for Cultural Relations (ICCR) and placed with the British Council Library, is an employee of the British Council Library and it can investigate and take disciplinary action against the employee on complaint of misconduct.

7. Invoking S.138 Of NI Act Does Not Bar Registration Of Crime Under Sections 406, 420 IPC: Karnataka High Court

Case Title: RASHMI TANDON & ANR v. THE STATE OF KARNATAKA Case No: CRIMINAL PETITION No.6638 OF 2021

Citation: 2022 LiveLaw (Kar) 159

The Karnataka High Court has held that proceedings under Section 420 of the Indian Penal Code are maintainable even if a complaint has been invoked Section 138 of the Negotiable Instruments Act.

Other reports:

1. Karnataka High Court Extends Stay On ED Seizure Order, Permits Xiaomi India To Avail Overdraft Facility For Payments Except Royalty

Case Title: Xiaomi Technology India Private Limited v. Union of India

Case No: WP 9182/2022

The Karnataka High Court on Thursday extended its earlier interim order staying the order issued by the Enforcement Directorate dated April 29, by which it had seized Rs.5551.27 crores from M/s Xiaomi Technology India Pvt Ltd under the provisions of the Foreign Exchange Management Act,1999 (FEMA).

2. Play Store Payment Policy| Karnataka High Court Temporarily Restrains CCI From Exposing Confidential Information Of Google

Case Title: GOOGLE INDIA PRIVATE LIMITED & others versus COMPETITION COMMISSION OF INDIA & others

Case No: WP 9399/2022

The Karnataka High Court on Tuesday temporarily restrained the Competition Commission of India (CCI) from divulging confidential information of Google India Pvt Ltd to the complainant Alliance Of Digital India Foundation till May 25.

Kerala High Court

Nominal Index [Citations 2022 LiveLaw (Ker) 213 - 2022 LiveLaw (Ker) 221]

M.H. Faisal v. State of Kerala, 2022 LiveLaw (Ker) 213

Thampi VS v State of Kerala, 2022 LiveLaw (Ker) 214

State of Kerala v. Raseena K.K, 2022 LiveLaw (Ker) 215

Naziya & Ors. v. State of Kerala, 2022 LiveLaw (Ker) 216

Kiran David v. Assistant General Manager, 2022 LiveLaw (Ker) 217

Mujeeb Rahiman v. Thasleena & Anr, 2022 LiveLaw (Ker) 218

Arshika S. v. State of Kerala, 2022 LiveLaw (Ker) 219

Unnikrishnan v. State of Kerala & Ors, 2022 LiveLaw (Ker) 220

Mathew v. State of Kerala & Ors, 2022 LiveLaw (Ker) 221

Judgments This Week

1. 'Grass Is Not Greener On The Other Side Of Fence': Kerala High Court To Radicalists In Terror Recruitment Case

Case Title: M.H. Faisal v. State of Kerala & connected matters.

Citation: 2022 LiveLaw (Ker) 213

The Court confirmed the conviction and sentence awarded to prime accused Thadiyantevida Nazeer and nine others in the Kashmir terror recruitment case in a judgment that runs to 205 pages. The Division Bench of Justice K Vinod Chandran and Justice C Jayachandran however, acquitted the 2nd, 14th and 22nd accused in the case since their role in the conspiracy were not established. The Court also recorded its appreciation for the tremendous work put in both by the Kerala Police and the NIA while remarking, "For those who have such radical thoughts, we can only say that the grass is not greener on the other side of the fence, if you just look at history."

Also Read: Kashmir Terror Recruitment Case: Kerala High Court Confirms Conviction Of 10 Accused, Acquits 3

2. 'Don't Go By WhatsApp University': Kerala High Court Dismisses PIL Alleging Forced Vaccination Of Children

Case Title: Thampi VS v State of Kerala

Citation: 2022 LiveLaw (Ker) 214

The Court refused to entertain a Public Interest Litigation (PIL) petition that sought to prevent alleged forced vaccination of children across the State finding that the petitioner had moved the Court based on information received through social media. A Division Bench of Justice Devan Ramachandran and Justice Sophy Thomas dismissed the plea with interesting comments after the petitioner failed to place on record any specific instance of forced vaccination of minors.

3. KVAT Registration Once Cancelled Has To Be Published In Two Leading Daily Newspapers: Kerala High Court

Case Title: State of Kerala v. Raseena K.K.

Citation: 2022 LiveLaw (Ker) 215

The Court ruled that once a Kerala Value Added Tax (KVAT) registration is cancelled, it must be published in at least two major daily newspapers, and the dealer must be notified in accordance with Form No.5 B.Then only will the cancellation of registration be effective. Justice S.V. Bhatt and Justice Basant Balaji observed that as per Rule 19 of KVAT Rules, the application was filed on 20.2.2014. The registering authority, after cancelling the registration, ought to have issued the dealer a notice in Form No.5 B and published the details in at least two dailies in the State and also on the website of the Commercial Tax Department.

4. Artificial Breaks In Service Between Successive Contracts Not A Device To Deny Maternity Benefits: Kerala High Court

Case Title: Naziya & Ors. v. State of Kerala

Citation: 2022 LiveLaw (Ker) 216

The Court held that short artificial breaks in service between successive contracts cannot be used as a device to deny maternity rights to the employees. Justice Raja Vijayaraghavan noted that as per the Government Order dated January 2021, the employee should have "actually" worked for a period of not less than 80 days immediately preceding her expected date of delivery or date of miscarriage to be eligible for maternity benefits and that artificial breaks are not a valid ground to deny the same.

5. Low CIBIL Score Of Co-Borrowers Not A Ground To Deny Education Loans: Kerala High Court

Case Title: Kiran David v. Assistant General Manager

Citation: 2022 LiveLaw (Ker) 217

The Court reiterated that the CIBIL scores of co-borrowers do not play a role in deciding applications for education loans since the eligibility conditions for sanctioning such priority sector loans should have a nexus with the object sought to be achieved by these loans. Justice N. Nagaresh also observed that imposing such conditions would defeat the very purpose of granting such loans, thereby discouraging banks from doing so.

6. Wife's Right To Maintenance U/S 125 CrPC Not Extinguished By Muslim Women Protection Act: Kerala High Court Reiterates

Case Title: Mujeeb Rahiman v. Thasleena & Anr.

Citation: 2022 LiveLaw (Ker) 218

In a significant judgment, the Court has reiterated that a divorced Muslim woman can seek maintenance under Section 125 of CrPC until she obtains relief under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act while adding that an order passed under Section 125 shall continue to remain in force until the amount payable under Section 3 of the Act is paid. It was also held that the wife cannot be allowed to circumvent the provisions of the Act by refusing the offer made by the husband to make the payment under Section 3 without any valid reason.

7. SDPI & PFI Extremist Organisations Indulging In Serious Violent Acts; All The Same They Are Not Banned : Kerala High Court

Case Title: Arshika S. v. State of Kerala

Citation: 2022 LiveLaw (Ker) 219

The Court while dismissing a plea filed by the wife of deceased Rashtriya Swayamsevak Sangh (RSS) worker Sanjith seeking the investigation to be transferred to the CBI, observed that the accused belonged to extremist outfits. Justice K. Haripal had pronounced the judgment earlier this month after weeks of elaborate hearing, permitting the State Police to continue with their probe. The Judge remarked, "No doubt, SDPI and PFI are extremist organisations indulging in serious acts of violence. All the same, those are not banned organisations."

8. No Prohibition In Law Restraining Assignee From Appropriating Trees Standing On Assigned Land: Kerala High Court

Case Title: Unnikrishnan v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 220

The Kerala High Court recently established that there is no prohibition or restrictions in law restraining an assignee or successors-in-interest from cutting or appropriating any trees standing on the assigned land. After an elaborate discussion on the relevant provisions, Justice N. Nagaresh found that since the charge under Section 97(3) of the Land Reforms Act does not exist in the case of the petitioner's land, the prohibition contained in Rule 29(6) of the KLR (Ceiling) Rules, 1970 would not apply in this case.

9. Tombs, Cemetery Can't Be Constructed On Private Property Without License From District Collector: Kerala High Court

Case Title: Mathew v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 221

The Court has observed that a private tomb or cemetery cannot be constructed at the whims and fancies of any private individual, be it on his property or not, without securing an adequate licence from the District Collector. Justice Shaji P. Chaly held so after analysing Section 2(m) of the Kerala Panchayat Building Rules, 2011 under which a tomb would qualify as a building, thereby making it clear that without a licence from the concerned District Collector, no burial ground shall be opened, whether it be public or private.

Other Developments

10. Kerala High Court Seeks Centre's Urgent Response On Plea Moved By Family Of Seafarer Missing In Tunisian Waters

Case Title: Raveendran A v. Union of India & Ors.

The mystery deepens as the family of the Indian seafarer who went missing in Tunisian waters approached the Court seeking governmental intervention suspecting foul play in the entire episode. Justice T.R Ravi directed the Centre to get proper instructions in the matter on an urgent basis and file a statement as well. The developments ensued in a petition moved by the father of the 27-year-old seaman who went missing from his vessel.

11. Supreme Court Collegium Recommends To Make 4 Additional Judges Of Kerala High Court Permanent

The Supreme Court Collegium has approved the proposal for the appointment of the following Additional Judges of the Kerala High Court as Permanent Judges of that High Court: Justice Murali Purushothaman, Justice Ziyad Rahman A.A., Justice Karunakaran Babu, and Dr. Justice Kauser Edappagath.

12. Centre Notifies Appointment Of Shoba Annamma Eapen As Additional Judge Of Kerala High Court

The Central Government notified the appointment of Ms.Shoba Annamma Eapen, Advocate, as an additional judge of the Kerala High Court. Union Law Minister Kiren Rijiju informed this on Twitter recently. With the new appointment, the Kerala High Court will have 40 judges against a sanctioned strength of 47 judges.

MADHYA PRADESH HIGH COURT

Title: State of Madhya Pradesh v. Golu

Case Citation: 2022 LiveLaw (MP) 140

The High Court of Madhya Pradesh recently directed action against a lower court judge for not considering a crucial medical evidence of DNA report while acquitting the accused in a POCSO case. The Court observed that despite the medical report being brought on record, the same did not find mention in the impugned judgment passed by the respective trial court judge.

The division bench of Justice Sujoy Paul and Justice D.D. Bansal was hearing the application for grant of leave to appeal moved by the State against the impugned judgment passed by the lower court, whereby the accused was acquitted of charges punishable U/S 376-(A) (B), 377 IPC, U/S 6 POCSO Act and U/S 3(2)(5) of SC/ST (Prevention of Atrocities) Act for allegedly raping the Prosecutrix who, at the time of the incident, was 10 years old.

Case Title: Meghna Agarwal Vs. Anurag Bagadiya and another

Case Citation: 2022 LiveLaw (MP) 141

The Madhya Pradesh High Court, Gwalior Bench recently set aside bail of a man, accused of committing unnatural sex with his wife.

The Court observed that the ground taken by the lower court while granting anticipatory bail to the accused/husband that there was delay in disclosure of offence under Section 377 IPC on the part of the Applicant/wife was unwarranted and made in a casual manner without appreciating the surrounding circumstances.

3. Madhya Pradesh High Court Directs Action Against Lower Court Judge for Not Considering DNA Report in POCSO Case

Title: State of Madhya Pradesh v. Golu

Case Citation: 2022 LiveLaw (MP) 142

The High Court of Madhya Pradesh recently directed action against a lower court judge for not considering a crucial medical evidence of DNA report while acquitting the accused in a POCSO case. The Court observed that despite the medical report being brought on record, the same did not find mention in the impugned judgment passed by the respective trial court judge.

The division bench of Justice Sujoy Paul and Justice D.D. Bansal was hearing the application for grant of leave to appeal moved by the State against the impugned judgment passed by the lower court, whereby the accused was acquitted of charges punishable U/S 376-(A) (B), 377 IPC, U/S 6 POCSO Act and U/S 3(2)(5) of SC/ST (Prevention of Atrocities) Act for allegedly raping the Prosecutrix who, at the time of the incident, was 10 years old.

4. The Court Can Exercise Its Revisional Jurisdiction On An Intermediate Order Since It Is Not An Interlocutory Order: Madhya Pradesh High Court

Case Title: Dr. (Mrs.) Neena V. Patel v. State of Madhya Pradesh & Ors

Case Citation: 2022 LiveLaw (MP) 143

The Madhya Pradesh High Court held that as far as an intermediate order is concerned, the court can exercise its revisional jurisdiction since it is not an interlocutory order. Justice Anjlu Palo referred to the case of Girish Kumar Suneja v. Central Bureau of Investigation, where it was observed that there are three categories of orders that a Court can pass – final, intermediate and interlocutory.

5. "Accused Left Indelible Mark Of Devastation On 3 Yr Old Girl's Mind & Body": Madhya Pradesh High Court Upholds Life Sentence

Case title - PAPPU v. THE STATE OF MADHYA PRADESH [CRIMINAL APPEAL No. 1132 of 2012]

Case Citation: 2022 LiveLaw (MP) 144

The Madhya Pradesh High Court (Indore Bench) recently upheld the life sentence awarded to a man for raping a 3-year-old girl. The court noted that the accused had left an indelible mark of devastation on the mind and body of the victim.

The Bench of Justice Satyendra Kumar Singh and Justice Subodh Abhyankar observed that in view of the rights and plight of the victim and her family members, the Life imprisonment awarded to the appellant is by no means severe or excessive.

6. "Sometimes Bar Or Bench Members Unwarily Transgress Propriety Unintentionally": MP HC Expunges Remarks Against Senior Counsel

Case Citation: 2022 LiveLaw (MP) 145

Case title - Prakash Singh and Nandita Singh v. State of MP and anr

"There are moments in courts when heated exchanges do take place and though rare, it is not unheard of that either the member of the Bar or the Bench also in equal measure, unwarily transgresses the line or propriety unintentionally," the Madhya Pradesh High Court observed recently as it expunged its remarks made against a senior counsel last month.

With this, the Bench of Justice Atul Sreedharan allowed a plea made by Senior Counsel Mrigendra Singh seeking the expungement of the observations made by the court in paragraphs nos.8, 9, and 11 of its order passed last month.

7. "Accused Left Indelible Mark Of Devastation On 3 Yr Old Girl's Mind & Body": Madhya Pradesh High Court Upholds Life Sentence

Case Citation: 2022 LiveLaw (MP) 146

Case title - PAPPU v. THE STATE OF MADHYA PRADESH [CRIMINAL APPEAL No. 1132 of 2012]

The Madhya Pradesh High Court (Indore Bench) recently upheld the life sentence awarded to a man for raping a 3-year-old girl. The court noted that the accused had left an indelible mark of devastation on the mind and body of the victim.

The Bench of Justice Satyendra Kumar Singh and Justice Subodh Abhyankar observed that in view of the rights and plight of the victim and her family members, the Life imprisonment awarded to the appellant is by no means severe or excessive.

Madras High Court

A weekly round-up of important cases from Madras High Court.

Citations: 2022 LiveLaw (Mad) 206 To 2022 LiveLaw (Mad) 212

NOMINAL INDEX

Lakshmi Ammal (died) and Others v. Ammayi Ammal (died) and others, 2022 LiveLaw (Mad) 206

K. Murugan v. The Registrar and Others, 2022 LiveLaw (Mad) 207

M/s.Vetrivel Explosives Pvt. Ltd. Versus Union of India, 2022 LiveLaw (Mad) 208

N. Sarojini v. The State of Tamilnadu, 2022 LiveLaw (Mad) 209

S. Mohankumar v. The Inspector of Police, 2022 LiveLaw (Mad) 210

R Barathbaran (died) and others v. R. Nallathambi, 2022 LiveLaw (Mad) 211

P. Anandhraj, Joint Director and Others v. The Government of Tamil Nadu and Others, 2022 LiveLaw (Mad) 212

1. Law Does Not Permit A Person To Both Approbate & Reprobate, Party Can't Accept & Reject The Same Instrument: Madras High Court Reiterates

Case Title: Lakshmi Ammal (died) and Others v. Ammayi Ammal (died) and others

Citation: 2022 LiveLaw (Mad) 206

Explaining the legal principle of Approbate and Reprobate, the Madras High Court has recently observed that the foundation of the law of election is that a person cannot accept and reject the same instrument.

Justice Anand Venkatesh observed that a person cannot be allowed to make a judicial or a quasi-judicial forum to act upon a document in order to get a favorable order and thereafter disown the document and continue to deal with the property. A competent Civil Court cannot give its approval for such dishonest conduct and sanctify such illegal act.

The court also discussed a recent decision where the court had similarly held that the party claiming right over the scheduled property cannot take two contradictory stands before two different authorities/ courts.

2. Departmental Proceedings Are Necessary Even For Termination Of Temporary Employee: Madras High Court

Case Titile: K. Murugan v. The Registrar and Others

Citation: 2022 LiveLaw (Mad) 207

The Madras High Court bench of Justice D Bharatha Chakravarthy recently observed that the employer shall follow the procedures in departmental proceedings including framing of charge, giving an opportunity to the employee, conducting a disciplinary enquiry and thereafter deciding the issue even with respect to temporary employees.

The court also found merit in the submission of the petitioner that even termination of a temporary employee must be by following due procedure of law. The court, therefore, set aside the order passed by the Special Officer and the order passed by the Registrar. The court also directed that the Special Officer was entitled to conduct a fresh enquiry from the stage of issuing a charge and take a decision in accordance with law by either permitting the petitioner to rejoin duty or by placing him under suspension. The court also directed that the entire enquiry should be carried out within a period of three months from the receipt of the order copy.

Considering the nature of allegations that were levelled against the petitioner, the court chose not to award back wages and held that the same could be decided only after the outcome of the enquiry conducted by the Special Officer.

3. Transition Of ITC cannot Be Denied Merely For Technical Difficulties: Madras High Court

Case Title: M/s.Vetrivel Explosives Pvt. Ltd. Versus Union of India

Citation: 2022 LiveLaw (Mad) 208

The Madras High Court held that in case the department is unable to permit the filing of TRAN-1 belatedly, they have to credit the corresponding amount in the electronic cash register provided that the credit remained unutilized on the cut-off date.

The single judge bench of Justice C. Saravanan observed that since the input tax credit is equivalent to cash meant to be used for discharging the tax liability, the transition of the input tax credit cannot be restricted or denied merely because there were technical difficulties.

The court disposed of the writ petition, by directing the respondents to verify whether the petitioner had any input tax credit on the date of the accident. The monthly returns, which would have been filed for the months of October and November 2016, would show the quantum of unutilized input tax credit on input service tax and capital goods credit.

"If it existed on that day, I see no reason why such credit should not be allowed to the petitioner either by way of suitable credit entry in the electronic cash register of the petitioner or by way of a cash refund to the petitioner. I therefore direct the respondents to verify the same and allow such credit which remained unutilized on the date of accident in the regular returns filed by the petitioner," the court said.

4. A Convicted Prisoner Has No Fundamental Or Statutory Right To Be Released Prematurely: Madras High Court

Case Title: N. Sarojini v. The State of Tamilnadu

Citation: 2022 LiveLaw (Mad) 209

The Madras High Court has reiterated that a convicted prisoner has no fundamental or statutory right to be released prematurely. The court was considering a petition filed by the mother of a life convict Hariharan challenging the Government order rejecting his premature release.

The bench of Justice P.N Prakash and Justice A. A Nakkiran observed that once material is shown to exist, the Governor is the sole judge of the sufficiency of facts and such sufficiency of facts is beyond the ken of judicial review under Article 226.

The court also opined that while exercising the power under Article 161, the interest of the society at large and the family of the victims should also be considered.

5. Suppressed Material Facts With Intention To Abuse Judicial Process: Madras High Court Imposes Rs.25000 Cost On Lawyer For Frivolous Litigation

Case Title: S. Mohankumar v. The Inspector of Police

Citation: 2022 LiveLaw (Mad) 210

The Madras High Court recently directed a lawyer, appearing for the petitioner to deposit Rs. 25,000 as exemplary costs in favour of the Bar Council of Tamil Nadu and Puducherry finding that the petitioner had come to the court with unclean hands merely to abuse the judicial process of law.

Justice P. Velmurugan made the above orders after observing that the petitioner had submitted the representation to the authorities on 22.04.2022 and had approached the court on the same day without giving the authorities sufficient time and opportunity to consider his application.

6. Both Signature & Thumb Impression Are Not Mandatory For A Pro-Note Under Negotiable Instruments Act: Madras High Court

Case Title: R Barathbaran (died) and others v. R. Nallathambi

Citation: 2022 LiveLaw (Mad) 211

The Madras High Court bench of Justice Teeka Raman has held that it is not mandatory under the Negotiable Instruments Act 1881 to obtain both signature and thumb impression for a pro-note to be valid.

The court also opined that when the defendant had not denied the execution of the pro-note, the lower appellate court could not raise suspicion with regard to the execution of the note merely on the ground that the thumb impression of the defendant was not obtained.

The court also stated that when there is a statutory presumption is favour of the plaintiff under Section 118 of the Negotiable Instruments Act, the burden is on the defendant to prove otherwise. The defendant cannot merely rebut the presumption by a bare explanation but only by proof. The court was of the opinion that the evidence of the defendant was not sufficient to discharge this onus of proof and that the approach of the lower appellate court in condemnable.

7. Consider Forming "TN Administrative Service": Madras High Court Tells State

Case Title: P. Anandhraj, Joint Director and Others v. The Government of Tamil Nadu and Others

Citation: 2022 LiveLaw (Mad) 212

The Madras High Court has directed the Government of Tamil Nadu to consider forming of "Tamil Nadu Administrative Service" including all the Departments connected to the Revenue and General Administration, Implementation of State policies for development in General as has been done by the Kerala Government.

The bench of Justice M. Govindaraj further directed the Government to consider taking steps to treat all State Level Officers alike and provide equal opportunity to them by making an appropriate recommendation to the Central Government to bring them into Administrative Service. The state was further directed to constitute a Committee for the purpose of identifying the posts, which can be brought under the definition of Deputy Collector. The government is expected to initiate all these processes within a period of six months.

The bench made the above directions in a plea challenging the rejection of a request to include posts of Joint Director and Additional Director of the Rural Development and Panchayat Raj Department, in the "State Civil Service" by the Government of Tamil Nadu. All the writ petitioners belonged to the Tamil Nadu Rural Development and Panchayat Raj Department.

OTHER DEVELOPMENTS

1. Bar Council Of Tamil Nadu and Puducherry Bars Practice of 19 Advocates Pending Disciplinary Proceedings

The Bar Council Of Tamil Nadu and Puducherry, on 09.05.2022 has passed a prohibitory order against 19 lawyers from practicing as advocates in all Courts, Tribunals and other authorities in India either in their name or under any assumed name.

The notification, issued by the Secretary of the Bar Council, was in light of the Disciplinary Proceedings pending against these advocates. These advocates have been charged with various offenses under the Indian Penal Code, Narcotic Drugs and Psychotropic Substances Act, 1985, Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992, SC/ST Act 2015, Prevention Of Children from Sexual Offences Act, 2012 among others. The bar council has also barred lawyers involved in a large scale scam involving the filing of vexatious motor accident claim petitions before the courts in the State.

2. Supreme Court Collegium Recommends To Make 9 Additional Judges Of Madras High Court Permanent

The Supreme Court Collegium has approved the proposal for the appointment of nine Additional Judges of the Madras High Court as Permanent Judges of that High Court. The Collegium has also recommended that Justice A.A. Nakkiran be appointed as an Additional Judge of the High Court for a fresh term of one-year w.e.f. 3rd December, 2022.

The judges are 1. Justice Govindarajulu Chandrasekharan, 2.Justice Veerasamy Sivagnanam, 3. Justice Ganesan Ilangovan, 4. Justice Ananthi Subramanian, 5. Justice Kannammal Shanmuga Sundaram, 6. Justice Sathi Kumar Sukumara Kurup, 7. Justice Murali Shankar Kuppuraju, 8. Justice Manjula Ramaraju Nalliah, and 9. Justice Thamilselvi T. Valayapalayam.

3. Madras High Court Refuses To Stall State Decision To Supply 40,000Tonnes Of Rice To Sri Lanka Amid Economic Crisis

Case Title: A Jaisankar v. The State of Tamilnadu and others

Case No: W.P No 12680 of 2022

The Madras High Court on Thursday refused to stay the Government's decision for procuring 40,000 tonnes of rice to be supplied to Srilankan nationals in view of the current economic crisis prevalent in the country.

The bench of Justice G.R Swaminathan and Justice Senthilkumar Ramamoorthy was hearing a PIL filed by one A. Jaisankar seeking to quash the present government order for procuring the rice at an exorbitant amount and further to direct the respondent to procure the rice from the fifth and sixth respondents (Ministry of Consumer Affairs, Food and Public Distribution and Food Corporation of India respectively). The petitioner also sought a vigilance enquiry into the current decision of the government to acquire rice at an exorbitant price. The petitioner had also sought an interim stay on the operation of the government decision pending disposal of the writ petition.

4. Madras High Court Issues Notice In Plea Against Implementation Of Corridor 4 Of Phase II Of Chennai Metro Rail Project

Case Title: G. Gouthaman and others v. The State of Tamil Nadu and others

Case No: W.P 12697 of 2022

The Madras High Court bench of Justice GR Swaminathan and Justice Senthilkumar Ramamoorthy on Thursday issued notice to the Government of Tamil Nadu and the Chennai Metro Rail Limited in a plea against the implementation of the Corridor 4 of Phase II of the Chennai Metro Rail Project.

The petition has been filed by one G Gouthaman and two others seeking to declare eight structures - (i)Mylai Sri Kapaleeswarar Temple, (ii)Vadapalani Murugan Temple, (iii) Vadapalani Sri Vengeeswarar Temple, (iv) Vadapalani Sri Alagar Perumal Temple, (v) Virugambakkam Sri Sundaravardharaja Perumal Temple, (vi) Valasaravakkam Sri Velveeswarar Temple, (vii) Poonamallee Sri Thirukachi Nambigal and Sri Varadaraja Perumal Temple, (viii) Poonamallee Sri Thirukachi Nambigal and Sri Varadaraja Perumal Temple Tank as ancient monuments and Heritage Structures under the Ancient Monuments and Archaeological Sites and Remain Act 1958 and to pass an ad-interim injunction restraining Chennai Metro Rail Limited (CMRL) from proceeding with the Corridor 4 of Phase II of the Chennai Metro Rail Project.

5. Temple Funds Shall Not Be Appropriated For Construction Of Senior Citizen Homes: TN Govt Assures Madras High Court

Case Title: T.R Ramesh v. The State of Tamil Nadu and Others

Case No: W.P No 12673 of 2022

In a plea seeking to quash an order issued by the Tamil Nadu government for constructing Senior Citizen Homes in Chennai, Pazhani, and Tirunelveli using excess temple funds, the Madras High Court has been assured that the scheme will not be implemented for six weeks.

Advocate General R Shunmugasundaram submitted, "no appropriation from any source pursuant to the impugned G.O. will be made for a period of six weeks"

The bench of Justice GR Swaminathan and Justice Senthilkumar Ramamoorthy was hearing public interest litigation filed by the President of Indic Collective Trust and the Temple Worshippers Society, Mr. T.R Ramesh challenging the GO issued by Tourism, Culture, and Religious Endowments Department on January 12, pursuant to the announcements made by the Minister for HR&CE Department during the Budget Session of the Tamil Nadu Assembly in 2021-2022.

JKL)MEGHALAYA HIGH COURT

1. Arbitral Tribunal Framing An Issue Which Was Already Decided During Interim Award, Writ Maintainable :Meghalaya High Court

Case Title: The Chief Engineer (PWD) (National Highways) Government of Meghalaya, Shillong v. M/s. BSC – C&C JV, CRP No. 11 of 2022

Citation: 2022 LiveLaw (Meg) 14

The High Court of Meghalaya has held that a writ petition is maintainable against an order of the arbitral tribunal framing issue in respect of a claim that has finally been decided in the interim award.

The Single Bench of Justice H.S. Thangkhiew has held that an arbitrator would be acting without jurisdiction if it frames an issue qua a claim that has already been decided in the interim award.

Case Title: M/s. Central Mine Planning & Design Institute Ltd. v. The Presiding Officer, Central Government Industrial Tribunal, Bhubaneswar & Anr.

Case Citation: 2023 LiveLaw (Ori) 59

The Orissa High Court has held that it is not mandatory for the Central Government to refer a matter of national importance to the National Industrial Tribunal for adjudication even if it satisfies the twin conditions mentioned under Section 7-B of the Industrial Disputes Act, 1947. A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik observed,

"It is not mandatory for the Central Government, even if the twin conditionalities are satisfied, to refer the disputes for adjudication to a National Tribunal. It may so happen that because of the placement of the parties, the dispute can well be adjudicated by a geographically proximate Tribunal."

2. Orissa High Court Directs State To Pay Rupees 10 Lakhs Compensation To Parents Of Boy Who Died By Falling In Drain During School Hours

Case Title: Sanjay Kumar Mohanty & Anr. v. State of Odisha & Ors.

Case Citation: 2023 LiveLaw (Ori) 60

The Orissa High Court has ordered compensation of rupees ten lakhs to parents of a boy who died by falling into a drain during school hours. A Single Judge Bench of Justice Arindam Sinha observed,

"The students coming from rural background were used to defecate in the open. In spite of toilet being available in the school premises, the teacher allowed the students to go outside the school premises, to relieve themselves. As such, contributory negligence in preventing the death is the inference."

Case Title: State of Odisha v. M/s. Nayagarh Sugar Complex Ltd., W.P. (C) No. 8995 of 2020.

Case Citation: 2023 LiveLaw (Ori) 61

The High Court of Orrisa has held that a writ petition is not maintainable against an order of the arbitral tribunal refusing to delete the name of a party from the arbitration.

The Single Bench of Justice Arindam Sinha has held that to invoke the writ jurisdiction in an arbitration matter, the aggrieved party has to show that it is a 'rare of the rarest cases' and the interference of the Court is required and the order of the tribunal wherein it has refused to delete the name of a party does not fall with the rubric of rare of the rarest cases.

Case Title: Jayaram Panda v. Project Director, M/s. National Highway Authority of India and others, ARB.A. No. 58 of 2018.

Case Citation: 2023 LiveLaw (Ori) 62

The High Court of Orissa has held that an unreasoned arbitral award would be against the public policy. The Court set aside the award as the arbitrator failed to give any reasons for reaching the conclusion in the award.

The Single Bench of Justice Arindam Sinha has held that an award bereft of reasons, goes against the mandate of the Act and therefore is against the public policy.

The Court further held the reasons given by a Court while adjudicating a challenge under Section 34 of the A&C Act would not suffice the requirement of reasons in the award. The challenge is not akin to a first appeal being in continuation of the suit.

Case Title: Tengunu Sahoo & Anr. v. State of Orissa

Case Citation: 2023 LiveLaw (Ori) 63

The Orissa High Court has acquitted a 'food seller' after 25 years of his conviction for not possessing 'food licence'. While setting aside his conviction, a Single Bench of Chief Justice Dr. S. Muralidhar also discharged his bail bonds.

6. "Rare & Exceptional Case": Orissa HC Orders 'Re-valuation' Of Two Answers Of Candidate In Direct District Judge Recruitment Exam

Case Title: Amitav Tripathy v. Orissa High Court, represented by the Registrar General

Case Citation: 2023 LiveLaw (Ori) 64

The Orissa High Court has ordered 're-valuation' of two answers given by a candidate who appeared in the examination for direct recruitment in the cadre of District Judge from the Bar.

A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik held that the wide power under Article 226 may continue to be available even though there is no provision for revaluation in a situation where a candidate despite having given the correct answer and about which there cannot be even slightest manner of doubt, he is treated as having given the wrong answer and consequently the candidate is found disentitled to any marks

7. Law Universities Should Set Exemplary Principles, Not Indulge In Diluting Tactics: Orissa HC Raps NLUO For Not Adhering To Uniform Service Conditions For Employees

Case Title: Sabyasachi Mohanty v. State of Odisha

Case Citation: 2023 LiveLaw (Ori) 65

The Orissa High Court came down heavily on National Law University of Odisha (NLUO) for applying different principles in case of different employees without having a codified service condition.

Justice Biswanath Rath was adjudicating upon a plea moved by one Sabyasachi Mohanty who was appointed as an assistant finance officer on contractual basis in October 2016. He had challenged a letter dated October 17, 2020 vide which he had been informed that his service would not be extended further and that he would be relieved from his duties on October 19, 2020 at 9am. The impugned letter had also instructed the petitioner to hand over charge along with all documents in his custody to the Assistant Registrar of NLUO on October 19, 2020 at 9 a.m.

8. Govt. Employee Has No 'Vested Right' To Seek Transfer/ Posting To A Particular Position Even If That Is Vacant: Orissa High Court

Case Title: Suryakanta Parida v. Odisha Public Service Commission & Ors.

Case Citation: 2023 LiveLaw (Ori) 66

A Single Judge Bench of the Orissa High Court comprising of Justice Sanjeeb Kumar Panigrahi has held that a government employee has no 'vested right' to seek posting to a particular position even if the desired position is lying vacant.

9. Orissa High Court Dismisses Contempt Petition Instituted By Govt. School Cook Against Former Gajapati Collector D.V. Swamy

Case Title: Golapi Pradhan v. D.V. Swami, Collector Gajapati & Anr.

Case Citation: 2023 LiveLaw (Ori) 67

The Orissa High Court has recently dismissed a contempt petition filed by a Cook-cum-Attendant of a Government High School, against the former Collector-cum-District Magistrate, Gajapati Mr. D.V. Swamy. While rejecting contentions made by the petitioner, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik held,

"Merely because the decision rendered by the Collector pursuant to the order of this Court went against the Petitioner, would not mean that the Collector wilfully disobeyed the order of this Court. The Court is, therefore, not satisfied that there has been any wilful disobedience of the order passed by it."

Case Title: Sunil Kumar v. The State of Bihar & Ors.

Citation: 2022 LiveLaw (Pat) 14

In a significant decision, the Patna High Court has ruled that an order for payment of interim compensation under the Negotiable Instruments Act, 1881 ('the NI Act') can be enforced under the Bihar & Orissa Public Demands Recovery Act, 1914 ('the Recovery Act') as a 'public demand'. A Division Bench of Chief Justice Sanjay Karol and Justice S. Kumar held,

"The interim compensation so ordered under Section 143A of the NI Act is recoverable as a fine under Section 421 of Cr.P.C. which then, as shown from the above discussion, clearly falls under the definition of 'public demand'. The petitioner's contention of non-applicability of the Recovery Act, therefore, necessarily has to be negated."

Case Title: Uma Shankar Sharma Vs. The State of Bihar through the Principal Secretary, Department of Health, Government of Bihar, Patna

Citation: 2022 LiveLaw (Pat) 15

The Patna High Court has directed the state government to remove all the members, including the chairman of Bihar Pharmacy Council from their post, in a case in which the Registrar of Bihar Pharmacy Council was continuing to work even after retiring.

While hearing the PIL filed by petitioner Uma Shankar Sharma, A division bench of Chief Justice Sanjay Karol and Justice S Kumar ordered the state government, to appoint any ex-officio member as the Registrar within 24 hours.

PUNJAB & HARYANA HIGH COURT

Case title - Jatinder Singh v. Union of India and others [Civil Writ Petition No.35638 of 2019]

Case Citation: 2022 LiveLaw (PH) 99

The Punjab and Haryana High Court has observed that trafficking in human beings doesn't amount to jeopardizing the sovereignty and integrity of India.

The Bench of Justice Sudhir Mittal further observed that it may jeopardize friendly relations of India with a foreign country but it would be so only if there is tangible evidence available to substantiate the allegations.

With this, the High Court quashed the order of the passport authority to impound the passport of a Punjab Police constable on the ground of suspicion that he was involved in the act of trafficking human beings to Europe.

Case Title: SUNITA AND ANOTHER Vs STATE OF HARYANA AND OTHERS

Citation: 2022 LiveLaw (PH) 100

Punjab and Haryana High Court while dealing with a petition seeking protection of life and personal liberty, held that the Constitutional right of protection cannot be abridged, except as per the manner established by law.

The Constitutional right of protection cannot be abridged, except in a manner permitted by law.

The bench comprising Justice Vinod S. Bhardwaj held that the Supreme Court has time and time again observed that it is not the Court's domain to intervene in the matters of choice or suitability of a marriage/relationship of an individual.

Case Title: Manpreet Singh vs State of Punjab and others

Citation: 2022 LiveLaw (PH) 10

Punjab and Haryana High Court while dealing with a petition challenging the order and appeal whereby the application for grant of arms license has been rejected, held that the reasons assigned for dismissing an application cannot be different from the ones prescribed under Clause (a) and (b) of Section 14(1) of the Arms Act, 1959.

Moreover, the reasons assigned for dismissing an application for grant of licence cannot be different than the reasons prescribed under Clause (a) and (b) of Section 14(1).

Citation: 2022 LiveLaw (PH) 102

Case Title : Ajay Vs. State of Haryana

Punjab and Haryana High Court while dealing with a petition challenging the order and appeal whereby the application for grant of arms license has been rejected, held that the reasons assigned for dismissing an application cannot be different from the ones prescribed under Clause (a) and (b) of Section 14(1) of the Arms Act, 1959.

Moreover, the reasons assigned for dismissing an application for grant of licence cannot be different than the reasons prescribed under Clause (a) and (b) of Section 14(1).

RAJASTHAN HIGH COURT

Nominal Index

Raju Singh v. Twinkle Kanwar 2022 LiveLaw (Raj) 160

Adarsh Shiksha Parishad Samiti & Anr v. Gajanand Sharma & Ors. with other connected matter 2022 LiveLaw (Raj) 161

State Of Rajasthan & Anr. v. M/s. Godhara Construction Company 2022 LiveLaw (Raj) 162

Mumtaz Mohd. V District Collector Pali and ors 2022 LiveLaw (Raj) 163

Judgments/ Orders of the Week

1. Divorce| Rajasthan HC Sets Aside Family Court's Order Refusing To Waive 6 Months Cooling-Off Period In Absence Of Documentary Evidence

Case Title: Raju Singh v. Twinkle Kanwar

Citation: 2022 LiveLaw (Raj) 160

The Rajasthan High Court observed that a family court had committed illegality in rejecting the divorce application of the parties for waiving cooling-off six months' period in the absence of any documentary evidence, especially when the parties have already stated on oath through affidavit that both of them are living separately since July, 2018.

Notably, a joint application was filed by the parties before the Family court for waving six months' cooling-off period as provided under Section 13-B of the Hindu Marriage Act of 1955 on 26.04.2022, however, the Family court rejected the same while observing that the parties have failed to produce documents to prove the fact that both of them are living separately since July, 2018.

Justice Vijay Bishnoi, while allowing the writ petition and setting aside the order passed by the Family Court, observed,

"In the present case, when the parties have already stated on oath through affidavit that both of them are living separately since July, 2018, the court below has committed illegality in rejecting the application of the parties for waiving cooling-off six months' period in the absence of any documentary evidence."

2. Prior Approval Of Education Director Not Necessary For Disciplinary Action Against Employee Of Unaided Recognized Educational Institution: Rajasthan HC

Case Title: Adarsh Shiksha Parishad Samiti & Anr v. Gajanand Sharma & Ors. with other connected matter

Citation: 2022 LiveLaw (Raj) 161

The Rajasthan High Court has reiterated that prior approval of the Director of Education is not necessary before taking disciplinary action against an employee of Unaided Recognized Educational Institutions.

In this regard, reliance was placed on the High Court's judgment in Central Academy Society Vs. Rajasthan Non-Govt. Educational Institutional Tribunal [2010(3) WLC 21] as well as the decision of Apex Court in T.M.A. Pai Foundation Vs. State of Karnataka [2002 (8) SCC 481].

A division bench of Justice Pankaj Bhandari and Justice Anoop Kumar Dhand, while allowing the appeal, observed,

"Hence, in view of the judgment of the Hon'ble Apex Court, we see no reason to take a different view as the controversy involved in this appeal has already been put to rest by the Constitutional Bench of 11 Judges of the Hon'ble Court in the case of T.M.A. Pai Foundation (supra) and the three Judges Larger Bench of this Court in the case of Central Academy Society (supra), that prior approval of the Director of Education is not necessary before taking disciplinary action against the employee of the Unaided Recognized Educational Institution."

3. Condonation Of Delay | S.5 Limitation Act Not Applicable To Proceedings U/S 34 Arbitration & Conciliation Act: Rajasthan High Court

Case Title: State Of Rajasthan & Anr. v. M/s. Godhara Construction Company

Citation: 2022 LiveLaw (Raj) 162

The Rajasthan High Court has observed that the provision of Section 5 of the Indian Limitation Act does not apply to the proceedings contained under Section 34 of the Arbitration and Conciliation Act, 1996.

Justice Anoop Kumar Dhand, while dismissing an appeal preferred by the State government observed,

"In view of the discussions made above, this Court of the opinion that the application under Section 34(3) of the Act of 1996 filed by the appellant for setting aside the arbitral award dated 29.07.2000 was beyond the mandatory period of limitation permitted under the Act of 1996. Hence, the same could not have been entertained by taking the recourse of the provisions of the Limitation Act."

The court observed that the proviso to Section 34(3) of the Act of 1996 empowers the court if it is satisfied that the applicant was prevented by sufficient cause from making application within the said period of three months to further extend the period and filing of the application for setting aside the arbitral award by 30 days but not thereafter.

4. Opportunity Of Being Heard Necessary: Rajasthan HC Asks Tehsildar To Hear The Poultry Farmer Before Ordering Him To Shift His Farm

Case Title : Mumtaz Mohd. V District Collector Pali and ors

Citation: 2022 LiveLaw (Raj) 163

The Rajasthan High Court recently asked the Tahsildar to hear the poultry farmer before he decides to ask him to shift his farm elsewhere.

The observation came from Justice Vinit Kumar Mathur:

"A bare perusal of the Annex. 5 dated 09.09.2016 shows that the petitioner has not been extended any opportunity of hearing before passing the notice impugned. This Court feels that since the notice impugned 09.09.2016 having evil consequences, an opportunity of hearing is required to be given to the petitioner."

In the present matter, the petitioner was an owner of a poultry farm who moved the court challenging the notice issued by Tehsildar for shifting of the poultry farm without extending a reasonable opportunity of hearing to the petitioner.

Petitioner argued that he has complied with all the eligibility and requisite qualifications and a 'No objection certificate' for running the poultry farm.

Other Important Updates

1. Disqualification Notices By Speaker | Rajasthan High Courts Issues Notice To Sachin Pilot Camp

Case Title: Prithviraj Meena & Ors. v. The Honble Speaker & Ors.

The Rajasthan High Court has recently issued notices to Sachin Pilot and other 18 Members of Legislative Assembly (MLAs) in the 2020 matter whereby disqualification notices were issued by the Speaker to the aforesaid persons.

Acting Chief Justice Manindra Mohan Shrivastava and Justice Sameer Jain, observed,

"As no instructions have been pleaded on behalf of the petitioners No.2 to 19, issue notice to the petitioners No.2 to 19 for fixed date of hearing on 25.05.2022."

Essentially, it was on July 14 that the Speaker, Dr C P Joshi, served the notices on the 19 dissident MLAs, including Pilot, amid their rebellion against Chief Minister, Ashok Gehlot. They were initially given time till 1 PM, July 17 to submit the replies.

The basis of the notices was the complaint filed by Mahesh Joshi, the Congress Party Whip, who alleged that rebel MLAs had attracted disqualification under Tenth Schedule of the Constitution with their anti-party statements and refusal to attend the party meetings on July 13 and 14, defying the whip's directives.

2. After SC Order Freezing Sedition Law, News18 Journalist Aman Chopra Gets Relief From Rajasthan High Court In 124A IPC Case

Case title: Aman Chopra v. State Of Rajasthan and another

The Rajasthan High Court (Jodhpur Bench) has directed the state police to not investigate allegations leveled against News 18 Journalist Aman Chopra of committing offence punishable under Section 124-A of the Indian Penal Code (sedition)

This relief for Chopra has come in an FIR registered against him for airing a discussion show named as "Desh Jhukne Nahi Denge" and subsequently posting it on his Twitter account, which allegedly resulted in communal disharmony and communal riots on 22.04.2022 at Alwar.

Importantly, the Bench of Justice Dinesh Mehta has issued this direction in the light of order of the Supreme Court wherein 152-year-old sedition law [under Section 124A of the Indian Penal Code] has been kept in abeyance till the Union Government reconsiders the provision.

3. Rajasthan HC Issues Notice In Plea Challenging Vires of Age Restriction of 50 Years Under Tribunals Reforms Act, 2021 For Appointment of Chairperson(s)/ Member(s)

Case Title: Rekha Madnani v. Union of India

Case No.: CMS/ 6974/ 2022

The Rajasthan High Court has issued notice in a plea challenging vires of age restriction of 50 years prescribed by proviso to Section 3 (1) of Tribunals Reforms Act, 2021 for appointment of Chairperson(s) or Member(s) of the Tribunals.

The plea has been filed by one Jaipur based advocate Rekha Madnani, who claims to have put in more than 20 years of professional practice and is thus alleged to have qualified to be appointed as Judicial 26 Member in Railway Claim Tribunal.

According to proviso to Section 3(1) of Tribunal Reforms Act, 2021, eligibility qua age has to be seen on the date of appointment. The plea states that vacancy circular issued by Respondent No.2 did not indicate any cut-off date on which age of candidate is to be seen, which only meant age of incumbent has to be seen on the date of appointment and not at any time prior to it.

Telangana High Court

1. Sanctity Of Judicial Proceedings Is Paramount, Otherwise, The Very Edifice Of Democracy Breaks, And Anarchy Reigns: Telangana High Court

Case Title: Veldana Srilatha v. Gundumalla Anantha Reddy

Citation: 2022 LiveLaw (Tel) 41

The Telangana High Court recently observed that the sanctity of judicial proceedings is paramount to a society governed by law. Otherwise, the very edifice of democracy breaks, and anarchy reigns. A Division Bench of Justices P. Naveen Rao and M.G. Priyadarsini noted that,

"To hold a person guilty of civil contempt 'wilful disobedience' is an indispensable requirement. Whether the conduct of contemnor is deliberate and wilful can be considered by assessing the material on record and attendant circumstances."

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