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All High Courts Weekly Round-Up: May 16 - May 22, 2022

Shrutika
25 May 2022 8:45 AM GMT
All High Courts Weekly Round-Up: May 16 - May 22, 2022
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Allahabad High Court NOMINAL INDEX Manvir v. State 2022 LiveLaw (AB) 242 Preeti Malik v. State Of U.P. And 4 Others 2022 LiveLaw (AB) 243 Anwar Ali v. State Of U.P. And Anr 2022 LiveLaw (AB) 244 Rajneesh Kumar Pandey v. Union of India and others 2022 LiveLaw (AB) 245 Dashrath Singh v. State of U.P. and Others 2022 LiveLaw (AB) 246 Ankita Dikshit v. State Of U.P. And Anr....

Allahabad High Court

NOMINAL INDEX

Manvir v. State 2022 LiveLaw (AB) 242

Preeti Malik v. State Of U.P. And 4 Others 2022 LiveLaw (AB) 243

Anwar Ali v. State Of U.P. And Anr 2022 LiveLaw (AB) 244

Rajneesh Kumar Pandey v. Union of India and others 2022 LiveLaw (AB) 245

Dashrath Singh v. State of U.P. and Others 2022 LiveLaw (AB) 246

Ankita Dikshit v. State Of U.P. And Anr. 2022 LiveLaw (AB) 247

Ravi Kant v. State Of U.P. Thru. Secy. Deptt. Home, Govt. Up Civil Sectt. Lko. And Others 2022 LiveLaw (AB) 248

Jaywanti Devi v. Union of India and others and connected pleas 2022 LiveLaw (AB) 249

Smt. Krishna Devi v. State of U.P. and Another 2022 LiveLaw (AB) 250

Sonu Kasai v. State of U.P. 2022 LiveLaw (AB) 251

Ramsagar v. State of U.P. 2022 LiveLaw (AB) 252

Anwar Shahzad v. State of U.P. and Others 2022 LiveLaw (AB) 253

Deepika Sharma v. State of U.P. and Another 2022 LiveLaw (AB) 254

Orders/Judgments of the week

[80 Yr Old Woman's Rape-Murder Case] "Relationship Not A Factor Affecting Credibility Of Witness": Allahabad HC Upholds Life Sentence

Case title - Manvir v. State

Case Citation: 2022 LiveLaw (AB) 242

The High Court observed that relationship is not a factor affecting the credibility of a witness as there is no bar in law on examining family members as witnesses. The Court also stressed that evidence of a related witness can be relied upon provided it is trustworthy.

The bench of Justice Suneet Kumar and Justice Vikram D. Chauhan observed thus while upholding the life sentence awarded to an accused who raped and murdered an 80-year-old woman in the year 2006 and was convicted by Additional Sessions Judge, Gautambudh Nagar under Sections 376 and 302 of the Indian Penal Code.

"She Became Proud Mother But Paid Heavy Price": Allahabad HC Grants Relief To Woman Who Failed To Appear For PE Test During Pregnancy

Case title - Preeti Malik v. State Of U.P. And 4 Others

Case Citation: 2022 LiveLaw (AB) 243

In a significant order, the High Court directed the State Government to conduct a Physical Efficiency Test of a woman (for the post of Jail Warder), who failed to appear for the test last year on account of her pregnancy.

Quoting Maharishi Ved Vyas, the Bench of Justice Saurabh Shyam Shamshery

"नास्ति मातृसमा छाया, नास्ति मातृसमा गति:नास्ति मातृसमं त्राणं. नास्ति मातृसमा प्रिया। (माता के समान कोई छाया नहीं है, माता के समान कोई सहारा नहीं है। माता के समान कोई रक्षक नहीं, माता के समान कोई प्रिय वस्तु नहीं है।) [There is no shade like a mother, no resort-like a mother, no security like a mother, no other ever-giving fountain of life!]"

The Court also noted that the petitioner had traveled a journey of motherhood and became a proud mother, but forced to pay heavy price for it, being denied permission by respondents to appear for physical efficiency test, after she gave birth to a baby.

"Betrayed Wife, Breached Minor Girl's Trust": Allahabad HC Denies Bail To Married Man Accused Of Pressurizing Minor To Convert To Islam

Case title - Anwar Ali v. State Of U.P. And Anr

Case Citation: 2022 LiveLaw (AB) 244

The High Court denied bail to a married man who has been accused of trying to convert the prosecutrix to the Muslim religion and was pressurizing her to perform Nikah.

The bench of Justice Dinesh Kumar Singh noted that the accused only betrayed his wife and family, but also breached the trust of an innocent girl, who believed in him and got entangled in his false love.

Essentially, the Court was dealing with the bail plea of one Anwar Ali who has been booked under Sections 363, 366, 376 IPC, Section 3/5 POCSO Act. Allegedly, he introduced himself through social media to the prosecutrix as 'Raj' and got her entangled in his false love web.

Allahabad High Court Dismisses PIL To Connect All Places Where Lord Rama Took Rest At Night During His 'Ban Gaman'

Case title - Rajneesh Kumar Pandey v. Union of India and others

Case Citation: 2022 LiveLaw (AB) 245

The High Court dismissed a Public Interest Litigation (PIL) plea seeking a direction to the State Government to construct the 'Ram Ban Gaman Marg' as per the historical evidence and to connect all such places where Lord Rama took rest at night during his forest Travel (Ban Gaman/वन-गमन).

The Bench of Chief Justice Rajesh Bindal and Justice J. J. Munir observed that the issue raised by the Petitioner, a political person, cannot be decided in the writ petition. Therefore, the Court dismissed the plea.

Allahabad HC Quashes Service Dismissal Order Passed Against Police Constable Who Allegedly Misbehaved With SO In Inebriated State

Case title - Dashrath Singh v. State of U.P. and Others

Case Citation: 2022 LiveLaw (AB) 246

The High Court quashed an order passed against an Uttar Pradesh Police Constable removing him from service allegedly because he entered into an argument with the Station Officer in an inebriated state.

The Bench of Justice Siddhartha Varma observed that the finding, that the Constable was in a drunken state, was arrived at simply because the petitioner was smelling of alcohol.

Calling it an absolutely erroneous decision on the part of the Enquiry Officer, the Court quashed and set aside the order dated 31.10.2009 passed by the Superintendent of Police, Lalitpur dismissing him from services.

[Section 125 CrPC] Father Not Absolved From Taking Responsibility Of Child Even If Mother Is Earning: Allahabad High Court

Case Title - Km. Ankita Dikshit v. State Of U.P. And Anr.

Case Citation: 2022 LiveLaw (AB) 247

The High Court has observed that the father is legally bound to maintain his child according to the status and lifestyle and it doesn't matter if the mother of the child is also working and earning.

The Bench of Justice Brij Raj Singh further observed that a father can't be absolved of his responsibility to maintain a child on the ground that the child does not show compassion towards him.

Allahabad HC Refuses To Quash FIR Against Lucknow University Prof Ravi Kant Over His Remarks On 'Gyanvapi Dispute', Hindu Saints

Case title - Ravi Kant v. State Of U.P. Thru. Secy. Deptt. Home, Govt. Up Civil Sectt. Lko. And Others

Citation: 2022 LiveLaw (AB) 248

The High Court refused to quash an FIR registered against Lucknow University, Professor Ravi Kant Chandan, over his alleged 'derogatory' remarks against Kashi Vishwanath Temple, Hindu saints in connection with the ongoing Kashi Vishwanath Temple-Gyanvapi Mosque dispute.

The Bench of Justice Arvind Kumar Mishra-I and Justice Manish Mathur, however, directed UP police to comply with the provisions as contained under Section 41 (1) (b) read with Section 41-A of the CrPC, in case Professor Chandan's arrest is effectuated.

"Project Is Of National Importance": Allahabad HC Dismisses Pleas Against Land Acquisition For Green National Highway Corridor Project

Case title - Jaywanti Devi v. Union of India and others and connected pleas

Case Citation: 2022 LiveLaw (AB) 249

The High Court dismissed pleas challenging land acquisition notifications of the Union Government for the purpose of widening, maintenance, management, and operation of National Highways in district Pilibhit under the Green National Highway Corridor Project

The Bench of Chief Justice Rajesh Bindal and Justice J. J. Munir noted that the project is for the development of infrastructure and has national importance.

Can't Reject Plea U/S 125 CrPC On The Ground That Wife Has Sufficient Means As She Got Money After Selling Property: Allahabad HC

Case title - Smt. Krishna Devi v. State of U.P. and Another [CRIMINAL REVISION No. - 205 of 2016]

Case Citation: 2022 LiveLaw (AB) 250

The High Court observed that a wife doesn't lose her opportunity for grant of maintenance under Section 125 CrPC on the ground that she has sufficient means to maintain herself and her children as she got money after selling the property.

With this, the Bench of Justice Brij Raj Singh set aside the judgment and order passed by the family court rejecting the plea of one Krishna Devi under Section 125 Cr.P.C. seeking direction to her husband to pay her at least Rs.10,000/- as the monthly maintenance.

"Deposit ₹25K In UP Gosewa Ayog": Allahabad High Court Imposes Bail Condition On Man Booked Under 'UP Cow Slaughter Act'

Case title - Sonu Kasai v. State of U.P.

Case citation: 2022 LiveLaw (AB) 251

The High Court granted bail to a man booked under the Uttar Pradesh Prevention Of Cow Slaughter Act, 1955 on the condition that she shall deposit Rs. 25,000/- in 'UP Gosewa Ayog, Lucknow' within four weeks from the date of his release from jail.

The bench of Justice Saurabh Lavania issued this order while granting bail to one Sonu Kasai, who was booked under Sections 3/5/8 of the Cow Slaughter Act, 1955 after being found in possession of meat/beef (allegedly of Cow).

Not Pressing Criminal Appeal By Accused After Conviction By Lower Court Is Like Confession Of Offence: Allahabad High Court

Case title - Ramsagar v. State of U.P. [CRIMINAL APPEAL No. - 465 of 2020]

Case Citation: 2022 LiveLaw (AB) 252

"Not pressing the criminal appeal after the conviction of the accused by the court below is like the confession of the offence by the accused," the Allahabad High Court observed recently as it upheld the conviction of a man under Section 354 IPC [Assault or criminal force to woman with intent to outrage her modesty].

The Bench of Justice Suresh Kumar Gupta however reduced the sentence of the convict to the period of imprisonment already undergone by him (about 8 months).

FIR Under 'UP Gangsters Act' Can Be Lodged On The Basis Of A Single Case: Allahabad High Court

Case title - Anwar Shahzad v. State of U.P. and Others [CRIMINAL MISC. WRIT PETITION No. - 3668 of 2021]

Case Citation: 2022 LiveLaw (AB) 253

The High Court observed that a first information report under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 can be lodged on the basis of the involvement of an accused in a single previous case

The Bench of Justice Surya Prakash Kesarwani and Justice Piyush Agrawal observed thus while relying upon an earlier judgment of the High Court in the case of Ritesh Kumar Alias Rikki vs. State of U.P. and another.

"Majority Of Parents Blame Daughter In Law If Their Son Dies Untimely": Allahabad HC Orders Compassionate Appointment For Widow

Case title - Deepika Sharma v. State of U.P. and Another [WRIT - A No. - 5030 of 2022]

Case Citation: 2022 LiveLaw (AB) 254

"...majority of the parents, whose son dies untimely, blame his widow for his death and want to get rid of her by resorting to all means, fair and foul, to deprive her of the estate of her husband," the High Court observed as it ordered compassionate appointment for a widow.

The bench of Justice Siddharth observed thus while hearing a plea filed by Deepika Sharma seeking a direction to the District Basic Education Officer, Kushinagar, to grant her compassionate appointment on account of her husband's death.

Weekly updates from the High Court

Applicability of GST On Royalty On Mining: Allahabad High Court Directs Assessee To Reply To SCN

The High Court bench of Justice Devendra Kumar Upadhyaya and Justice Brij Raj Singh, while dealing with the issue of the applicability of GST on royalties on mining, has directed the assessee to reply to the show cause notice issued by the department.

The petitioner/assessee is in the business of mining sand from the sites licenced to them by the government and is also engaged in the trading of sand.

'Vishweshwar Jyotirlinga' Is Situated Below Gyanvapi Mosque Which Is Self Manifested : Lord's Next Friend Argues In Allahabad HC

Case Title- Anjuman Intazamia Masazid Varanasi v. Ist A.D.J. Varanasi And Others

In the ongoing hearing before the Allahabad High Court in connection with the Kashi Vishwanath temple-Gyanvapi mosque dispute, the next friend of Lord Vishweshwar, one of the contesting respondents in the case today argued that the Linga which is situated in the Gyanvapi Mosque is actually Swayambhu (Self manifested) and also a Jyotirlinga.

It may be noted that Jyotirlinga, is a devotional representation of the Hindu god Shiva. As per the Shiva Purana, the Jyotirlinga situated in present time Varanasi is among 12 Maha Jyotirlingas, where the deity Shri Vishwanath/Vishweshwara (Lord of the Universe) presides.

Bombay High Court

Nominal Index

Prem Rajendra Prasad Dubey vs The State of Maharashtra 2022 LiveLaw(Bom) 190

Ganpatrao Janardhan Patil vs State of Maharashtra 2022 LiveLaw(Bom) 191

Bhavani Gems Private Limited Versus Assistant Commissioner of Income Tax 2022 LiveLaw(Bom) 192

Praful A. Mehta versus Nainesh M. Gandhi 2022 LiveLaw(Bom) 193

Souvenir Developers (I) Pvt. Ltd. versus Union of India 2022 LiveLaw(Bom) 194

Sheetal Devang Shah versus Presiding Officer 2022 LiveLaw(Bom) 195

Judgments/ Orders

1. Kissing & Fondling Not Unnatural Offence U/S 377 IPC: Bombay High Court Grants Bail To POCSO Accused

Case Title - Prem Rajendra Prasad Dubey vs The State of Maharashtra

Citation : 2022 LiveLaw(Bom) 190

The Bombay high Court observed that kissing and touching private parts are prima facie not unnatural offences under Section 377 of the Indian Penal Code, therefore it granted bail to a man accused of a minor boy's sexual assault.

Regarding offences under sections 8 and 12 of the POCSO Act with maximum punishment of five years, the bench observed that the applicant is in custody for almost one year, the charge is not yet framed and trial is not likely to commence in the immediate future.

2. Boy Hangs Himself After School Chairman Calls Him "Nalayak, Jhopadpatti-Chhap": Bombay High Court Denies Anticipatory Bail

Case Title - Ganpatrao Janardhan Patil vs State of Maharashtra

Citation - 2022 LiveLaw(Bom) 191

The Bombay HC denied anticipatory bail to the Chairman and disciplinary authority of a school in a case of abetting a student's suicide as he "shattered the tender mind" and "put him in deep frustration."

Justice Vinay Joshi observed that a young student had lost his life in proximity from the act of the applicant and custodial interrogation was necessary for the case where the investigation was in progress.

"As per the statements of witnesses, the applicant has scolded the deceased minor boy in an unruly manner. He had also called his parents to the school…Prima facie suggests that the applicant has created an impression in the mind of the student to put him in deep frustration. It requires to be noted that there is a direct link of the applicant's act since within few hours from the episode, the child has ended his life by suicide," the court observed.

3. Assessment Can't Be Reopened On Mere Change Of Opinion Of AO: Bombay High Court

Case Title: Bhavani Gems Private Limited Versus Assistant Commissioner of Income Tax

Citation - 2022 LiveLaw(Bom) 192

The Bombay High Court, while quashing a reassessment notice, held that the assessment could not be reopened on a mere change of opinion of the Assessing Officer (AO).

The division bench of Justice K.R. Shriram and Justice N.R. Borkar observed that the reopening of assessment was merely on the basis of a change of opinion of the Assessing Officer from that held earlier during the course of assessment proceedings and this change of opinion does not constitute justification and/or reason to believe that income chargeable to tax has escaped assessment.

4. Novation Of Partnership Deed, Arbitration Clause Contained In The Deed Can Be Invoked: Bombay High Court

Case Title: Praful A. Mehta versus Nainesh M. Gandhi

Citation - 2022 LiveLaw(Bom) 193

The Bombay High Court held that the allegation of forgery is required to be dealt with at the stage of trial before the Arbitrator.

The Single Bench of Justice A. K. Menon dismissed the contention that an arbitration clause cannot be invoked as a result of novation of the agreement containing the arbitration clause. The Court added that even though there had been a novation of the partnership deed containing an arbitration clause, an Arbitrator could be appointed for adjudication of disputes against the partner with respect to the partnership firm.

5. Loss On Trading In Derivatives Of Securities Not A Speculative Loss, Can Be Set Off Against Business Income: Bombay High Court

Case Title: Souvenir Developers (I) Pvt. Ltd. versus Union of India

Citation - 2022 LiveLaw(Bom) 194

The Bombay High Court ruled that transactions in respect of trading in derivatives carried out in a recognized stock exchange are excluded from the definition of "speculation transaction" under the Income Tax Act, 1961.

The Bench, consisting of Justices R.D. Dhanuka and S.G. Mehare, held that an assessee is thus entitled to claim set off of the loss suffered by it in the said transactions in derivatives against its business income. The Court added that the explanatory notes on the provisions of the Finance Act, 2005, clearly indicate that an eligible transaction in respect of trading in derivatives of securities, carried out on a recognized stock exchange, shall not be deemed as a speculative transaction.

5. Can't Ask Daughter-In-Law To Pay Mother-In-Law Maintenance Under Senior Citizens Act : Bombay High Court

Case Title : Sheetal Devang Shah versus Presiding Officer

Citation - 2022 LiveLaw(Bom) 195

The Bombay High Court observed that a daughter-in-law cannot be directed to pay maintenance to her ailing mother-in-law, especially in the absence of any proof of the woman's income.

"We have reservations about such direction to SS (daughter-in-law) to pay maintenance amount to the mother-in-law…Be that as it may, upon perusal of the original record, we do not find a single document showing the earnings of SS (daughter-in-law)," the HC observed.

It noted that Section 2(a) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 that defines 'children,' includes son, daughter, grandson and grand-daughter, but does not refer to the daughter-in-law.

Calcutta High Court

Nominal Index [2022 LiveLaw (Cal) 177 To 2022 LiveLaw (Cal) 200]

Rajinder Lohar v. The State of West Bengal 2022 LiveLaw (Cal) 177

Aniruddha Prasad Singh @ Sinha v. The State of West Bengal 2022 LiveLaw (Cal) 178

In the matter of: Parimal [email protected] Sikdar 2022 LiveLaw (Cal) 179

Md Jamiruddin v. Union of India & Ors 2022 LiveLaw (Cal) 180

Sova Rani Misra v. The State of West Bengal 2022 LiveLaw (Cal) 181

Salema Bibi v. State of West Bengal & Ors 2022 LiveLaw (Cal) 182

Babita Sarkar v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 183

Narayan Chandra Maiti v. Union of India & Ors 2022 LiveLaw (Cal) 184

Ramabatar Rajbar @ Ramawatar Nimtar Rajwar v. The State of West Bengal 2022 LiveLaw (Cal) 185

Dr Santi Prasad Sinha v. Laxmi Tunga and other connected matters 2022 LiveLaw (Cal) 186

Laxmi Tunga v. State of West Bengal and Ors 2022 LiveLaw (Cal) 187

Babita Sarkar v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 188

Aditya Birla Finance Ltd v. Mcleod Russel India Ltd. and Ors Case Citation: 2022 LiveLaw (Cal) 189

Priyanka Tibrewal v. State of West Bengal and Ors 2022 LiveLaw (Cal) 190

Bhadrish Jayantilal Sheth Versus Income Tax Officer 2022 LiveLaw (Cal) 191

State of West Bengal v. Consideration of State Government Employee 2022 LiveLaw (Cal) 192

Smt Kalabati Mondal v. Union of India 2022 LiveLaw (Cal) 193

Babita Sarkar v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 194

Babita Sarkar v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 195

Babita Sarkar v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 196

Partha Chatterjee v Laxmi Tunga 2022 LiveLaw (Cal) 197

Alo Rani Sarkar v. Swapan Majumdar 2022 LiveLaw (Cal) 198

Kaniska Roy & Anr v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 199

New Eureka Travels Club v. South Bengal State Transport Corporation 2022 LiveLaw (Cal) 200

Orders/Judgments

1. 'Young Person, Was Barely 18 Yrs At Time Of Offence': Calcutta High Court Commutes Life Sentence Awarded To Convict For Raping 7 Yr Old Girl

Case Title: Rajinder Lohar v. The State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 177

The Calcutta High Court has recently commuted the sentence of life imprisonment awarded to a man convicted of raping a 7 year old girl after taking into account that the convict had no criminal antecedents and that he had already suffered incarceration for about 18 years. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi opined that although in the instant case a minor victim had been raped, the accused was also a young person who was barely above 18 years of age at the time of the incident. Commuting the life sentence imposed, the Bench observed, "Although, the victim was a minor and was forcibly raped, appellant was also a young person who was barely above 18 years at the time of occurrence. He does not have criminal antecedents. Keeping in mind the aforesaid facts and as he has already suffered incarceration for about 18 years, I modify the sentence imposed upon the appellant and direct that he shall suffer imprisonment for the period already undergone in place of the maximum sentence of life imprisonment imposed upon him and pay the fine imposed upon him by the trial Court, in default, shall suffer rigorous imprisonment for one year."

2. S.313 CrPC | Accused Should Be Given Opportunity Of Personally Explaining Any Circumstances Appearing In Evidence Against Him: Calcutta HC

Case Title: Aniruddha Prasad Singh @ Sinha v. The State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 178

The Calcutta High Court on Friday observed that while examining an accused under Section 313 of the CrPC, the prosecution is under a mandatory obligation to give the accused an opportunity to personally explain any circumstances appearing in the evidence against him. Justice Moushumi Bhattacharya also placed reliance on the Supreme Court judgment in Maheshwar Tigga v. State of Jharkhand wherein the Apex Court had held that the circumstances not put to an accused under section 313 of the CrPC cannot be used against him and must be excluded from considerations. "Section 313 of the Cr.P.C. mandates that the accused shall have the opportunity of personally explaining any circumstances appearing in the evidence against him. In Maheshwar Tigga vs State of Jharkhand; (2021) 1 SCC (Cri) 50 the Supreme Court reaffirmed that the circumstances not put to an accused under section 313 of the Cr.P.C. cannot be used against him and must be excluded from considerations. The Supreme Court further went on to hold that in a criminal trial, the importance of the questions put to an accused are basic to the principles of natural justice as it provides him the opportunity not only to furnish his evidence, but also to explain the incriminating circumstances against him and further that a probable defence raised by an accused is sufficient to rebut the accusation without the requirement of proof beyond reasonable doubt", the Court underscored. The Court was adjudicating upon an appeal preferred against a judgment dated December 19, 1998, wherein the appellant had been convicted under section 7 (1) (a) (ii), of the Essential Commodities Act, 1955 and paragraph 12 of the West Bengal Kerosene Control Order, 1968.

3. 'Suffered Various Ailments While In Custody': Calcutta High Court Grants Bail To NDPS Accused With 100% Speech & Hearing Impairment

Case Title: In the matter of: Parimal [email protected] Sikdar

Case Citation: 2022 LiveLaw (Cal) 179

The Calcutta High Court has recently, in exercise of its powers under Section 439 of the CrPC, granted bail to an accused after taking into account that he suffers from complete speech and hearing impairment and that he had suffered from various physical ailments while in custody. A Bench comprising Justice Moushumi Bhattacharya and Justice Kesang Doma Bhutia was adjudicating upon a bail application of the petitioner who had been accused for the commission of an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The Court noted that the petitioner had been in custody for 440 days and had suffered from various ailments while in custody. Taking into consideration the physical disability of the petitioner, the Court noted further, "The petitioner admittedly suffers from 100% speech and hearing impairment. The petitioner has been in custody for 440 days and has suffered from various ailments while in custody. The petitioner has also been referred to the North Bengal Medical College for treatment." Reliance was also placed on the Supreme Court judgment in Rockysingh Jalindersingh Kalyani v. The State of Maharashtra wherein the Apex Court had allowed an application of bail after taking into account the physical disability of the accused. Allowing the bail application, the Court ordered, "Considering the physical condition of the petitioner and a recent order of the Supreme Court in Criminal Appeal No.176 of 2022 (Rockysingh Jalindersingh Kalyani vs. The State of Maharashtra), where the Supreme Court also took into account the physical condition of the person suffering from disability, we are inclined to allow the application for bail."

4. 'Comply With Principles Of Natural Justice': Calcutta High Court Sets Aside Order Of Land Acquisition For Laying Gas Pipeline

Case Title: Md Jamiruddin v. Union of India & Ors

Case Citation: 2022 LiveLaw (Cal) 180

The Calcutta High Court set aside a notification issued by the concerned authority under Section 3(1) of the Petroleum and Minerals Pipelines (Acquisition of Right of User in land) Act, 1962 (Act) for laying a Gas Pipeline below the surface in between the Barauni and Guwahati on the ground of violation of principles of natural justice. Justice Saugata Bhattacharyya was adjudicating upon a challenge against the steps taken by the concerned authority under the Act whereby a notification had been issued to acquire the right of user of the land of the petitioner for laying a Gas Pipeline below the surface in between the Barauni and Guwahati. Opining that the concerned authority is required to comply with the principle of natural justice, the Court further underscored, "On behalf of the competent authority attempt has been made to impress upon this Court that since the objection is not addressed to the competent authority the opportunity of hearing could not be granted. Such hyper technical approach on the part of the competent authority pales into insignificance keeping in view the fact that the concerned respondent authorities by issuing notification under Section 3(1) was required to acquire the right of user of the land of the petitioner, therefore, propriety demands forwarding of such objection by the respondent nos.2 & 3 to the competent authority for the sake of granting opportunity of hearing to the petitioner and to comply with the principle of natural justice". Accordingly, the Court set aside the impugned notification on the ground that the requirement of hearing as contemplated under Section 5(2) of the Act of 1962 has not been complied with.

5. Convicting Accused Persons After 36 Yrs Would Disturb Balance Of Convenience & Result In More Injustice: Calcutta High Court

Case Title: Sova Rani Misra v. The State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 181

The Calcutta High Court set aside an order of acquittal in connection with a criminal case under Sections 147/380/427 of the IPC (punishment for rioting, theft in dwelling house, mischief causing damage). However, Justice Moushumi Bhattacharya was of the view that passing an order of conviction, after a gap of 36 years since the charges were framed, would disturb the balance of convenience and cause injustice, especially since the accused had not even been represented in the appeal. Accordingly, it remitted the matter to Trial Court for re-consideration. "Since the incident occurred and the Case was registered against the accused persons in May, 1980 and the impugned judgment is of 19th March, 1986, this Court is of the view that convicting the accused persons under the charges framed against them after a gap of 36 years would disturb the balance of convenience and result in more injustice being caused in the matter. It is not even clear whether the accused persons are still alive or available after 36 years. This information can only be provided by the local police station", the Court observed.

6. Custodial Torture: Calcutta High Court Grants Bail To NDPS Accused, Orders Enquiry & Preservation Of CCTV Footage

Case Title: Salema Bibi v. State of West Bengal & Ors

Case Citation: 2022 LiveLaw (Cal) 182

The Calcutta High Court granted bail to an accused against whom proceedings under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) had been initiated after taking into account that he had suffered torture while in custody. The Court further directed the Superintendent of Police, Murshidabad to immediately enquire into the allegations of torture against the accused and submit a detailed report in this regard on the next date of hearing. Justice Rajasekhar Mantha was adjudicating upon a plea filed by the wife of the accused alleging that her husband had been a victim of custodial torture. Ordering for the release of the petitioner's husband from the Berhampore Central Correctional Home, the Court observed, "In view of the above, this Court is of the prima facie view that a certain degree of torture may have been inflicted on the husband of the petitioner. The matter requires a suitable investigation. The husband of the petitioner, namely, Azad Ali, shall be released forthwith from the custody of the Berhampore Central Correctional Home. The petitioner herself and on behalf of her husband undertakes before this Court and also on behalf of the husband, that she will report before the Judge, Special Court, N.D.P.S. Act, Berhampore, Murshidabad every Thursday at 11 a.m., commencing day after tomorrow." Directing an enquiry into the allegations of torture and extortion, the Court observed further, "The Superintendent of Police, Murshidabad, shall forthwith enquire into the allegations of torture against the petitioner's husband, and the allegation of extortion against the officer of the Lalgola P.S. submit a detailed report before this Court on or before the next day." The Court further directed the Lalgola Police Station, Murshidabad to preserve all the CCTV footage and other evidence in connection with taking into custody of the husband of the petitioner, and his detention thereafter.

7. Teacher Recruitment Scam: Calcutta HC Orders CBI Probe, Directs WB Minister Paresh Chandra Adhikari To Appear Before CBI Today

Case Title: Babita Sarkar v. The State of West Bengal & Ors.

Case Citation: 2022 LiveLaw (Cal) 183

The Calcutta High Court on Tuesday ordered a Central Bureau of Investigation (CBI) inquiry into the alleged irregularities in the recruitment of political science teachers for Class X1 and XII in the state-run schools of West Bengal. In an unprecedented move, the Court also advised Chief Minister Mamata Banerjee and Governor Jagdeep Dhankar to immediately suspend the minister for education, Paresh Chandra Adhikari, from his post since his daughter, Ankita Adhikari, was appointed without even figuring in the merit list or appearing for a personality test. Justice Abhijit Gangopadhyay passed the direction while adjudicating upon a plea filed by an aggrieved candidate who had alleged that she had been deprived of the job despite having secured higher marks than the Minister's daughter in the recruitment examination. Directing for a CBI enquiry, the Court observed, "This court has full faith upon the police force of this city and State. All the inhabitants of West Bengal know how efficient they are and everybody will admit the efficiency of the police force and it is also the experience of people that the hands of the police forces are always tied by the persons in power. Therefore, in my view inquiry by CBI is the only option here." Opining that the CBI should not waste any time to start any enquiry and further ordering the Education Minister to appear before the CBI by 8pm today, the Court underscored, "I direct the said Paresh Chandra Adhikary to go to the CBI by 8 p.m. today so that CBI can start interrogating him in every possible manner for knowing the facts."

8. Personal Knowledge Certificate Although Secondary Evidence Must Be Accepted: Calcutta HC Directs Centre To Grant Freedom Fighters Pension Within 3 Months

Case Title: Narayan Chandra Maiti v. Union of India & Ors

Case Citation: 2022 LiveLaw (Cal) 184

The Calcutta High Court directed the Union government to grant the freedom fighters pension under the Swatantrata Sainik Samman Pension Scheme, 1980, within 3 months to a batch of petitioners after opining that possession of personal knowledge certificates although a form of secondary evidence would be sufficient to be eligible for benefits under the scheme. In the instant case, the petitioner had applied for the freedom fighter pension along with general Non-Availability of Record Certificate (NARC) issued by the District Magistrate of Midnapore and Personal Knowledge Certificate issued by Sushil Kumar Dhara, an eminent freedom fighter and eligible certifier of District - Midnapore for grant of the Swatantrata Sainik Samman Pension. Justice Krishna Rao observed, "This Court is satisfied that the certificate issued by Shri Sushil Kumar Dhara would make the petitioner eligible for being granted pension under the said scheme. None has disputed the authenticity of the certificate issued by Shri Sushil Kumar Dhara in favour of the petitioner. This is one of the modes of approving the claim of being a freedom fighter envisaged by the said scheme." Further, ordering the Union government to process the pension of the petitioners within a period of 3 months the Court observed, "Accordingly, the respondent authorities i.e. the Union Government is directed to pay the petitioners, Freedom Fighter's Pension under the liberalized "Swatantrata Sainik Samman Pension Scheme" with effect from the date when the petitioner made an application for grant of pension within 3 (three) months from the date of communication of the copy of this order."

9. Charge U/S 412 IPC Of Retaining Stolen Articles Of Dacoity Fails Automatically If Prosecution Fails To Prove Offence Of Dacoity: Calcutta High Court

Case Title: Ramabatar Rajbar @ Ramawatar Nimtar Rajwar v. The State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 185

The Calcutta High Court observed that if the prosecution has failed to prove the charge of dacoity then the charge under Section 412 of the IPC of retaining the stolen articles of dacoity fails automatically. Referring to the provision of Section 412 of the IPC, Justice Rabindranath Samanta underscored, "The language employed in the Section clearly shows that the articles an accused retains shall be related to those articles captured or received during the commission of dacoity. While the charge of dacoity fails, the charge under Section 412, IPC automatically fails..Therefore, I hold that the prosecution has failed to bring home the charge under Section 412, IPC." Reliance was also placed on the Supreme Court decision in K. Venkateshwar Rao alias Venkatal alias I. Rao v. State Represented by Inspector of Police, A.P wherein the Apex Court had held that while the charge of dacoity has not been proved by the prosecution, the charge under Section 412 of the IPC of retaining the stolen articles of dacoity fails automatically.

10. SSC Recruitment Scam: Calcutta High Court Upholds Orders For CBI Probe Into Alleged Illegal Appointments In WB Govt Aided Schools

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

Case Citation: 2022 LiveLaw (Cal) 186

The Calcutta High Court upheld orders of a single bench that directed CBI to inquire into alleged irregularities in appointments of Group-C posts (non-teaching staff) in the state government-run schools in West Bengal on the purported recommendation of the West Bengal School Service Commission (WBSSC). A Bench comprising Justice Ananda Kumar Mukherjee and Justice Subrata Talukdar labelled the "irregularities" in the appointments made by the SCC as a "public scam" and accordingly upheld Justice Abhijit Gangopadhyay's prior orders directing a CBI probe into the alleged money trail involved in the recruitment scam. "This Court also does not find that the Hon'ble Single Bench erred in appointing the CBI to investigate the public scam inasmuch as no State agency could be appointed in a scenario involving high ranking Officials, including a senior State Minister", the Court underscored. Furthermore, the Court also accepted the recommendations put forward by the Court appointed committee calling for the prosecution of senior government officials connected to the scam. Opining further that such a scam has let down a generation of teachers, the Court observed, "It is a matter of shame that such abundant facts have emerged in the records of the Hon'ble Court and from the Bag Committee, whose integrity has not been impeached, prima facie establishing the role of white collared individuals in charge of Education in letting down a generation of teachers and the taught."

11. SSC Recruitment Scam: Calcutta HC Refuses To Hear WB Minister Partha Chatterjee's Plea Seeking Stay On Order To Appear Before CBI

Case Title: Laxmi Tunga v. State of West Bengal and Ors

Case Citation: 2022 LiveLaw (Cal) 187

The Calcutta High Court refused to hear an appeal filed by West Bengal Minister Partha Chatterjee challenging an order of a single Bench that directed him to appear before the CBI in connection with the alleged irregularities in appointments of Group-C and Group-D posts (non-teaching staff) in the state government-run schools in West Bengal on the purported recommendation of the West Bengal School Service Commission (WBSSC). The single Bench of Justice Abhijit Gangopadhyay directed Mr. Chatterjee, who was the State Education Minister when the alleged appointments were made, to appear before the Central Bureau of Investigation at its office here before 6 p.m. on Wednesday. He is now the Industry, Commerce and Parliamentary Affairs Minister of the Mamata Banerjee Cabinet. "In this matter and in other matters of similar nature as to giving appointment in the post of Group – C and Group – D employees the name of the then Education Minister Mr. Partha Chatterjee has come to light. I also direct said Mr. Partha Chatterjee to attend the C.B.I. office today by 6 P.M. and C.B.I. is directed to start interrogating him and if he does not cooperate in the interrogation, C.B.I. shall have liberty to take him in custody", Justice Gangopadhyay had recorded in the impugned order. Furthermore, in the impugned order, Justice Gangopadhyay requested Chief Minister Mamata Banerjee and also Governor Jagdeep Dhankhar to remove minister Partha Chatterjee from the cabinet in order to make the 'system cleaner'.

12. SSC Recruitment Scam: Calcutta HC Orders Central Forces Deployment, Preservation Of CCTV Cameras At SSC's Office After Its Chief Steps Down

Case Title: Babita Sarkar v. The State of West Bengal & Ors

Case Citation: 2022 LiveLaw (Cal) 188

In an unprecedented move, Justice Abhijit Gangopadhyay of the Calcutta High Court on Wednesday night directed the Central Bureau of Investigation (CBI) which is probing the alleged irregularities in the recruitment of teachers in West Bengal government schools, to seek assistance of central forces in securing the State's School Service Commission office. The Court also directed that no one should enter the building till 1 pm on Thursday without the leave of the Court and ensure that the CCTV footage of the office is available by Thursday noon. Justice Abhijit Gangopadhyay conducted a special hearing of the case from 10:40 pm onwards on Wednesday night after the incumbent SSC Chairperson Siddhartha Majumdar resigned from his post, four months after taking charge. Following the news of the Chairperson's resignation, two counsels of the petitioners met Justice Gangopadhyay and apprised him that there existed an apprehension that crucial evidence could be tampered with in the wake of the new SSC chairperson taking charge. Pursuant to the submissions, the Court ordered preservation of CCTV footage and accordingly observed, "The Secretary of the School Service Commission is directed to produce the CCTV footage before me at 12.30 a.m. tomorrow. The Secretary is to preserve all the digital information and the database if not already destroyed." The Court further ordered the deployment of Central Reserve Police Force in the office of the School Service Commission and also ordered that nobody should be permitted to enter the building till 1:00 pm on Thursday without the Court's leave. "As the matter is in the hand of the CBI and as CBI has been granted liberty to take help of the Central Reserve Police Force, I direct the petitioner to intimate CBI to take up the matter with Central Reserve Police Force immediately so that CRPF personnel can be deployed to protect the building being Acharya Sadan, Salt Lake and the CRPF personnel shall not allow anybody to enter into the said building till 1.00 p.m. tomorrow without leave of the Court. No employees including officers and no other persons shall be allowed to enter the said West Bengal School Service Commission at 11 & 11/1, Block EE, Acharya Sadan, Salt Lake City, Kolkata – 700091. The learned advocate of the petitioner is granted liberty to communicate, this order to CBI immediately so that Police Force is deployed by the CRPF forthwith by 2 (two) hours from the communication to CBI", the Court underscored.

13. No Direction Can Be Passed To Sell Property To Third Party In Section 9 Petition Of The A&C Act: Calcutta High Court

Case Title: Aditya Birla Finance Ltd v. Mcleod Russel India Ltd. and Ors, AP/254/2022

Case Citation: 2022 LiveLaw (Cal) 189

The High Court of Calcutta has held that no direction can be passed to sell property to third party in Section 9 petition of the A&C Act. The Single Bench of Justice Moushumi Bhattacharya has held that a direction to sell the subject property to an outsider who was not a party to the arbitral proceedings would result in the property going out of the girdle of the arbitration and the purpose of a Section 9 application itself would be defeated. The Court further held that a party should not resort to the remedy under Section 9 to enforce a part of the award when it has a clean and unobstructed path for enforcing the award under Section 36 of the Act. The Court observed that the object of interim protection under Section 9 of the A&C Act is the preservation of the subject matter of the arbitration. The interim relief is granted to prevent the subject matter from being wasted or dissipated to ensure the execution of the award. Therefore, the relief can only be in aid of the arbitration. A relief that would take the subject matter out of the girdle of arbitration cannot be granted by the court exercising power under Section 9 of the A&C Act. The Court held that the relief claimed by the petitioner to direct the respondent to tender the subject shares for acquisition by a third-party would result in the subject shares getting out of the girdle of the arbitration and the proposed sale would be an antithesis to the object of the interim protection of the Act.

14. 'Only For Ministerial Job': Calcutta HC Dismisses State's Challenge To NHRC Panel Despite Court-Appointed Committee For Post-Poll Violence Victims

Case Title: Priyanka Tibrewal v. State of West Bengal and Ors

Case Citation: 2022 LiveLaw (Cal) 190

The Calcutta High Court observed that the National Human Rights Commission (NHRC) has not violated an earlier order of the Court for constitution of a three member committee to look into the complaints of displaced post-poll violence victims in West Bengal by constituting a team of 11 officers to assist in ministerial work. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj had earlier sought response from the NHRC on a plea moved by the State government against the constitution of a team of 11 members by the NHRC which is contrary to the Court's order. The Court noted, "The affidavit in opposition clearly states that supporting staff of 11 officials from NHRC is for ministerial purpose and that the Committee has not delegated its essential function to inquiry to the supporting staff. The supporting staff is only for the purpose of ministerial job so as to ensure that there is no repetition of complaints, taking note of the complaints received from the complainants, verifying documents such as identity cards etc., taking photographs of damaged houses and also videography of the statement made by the complainants and to work as translator etc". Accordingly, the Court dismissed the State government's plea by observing, "In the above circumstances, we do not find that the Committee is acting beyond the order of this Court. Since, an apprehension has been expressed by the State, therefore, we make it clear that though the Committee can taken the assistance of the supporting staff for ministerial work but the essential work of inquiry into the right of the displaced persons for rehabilitation etc. will not be delegated by the Committee constituted by this Court in other person or any group of persons."

15. Technical Issues In Income Tax Portal: Calcutta High Court Gives Fresh Opportunity To Assessee

Case Title: Bhadrish Jayantilal Sheth Versus Income Tax Officer

Case Citation: 2022 LiveLaw (Cal) 191

The Calcutta High Court bench of Justice Md. Nizamuddin has directed the assessing officer to do a new assessment proceedings as taxpayers could not furnish answers to the notice due to the technical glitches in the income tax portal. The petitioner/assessee has challenged the assessment order on the ground of violation of the principle of natural justice by not providing the petitioner an opportunity to file a reply to the show-cause-notice. By the show cause notice, the petitioner was asked to give his reply to the proposed draft assessment through the Department's registered e-filing account by 23:17:59 hours IST on March 30th, 2022. The assessing officer passed the assessment order on March 30th, 2022 at 15:17:08 IST. The court remanded the case back to the Assessing Officer to pass a fresh assessment order in accordance with the law after giving an opportunity to the petitioner to file a reply to the aforesaid show-cause-notice. The court directed the petitioner to file the reply within seven days from the date and directed the respondents to pass a reasoned and speaking order by observing the principles of natural justice.

16. 'Fundamental Right Under Article 21': Calcutta High Court Orders State Govt To Pay Dearness Allowance To Its Employees Within 3 Months

Case Title: State of West Bengal v. Consideration of State Government Employee

Case Citation: 2022 LiveLaw (Cal) 192

In a significant development, the Calcutta High Court on Friday upheld an order of the West Bengal Administrative Tribunal and accordingly directed the State government to release the Dearness Allowance and Arrear Dearness Allowance to its employees as per the West Bengal Services (Revision of Pay and Allowance) Rules, 2009 ( ROPA Rules, 2009) within a period of 3 months. A Bench comprising Justice Harish Tandon and Justice Rabindranath Samanta ordered, "The petitioners are directed to release the Dearness Allowance and Arrear Dearness Allowance to its employees at the rate to be calculated on the basis of All India Consumer Price Index average 536(1982=100) commensurate with their pay as per the ROPA Rules, 2009 as directed by the Tribunal within three months from date." Opining further that the legal right to get Dearness Allowance as a way to sustain livelihood has been elevated as a fundamental right under Article 21 of the Constitution, the Court observed, "What we feel, apart from acquiring the enforceable legal right to get Dearness Allowance using the methodology of All India Consumer Price Index, such right of the employees to sustain their livelihood with human dignity has been fructified or elevated as fundamental right as enshrined in Article 21 of the Constitution. Such right available to Government Employees who are the main workforce behind the functioning of a Government in right direction cannot be denied by the State. As observed by the Pay Commission, we are of the same view that to pay respect to the statutory rights of the Government Employees to get D.A Allowances at the rate as above, the Government must generate all its resources."

17. Forced Religious Conversion In Bengal's Malda District: Calcutta High Court Orders CBI-NIA Probe

Case Title: Smt Kalabati Mondal v. Union of India

Case Citation: 2022 LiveLaw (Cal) 193

The Calcutta High Court ordered the Central Bureau of Investigation (CBI) and the National Investigation Authority (NIA) to probe an alleged case of forced conversion in West Bengal's Malda district. Justice Rajasekhar Mantha was adjudicating upon a plea moved by two women who had claimed that their husbands, brothers by relation and residents of Kaliachak area of the district, were converted from Hinduism to Islam by force as part of a punishment for working for a political party which lost the last assembly election. Accordingly, the Court sought inputs from the agencies with regard to allegations of forced conversions, cross-border infiltration, threats and intimidation by accumulation and storage of huge quantities of arms and ammunition, and counterfeit currency. "Since the NIA and the CBI are the party respondents to the instant proceeding, appropriate inputs may be given from their side as regards the allegations made in the writ petition", the Court directed. Furthermore, the Superintendent of Police (SP), Malda was also asked to cooperate with the two agencies.

18. Teacher Recruitment Scam: Calcutta HC Orders Police Commissioner To Be Present At Kolkata Airport Today Evening To Take WB Minister Paresh Adhikari Directly To CBI Office

Case Title: Babita Sarkar v. The State of West Bengal & Ors

Case Citation: 2022 LiveLaw (Cal) 194

The Calcutta High Court directed the Police Commissioner of Bidhannagar Police Commissionerate to be present at the Netaji Subhash Chandra Airport, Kolkata on Thursday evening so that Minister of State for School Education Paresh Chandra Adhikari can be directly taken from the airport to the CBI office at Nizam Palace in Kolkata for questioning over the alleged illegal appointment of his daughter as a teacher in a government-aided school. Justice Abhijit Gangopadhyay earlier in the day on Thursday had directed the Minister to appear before the CBI at 3pm today for questioning despite vehement opposition from the Minister's counsel on the ground that the Minister is currently at Cooch Bihar and thus would take time to appear before the office of the CBI. The counsel for the Minister apprised the Court that the Minister shall be unable to attend the CBI office at 3pm today since he was in Cooch Bihar and is now flying to Calcutta though a Spice Jet flight which is scheduled to reach Calcutta today in the evening at 18:30 hours. Accordingly, Justice Gangopadhyay directed the Police Commissioner of Bidhannagar Police Commissionerate to immediately get in touch with the airport authorities so that as soon as Adhikari comes out from the flight, he can be take by the police authorities to the CBI office at Nizam Palace directly. "If Mr. Adhiakri is not found in the said flight which will start from Bagdogra at 17:00 hours it will be treated as a hoax created to save himself from the Court and the CBI", Justice Gangopadhyay further warned.

19. 'Keep A Hawk's Eye': Calcutta HC Orders CBI To Guard Data Room Of SSC's Office To Prevent Evidence Tampering

Case Title: Babita Sarkar v. The State of West Bengal & Ors

Case Citation: 2022 LiveLaw (Cal) 195

The Calcutta High Court directed the Central Bureau of Investigation (CBI) which is probing the alleged irregularities in the recruitment of teachers in West Bengal government schools to take possession of the data room in the head office of the West Bengal School Service Commission (SCC) at Salt Lake, Kolkata and put in their own padlock in order to avoid any tampering of crucial evidence. Justice Gangopadhyay ordered the CBI to take possession of the data room at the head office by putting their own padlock and accordingly observed, "I hope and expect that CBI will be able to take over the possession and control of data room and will keep a hawk's eye on the said important room in the head office of the school service commission namely Acharya Sadan".The Secretary of the Commission was also instructed to go back to the head office and identify the date room to the concerned CBI officer and such a process of identification was directed to be completed by 6:30 pm on Thursday. The Court further observed that if the data room is to be opened for any purpose, the Commission shall have liberty to approach the Court by disclosing the purpose for such opening. The programmer officer of the Commission namely Parna Bose along with the Secretary of the Commission was also ordered to open the door of the data room and show the concerned CBI officers the computers and other machines that are kept by 7pm on Thursday evening in order to facilitate the process of securing the room. In the meantime, the Court ordered that the deployed CRPF will continue guarding the building of the Commission until tomorrow and shall not allow any person except the Chairman of the Commission, the Secretary, Assistant Secretary and not more than 2 stenographers to access the building.

20. Teacher Recruitment Scam: Calcutta HC Restrains WB Minister's Daughter From Continuing As Teacher Until Further Orders, Seeks Refund Of Salary

Case Title: Babita Sarkar v. The State of West Bengal & Ors

Case Citation: 2022 LiveLaw (Cal) 196

The Calcutta High Court on Friday ordered that the daughter of West Bengal minister of state for school education Paresh Chandra Adhikari should not be allowed to enter the concerned school premises until further orders and must also deposit the total salary received so far during her tenure as an assistant school teacher with the Registrar General of the High Court. The directions were issued while adjudicating upon a plea filed by an aggrieved candidate who had alleged that she had been deprived of the job despite having secured higher marks than the Minister's daughter in the recruitment examination. Coming down heavily on such an illegal appointment, Justice Abhijit Gangopadhyay ordered that the Minister's daughter namely Ankita Adhikari shall not be allowed to be treated as a teacher recommended by the West Bengal School Service Commission (SCC) and appointed by the West Bengal Board of Secondary Education until further orders passed by the Court. The Court further underscored that Adhikari or any other person on her behalf shall not be allowed to enter the concerned school premises and also restrained Adhikari from introducing herself as a teacher of the school recommended by the Commission until further orders. "If any such report comes to this Court that she has introduced herself as a teacher of the school, the Court will take appropriate steps against her", the Court warned further. Furthermore, the Court ordered Adhikari to deposit the total salary received by her till date during her tenure with the Registrar General of the High Court in two instalments. The first instalment was ordered to be paid by June 7, 2022 and the second instalment was ordered to be paid by July 7, 2022.

21. SSC Recruitment Scam: Calcutta HC Dismisses WB Minister Partha Chatterjee's Appeal Against Order For CBI Interrogation, Remarks On Removal Of Minister To Be Treated As 'Obiter'

Case Title: Partha Chatterjee v Laxmi Tunga

Case Citation: 2022 LiveLaw (Cal) 197

The Calcutta High Court on Friday dismissed an appeal moved by West Bengal Minister Partha Chatterjee challenging an order of a single Bench that had directed him to appear before the CBI in connection with the alleged irregularities in appointments of Group-C and Group-D posts (non-teaching staff) in the state government-run schools in West Bengal on the purported recommendation of the West Bengal School Service Commission (WBSSC). A Bench comprising Justice Ananda Kumar Mukherjee and Justice Subrata Talukdar observed that the issue of CBI investigation in these matters has already been discussed threadbare in a series of appeals and has been upheld previously by the Bench in its order dated May 18, 2022. Dismissing the appeal filed by the Minister, the Court on Friday observed, "First, the issues connected to the nature of the investigation have been already discussed threadbare by this Court in a series of appeals being MAT 490 of 2022 (Dr. Santi Prasad Sinha –Vs- Laxmi Tunga & Ors.) with other similar appeals by a common Judgment and Order of this Court dated 18th May, 2022. This Court therefore finds no reason to sit either in appeal or judicial review of its own Order dated 18th May, 2022 presented in the guise of a separate appeal. This appeal accordingly cannot be argued by the appellant on points already decided by the common and detailed Judgement and Order of this Court dated 18th May, 2022." During the proceedings, the counsel appearing for the Minister further sought expungement of Justice's Gangopadhyay observation in the order wherein he had requested Chief Minister Mamata Banerjee and also Governor Jagdeep Dhankhar to remove minister Partha Chatterjee from the cabinet in order to make the 'system cleaner'. Taking cognisance of the grievance raised, the Court ordered the observations of Justice Gangopadhyay in this regard to be treat as an 'obiter dicta' and accordingly ruled, "However, with regard to the expression of the expectation by the Hon'ble Single Bench in its Order dated 18th May, 2022, this Court holds the same to be an obiter and hence not binding at this stage."

22. 'Bangladeshi National': Calcutta HC Dismisses TMC Leader's Plea Against 2021 Assembly Election Result, Orders ECI To Take Action

Case Title: Alo Rani Sarkar v. Swapan Majumdar

Case Citation: 2022 LiveLaw (Cal) 198

The Calcutta High Court rejected the election petition of TMC leader Alorani Sarkar challenging the Bangaon Dakshin Assembly result in the 2021 Assembly elections on the ground that she has dual citizenship as her name also appears in the voters' list in neighbouring Bangladesh. The Court further directed the Election Commission of India for taking necessary action in respect of the Sarkar's status in this country and accordingly directed the Registrar General of the High Court to send a copy of the order to the Election Commission. Justice Bibek Chaudhuri observed, "In the instant case the petitioner admitted that she acquired citizenship of Bangladesh mistakenly. However, the name of the petitioner still exists in the Electoral Roll of Bangladesh. I am in agreement with the learned advocate for the respondent that the principle of 'Dual Citizenship' is not applicable in India. Therefore, the petitioner cannot claim to be a citizen of India when her name appeared in the Electoral Roll of Bangladesh. The relevant date is the date of filing nomination paper by the petitioner. It is admitted from the documents filed by the petitioner that on the date of filing of the nomination paper by her she was a Bangladeshi national." Directing the Election Commission to take action, the Court further observed, "In view of the peculiar facts and circumstances of this case, a copy of this order be sent to the Election Commission of India for information and taking necessary action in respect of the petitioner's status in this country as on this date, through the learned Registrar General, High Court, Calcutta."

23. 'Ragging Is Antithetical To Equality': Calcutta HC Orders University Students To Pay Medical Expenses Of Injured Students, Engage In Community Service

Case Title: Kaniska Roy & Anr v. The State of West Bengal & Ors

Case Citation: 2022 LiveLaw (Cal) 199

The Calcutta High Court directed students of a university who had been found to have engaged in ragging to pay for the medical treatment of the injured students and also participate in community service by teaching school students in a bid to deter the repetition of such acts. Justice Moushumi Bhattacharya came down heavily on the errant students by observing, "The petitioners have admittedly disturbed and disrupted the peaceful environment of the University. The petitioners and some others have acted like a bunch of philistines and conducted themselves in a manner which is directly contrary to what should be expected from a student. Ragging, in all its forms, is antithetical to equality and the dignity and self-respect of students, particularly when it takes on a physical and abusive form. It epitomises regressive behaviour with a perceived right to violate the bodily integrity of a fellow-student. There can be no possible excuse for acts of violence and vandalism in an academic institution." Directing the petitioners to engage in community service, the Court observed further, "The petitioners shall also do community service by teaching students in Sadaipur Prathamik Vidyalay and Subhasnagar FP School, Kokapur schools in Barasat, two days in a week for four hours each day for 12 weeks. The community service shall start from the 1st day of the last paper of 8th semester examination and continue for 12 weeks thereafter without interruption."

24. S.11 Arbitration Act | Interested Party Cannot Appoint An Arbitrator To Decide Disputes Between Parties: Calcutta HC

Case Title: New Eureka Travels Club v. South Bengal State Transport Corporation

Case Citation: 2022 LiveLaw (Cal) 200

The Calcutta High Court while adjudicating upon an application under Section 11 of the Arbitration and Conciliation Act, 1996 (Act) held that it a settled law that neither an interested party can be appointed as an arbitrator nor can the said interested party appoint an arbitrator to decide the disputes between the parties. Justice Shekhar B. Saraf observed, ".. a sole arbitrator is required to be appointed as per the parties and under such circumstances the law is very clear that it is the Court that is to decide the sole arbitrator. The persons that have been nominated by the respondent cannot be accepted and this Court without going into the merits of the persons so nominated, should appoint an independent sole arbitrator." Reliance was also placed on a host of Supreme Court judgments in TRF Limited v. Energo Engineering Projects Ltd, Perkins Eastman Architects v. HSCC (India) Limited and Central Organisation for Railways Electrification v. ECI-SPIC-SMO- MCML (JV) A Joint Venture Company to rule, "..it is clear that neither an interested party can be appointed as an arbitrator nor can the said interested party appoint an arbitrator to decide the disputes between the parties."

Important Developments

1. Moynaguri Sexual Assault: Calcutta HC Orders Inquiry Into Alleged Fabrication Of Signatures Of Seizure Witnesses, Grants Liberty To Change IO If Required

Case Title: Pallabi Chatterjee and Ors v. State of West Bengal and other connected matters

The Calcutta High Court on Tuesday directed IPS officer Amit P. Javalgi to enquire into allegations pertaining to fabrication of signatures of seizure witnesses pertaining to the Moynaguri sexual assault case and further granted liberty to him to change the concerned Investigating Officer if required in accordance with law. The directions were passed in a case of death by suicide by a class eight girl at Moynaguri, West Bengal following the commission of the offence of attempt to rape upon her. The minor victim girl who had set herself ablaze following a threat to withdraw a police complaint regarding a rape attempt on her, succumbed to her injuries in a state-run hospital on April 25. Consequently, a renewed prayer for a CBI probe had been made by the concerned petitioner. A Bench comprising Chief Justice Prakasha Shrivastava and Justice Rajarshi Bharadwaj opined that the truthfulness or falsity of the allegations pertaining to the seizure witnesses is the subject matter of trial. However, it was opined that since the allegations have come on record, the Court directed IPS officer Amit P. Javalgi to duly consider these allegations and ensure that the investigation is carried out in a fair manner.

2. WB Post-Poll Violence: State Alleges NHRC Constituted Own Panel Despite Court-Appointed Committee, Calcutta HC Seeks Commission's Response

Case Title: Priyanka Tibrewal v. State of West Bengal and Ors

The Calcutta High Court on Tuesday sought response from the National Human Rights Commission (NHRC) on the allegation levelled by the State government that contrary to the Court's earlier order for constitution of a 3 member committee to look into the complaints of displaced post-poll violence victims in West Bengal, the NHRC had constituted a team of 11 members. On Tuesday, Advocate General S.N Mookherjee appearing for the State government submitted before a Bench comprising Chief Justice Prakash Shrivastava and Justice Rajrashi Bharadwaj that although the Court vide order dated April 20, 2022, had formed a 3 member committee to enquire into the rights of displaced persons, however a communication received from the Under Secretary of the NHRC by the Chief Secretary of Government of West Bengal dated May 10, 2022, shows that a team of 11 members has been included by expanding the mandate of the committee constituted by the Court. On the contrary, the counsel appearing for the NHRC submitted that the committee constituted pursuant to the Court's order comprises of 3 members as directed and that the team of 11 officers has been formed for carrying out ministerial work as a large number of complaints have been received so far by the committee. The Court was further apprised that the Court constituted 3 member committee had itself taken such a decision to have a team of 11 officers to aid in the ministerial work as is evident from the minutes of the meeting held on May 11, 2022. Pursuant to the rival submissions, the Court ordered the counsel appearing for the NHRC to file a reply to the application filed by the State government regarding the aforementioned allegations by tomorrow i.e. May 18.

3. Public Buses Plying Without Valid Registration, Fitness Certificate: Calcutta High Court Seeks State's Response

Case Title: Anindya Sundar Das v. State of West Bengal

The Calcutta High Court on Tuesday sought response from the State government on a Public Interest Litigation (PIL) petition alleging that State-owned public transport buses are being allowed to ply without proper documentation such as certificate of registration, certificate of fitness, insurance policy and others. The PIL filed by petitioner Anindya Sundar Das had made a reference to a recent incident wherein after a bus owned by the South Bengal State Transport Corporation met a disastrous fate on May 2 at Kanaidanga crossing in Memari on the NH-19 highway. The speeding bus fell into a ditch after hitting the railing of a bridge injuring seven passengers. The bus bearing registration number WB – 39B/4590 was plying on Karunamoyee (Kolkata) – Asansol route. Taking cognisance of the grievance raised, a Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj directed the respondent authorities to file an affidavit-in-opposition within a period of 4 weeks. Furthermore, the exception to the affidavit-in-opposition was ordered to be filed within 2 weeks thereafter. https://www.livelaw.in/news-updates/pil-filed-in-calcutta-hc-on-state-owned-public-transport-buses-plying-without-valid-registration-fitness-certificate-198579

4. Appear In Person Only To Advance Oral Arguments: Calcutta High Court Tells LeT Terrorist On Death Row Who Will Argue Appeal In Person

The Calcutta High Court on Tuesday while adjudicating upon a plea moved by a Lashkar-e-Taiba (LeT) terrorist to argue in person his appeal against the order of conviction and death sentence imposed upon him, directed that he should ordinarily access Court proceedings through video linkage from the correctional home and appear in person before the Court only on dates that he wishes to advance oral arguments. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi on the last date of hearing had ordered that the convict should be kept in Presidency Correctional Home in Kolkata during the hearing of the appeal. Furthermore, the Bench had requested the Member Secretary, State Legal Services Authority to provide the services of a junior empanelled lawyer to interact with him for filing pleadings and advancing arguments in the matter. Directing that the convict should ordinarily appear through before the Court through video proceedings, the Court observed, "It is made clear Sk. Abdul Nayeem will ordinarily access the proceedings through video linkage from the correctional home where he is presently kept. Only on those dates Sk. Abdul Nayeem advances oral arguments, he shall be produced physically before this court under proper security arrangements."

5. Namkhana Rape Case: Calcutta HC Seeks Status Report, Orders Enquiry Into Allegations Of Procedural Irregularities In Probe

Case Title: Pallabi Chatterjee and Ors v. State of West Bengal and other connected matters

The Calcutta High Court on Tuesday ordered IPS officer Damayanti Sen to submit a status report on the next date of hearing pertaining to the probe into the Namkhana rape case wherein a 40-year-old woman was reportedly gang-raped on April 8 by five men in West Bengal's Namkhana village and an attempt had also been made to pour kerosene inside the victim's private parts and set her ablaze. On Tuesday, the counsel appearing for the petitioner apprised the Court that the investigating authorities had not complied with the requirements enumerated under Section 164A CrPC (medical examination of victim of rape) and further submitted that although the undergarments, saree, blouse and ornaments of the victim had been seized no further step has been taken by the investigating authorities. It was further alleged that the seized blood stained garments of the rape victim had not been sent for a chemical examination. A Bench comprising Chief Justice Prakasha Shrivastava and Justice Rajarshi Bharadwaj directed IPS officer Damayanti Sen to look into the allegations and ensure that the investigation is carried out by covering all relevant aspects which need to enquired into in such offences. She was further ordered to submit a report detailing the progress of the investigation on the next date of hearing. The matter is slated to be heard next on June 20.

6. Mother Of Dead BJP Youth Wing Leader Seeks CBI Probe: Calcutta High Court Issues Notice, Directs State To Submit CFSL Report

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

The Calcutta High Court on Thursday directed the State government to apprise the Court about the findings of the report of the Central Forensic Science Laboratory (CFSL), Kolkata on the next date of hearing 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. On Thursday, advocate Priyanka Tibrewal appearing for the petitioner submitted that the viscera report is necessary to ascertain the nature of the crime and determine the case of death. Furthermore, Advocate General S.N Mookherjee appearing for the State apprised the Court that on May 13, the viscera sample had been received by the investigating agencies from the Command Hospital, Kolkata which was subsequently handed over to CFSL, Kolkata for the conduct of an analysis.Accordingly, the Court directed the Advocate General to apprise the Court about the report of the CFSL, Kolkata pertaining to the viscera sample on the next date of hearing which is slated to take place on June 14. Furthermore, an intervening application filed by the mother of the deceased seeking inter-alia a CBI probe into the case was also mentioned before the Bench on Thursday. Thus, the Bench directed the State government to file a response to the intervening application if required before the next date of hearing.

7. Calcutta High Court Modifies Order Sealing SSC Office, Permits Chairman, Officials & Stenographers To Enter Premises

Case Title: Babita Sarkar v. The State of West Bengal & Ors

The Calcutta High Court on Thursday modified its earlier order for sealing of the office of the State's School Service Commission till 1pm on Thursday by granting liberty to the Chairman, Advisor to the Chairman, Assistant Secretary and stenographers of the Commission to enter the office without any hinderance caused by the central forces deployed there. Justice Abhijit Gangopadhyay in an unprecedented move had directed the Central Bureau of Investigation (CBI) which is probing the alleged irregularities in the recruitment of teachers in West Bengal government schools, to seek assistance of central forces in securing the State's School Service Commission office. On Thursday morning, Justice Gangopadhyay opined that he is modifying his earlier order in the 'interest of justice' by permitting the Chairman of the Commission, Advisor to the Chairman, Assistant Secretary and stenographers of the Commission to enter the office without any obstruction. The Court however underscored that nobody apart from the aforementioned officials should be allowed the enter the office premises till 1pm without the leave of the Court.

8. SSC Recruitment Scam: Justices Harish Tandon & Rabindranath Samanta Recuse From Hearing State's Appeal Against Deployment Of CRPF In SSC Office

A Division Bench of the Calcutta High Court on Thursday recused from hearing an appeal preferred by the State government against a Single Bench order directing the Central Bureau of Investigation (CBI) to take assistance of central forces to secure the West Bengal School Service Commission (SCC) building in Kolkata over claims of evidence tampering pertaining to the case of alleged illegal recruitments in West Bengal government schools. Justice Abhijit Gangopadhyay had passed the impugned order by conducting a special hearing of the case from 10:40 pm onwards on Wednesday night after the incumbent SSC Chairperson Siddhartha Majumdar resigned from his post, four months after taking charge. Following the news of the Chairperson's resignation, two counsels of the petitioners had met Justice Gangopadhyay on Wednesday night and had apprised him that there existed an apprehension that crucial evidence could be tampered with in the wake of the new SSC chairperson taking charge. Accordingly, the Judge had ordered for the preservation of CCTV footage and had further observed, "The Secretary of the School Service Commission is directed to produce the CCTV footage before me at 12.30 a.m. tomorrow. The Secretary is to preserve all the digital information and the database if not already destroyed." He had further directed that no one should enter the building till 1 pm on Thursday without the leave of the Court and ensure that the CCTV footage of the office is available by Thursday noon. On Thursday, a Division Bench of Justice Harish Tandon and Justice Rabindranath Samanta recused from hearing the appeals filed preferred from Justice Gangopadhyay's order on personal ground.

9. Teacher Recruitment Scam: Calcutta HC Directs WB Minister Paresh Adhikari To Appear Before CBI At 3PM Over Alleged Illegal Appointment Of Daughter

Case Title: Babita Sarkar v. The State of West Bengal & Ors.

The Calcutta High Court on Thursday directed Minister of State for School Education Paresh Chandra Adhikari to appear before the Central Bureau of Investigation (CBI) by 3pm today over the alleged appointment of his daughter as a teacher in a government-aided school. The direction was issued on a petition by a candidate who had alleged that she was deprived of the job despite having secured higher marks than the minister's daughter in the recruitment examination. Justice Abhijit Gangopadhyay issued the direction despite vehement opposition from the Minister's counsel on the ground that the Minister is currently at Cooch Bihar and thus would take time to appear before the CBI office in Kolkata by 3pm today. "The minister is very powerful why he cannot come?", Justice Gangopadhyay orally remarked during the proceedings. Accordingly, on Thursday, Justice Gangopadhyay observed that it was granting one last opportunity to the Minister to appear before the CBI by 3pm today. "At 3pm he has to present himself before the CBI, if he fails, I will pass other order", Justice Gangopadhyay orally remarked further while addressing the Minister's counsel.

10. Calcutta High Court Seeks Report From Police Superintendent On BJP MLA Suvendu Adhikari's Plea Alleging Illegal Search Operation At His Office

Case Title: Suvendu Adhikari v. The State of West Bengal & Ors.

The Calcutta High Court on Thursday directed the Superintendent of Police, Purba Medinipur to file a report on the alleged search conducted by police authorities at the office of BJP MLA and Leader of Opposition of West Bengal Suvendu Adhikari last Sunday. Adhikari had contended that a police team had raided his office situated in Nandigram in West Bengal's Purba Medinipur district, allegedly without any prior intimation and without a search warrant. This had prompted West Bengal Governor Jagdeep Dhankhar to seek an urgent report from the state chief secretary H K Dwivedi over an "attack by the police" on the BJP MLA's office. The counsel appearing for Adhikari submitted before Justice Rajasekhar Mantha on Thursday that a huge contingent of police personnel numbering about 100 odd had forcibly entered into the petitioner's premises under the guise of search and seizure. It was further contended that despite repeated requests, the leader of the search party had not indicated as to the case under which the petitioner's house was being searched and the purpose thereof. Pursuant to the submissions, the Court ordered, "This Court directs the Superintendent of Police, Purba Medinipur to file a report indicating the circumstances under which the petitioner's house was raided on 15th May 2022 at 04:15 pm. The report of the Superintendent of Police, Purba Medinipur should indicate the entire chain of events and facts and circumstances relating to the raid." Justice Mantha further ordered that the Court's leave should be sought if the police authorities require the participation of Adhikari in any form pertaining to the criminal case in the future.

Chhattisgarh High Court

1. Mere Association With Terrorist Organisation Not Offence Under UAPA: Chhattisgarh HC Grants Bail For Alleged Payment Of Extortion Money To Banned Outfit

Case Title: Shailendra Bhadouriya & Anr v. the State of Chhattisgarh

Citation: 2022 LiveLaw (Chh) 46

Granting bail to two accused under Unlawful Activities Prevention Act, 1967, the Chhattisgarh High Court recently reiterated that mere association with a terrorist organization as a member or otherwise would not be sufficient to attract the offence under Section 38 unless the association intends to further its activities.

A Division Bench of Justices Sanjay Agrawal and Rajani Dubey made the observation while considering the pleas of two persons accused of paying extortion money to banned outfits for undertaking road construction work.

2. High Court Can't Terminate Services Of District Judge Or Impose Any Punishment Of Reduction In Rank Under Article 235: Chhattisgarh HC

Case Title: Ganesh Ram Berman v. High Court of Chhattisgarh & Anr.

Citation: 2022 LiveLaw (Chh) 47

The Chhattisgarh High Court has recently held that under Article 235 of the Constitution of India, which provides control to the High Courts over subordinate courts, the former cannot terminate the services of a District Judge or impose any punishment of reduction in rank.

This power belongs to the Governor being the appointing authority under Article 311(1) of the Constitution. However, the word "control" in the Article gives the High Court power to make inquiries and disciplinary control and recommend imposition of such punishment.

3. 'Extremely Unfortunate': Chhattisgarh High Court Orders Forthwith Release Of 3 Accused From ST Community Incarcerated Since 6 Yrs Despite Bail

Case Title: Bhawan Singh & Ors v. the State of Chhattisgarh

Citation: 2022 LiveLaw (Chh) 48

Observing that it is an "extremely unfortunate case", the Chhattisgarh High Court recently ordered the release of three accused belonging to the Scheduled Tribe community who had been in jail for 6 years, even after grant of bail in April 2016.

A Division Bench of Justices Sanjay K. Agrawal and Rajanai Dubey noted that the incarceration continued due to their inability to furnish bail bonds on the ground of their poverty. Thus, the Court ordered that the accused be released on their executing only personal bond of Rs.5,000/-.

Delhi High Court

NOMINAL INDEX

Citations 2022 LiveLaw (Del) 450 TO 2022 LiveLaw (Del) 482

Case Title: ASHISH v. CENTRAL BUREAU OF INVESTIGATION 2022 LiveLaw (Del) 450

Case Title: DR VIMLA MENON AND ANOTHER v. GOPINATH MENON 2022 LiveLaw (Del) 451

Case Title: RASHI MISRA v. B KALYANA RAMAN 2022 LiveLaw (Del) 452

Case Title: National Highway Authority of India versus MEP Chennai Bypass Toll Road Pvt. Ltd. & Anr. 2022 LiveLaw (Del) 453

Case Title: Haryana Vidyut Prasaran Nigam Ltd. (HVPNL) v. Cobra Instalaciones Y Services Sa and Shyam Indus Power Solution Pvt. Ltd. JV 2022 LiveLaw (Del) 454

Case Title: Rahul Biala Vs ITO 2022 LiveLaw (Del) 455

Case title - M. Nageswara Rao v. Union of India and Anr. 2022 LiveLaw (Del) 456

Case Title: PHONOGRAPHIC PERFORMANCE LIMITED v. LOOKPART EXHIBITIONS AND EVENTS PRIVATE LIMITED 2022 LiveLaw (Del) 457

Case Title: Parashar Narayan Sharma v. Union of India 2022 LiveLaw (Del) 458

Case Title: SINGH & SINGH LAW FIRM L.L.P & ANR. v. SINGH & SINGH LAW, PLLC & ORS. 2022 LiveLaw (Del) 459

Case Title: SUDESH CHHIKARA v. DR. NAVEEN AGGARWAL AND ORS. 2022 LiveLaw (Del) 460

Case Title: BURGER KING CORPORATION v. SWAPNIL PATIL & ORS. 2022 LiveLaw (Del) 461

Case Title: KEI INDUSTRIES LIMITED v. MR. RAMAN KWATRA & ANR. 2022 LiveLaw (Del) 462

Case Title: N.D. TYAGI v. POWER FINANCE CORPORATION LTD. & ORS. 2022 LiveLaw (Del) 463

Case Title: SALONI YADAV & ORS. versus UNION OF INDIA AND ORS 2022 LiveLaw (Del) 464

Case Title : KERZNER INTERNATIONAL LIMITED v VIKAS AGGARWAL & ORS. 2022 LiveLaw (Del) 465

Case Title: APARNA BHAT v. SAKSHI SINGH & ORS 2022 LiveLaw (Del) 466

Case Title: Seven Seas Hospitality Private Limited Versus PCIT 2022 LiveLaw (Del) 467

Case Title: SDB Infrastructure Pvt. Ltd. Versus Ministry of Finance 2022 LiveLaw (Del) 468

Case Title: BHARAT PETRORESOURCES LIMITED v. JSW ISPAT SPECIAL PRODUCTS LIMITED 2022 LiveLaw (Del) 469

Case Title: HARSH SEHGAL v. STATE & ANR 2022 LiveLaw (Del) 470

Case Title: SANDEEP SINGH v. STATE OF NCT OF DELHI & ANR. 2022 LiveLaw (Del) 471

Case Title: DELHI SARKARI RATION DEALERS SANGH DELHI v. COMMISSIONER FOOD AND SUPPLIES GOVT OF NCT OF DELHI & ORS. 2022 LiveLaw (Del) 472

Case Title: NEERAJ SHARMA v. VINAY SHEEL SAXENA & ORS. 2022 LiveLaw (Del) 473

Case Title: SAURABH AGARWAL v. STATE OF GOVERNMENT OF NCT OF DELHI & ORS. 2022 LiveLaw (Del) 474

Case Title: Divya Capital One Private Limited Vs. ACIT 2022 LiveLaw (Del) 475

Case Title: M/S BHARAT INVESTMENT CORPORATION v. SMT. SANJANA SAINI 2022 LiveLaw (Del) 476

Case Title: Indus Tower Ltd. Versus ITO 2022 LiveLaw (Del) 477

Case Title: People for Better Treatment v. National Medical Commission 2022 LiveLaw (Del) 478

Case Title: Intercontinental Consultants v. Ministry of Road & Ors. 2022 LiveLaw (Del) 479

Case Title: CABLE NEWS NETWORK INC v. MR FAYYAZ SHAIKH & ANR. 2022 LiveLaw (Del) 480

Case Title: Omkar Nath Versus National Faceless Assessment Centre 2022 LiveLaw (Del) 481

Case Title: RAJESH GUPTA v. RAM AVTAR, O.M.P. (COMM) 121/2020 2022 LiveLaw (Del) 482

1. Initiation Of Proclamation/ Attachment Process Against Accused Not Bar To Consider His Anticipatory Bail Plea: Delhi High Court

Case Title: ASHISH v. CENTRAL BUREAU OF INVESTIGATION

Citation: 2022 LiveLaw (Del) 450

The Delhi High Court has observed that merely because the Central Bureau of Investigation (CBI) has initiated the process of proclamation or attachment proceedings under sec. 82 or 83 of Cr.PC despite the pendency of the anticipatory bail application before High Court, the same does not bar the consideration of such an application.

Section 82 contemplates procedure for issuing proclamation against a person absconding. Section 83 talks about attachment of property of person absconding.

Justice Anoop Kumar Mendiratta was dealing with an anticipatory bail application in an FIR registered under sec. 420, 467, 120B of IPC read with sec. 66D of the IT Act.

2. Order X CPC | Oral Examination Of Any Party To Suit Regarding Controversy Involved Therein Is A Matter Of Discretion: Delhi High Court

Case Title: DR VIMLA MENON AND ANOTHER v. GOPINATH MENON

Citation: 2022 LiveLaw (Del) 451

The Delhi High Court has observed that under Order X of the Code of Civil Procedure, the question of whether any of the parties to the suit is required to be orally examined on any aspect relevant to the controversy is a matter of discretion.

Order X of the Code provides for the examination of parties by the Court.

Justice C Hari Shankar observed thus:

"A bare reading of Order X of the CPC makes it apparent that the question of whether any of the parties to the suit is required to be orally examined on any aspect relevant to the controversy is essentially a matter of discretion. Where a court feels that, in order to elucidate matters in controversy in the suit, oral examination of one or more of the parties to the suit is necessary, the court is empowered to so order."

3. Order XVA CPC | Mere Default In Payment Of Rent On Court's Direction Doesn't Justify Striking Off Defence Of Defaulting Tenant: Delhi High Court

Case Title: RASHI MISRA v. B KALYANA RAMAN

Citation: 2022 LiveLaw (Del) 452

The Delhi High Court has observed that mere default in payment of rent as directed by the Court under Order XVA(1) of Code of Civil Procedure cannot, ipso facto, justify passing of an order striking off the defence of the defaulting tenant.

Justice C Hari Shankar was dealing with a plea challenging an order dated 07th December, 2019, passed in a civil suit by the Trial Court in which the petitioner was the defendant and the respondent was the plaintiff.

The impugned order adjudicated three applications preferred by the petitioner as the defendant under Order VII Rule 11 and sec. 151 of the Code of Civil Procedure and under sec. 340 of the Code of Criminal Procedure. Additionally, the impugned order struck off the defence of the petitioner, purportedly in exercise of jurisdiction under the proviso to Order XV-A(1) of the CPC.

4. Challenge By NHAI On Fee Fixation By Arbitral Tribunal, Delhi High Court Holds That Tribunal Can Fix Its Fees

Case Title: National Highway Authority of India versus MEP Chennai Bypass Toll Road Pvt. Ltd. & Anr.

Citation: 2022 LiveLaw (Del) 453

The Delhi High Court has ruled that the Arbitral Tribunal is permitted to fix its fee, if its appointment is made by way of an ad hoc agreement between the parties.

The Single Bench of Justice Sanjeev Narula held that where the Arbitral Tribunal has accepted its appointment outside the mandate of the International Centre for Alternative Dispute Resolution (ICADR), it is entitled to determine its fee and is not bound by ICADR Rules. The Court upheld the order of the Arbitral Tribunal fixing the arbitral fee separately for the claims and the counter-claims. The Court added that the Arbitral Tribunal's observations that the arbitral fee is to be determined in terms of the Fourth Schedule of the Arbitration and Conciliation Act, 1996 (A&C Act), does not mean that the fee has to be charged cumulatively on the claims and counter-claims.

5. Deferment Charges On Liquidated Damages, No Liability To Pay When Liquidated Damages Itself Not Payable : Delhi High Court

Case Title: Haryana Vidyut Prasaran Nigam Ltd. (HVPNL) v. Cobra Instalaciones Y Services Sa and Shyam Indus Power Solution Pvt. Ltd. JV

Citation: 2022 LiveLaw (Del) 454

The High Court of Delhi has held that there would be no question of recovery of deferment charges on the liquidated damages when the liquidated damages are themselves not payable.

The Single Bench of Justice Vibhu Bakhru has held that deferment charges cannot be treated as separate charges payable irrespective of whether the liquidated damages are payable or not.

The Court held that these would only be payable when the liquidated damages are held to be payable.

6. Time Of 8 Hours To File Reply To Show Cause Notice, Not Reasonable: Delhi High Court

Case Title: Rahul Biala Vs ITO

Citation: 2022 LiveLaw (Del) 455

The Delhi High Court bench of Justice Manmohan and Justice Dinesh Kumar Sharma has held that the time of eight hours to file a reply to the show cause notice was neither reasonable nor effective. The assessee could not have provided relevant information and documents to establish his case in such a short period of time.

The petitioner/assessee submitted that the reasonable time was not given to file a reply to the show cause notice, which was issued only on March 30th, 2022 at 16:21 p.m., effectively giving the petitioner only eight hours' time to file a reply to the show cause notice.

7. Delhi High Court Dismisses With Cost Plea Filed By Former CBI Head M Nageswara Rao Against Removal Of His Twitter Verification Tag

Case title - M. Nageswara Rao v. Union of India and Anr.

Citation: 2022 LiveLaw (Del) 456

The Delhi High Court on Tuesday dismissed with a cost of Rs. 25,000 the plea filed by former Central Bureau of Investigation head and Retired IPS Officer M. Nageswara Rao against the decision of microblogging website Twitter to remove his verification tag, also known as blue tick from his account.

Justice Yashwant Varma was of the view that a similar plea with identical prayers was disposed of by the Court vide order dated April 7, 2022, by giving liberty to Rao to reapply for verification.

Consequently, Rao had, in compliance of the said order, reapplied for the Verification Tag last month. However, Rao was aggrieved about the fact that Twitter had not re-instated the Verification Tag attached to his twitter handle till date.

8. Delhi High Court Appoints Expert To Assist On Fair Use Of Sound Recordings In Marriage Ceremonies U/S 52(1)(za) Of Copyright Act

Case Title: PHONOGRAPHIC PERFORMANCE LIMITED v. LOOKPART EXHIBITIONS AND EVENTS PRIVATE LIMITED

Citation: 2022 LiveLaw (Del) 457

The Delhi High Court has appointed Dr. Arul George Scaria as an expert to assist it in the interpretation of sec. 52(1)(za) of the Copyright Act, 1957 to the extent of fair use and fair dealing of sound recordings in marriage ceremonies and weddings.

Dr. Scaria is the Associate Professor of Law and Co-Director, Centre for Innovation, IP and Competition at National law University, Delhi.

Justice Pratibha M Singh was of the view that the issue raised would have large scale implications for artists such as lyricists, music composers, singers, sound recording producers and owners on the one hand as also, for entities involved in the organisation and management of weddings and other social events.

9. 'No Different From Offering Freebies': Delhi HC Dismisses Challenge To Practice Of Political Parties Promising "Cash Benefits" In Election Manifestos

Case Title: Parashar Narayan Sharma v. Union of India

Citation: 2022 LiveLaw (Del) 458

The Delhi High Court has dismissed a PIL challenging the alleged practice of political parties offering cash benefits in lieu of votes during elections.

A Division Bench comprising Acting Chief Justice Vipin Sanghi and Justice Navin Chawla was of the view that the issue has already been considered by the Supreme Court in S. Subramaniam Balaji v. State of Tamil Nadu, and the present case is no different.

In Subramaniam Balaji (supra), the issue of political parties promising freebies to voters if elected to powers was raised. In the said judgement, the Top Court had directed the Election Commission to frame guidelines, in consultation with all the recognized political parties, that directly govern the contents of the election manifesto.

10. 'Will Confuse Clients': Delhi High Court Grants Ad Interim Ex-Parte Injunction In Favour Of Law Firm Against Use Of Deceptively Similar Mark

Case Title: SINGH & SINGH LAW FIRM L.L.P & ANR. v. SINGH & SINGH LAW, PLLC & ORS.

Citation: 2022 LiveLaw (Del) 459

Delhi High Court recently granted ad-interim ex-parte injunction in favour of "Singh and Singh Law Firm LLP" against a company namely Singh and Singh Law, PLLC and two others, on grounds that the names are deceptively similar and can cause a confusion in the minds of clients in India and abroad.

Present suit was instituted by the Plaintiffs, aggrieved by the use of the name "Singh & Singh", "Singh & Singh Law", "Singh & Singh Law, PLLC" and other derivatives, by Defendants No. 1 to 3.

11. Court Exercising Contempt Jurisdiction Is Meant To Uphold Majesty Of Law, Can't Sit In Appeal Of Orders Passed By Lower Courts: Delhi High Court

Case Title: SUDESH CHHIKARA v. DR. NAVEEN AGGARWAL AND ORS.

Citation: 2022 LiveLaw (Del) 460

The Delhi High Court has observed that a Court exercising contempt jurisdiction is meant to uphold the majesty of law and that it cannot sit in appeal of the Orders passed by the lower Courts and Tribunals.

Justice Subramonium Prasad added that the contempt jurisdiction is invoked to ensure that public respect and confidence in the judicial process remains impaired.

"This jurisdiction is sui generis and allows the Court to exercise such power to punish a person who is guilty of contempt for the sole purpose of preventing non-adherence of the rule of law. In order to exercise such jurisdiction, the Courts must act judicially, and must not be hypersensitive. Once the essentials for initiation of contempt proceedings are satisfied, the Court must proceed with the contempt so as to uphold the majesty of law," the Court added.

12. Delhi High Court Grants Ex-Parte Ad Interim Injunction In Favour Of Burger King In Trademark Infringement Suit

Case Title: BURGER KING CORPORATION v. SWAPNIL PATIL & ORS.

Citation: 2022 LiveLaw (Del) 461

The Delhi High Court has recently granted ex parte ad interim injunction in favour of 'BURGER KING' in the trademark infringement suit filed by it against the defendants alleging that they were misusing, its registered trademarks and also engaging in registering infringing domain names incorporating the trademark 'BURGER KING' and operating fake websites without its permission and authorisation.

Justice Jyoti Singh thus restrained the defendants from advertising, offering any goods or services, using or registering corporate names, domain names or pages bearing the trademarks BURGER KING, BK or any mark deceptively similar to the Plaintiff's trademarks.

The Court also directed disclosure of the WHOIS details with respect to the domain names www.burgerkingfranchises.co.in and www.burgerkingfranchises.in and blocking access to the same.

13. Injunction Has To Follow Where Trademark Infringement Is Established, Concurrent & Honest Use No Defence: Delhi High Court

Case Title: KEI INDUSTRIES LIMITED v. MR. RAMAN KWATRA & ANR.

Citation: 2022 LiveLaw (Del) 462

The Delhi High Court has observed that where a case of infringement is made out, an injunction has to necessarily follow and that it is no defence to the defendant to urge that the user of the allegedly infringing mark was honest and concurrent.

Justice C Hari Shankar, who found a prima facie case in favour of Kei Industries Limited for an interlocutory injunction, thus restrained the defendants, or anyone acting for their behalf from using the impugned mark 'KEI' in relation to any electrical goods or instruments, including electrical fans, room coolers, geysers, electric heating apparatus etc., pending disposal of the suit.

14. Mere Expiry Of Employee's Deputation Period Does Not Divest Disciplinary Authority From Initiating Enquiry For Misconduct: Delhi High Court

Case Title: N.D. TYAGI v. POWER FINANCE CORPORATION LTD. & ORS.

Citation: 2022 LiveLaw (Del) 463

The Delhi High Court has observed that merely because the period of deputation of an employee may have come to an end, it would not divest the Disciplinary Authority of the company, Power Finance Corporation Limited (PFCL) in the present matter, from initiating an enquiry.

Justice Yashwant Varma dismissed a petition filed by a man, employed as an Executive Director in the Power Finance Corporation Limited, challenging a chargesheet wherein he was proposed to be proceeded against in disciplinary action in accordance with the provisions made in Rules 28 and 30 of the Power Finance Corporation Limited (Conduct Discipline and Appeal) Rules.

15. NEET-UG Mandatory For Admissions To BSc In Military Nursing Service: Delhi High Court Dismisses Plea Challenging NTA Notification

Case Title: SALONI YADAV & ORS. versus UNION OF INDIA AND ORS

Citation: 2022 LiveLaw (Del) 464

The Delhi High Court recently dismissed a plea filed by aspirants seeking admission in Military Nursing Service courses, challenging the notification issued by the National Testing Agency that made clearing of NEET-UG examination a prerequisite.

Justice Rekha Palli dismissed the contention that the exam pattern was changed last minute on account of the extension granted by the NTA to apply for the NEET-UG exam and that candidates will get more than two months' time to prepare and appear in the exam.

16. 'Atlantis Resorts Enjoy Enormous Global Reputation': Delhi High Court Grants Interim Injunction Against Use Of Infringing Marks

Case Title : KERZNER INTERNATIONAL LIMITED v VIKAS AGGARWAL & ORS.

Citation: 2022 LiveLaw (Del) 465

The Delhi High Court recently granted injunction in favour of Kerzner International, a company which owns the chain of Atlantis resorts in Dubai, Bahamas and China, against one Vokas Aggarwal using the mark 'Atlantis Park Ballroom' in respect of a banquet hall.

Though the resort is not situated in India, Justice Prathiba M Singh observed,

" Plaintiff's mark 'ATLANTIS', owing to the unique nature of the resorts which are run by it, have prima facie, gained enormous global reputation, especially in the Indian subcontinent. "

17. "If Citizens Claim Environment As Their Own, Wonders Could Happen": Delhi High Court Bats For Community Participation For Preservation Of Trees

Case Title: APARNA BHAT v. SAKSHI SINGH & ORS

Citation: 2022 LiveLaw (Del) 466

The Delhi High Court has called for community participation for the purpose of preservation of trees, while asking the land-owning agencies to consider engaging RWAs and citizens' groups in the nurturing and preservation of trees.

"When citizens claim the environment as their own and participate in its preservation and rejuvenation, wonders could happen. The efforts of governmental agencies would receive an immense boost and positive results are likely to be visible sooner than one would anticipate," Justice Najmi Waziri added.

18. AO & PCIT Failed To Consider Balance Of Convenience And Irreparable Injury While Deciding The Stay Application: Delhi High Court

Case Title: Seven Seas Hospitality Private Limited Versus PCIT

Citation: 2022 LiveLaw (Del) 467

The Delhi High Court bench of Justice Manmohan and Justice Dinesh Kumar Sharma has held that neither the Assessing Officer nor the Principal Commissioners of Income Tax (PCIT) have considered the three basic principles, i.e., the prima facie case, balance of convenience, and irreparable injury, while deciding the stay application.

The petitioner company/assessee filed an application for a stay of demand under Section 220(6) of the Income Tax Act for the assessment years 2013-14 to 2019-20 on the ground that the appeal filed by the petitioner before the CIT (A) against the additions made by the department was pending adjudication. The assessee was under financial stress on account of the COVID-19 pandemic. The accounts of the assessee have been declared as NPA by all the banks due to non-payment of principal instalment and interest to the banks.

19. Delhi High Court Directs Designated Committee To Manually Process Payments Of Assessee Under SVLDR Scheme

Case Title: SDB Infrastructure Pvt. Ltd. Versus Ministry of Finance

Citation: 2022 LiveLaw (Del) 468

The Delhi High Court bench of Justice Rajiv Shakdher and Justice Poonam A. Bamba has directed the designated committee to manually process payments of an assessee under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 (SVLDRS).

The petitioner/assessee, while taking recourse to the SVLDRS to avail the benefits provided, had attempted to remit the "amount declared" electronically. The only reason remittance could not go through was that there was a miniscule discrepancy between the figure mentioned in the Icegate challan and the amount that was sought to be transmitted.

20. Rejected Claims By Resolution Professional In Insolvency Proceedings, To Be Decided By The Arbitrator: Delhi High Court

Case Title: BHARAT PETRORESOURCES LIMITED v. JSW ISPAT SPECIAL PRODUCTS LIMITED

Citation: 2022 LiveLaw (Del) 469

The High Court of Delhi held that the claims rejected by Resolution Professional in the insolvency proceedings on the ground that they arose after the Insolvency Commencement Date (ICD), are to be decided by the arbitrator.

The Court held that extinguishment of claims that arose after the Insolvency Commencement Date (ICD) is a contentious issue that is to be decided by the arbitrator when the parties have an arbitration agreement.

The Court reiterated that the scope under Section 11 of the A&C Act is confined to the examination of the existence of the arbitration agreement. The Court is not to decide any contentious issue while exercising powers under Section 11 of the Act.

21. Applicability Of S.148 NI Act Will Extend To Appeals Arising Out Of Complaint Cases Filed Prior To 2018 Amendment: Delhi High Court

Case Title: HARSH SEHGAL v. STATE & ANR

Citation: 2022 LiveLaw (Del) 470

The Delhi High Court has observed that the applicability of Section 148 of the Negotiable Instruments Act, 1881 will be extended to appeals arising out of complaint cases that have been filed prior to the amendment of 2018.

Justice Chandra Dhari Singh was dealing with a batch of pleas seeking setting aside of order dated 5th February, 2022 passed by Additional Sessions Judge, Saket Courts.

It was argued by the petitioners that sec. 148 of the NI Act was never intended to be made applicable to all pending appeals but only for the appeals which were filed after the amendment came into force. It was added that the that the amended provisions are not retrospective for appeals filed prior to the amendment.

22. Trial Court Has Power To Modify Orders Of Custody & Disposal Of Property Pending Trial U/S 451 CrPC As Per Changed Circumstances: Delhi High Court

Case Title: SANDEEP SINGH v. STATE OF NCT OF DELHI & ANR.

Citation: 2022 LiveLaw (Del) 471

The Delhi High Court has observed that the Trial Court would not be powerless to modify orders of custody and disposal of property pending trial as provided under sec. 451 of the Code of Criminal Procedure, as per changed circumstances.

Justice Asha Menon added that the power to modify orders passed under sec. 451 Cr.P.C. is inherent in the provision as the purpose is only safe custody and production "during trial".

23. Delhi Govt Can't Implement Doorstep Ration Delivery Scheme Without LG's Approval: High Court

Case Title: DELHI SARKARI RATION DEALERS SANGH DELHI v. COMMISSIONER FOOD AND SUPPLIES GOVT OF NCT OF DELHI & ORS.

Citation: 2022 LiveLaw (Del) 472

While setting aside the Delhi government's scheme for doorstep delivery of ration, the Delhi High Court has observed that the decision of the Council of Ministers headed by Delhi Chief Minister to roll out the said scheme cannot be described as an Executive action taken by, or in the name of the Lieutenant Governor.

The Court reasoned that the same cannot be done since the LG had expressed his disagreement, which stood unresolved as the scheme was placed before the President.

A division bench comprising of Acting Chief Justice Vipin Sanghi and Justice Jasmeet Singh thus quashed the three tenders issued by the Delhi Government in respect of the doorstep ration delivery scheme.

Read Also: Right To Dignity Not Offended Merely By Queuing Up At Fair Price Shop: High Court On Quashing Delhi Govt's Doorstep Ration Delivery Scheme

24. "No Other Way To Mitigate Ecological & Environmental Degradation In City": High Court Stays Felling Of Trees In Delhi As An Interim Measure

Case Title: NEERAJ SHARMA v. VINAY SHEEL SAXENA & ORS.

Citation: 2022 LiveLaw (Del) 473

As an interim measure, the Delhi High Court on Thursday stayed further felling of trees in the city observing that there is no other way to mitigate the ecological and environmental degradation.

Justice Najmi Waziri, who was hearing a contempt plea concerning felling of trees, stayed the said exercise by the authorities till June 2, the next date of hearing.

Noting that ex-facie, it was evident that the large scale denudation of fully grown trees only worsens the ecological balance in the city, the Court ordered thus:

"It would therefore be in the fitness of things and in the public interest as well as for the sake of environment of present as well as future generations that tree felling in Delhi is not permitted till the next date so as to ensure that felling is done only when it is fully assured by the applicant that the trees would atleast be transplanted."

25. "No Infirmity": High Court Upholds Delhi Police's Standing Order Mandating Inclusion Of Advocate's Details In Criminal Dossier Of Accused

Case Title: SAURABH AGARWAL v. STATE OF GOVERNMENT OF NCT OF DELHI & ORS.

Citation: 2022 LiveLaw (Del) 474

The Delhi High Court has upheld a standing order issued by the city police mandating inclusion of Advocates' details in Criminal Dossier of an accused, observing that there was no infirmity in the same.

A division bench comprising of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla was of the view that merely because particulars of the advocate may be entered into the confidential record, it does not follow that such an advocate would be hounded or put under surveillance.

"The purpose of the Criminal Dossier is merely to record the particulars of the accused, including the name of the advocate who may be representing such an accused. Merely for this reason alone, it cannot not be said that the Standing Order suffers from any infirmity or violates any Fundamental Rights of the accused, as enshrined in the Constitution of India. The said information is not placed in public domain. It is confidential," the bench added.

26. Non Consideration Of Detailed Reply To Show Cause Notice Submitted After Stipulated Time, Delhi High Court Quashes Reassessment Order

Case Title: Divya Capital One Private Limited Vs. ACIT

Citation: 2022 LiveLaw (Del) 475

The Delhi High Court bench of Justice Manmohan and Justice Dinesh Kumar Sharma has quashed the reassessment order, alleging income of more than Rupees one lakh crore having escaped assessment on the grounds of violation of natural justice.

The petitioner/assessee has submitted that the order under Section 148A (d) of the Income Tax Act was passed without considering the replies filed by the petitioner to the show cause notice.

The petitioner filed a preliminary response to the show cause notice in which she objected to the validity of legal notice under Section 148A(b) on the grounds that there was no evidence that income had escaped assessment.

27. Right To Lead Evidence May Be Closed If Party Acts In 'Recalcitrant Fashion', Unjustifiably Refuses To Produce Witnesses For Examination: Delhi HC

Case Title: M/S BHARAT INVESTMENT CORPORATION v. SMT. SANJANA SAINI

Citation: 2022 LiveLaw (Del) 476

The Delhi High Court has observed that where a party is acting in a recalcitrant fashion, and refusing to make the witness available for examination or cross- examination on repeated occasions without due justification, the court may close the party's right to lead evidence.

Justice C Hari Shankar added that while it is a matter of Court's discretion which takes a call on the request of the party to lead evidence and that the Court may be ill-inclined in a petition under Article 227 to interfere, it said that such principle applies equally to the Court which passed the order under challenge as to the Court which is seized of the challenge under Article 227.

28. Initiation Of Reassessment Proceedings By Income Tax Officer Without Jurisdiction: Delhi High Court Quashes The Proceedings

Case Title: Indus Tower Ltd. Versus ITO

Citation: 2022 LiveLaw (Del) 477

The Delhi High Court bench of Justice Manmohan and Justice Dinesh Kumar Sharma held that since the petitioner jurisdictional Assessing Officer is headquartered in Delhi, the income tax officer from Jaipur had no authority to send a notice proposing the beginning of reassessment proceedings.

The petitioner/assessee challenged the order passed by the Income Tax Officer under Section 148A (d) of the Income Tax Act, 1961, and the initiation of reassessment proceedings.

The petitioner contended that there was no valid jurisdiction with the Income Tax Officer located at Jaipur for the issuance of notice or proposed initiation of reassessment proceedings. The jurisdiction over the petitioner lies solely with the Income Tax Officer at New Delhi.

29. Doctors' Strike | Can't Initiate Disciplinary Action In Absence Of Actual Events Of Patients' Suffering, Media Reports Not Sufficient: Delhi HC

Case Title: People for Better Treatment v. National Medical Commission

Citation: 2022 LiveLaw (Del) 478

The Delhi High Court has refused to issue orders for initiation of action against doctors alleged to be involved in the November 2021 strike.

Disposing of the public interest litigation filed by a Kolkata based NGO namely 'People for Better Treatment', a Division Bench of Acting Chief Justice Vipin Sanghi and Justice Sachin Datta observed,

" In our view, before any disciplinary action can be taken, it would be necessity for complainant who must first approach the State Medical Council to make out specific grievance based on actual events since that would be necessary for State Medical Council to initiate disciplinary action against an identified doctor who may have gone on strike,"

30. Not Feasible To Entertain Plea Relating To Road Development Work In Madhya Pradesh Merely Because Ministry Office Is In Delhi: High Court

Case Title: Intercontinental Consultants v. Ministry of Road & Ors.

Citation: 2022 LiveLaw (Del) 479

The Delhi High Court has expressed its distinction to hear a matter pertaining to debarment of a contractor by the Ministry of Road Transport and Highways of India, in connection with its alleged failure to perform the road development work in Madhya Pradesh.

The plea was filed in the Delhi High Court by Intercontinental Consultants, stating that the head office of the Ministry is in Delhi and the competent authority which issued the SOP under which the order debarring the appellant was issued also has its office in Delhi. Since a single Judge had refused to entertain the matter, the instant appeal was preferred.

31. CNN News: Delhi High Court Awards ₹3 Lacs Compensation In Trademark Infringement Suit, Grants Permanent Injunction Against Use Of Identical Marks

Case Title: CABLE NEWS NETWORK INC v. MR FAYYAZ SHAIKH & ANR.

Citation: 2022 LiveLaw (Del) 480

While dealing with a trademark infringement suit filed by Cable News Network (CNN) news channel, the Delhi High Court has granted permanent injunction against various entities over use of identical mark 'CNN' while providing similar news services.

Justice Pratibha M Singh also awarded Rs. 3 lakhs cost in favour of CNN news channel, observing that its rights in the mark 'CNN' were undisputed and unchallenged and that the same had been declared as a well-known mark.

"Thus, the use of an identical mark for identical services is clear infringement of the Plaintiff's rights in the 'CNN' mark. There can be no justification for the Defendants to use an identical mark," the Court said.

32. No Opportunity Of Personal Hearing Granted To Taxpayer: Delhi High Court Quashes Assessment Order

Case Title: Omkar Nath Versus National Faceless Assessment Centre

Citation: 2022 LiveLaw (Del) 481

The Delhi High Court bench of Justice Rajiv Shakdher and Justice Talwant Singh has quashed the assessment order as an opportunity of personal hearing was not granted to the taxpayer.

The petitioner/assessee had filed his return of income for AY 2018-2019 on 31.03.2019. The petitioner pegged his taxable income at Rs. 29,66,880.

The Assessing Officer picked up the petitioner's case for scrutiny and issued a notice under Section 143(2) of the Income Tax Act. Apparently, the AO had also issued several notices under Section 142(1) of the Income Tax Act between 24.11.2020 and 15.02.2021.

33. The Arbitrator Cannot Allow Forfeiture Of A Substantial Amount Of Consideration Without Proof Of Actual Loss Solely On The Ground That It Was Earnest Money: Delhi High Court

Case Title: RAJESH GUPTA v. RAM AVTAR, O.M.P. (COMM) 121/2020

Citation: 2022 LiveLaw (Del) 482

The High Court of Delhi has held that the arbitrator cannot allow forfeiture of a substantial amount of consideration without the proof of actual loss solely on the ground that it was referred to as Earnest Money under the contract.

The Single Bench of Justice Vibhu Bakhru partly set aside an award on the ground that the arbitrator wrongly allowed the forfeiture of Earnest Money which formed a substantial portion of the total consideration without the respondent proving actual loss suffered by it.

The Court reiterated that Section 74 of the Indian Contract Act would apply in case of forfeiture of Earnest Money and the employer must prove the loss it has suffered.

Gauhati High Court

1. S.100 CPC | "Substantial Question Of Law" Is One That Impacts Decision In The Lis Between Parties: Gauhati High Court Explains Scope Of Second Appeal

Case Title: Banwarilal Sharma v. Kamala Devi Ajitsaria & Ors

Citation: 2022 LiveLaw (Gau) 38

The Gauhati High Court recently held that a Second Appeal would lie in cases that involve a substantial question of law and explained that the word 'substantial' prefixed to 'question of law' does not refer to the stakes involved in the case, nor is it intended to refer only to questions of law of general importance, but refers to the impact or effect of the question of law on the decision in the lis between the parties.

2. S. 108 Customs Act | Managing Directors Of Companies To Be Summoned Only When Authorized Representatives Are Not Cooperating: Gauhati High Court

Case Title: Century Plyboards (India) Ltd. & Anr. v. The Union of India & Ors.

Citation: 2022 LiveLaw (Gau) 39

The Gauhati High Court has held that the Managing Director(s) of a company should not be directly summoned by authorities under Section 108 of the Customs Act. It clarified that ordinarily, authorized representatives of a company are to be summoned and Managing Directors can only be summoned if the former are not cooperating or if investigation is to be completed expeditiously, as the case may be.

3. Clarificatory Circular Operates Retrospectively And Does Not Bring Anything New: Gauhati High Court

Case Title: Sanjib Das versus Union of India and Ors.

Citation: 2022 LiveLaw (Gau) 40

The Gauhati High Court has reiterated that a circular issued by the Central Board of Indirect Taxes and Customs (CBIC) which only clarifies the CBIC's original instructions and does not bring anything new is clarificatory in nature and operates retrospectively.

The Single Bench of Justice Devashis Baruah held that the exceptions enumerated in the clarificatory circular issued by CBIC, that enumerated exceptions with respect to holding pre-show cause notice consultation, would operate retrospectively from the date of issuance of CBIC's original instructions relating to pre-show cause notice consultation.

Gujarat High Court

NOMINAL INDEX

Essar Steel Limited & 1 other(s) v State Of Gujarat & 1 other(s) 2022 LiveLaw (Guj) 168

Jitendrabhai Arjanbhai Roy Versus The Director Of Agricultural Marketing And Rural Finance 2022 LiveLaw (Guj) 169

Axis Bank Limited vs State Of Gujarat 2022 LiveLaw (Guj) 170

Virani Enterprise vs State Of Gujarat 2022 LiveLaw (Guj) 171

M/S S K Industries Through Sajid Ibrahim Memon Versus State Of Gujarat 2022 LiveLaw (Guj) 172

Vaishali Nishit Patel vs State Of GujaratVaishali Nishit Patel vs State Of Gujarat 2022 LiveLaw (Guj) 173

State Of Gujarat vs Ajaybhai Champaklal Champaneri 2022 LiveLaw (Guj) 174

The Ol Of M/S Neelnandan Polymers Limited (In Liqn) V/S Suresh Gopichand Keswani 2022 LiveLaw (Guj) 175

Vivekkumar Kamalniranjan Kushwaha V/S State Of Gujarat 2022 LiveLaw (Guj) 176

ORDERS/JUDGMENTS OF THE WEEK

All Related Proceedings Stand Discharged, Settled, Abated, & Extinguished On Approval Of Resolution Plan: Gujarat High Court

Case Title: Essar Steel Limited & 1 other(s) v State Of Gujarat & 1 other(s)

Citation: 2022 LiveLaw (Guj) 168

The High Court reiterates the legal position and has allowed the civil application filed by Essar Steel Limited seeking declarations that the claims raised by the original espondent stand abated and extinguished in view of Section 31(1) of the Insolvency and Bankruptcy Code read with the Resolution Plan and the judgement passed by the Supreme Court in Essar Steel India Limited vs Satish Kumar Gupta and Ors.

Inclusion/ Exclusion Of Name In Voters' List Not An Extraordinary Circumstance Warranting Interference U/Art 226 Constitution: Gujarat HC Reiterates

Case Title: Jitendrabhai Arjanbhai Roy Versus The Director Of Agricultural Marketing And Rural Finance

Citation: 2022 LiveLaw (Guj) 169

The Gujarat High court has reiterated that removal of a person's name from the voters' list is not an "extraordinary circumstance" warranting invocation of High Court's extraordinary jurisdiction under Article 226 of the Constitution. It held that a person aggrieved must avail statutory remedy by filing election petition under Rule 28.

A Bench comprising Justice Biren Vaishnav and Justice Sandeep Bhatt affirmed the following observations made by a single judge,

"Once the process of election has been set in motion this Court under Article 226 of the Constitution of India would not interfere in the election process. Accordingly this Court is not inclined to interfere with the impugned order passed by the respondent No.3 and relegate the writ applicant to avail statutory remedy by filing election petition under Rule 28.

The rejection of the writ-applicant's name from the voters' list results in exclusion of name of the writ-applicant from the voters' list...the writ-applicant can avail the benefit of provisions of Rule 28 of the Rules by filing the election petition. The authority under Rule 28 has wide power to cancel and, confirm and amend the election and also to direct to hold fresh election in case the election is set aside and the remedy under Rule 28 is an efficacious remedy."

SARFAESI Act | State Can't Claim Preference Over Subject Property For Recovery Of Dues Towards Tax In Auction Proceedings Of A Secured Asset: Gujarat HC

Case Title: Axis Bank Limited vs State Of Gujarat

Citation: 2022 LiveLaw (Guj) 170

What came to be purchased by the writ-applicant in the auction proceedings conducted by the Bank of Baroda was a secured asset under the provisions of the SARFAESI Act. In such circumstances, the State cannot claim preference over the subject property for the purpose of recovery of the dues towards tax. It is not in dispute that the first charge was created in favour of the bank and the bank in exercise of its powers under the SARFAESI Act, put the subject property to auction", the Gujarat High Court has observed.

Even God Gave Benefit Of 'Audi Alteram Partem' To Adam & Eve, Principles Of Natural Justice Sine Qua Non In Civilised Society: Gujarat High Court

Case Title: Virani Enterprise vs State Of Gujarat

Citation: 2022 LiveLaw (Guj) 171

Emphasizing on the importance of principles of natural justice in a "civilized society", the Gujarat High Court observed,

"the benefit of audi alteram partem principle was even extended to Adam and Eve, even by God before they were punished for disobeying His command. This signifies that even if the authority already knows everything and the person has nothing more to tell, even then this rule of natural justice is attracted, unless application of this rule would be a mere empty formality."

Customs Act | Gujarat High Court Endorses Expeditious Disposal Of Case Property, Orders Release Of Base Oil Worth ₹67 Lakhs Subject To Surety

Case Title: M/S S K Industries Through Sajid Ibrahim Memon Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 172

The High Court has endorsed the "expeditious and judicious" disposal of case property so as to ensure that the owner such seized property does not suffer unnecessary losses and the authorities are also saved from maintaining custody of such property.

Justice Ilesh Vora, while dealing with a case involving 1,03,120 kilograms muddamla seized base oil worth Rs. 67,02,800 observed,

"the expeditious and judicious disposal of the case property would ensure that the owner of the article would not suffer because of its remaining unused. Court or police would not require to keep the article in safe custody, as it would save the cost of storage etc."

'Right Of Every Party': Gujarat High Court Permits Indian-American Mother To Withdraw Habeas Corpus Plea Seeking Daughters' Custody

Case Title: Vaishali Nishit Patel vs State Of GujaratVaishali Nishit Patel vs State Of Gujarat

Citation: 2022 LiveLaw (Guj) 173

The High Court permitted an American Citizen of Indian origin, who had moved a habeas corpus petition seeking custody of her daughters from her husband, to withdraw the plea while observing that every party has a "right" to withdraw the proceedings.

It however hoped, that since the matter involved two minor children, the parties will act in their best interest.

"While permitting withdrawal, which is the right of every party, this Court is of the opinion that to both the parties need to act in the best interest of their children and it is therefore desirable for them to attempt an amicable settlement," Justice Sonia Gokani and Justice Mauna Bhatt observed.

Statement Of Co-Accused Can't Be Sole Basis To Convict Any Person: Gujarat High Court

Case Title: State Of Gujarat vs Ajaybhai Champaklal Champaneri

Citation: 2022 LiveLaw (Guj) 174

The High Court has reiterated that Statement of the co-accused or admission of the co-accused cannot be proved in evidence against the maker of it and it cannot be sole base to convict any person.

It also observed that the provisions of Sections 24-26 of the Evidence Act 'clearly' restrict the acceptance of such confession that are made or caused by inducement, threat, promise while referring to the charge against Accused persons.

Gujarat High Court Exonerates Company Directors For Belated Filing Of Statement Of Affairs U/S 454 Of Companies Act 1956

Case Title: The Ol Of M/S Neelnandan Polymers Limited (In Liqn) V/S Suresh Gopichand Keswani

Citation: 2022 LiveLaw (Guj) 175

The High Court recently exonerated the Directors of a Company, undergoing liquidation, over their failure to submit the Statement of Affairs of the Company with the Official Liquidator within stipulated period of 21 days from the date of winding up, under Section 454 of the Companies Act, 1956.

Whereas the alleged delay in filing the statement was of 3 years, Justice Bhargav Karia stated that However taking into consideration the prevailing condition of Covid -19 Pandemic in the year 2020 and 2021, it can be said that the accused persons have committed default for not filing Statement of Affairs for more than one year.

Gujarat High Court Grants Bail To Man Accused Of Abetting Suicide Of Mentally Depressed Wife By Demanding Dowry

Case Title: Vivekkumar Kamalniranjan Kushwaha V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 176

The Gujarat High Court has recently granted bail to a man accused under Sections 306, 498A and 506(2) of the Indian Penal Code and under Sections 3 and 4 of the Prohibition of Dowry Act for abetting the suicide of his wife by demanding dowry.

A Bench comprising Justice Gita Gopi observed that given the fragile mental state of the deceased person and the fact that the trial would take a long time to conclude, it was a fit case for exercising discretion in favour of the Applicant.

Jammu & Kashmir & Ladakh High Court

1. No Previous Sanction Required To Prosecute Bank Officials In Connection With IPC/RPC Offences: Jammu & Kashmir & Ladakh HC

Case title - STATE BANK OF INDIA ANANTNAG v. G. M. JAMSHEED DAR

Case citation: 2022 LiveLaw (JKL) 29

The Jammu and Kashmir and Ladakh High Court has observed that there is no need to obtain the previous sanction to prosecute bank officials in connection with offences under IPC/RPC.

The Bench of Justice Sanjay Dhar also observed that the appointing and removing the authority of the officials of the petitioner Bank is not the Government but it is the competent authority of the State Bank of India that is empowered to do so and therefore, Section 197 of the CrPC [Prosecution of Judges and public servants] are not attracted to the case of bank officials.

2. If Allegations In FIR Are Not Substantiated, Continuance Of Investigation Is Abuse Of Law: J&K&L High Court Quashes Corruption FIR Against SHO

Case Title: MOHAMMAD SHAHNAWAZ KHAN Vs. UT OF J&K & ORS

Citation: 2022 LiveLaw (JK) 30

The Jammu and Kashmir High Court recently quashed an FIR against a Station House Officer, accused for offences under Section 4-A of J&K Prevention of Corruption Act and Section 120-B RPC.

Justice Sanjay Dhar observed:

"It is a settled law that if allegations made in the FIR are not substantiated by the material assembled by the investigating agency during investigation of the case, the continuance of investigation/ prosecution in such matters amounts to abuse of process of law. Thus, this is a fit case where this Court should exercise its power under Section 482 of the Cr. P. C to quash the proceedings in the impugned judgement."

3. Preventive Detention Cannot Be Made By Stating Vague Grounds: Jammu And Kashmir High Court

Case Title: Arif Manzoor Sheikh Versus Government of J&K and ors.

Citation: 2022 LiveLaw (JK) 31

The Jammu and Kashmir High Court recently quashed an order for detention while observing that detention in preventive custody on the basis of such vague and ambiguous grounds of detention cannot be justified.

Justice Vinod Chatterji Koul observed:

"Perusal thereof reveals that same are vague and ambiguous, and do not refer to any date, month or year of the activities, which have been attributed to detenu. Detention in preventive custody on the basis of such vague and ambiguous grounds of detention cannot be justified. The matters to be considered by the detaining authority are whether the person concerned, having regard to his past conduct judged in the light of surrounding circumstances and other relevant material, is likely to act in a prejudicial manner as contemplated by the provisions of the law and, if so, whether it is necessary to detain him with a view to preventing him from so acting. These are not the matters susceptible of objective determination, and they could not have been intended to be judged by objective standards."

4. S.389 CrPC | Application For Suspension Of Sentence Should Be Considered Liberally If Punishment Is Less Than 10 Yrs: J&K&L High Court Reiterates

Case Title: Ghulam Mustafa & Anr. v. Union Territory of J&K

Citation: 2022 LiveLaw (JK) 32

The Jammu and Kashmir and Ladakh High Court has recently reiterated that as per the provision under Section 389 CrPC, if the convict is punished with imprisonment for a term less than ten years, no notice is required to the Public Prosecutor/State regarding the application filed by the accused for suspension of his sentence and his release on bail.

Justice Mohan Lal referred to the case of Bhagwan Rama Shinde Gosai & Ors v. State of Gujarat, where it was held that Section 389 CrPC does not contain any "statutory restriction" in the suspension of sentence and granting of bail to the accused/convict. It added that the prayer should be considered liberally, and the Appellate Court may impose restrictions considering the gravity of offence.

5. NCB Officers Are Police Officers U/S 25 Of Evidence Act, Confessional Statement Made To Them U/S 67 NDPS Act Inadmissible: J&K&L High Court

Case Title: Ghulam Mohd Bhat v. Narcotics Control Bureau

Citation: 2022 LiveLaw (JK) 33

The Jammu and Kashmir and Ladakh High Court recently held that the officers of the Narcotics Control Bureau are police officers within the meaning of Section 25 of the Evidence Act. Having held so, Justice Mohan Lal noted that a confessional statement recorded under Section 67 of the NDPS Act would remain inadmissible in the trial for an offence under the NDPS Act.

The petitioner had moved an appeal under Section 439 of the Code of Criminal Procedure seeking bail in a case for the commission of offences under Sections 8/20/29 of the Narcotics Drugs and Psychotropic Substances Act. It was averred that there is no evidence against the petitioner in the whole of the complaint. Moreover, the trial is pending in the court of Sessions Judge, whereby the petitioner is entitled to be admitted to bail by way of the law laid down by the apex court in Toofan Singh v. State of Tamil Nadu.

Case Title: RANGE OFFICER KANDI RANGE SOPORE Vs. ALTAF HUSSAIN MALLA

Citation: 2022 LiveLaw (JK) 34

The Jammu and Kashmir High Court recently upheld the revisional court's order that had set aside the order of the Authorized Officer of the Forest Division for seizure of an offending vehicle, while observing that both prosecution and accused parties need to be given opportunity to cross examine each other's witness.

Jharkhand High Court

1. 'Litigation Dragged To Court, Reflects Sorry State Of Affairs': Jharkhand High Court On Govt Dept's Failure To Satisfy Compensation Award

Case Title: Birendra Prasad Roy v. Yogeshwar Mirdha & Ors

Citation: 2022 LiveLaw (Jha) 52

The Jharkhand High Court recently expressed regret over a government department's failure to satisfy the compensation awarded to the kin of a motor accident victim, following her demise due to a mishap caused by the department's vehicle.

2. Trial Court Must Not Be Overtly Possessed By Nature Of Offence: Jharkhand HC Sets Aside Conviction & Capital Punishment Of Rape & Murder Accused

Case Title: The State of Jharkhand v. Durga Soren and other connected matters

Citation: 2022 LiveLaw (Jha) 53

Setting aside an award for capital punishment for the double offence of Rape and Murder punishable under Section 376 and 302 of the Indian Penal Code, the Jharkhand High Court sharply remarked that trial courts must not be swayed by the nature of offence and must properly sift through the evidence before arriving at any conclusion.

Stating that in the instant case the trial court had convicted the appellant in a cursory manner, without discussing thread-bare the evidence of the witnesses, a Division Bench of Justices Raongon Mukhopadhyay and Sanjay Prasad remarked,

"The learned trial court should have desisted of being overtly possessed by the nature of the offence, which no doubt is ghastly and heinous, and instead should have dissected the evidences appropriately before concluding; it had arri

3. Persons Not Responsible To Company For Conduct Of Its Business Can't Be Prosecuted For Violation Of Contract Labour Abolition Act: Jharkhand HC

Case Title: Ravi Kant & Ors. v. The State of Jharkhand & Anr.

Citation : 2022 LiveLaw(Jha) 54

The Jharkhand High Court recently noted that a perusal of Section 25 of the Contract Labour (Regulation & Abolition) Act, 1970 indicates that every person in charge of and responsible to the company for the conduct of its business at the time of the commission of the offence (of engaging contract labour) shall be deemed to be guilty of the offence.

However, in the absence of a specific averment to this effect, the persons working for the company cannot be made liable for any such alleged violations.

4. Everyone Has Different 'Suicidability Pattern', Seemingly Deceased Was Hyper-Sensitive: Jharkhand HC Quashes Charges For Abetment Of Suicide

Case Title: Ashish Kumar Rajwade v. the State of Chhattisgarh

Citation: 2022 LiveLaw (Jha) 55

While quashing charges for abetment of suicide against an applicant-accused, the Jharkhand High Court recently emphasized on varying "suicidability patterns" of different persons and observed that seemingly the deceased in the instant case was 'hyper-sensitive' and could not control her emotions which led to her taking such an extreme step.

Justice N.K. Chadravanshi noted that there was nothing on the record, which would prima facie show that applicant harassed her in any manner or played any direct or indirect act or instigation, as a consequence of which, deceased was compelled to commit suicide.

5. Appointment On 'Humanitarian Ground' In Absence Of Any Law To That Effect Can't Be Justified By Any Document: Jharkhand High Court

Case Title: Sanjay Kumar v. The State of Jharkhand & Ors.

Citation: 2022 LiveLaw (Jha) 56

The Jharkhand High Court has recently held that to justify a 'humanitarian appointment,' one only needs to show the provision of law which allows such an appointment; and no other document of law can justify the same in the absence of the power to do so.

Justice Anubha Rawat Choudhary placed no merit in the petitioner's argument that he could not place his best defence as he was not given an opportunity to produce essential documents.

6. Registrar Of The Jharkhand Cooperative Society, Who Also Is The Ex-Officio Director Of The Respondent, Jharkhand High Court Says Appointment As Arbitrator Not Barred As Parties Had Agreed Earlier

Case Title: National Club Cooperative Society Ltd versus The Managing Director, Jharkhand State Adivasi Cooperative Marketing Federation Ltd

Citation: 2022 LiveLaw (Jha) 57

The Jharkhand High Court has ruled that just because registration was granted to a party by a State Cooperative Society, presumption against the independence and impartiality of the Registrar of the said State Cooperative Society to act as an Arbitrator cannot arise.

The Single Bench of Justice Sujit Narayan Prasad held that by merely raising apprehension regarding the independence and impartiality of the person specified to act as an Arbitrator in the arbitration clause, a party cannot file an application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (A&C Act) for appointment of an Arbitrator.

Karnataka High Court

Nominal Index:

Ashwini v. State of Karnataka, 2022 Livelaw (Kar) 160

Prashanth Sambargi v. The State of Karnataka And Anr, 2022 Livelaw (Kar) 161

Injamam Shariff v. State of Karnataka, 2022 Livelaw (Kar) 162

Good Shepherd Convent v. State of Karnataka And Others, 2022 Livelaw (Kar) 163

Chief Executive Officer and Anr v. K.V.Puttaraju, 2022 Livelaw (Kar) 164

Sushil Goel And Anr v. State At The Instance Of Drug Inspector, 2022 Livelaw (Kar) 165

M/s. Manipal Technologies Ltd. Versus State of Karnataka, 2022 LiveLaw (Kar) 166

Judgments/Orders/Reports:

1: Police Can't Refuse To Conduct Investigation After Magistrate Has Accepted Complaint U/S 200 CrPC: Karnataka High Court

Case Title: Ashwini v. State of Karnataka Case No: WRIT PETITION No.755 OF 2022

Citation: 2022 LiveLaw (Kar) 160

The Karnataka High Court has said that once the court accepts the complaint filed under section 200 of Criminal Procedure Code (CrPC) and directs particular police to investigate, the police cannot decline to investigate.

2: Defamation | Magistrate Can't Refer Complaint About Offence U/S 500 IPC To Police For Investigation U/S 156(3) CrPC: Karnataka High Court

Case title: PRASHANTH SAMBARGI v. THE STATE OF KARNATAKA and ANR. Case No: CRIMINAL PETITION No.349 OF 2021

Citation: 2022 LiveLaw (Kar) 161

The Karnataka High Court recently quashed the proceedings initiated under section 156(3) of the Criminal Procedure Code (CrPC), wherein the Magistrate court referred the complaint filed for defamation under section 499, 500 of the Indian Penal Code to the police for further investigation.

3: Denying Bail For Offence Yet To Be Investigated Merely Because Accused Is Habitual Offender Is "Unjust": Karnataka High Court

Case Title: Injamam Shariff v. State of Karnataka Case No: CRIMINAL PETITION No.4045/2022

Citation: 2022 LiveLaw (Kar) 162

The Karnataka High Court has observed that merely because a person is alleged to be habitual offenders or have criminal antecedents, keeping them in jail for an offence which is yet to be investigated is 'unjust'.

4: Can't Levy Betterment Charges Under Town Planning Act For Mere 'Alterations' To Existing Building: Karnataka HC Grants Relief To 150-Yrs Old School

Case Title: GOOD SHEPHERD CONVENT v STATE OF KARNATAKA and Others Case No: WRIT PETITION No.47882 OF 2014 (LB-BMP)

Citation: 2022 LiveLaw (Kar) 163

The Karnataka High Court has recently quashed the order passed by Bruhat Bengaluru Mahanagara Palike (BBMP) demanding payment of betterment charges/ fee from an over 150 year-old school which proposes to construct additional floors on the existing school campus by way of an extension.

5: Employees Eligible For Gratuity For Period Before Their Employment Is Regularised: Karnataka High Court

Case Title: Chief Executive Officer and Anr v. K.V.Puttaraju Case No: W.P.No.46017/2017

Citation: 2022 Livelaw (Kar) 164

The Karnataka High Court has refused to quash an order passed by the Controlling Authority/ Appellate Authority under the Payment of Gratuity Act, 1972, which directed government bodies to pay gratuity amount claimed by former employees from the time they were employed as daily wage earners till their employment was regularised.

6: Directors Of Manufacturing Company Can't Be Prosecuted For Sub-Standard Drugs Unless They Played An "Active Role" In The Process: Karnataka HC

Case Title: Sushil Goel And Anr v. State At The Instance Of Drug Inspector Case no: CRIMINAL PETITION No.6875 OF 2020

Citation: 2022 LiveLaw (Kar) 165

The Karnataka High Court recently quashed the criminal proceedings initiated against the Proprietors/ Directors of a drugs manufacturing company for alleged production of sub-standard quality drugs, while observing that they did not play an "active role" in the alleged offence.

7: 18% GST Payable On 'Pattadar Pass Book Cum Title Deed' ; Karnataka High Court Upholds AAR Ruling

Case Title: M/s. Manipal Technologies Ltd. Versus State of Karnataka Case No: WP No. 4866/2021

Citation: 2022 LiveLaw (Kar) 166

The Karnataka High Court bench of Justice S. Sujatha and Justice Shivashankar Amarannavar, while upholding the ruling of the Authority of Advance Ruling (AAR), held that 18% GST is payable on 'pattadar pass book cum title deed

Kerala High Court

Nominal Index [Citation 2022 LiveLaw (Ker) 222- 235]

Bhasy v. Thomas & Ors, 2022 LiveLaw (Ker) 222

National Insurance Co. Ltd. v. Narayani & Ors, 2022 LiveLaw (Ker) 223

Philip K.J v. State of Kerala & Ors, 2022 LiveLaw (Ker) 224

Principal v. Addl. Registering Authority & Ors, 2022 LiveLaw (Ker) 225

Uma Murthi v. State of Kerala, 2022 LiveLaw (Ker) 226

Mini Antony v. Savio Aruja, 2022 LiveLaw (Ker) 227

Dr. Sree Hari N. v. State of Kerala, 2022 LiveLaw (Ker) 228

Ratnamani George & Ors. v. Authorised Officer, 2022 LiveLaw (Ker) 229

Vakiyath Koya & Ors. v State of Kerala & Ors, 2022 LiveLaw (Ker) 230

Treasa K.J & Anr. v State of Kerala & Ors, 2022 LiveLaw (Ker) 231

Saju A.R. & Ors. v. Union of India & Ors, 2022 LiveLaw (Ker) 232

R.Ramaraja Varma v. State of Kerala, 2022 LiveLaw (Ker) 233

Eraj v. State of Kerala, 2022 LiveLaw (Ker) 234

Aswin Das & Ors. v. Union of India & Ors, 2022 LiveLaw (Ker) 235

Judgments This Week

1. Decree For Specific Performance Can't Be Granted Based On Oral Agreement Unless Proved By Cogent Evidence: Kerala High Court

Case Title: Bhasy v. Thomas & Ors.

Citation: 2022 LiveLaw (Ker) 222

The Kerala High Court recently established that a decree for specific performance cannot be granted based on an oral agreement unless there is cogent evidence to prove such agreement in the first place. Justice K. Babu observed that the plea of an oral contract for reconveyance can be accepted only if there is cogent and convincing evidence to establish it. The Court found that the respondent failed to adduce oral evidence in regard to the nature of the document despite the burden of proof in respect of the property being on him.

2. Kerala High Court Holds State Electricity Board Liable For Death Of Man Electrocuted While Boarding A Bus In Contact With Loose Wire

Case Title: National Insurance Co. Ltd. v. Narayani & Ors.

Citation: 2022 LiveLaw (Ker) 223

The Kerala High Court recently held that when a person dies of electrocution from a hanging electric line touching a vehicle, the Kerala State Electricity Board and its employees are equally liable for negligence apart from the driver of such vehicle. Justice M.R. Anitha held that it is the bounden duty of KSEB and its employees to keep electrical equipment and accessories intact and in the proper position to avoid danger to the public.

3. Rule 67A Of Kerala Government Servants Conduct Rules Does Not Curtail A Religious Denomination's Right To Manage Its Affairs: High Court

Case Title: Philip K.J v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 224

The Kerala High Court recently held that Rule 67A of the Kerala Government Servants Conduct Rules, 1960 does not curtail a religious denomination's right to manage its own affairs available under Article 26(B) of the Constitution of India in any manner. Rule 67A prohibits any Government Servant from being an office-bearer of any communal or religious organisation or of such trust or society. Justice T.R. Ravi observed that what is protected under Article 26 (B) is the right of a denomination to manage its own affairs in matters of religion and not regarding the election of office-bearers.

4. Kerala High Court Urges State Transport Commissioner To Ensure Motor Vehicles Strictly Follow Safety Standards

Case Title: Principal v. Addl. Registering Authority & Ors.

Citation: 2022 LiveLaw (Ker) 225

The Kerala High Court has directed the Transport Commissioner to take necessary steps to ensure strict compliance with its earlier directions issued in 2019, through the concerned officers of the Motor Vehicles Department against motor vehicles which violate the safety standards in the State. Justice Anil K. Narendran laid particular emphasis on the safety standards relating to lighting, light-signalling devices, vehicles fitted with unauthorised name board, emblem, flag and also multi-coloured red, blue and white lights intended for vehicles on designated emergency and disaster management duties; vehicles used on public places without displaying registration marks appropriately; vehicles pasted with cooling films on safety glass or fitted with sliding cloth curtains.

5. Kerala High Court Permits Party To Be Assisted By Engineer Of Her Choice During Technical Expert Committee's Inspection Of Damage To Her Property

Case Title: Uma Murthi v. State of Kerala

Citation: 2022 LiveLaw (Ker) 226

The Kerala High Court in an unusual move permitted an appellant to be assisted by an engineer of her choice while the statutorily appointed Municipal Level Technical Expert Committee inspects the damage caused to her property by the ongoing construction of the party respondents. A Division Bench comprising Justice Devan Ramachandran and Justice P.G. Ajithkumar however made it clear that such engineer shall not interfere with the enquiry conducted by the Committee, and can only assist the appellant.

6. Inconvenience Of Husband's Power Of Attorney Holder Not A Ground To Deny Transfer Sought For By Wife: Kerala High Court

Case Title: Mini Antony v. Savio Aruja

Citation: 2022 LiveLaw (Ker) 227

The Kerala High Court has established that the inconvenience of the power of attorney holder of the husband in a case before the Family Court (whether male or female) is not a reason to deny the transfer sought for by the wife. Justice A. Badharudeen found that by appointing a power of attorney, a principal appoints an agent to conduct his case and such an agent can be anybody capable of travelling and contesting the case of the respondent for and on behalf of the respondent.

7. 'Consent Can Be Reasonably Deciphered': Kerala High Court Grants Bail To Doctor In Rape Case

Case Title: Dr. Sree Hari N. v. State of Kerala

Citation: 2022 LiveLaw (Ker) 228

The Kerala High Court granted bail to a doctor who was accused of raping another doctor finding that the prima facie evidence shows that it was a consensual relationship. Justice C. Jayachandran held that the question of whether such consent was vitiated by the alleged false promise to marry should be considered by the trial court.

8. No Valid Sale Under Law If Notice Of Sale On Which Parties Acted Upon Has Been Set Aside: Kerala High Court

Case Title: Ratnamani George & Ors. v. Authorised Officer

Citation: 2022 LiveLaw (Ker) 229

The Kerala High Court observed that when the notice of sale based on which the parties bid for property has been set aside, it can be presumed that there is no valid sale under the law. Justice Bechu Kurian Thomas thereby dismissed the plea which had sought a direction to the respondent to confirm the sale of the property auctioned by the petitioners after accepting the balance bid amount.

9. 'No Legitimate Expectation': Kerala High Court Dismisses Private Bus Operators' Plea For Extension Of Tax Exemption Granted During Covid-19

Case Title: Vakiyath Koya & Ors. v State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 230

The Kerala High Court dismissed a batch of petitions moved by private bus operators seeking an extension of the tax exemption granted to them owing to the Covid-19 pandemic in 2020-2021. "Since exemption from payment of tax was granted for reasonable periods, it cannot be said that despite the restrictions and regulations brought in due to Covid-19 pandemic, the Government had not considered the plight of the stage carriage operators and contract carriage operators."

10. Flooded Roads & Blocked Canals: Kerala High Court Calls For Strict Action Against Discarding Garbage In Drains

Case Title: Treasa K.J & Anr. v State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 231

The Kerala High Court directed the Secretary of the Cochin Corporation to initiate strict action against those dumping garbage into canals and drains, aggravating the flooding of roads and causing blockage of drains in the State. Justice Devan Ramachandran began the interim order with an observation that as much as the Court did not desire to control the management of the drains or the flood mitigating systems in the city regularly, it was forced to do so because of the large scale inundation witnessed due to the rains.

11. Kerala High Court Quashes BPCL's Order Barring Employees From Enrolling In Post-Retirement Medical Scheme

Case Title: Saju A.R. & Ors. v. Union of India & Ors.

Citation: 2022 LiveLaw (Ker) 232

The Kerala High Court has recently directed Bharat Petroleum Corporation Limited (BPCL) to continue to provide the Post Retirement Medical Benefit Scheme (PRMBS) to employees with less than 15 years of service in accordance with the long-term settlement. Justice Sunil Thomas thereby quashed a notification issued by the BPCL in the form of an administrative order to the extent it deprives the benefit of the medical scheme to those who have not completed 15 years.

12. Ensure Upcoming PFI March Ignites No Law & Order Problems In Alappuzha: Kerala High Court Directs District Police Chief

Case Title: R.Ramaraja Varma v. State of Kerala

Citation: 2022 LiveLaw (Ker) 233

The Kerala High Court directed the District Police Chief of Alappuzha to ensure that no law and order problems surface at the 'Jana Maha Sammelanam' proposed to be conducted by the Popular Front of India (PFI) this Saturday in the district. Justice P.V. Kunhikrishnan admitted the plea and also directed the 5th respondent Police Chief to consider the representation moved the petitioner alleging that unless the programmes scheduled by the PFI and Bajrangdal are prevented, there is every chance for communal clashes in the district.

Also Read: Situation In Alappuzha District Still "Volatile": Plea To Prohibit Upcoming PFI, Bajrangdal Marches, Kerala High Court Seeks State's Response

13. Issuance Of Summons Is A Prerequisite For Issuance Of Warrant & Notice To Sureties: Kerala High Court

Case Title: Eraj v. State of Kerala

Citation: 2022 LiveLaw (Ker) 234

The Kerala High Court observed that the issuance of summons is a prerequisite for the issuance of a warrant and notice to sureties. Justice Mary Joseph observed that the NDPS Court was unjustified in issuing warrant to the petitioner and notices to the sureties without issuing summons to them first.

14. Can't Interfere One Day Before Exam: Kerala High Court Dismisses Plea Moved By NEET Candidates Allotted Centres Outside State On Short Notice

Case Title: Aswin Das & Ors. v. Union of India & Ors.

Citation: 2022 LiveLaw (Ker) 235

The Kerala High Court dismissed a plea preferred by a group of NEET-PG candidates challenging their allotment of examination centres at Hyderabad and Andhra Pradesh on short notice. While finding that it would be improper to hamper with the exam or the exam centres a day before the exam, Justice P.V. Kunhikrishnan also acknowledged the inconvenience caused to the candidates owing to the same.

Other Significant Developments

15. Kerala High Court Now Has 7 Women Judges, Highest Ever In Its History

With Justice Shoba Annamma Eapen assuming office, the Kerala High Court now has 7 women judges for the first time in its history. The High Court has now the following women judges: Justices Anu Sivaraman, Sophy Thomas, V Shircy, Shoba Annamma Eapen, MR Anitha, Mary Joseph and CS Sudha. Justice Shoba Annamma Eapen who has been sworn in as the Additional Judge of Kerala High Court today was welcomed by the legal fraternity in a brief ceremony held at Chief Justice's Court. With Justice Eapen on board, the Kerala High Court has hit an all-time with 7 women judges for the first time in its history. The High Court has now 38 judges.

Also Read: With Justice Shoba Annamma Eapen Sworn In, Kerala High Court Hits All-Time High of 7 Women Judges

16. Kerala High Court Issues Notice In PIL Challenging 50% Reservation For Muslims In State-Run Coaching Centre ICSR

Case Title: Arun Roy v. State of Kerala & Ors.

The Kerala High Court issued notice on a Public Interest Litigation (PIL) challenging the 50% reservation for Muslims in the State-run Institute of Career Studies & Research (ICSR) in the Malappuram district. A Division Bench of Chief Justice S. Manikumar and Justice Shaji P Chaly issued notice on the plea moved by an advocate practising in the High Court.

17. S Sreejith Transferred, No Longer In Charge Of Investigation In Actor Assault Case: State Informs Kerala High Court

Case Title: Kerala State Board of International Human Rights Council v. State of Kerala

The Kerala High Court was informed by the State that S Sreejith IPS is not in charge of the investigation of the 2017 actor sexual assault case and that following his transfer, a new investigation team was appointed. Sheikh Darwesh Sahib, the head of the new crime branch, is now in charge of the team, it was submitted. A Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly thereby directed the State Government to submit a report containing the transfer order and information on the new investigation team within seven days.

18. Advocates' Welfare Fund Scam: 8 Accused Seek Pre-Arrest Bail, Kerala High Court Denies Interim Relief

Case Title: Jeyaprabha R. v. CBI & connected matters

Eight accused in the scam involving misappropriation of over ₹7.5 crores from the Kerala Advocates Welfare Fund have moved the Kerala High Court seeking anticipatory bail in the case. When the matter was taken up today, Justice K. Babu refused to grant interim protection to the accused and posted the matter on Monday for disposal. By this time, the parties have been directed to produce the relevant materials before the Bench for consideration.

Madhya Pradesh High Court

NOMINAL INDEX

State Of Madhya Pradesh V Satya Narayan Dubey 2022 LiveLaw (MP) 147

Vijay Mahobia vs The State Of Madhya Pradesh 2022 LiveLaw (MP) 148

Dharmadas Tirthdas Construction Pvt. Ltd. v. Government of India and Ors 2022 LiveLaw (MP) 149

Himanshudhar Dwivedi v. The State of Madhya Pradesh 2022 LiveLaw (MP) 150

Bablesh Patel v. The state of Madhya Pradesh 2022 LiveLaw (MP) 151

M/s Rajdhani Security Force Pvt. Ltd Versus UOI 2022 LiveLaw (MP) 152

ORDERS/JUDGMENTS OF THE WEEK

'Public Interest Also An Element On Consideration Of Which Employee Can Be Placed Under Suspension': Madhya Pradesh High Court

Case Title: State Of Madhya Pradesh V Satya Narayan Dubey

Citation: 2022 LiveLaw (MP) 147

The High Court observed that public interest is also an element on the consideration of which an employee can be placed under suspension. The Court further held that even if it is alleged that the particular department of the employee did not suffer any loss due to him, the same cannot make him immune to suspension.

The division bench of Justice Sujoy Paul and Justice D.D. Bansal observed-

…it cannot be forgotten that if the respondent, a senior officer is reinstated by staying the suspension order, he can scuttle the inquiry or investigation or can win over the witnesses of the departmental inquiry. This is within the province of the disciplinary authority to decide whether an employee is required to be suspended or not because suspension is a step towards ultimate result of an investigation or inquiry.

Scope Of Article 300A Of Constitution Of India Isn't For Invoking It Against Any Action Of An Individual: Madhya Pradesh High Courtv

Case title - Vijay Mahobia vs The State Of Madhya Pradesh [WP No. 10187 of 2022]

Citation: 2022 LiveLaw (MP) 148

The High Court has observed that Article 300A of the Constitution of India acts as a protector of individual interest and a tool for the state for infrastructural and various other development. The Court also stressed its scope is limited to the state's action.

The Bench of Justice Milind Ramesh Phadke further observed that the article maintains a balance between the interest of property owners and the interest of the state.

"The Article says that- No person shall be deprived of his property save by the authority of law. This means that nobody can be deprived of his right over property except if it is prescribed by law. This article emphasizes on the doctrine of eminent domain which means that the state can take over any private land if it is for public use. Therefore, the law prescribing the acquisition needs to be valid and the acquisition of the land by the state must be for a public purpose," the Court remarked.

A Party Cannot Directly Seek The Appointment Of The Arbitrator If The Agreement Provides For Pre-Arbitration Reference To A Competent Authority: Madhya Pradesh High Court

Case Title: Dharmadas Tirthdas Construction Pvt. Ltd. v. Government of India and Ors., MISC. CIVIL CASE No. 1043 of 2003.

Case citation: 2022 LiveLaw (MP) 149

The High Court has held that the court cannot appoint the arbitrator when the petitioner has not complied with the condition precedent of referring the dispute to the Superintending Engineer.

The Single Bench of Justice Vivek Rusia has held the pre-arbitral steps to be mandatory, the non-compliance of which will result in the rejection of the application for the appointment of the arbitrator.

Trial Court Must Give Opportunity Of Hearing To IO Before Ordering Action For Allegedly Botched Up Investigation: Madhya Pradesh High Court

Case Title: Himanshudhar Dwivedi v. The State of Madhya Pradesh

Citation: 2022 LiveLaw (MP) 150

The High Court set aside the order passed by the trial court, directing the Superintendent of Police to take action against the Investigating Officer for an allegedly botched up investigation, observing that he was not given an opportunity by the lower court to explain his position.

Quashing the impugned order, Justice Atul Sreedharan observed-

Under the circumstances, the impugned order itself is violative of principles of natural justice as no opportunity was given to the petitioner to explain his position either before the learned trial court when he was being examined as a witness to the prosecution, where this court could have put questions and elicited answers to suggestions of a deliberately botched up investigation. Therefore, the petition succeeds and the impugned order/letter dated 27.4.2011 (Annexure A/3) addressed by the learned trial court to the Superintendent of Police, Panna, is quashed.

False Rape Case: Madhya Pradesh High Court Says Prosecutrix Must Be Asked To Refund Compensation Paid By State

Case Title: Bablesh Patel v. The state of Madhya Pradesh

Citation: 2022 LiveLaw (MP) 151

The High Court directed the trial court to issue direction against the Prosecutrix in a rape case to refund the compensation she had received from the State Government because she had admitted in her statement that she had lodged a false report against the accused.

Deciding the bail application moved by the Applicant/accused, Justice Vivek Agarwal observed-

Trial court will consider issuance of a direction against the prosecutrix to refund the amount received by her because she admitted in her examination in chief that she has lodged false report on account of some oral dispute between the parties. Therefore, alleged false report is lodged, therefore she is not entitled to keep the amount of compensation paid by the State government collected from the tax payer of the country. Thus, trial court will consider to direct the prosecutrix to refund that amount in the appropriate head of the treasury account.

Delay Of 18 Months In Filing Appeal Without Reasonable Justifications: Madhya Pradesh High Court Upholds Cancellation Of GST Registration

Case Title: M/s Rajdhani Security Force Pvt. Ltd Versus UOI

Citation: 2022 LiveLaw (MP) 152

The High Court bench of Justice Sheel Nagu and Justice Maninder S. Bhatti upheld the cancellation of GST registration as there was a delay of 18 months in filing the appeal without reasonable justification.

The petitioner company/assessee was registered under the Goods and Services Tax Act, 2017. On account of non-filing of a return, the GST number allotted to the petitioner was cancelled. Against cancellation, the petitioner preferred an appeal. The appeal was dismissed.

Updates from the High Court

'Bar U/S 362 CrPC Not Applicable': Madhya Pradesh High Court Recalls Order For Cancellation Of Bail As Accused Was Not Duly Served Notice

Case Title : Shivam Sharma v. The State Of Madhya Pradesh And Ors

The Madhya Pradesh High Court, Gwalior Bench recently recalled its order for cancellation of bail which was passed ex-parte, holding that the person enlarged on bail was not duly served notice and therefore he could not appear before the Court to contest the said application.

Justice Anand Pathak was essentially hearing an application under Section 482 CrPC moved by the Applicant to recall the impugned order, whereby his bail was cancelled under Section 439(2) CrPC.

Madhya Pradesh High Court Directs MPPSC To Allow Non-Domicile Category Candidates To Apply For State Engineering Services

Case Title: Sheelendra Kumar And Others Vs The State Of Madhya Pradesh And Others

The Madhya Pradesh High Court on Tuesday directed the Madhya Pradesh Public Service Commission to allow Non-Domicile Category candidates to apply and appear for State Engineering Services Exam, 2021.

The division bench of Justice S.A. Dharmadhikari and Justice Vishal Mishra further directed the MPPSC to make adequate amendments to the application process to facilitate the registration of Non-Domicile Category candidates –

In view of the aforesaid submissions made by learned counsel for the parties and with a view to provide equal opportunity to all concerned, it is directed that all the candidates not belonging to the State of Madhya Pradesh will be permitted to participate in the competitive examination in respect of State Engineering Services Examination, 2021 for which the Madhya Pradesh Public Service Commission shall make adequate amendment in the website and permit these candidates to fill up the application forms. If the need arises the Madhya Pradesh Public Service Commission shall consider and notify a new date for filing up the application forms giving them atleast seven days' further time to do the needful and thereafter notify a fresh date for conducting the examination.

Madras High Court

Citations: 2022 LiveLaw (Mad) 213 To 2022 LiveLaw (Mad) 221

NOMINAL INDEX

P.R Srinivasan v. The Commissioner, HR&CE and others, 2022 LiveLaw (Mad) 213

G. Sendrayan v. The Registrar of Co-operative Societies and others, 2022 LiveLaw (Mad) 214 Nandha Ayurveda Medical College and Hospital represented by Chairman v. The Director of Indian Medicine and Homeopathy and Others & other connected cases, 2022 LiveLaw (Mad) 215

Pranav Srinivasan v. The Government of India, 2022 LiveLaw (Mad) 216

Ramasamy Gounder @ Senban (died) v. Chinnapillai @ Nallammal, 2022 LiveLaw (Mad) 217

Prakash A v. The State represented by Inspector of Police, 2022 LiveLaw (Mad) 218

Periammal v. Kamalam and others, LiveLaw (Mad) 219

Sanjay Simon and another v. KG Hospital and another, 2022 LiveLaw (Mad) 220

Union of India versus J. Auuamar and Ors, 2022 LiveLaw (Mad) 221

1. "State Obligated To Preserve Practices Of All Religions": Madras High Court Holds Emergent Sitting On Sunday Via WhatsApp To Allow Car Festival

Case Title: P.R Srinivasan v. The Commissioner, HR&CE and others

Citation: 2022 LiveLaw (Mad) 213

The Madras High Court has reiterated that the State has an obligation to provide basic amenities to the pilgrims whenever there is a large gathering of persons during festival times.

Following the decision of the Supreme Court in Sarika v. Shri Mahakaleshwar Mandir Committee (2018) the court held that it is the bounded duty of the government to make proper arrangements and to sanction amounts without fear of violation of the concept of secularism.

Justice GR Swaminathan held an emergent sitting and heard the case on Sunday, over a Whatsapp Video call from Nagercoil while the lawyers joined the call from Neelankarai and Anna Nagar. It was upon the plea moved by the Hereditary Trustee of the Arulmighu Abheeshta Varadarajaswamy Temple, Papparapatti Agraharam, Pennagaram Taluk, Dharmapuri District urging that their village will face "divine wrath" if the proposed Rath festival is not held on the given date, i.e., May 16.

2. Successive Govt Can Review Policy Decision Of Erstwhile Govt But Must Avoid Waste Of Resources: Madras High Court

Case Title: G. Sendrayan v. The Registrar of Co-operative Societies and others

Citation: 2022 LiveLaw (Mad) 214

The Madras High Court has held that if a decision taken by an erstwhile Government is good to the public and the society at large, the successive Government can very well continue the project, if it is yet to be completed or half way through, for which further financial support is required.

Justice R Suresh Kumar said,

"If the erstwhile or the previous Government has taken a decision for any project to be undertaken for the welfare of the people, for which heavy amount of Government exchequer has been already spent, while taking a review in respect of those decision, the successive Government must borne in mind that, such kind of huge spending from exchequer shall not be allowed to go a waste."

The Court stated if an elected Government has taken a policy decision, under which, a project is conceived and put into action, when a subsequent Government is elected by a democratic exercise, it is for the successive Government to review such policy decision, based on the policy under which they have given the election manifesto to the people who vote them to power and accordingly, the earlier decision taken by the erstwhile Government can very well be reviewed by the subsequent Government, ofcourse within the parameters or four corners of the Constitution.

3. Medical College Managements Have Right To Fill Up Vacant Seats In Respective Courses De Hors Sponsorship By Selection Committee: Madras High Court

Case Title: Nandha Ayurveda Medical College and Hospital represented by Chairman v. The Director of Indian Medicine and Homeopathy and Others & other connected cases

Citation: 2022 LiveLaw (Mad) 215

The Madras High Court recently upheld the right of the college management to fill up the vacant seats in the respective courses. Justice GR Swaminathan made the observation in a plea challenging the impugned orders of Tamil Nadu Dr. M.G.R. Medical University against admissions made by the management of the colleges.

The court relied on Index Medical College, Hospital and Research Centre Vs. State of Madhya Pradesh and Others, where the Apex Court upheld the right of management to admit students. The court had observed that the seats remaining vacant would amount to a "national waste of resources".

4. Entitlement To Resumption Of Citizenship Can't Be Denied To A Child Who Was In Womb At Time Of Renunciation By His Parents: Madras High Court

Case Title: Pranav Srinivasan v. The Government of India

Citation: 2022 LiveLaw (Mad) 216

The Madras High Court has recently observed that a foetus or embryo acquires the status of a 'minor child' for the purposes of Section 8 of the Indian Citizenship Act and hence, such an embryo acquires the citizenship of its parents.

It added that if the parents of such 'minor' renounce their citizenship while the child is in his mother's womb, the child will be entitled to seek resumption of his Indian citizenship in terms of Section 8(2) of the Act, upon attaining majority.

Justice Anita Sumanth made the observations in a plea challenging an order of the Government of India wherein an application for Resumption of Citizenship under Section 8 of the Citizenship Act, 1955 was rejected and the petitioner was asked to apply for citizenship under Section 5(1)(f) (g) of the Act if he so desires.

5. Mere Joining Of Son In Execution Of Sale Deed Does Not Raise Presumption That Subject Property Is "Family Property": Madras High Court

Case Title: Ramasamy Gounder @ Senban (died) v. Chinnapillai @ Nallammal

Citation: 2022 LiveLaw (Mad) 217

The Madras High Court bench of Justice N. Anand Venkatesh observed that merely because a son has been added as a co-vendor in a sale deed would not give rise to the presumption that the property being dealt with is a family property.

The court further held that the burden of proof to prove that the property was a joint family property or was purchased from the surplus income from the ancestral properties was upon the person claiming so. The same shall not be assumed per se and has to be pleaded and proved through evidence.

The court opined merely because a property is described as an ancestral property in the recitals of the document, that by itself is not a conclusive proof as to what is stated therein, more particularly when there are other materials to show that properties concerned are not ancestral properties.

6. "Will Have Serious Impact On The Judicial Institution": Madras High Court Denies Bail To Office Assistant Accused Of Stabbing Judicial Officer

Case Title: Prakash A v. The State represented by Inspector of Police

Citation: 2022 LiveLaw (Mad) 218

The Madras High Court on Thursday denied bail to an office assistant who was accused of stabbing a Judicial Officer. Justice Anand Venkatesh observed that the issue had to be dealt with utmost seriousness as it had an impact on the institution at large.

The court opined that while granting bail, it was necessary to consider the seriousness of the allegations. Thus, the court was not inclined to grant bail.

However, the court directed the Committal court to commit the matter to the concerned Sessions Court. The Sessions Court was directed to conduct the proceedings on day to day basis and complete the case within a period of six weeks. The court further directed the Sessions Court to decide the case purely on merit and in accordance with law and that the present order should not have any bearing on the outcome of the case.

7. Plaintiff Can Take A Plea Of Adverse Possession In A Suit For Declaration Of Title And For Recovery Of Possession: Madras HC

Case Title: Periammal v. Kamalam and others

Citation: 2022 LiveLaw (Mad) 219

The Madras High Court has held that there is no bar under the Limitation Act on a plaintiff taking the plea of adverse possession in a suit for declaration of title and for the recovery of possession. Justice Teekaa Raman held that the age-old axiomatic of law that the plaintiff cannot raise the plea of adverse possession and that it can only be a defence of the defendant no longer holds the field.

The court also relied on the decision of the Supreme Court in Ravinder Kaur Grewal and others v. Manjit Kaur and others (2019) where the Supreme Court observed as below:

"Plea of acquisition of title by adverse possession can be taken by Plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act, 1963 to sue on aforesaid basis in the case of infringement of any rights of a Plaintiff."

8. Madras High Court Comes To Aid Of Kidney Patient, Directs Authorisation Committee To Take Immediate Decision On Transplant

Case Title: Sanjay Simon and another v. KG Hospital and another

Citation: 2022 LiveLaw (Mad) 220

The Madras High Court on Thursday granted relief to a 27 years old kidney patient, who claimed that he is in great pain and the Authorization Committee (Transplantation) has been sitting on his request to permit surgical transplant.

Justice SM Subramaniam directed the Authorisation Committee (Transplantation) to scrutinise the documents of the petitioner and take appropropriate decisions on merits in accordance with law. The Committee was directed to communicate the decision on the same day at about 7:00 pm

9. Arbitral Award Rendered Mechanically, Awarding Lower Value For Land Acquired Under NHA: Madras High Court Remits Matter Back To Arbitrator

Case Title: Union of India versus J. Auuamar and Ors.

Citation: 2022 LiveLaw (Mad) 221

The Madras High Court has ruled that an arbitral award rendered by the District Collector awarding a lower value to the land owners with respect to the land acquired under the National Highways Act, 1956 without following the mandate of Section 3G (7) of the National Highways Act, is rendered mechanically.

The Bench, consisting of Justices R. Subramanian and N. Sathish Kumar, remitted the matter back to the Arbitrator for fixing the value of the land acquired under the National Highways Act afresh in terms of Section 3G (7) of the National Highways Act.

The Court held that the District Collectors who are nominated as Arbitrators by the Central Government are expected to follow the decisions of the higher Courts while deciding the compensation payable in lieu of the land acquired under the National Highways Act. The Court added that the District Collectors often do not devote the required attention and the arbitral awards are passed by them mechanically without adverting to the relevant provisions of the law.

OTHER DEVELOPMENTS

1. Madras High Court Constitutes Full Bench To Decide Upon High Court's Jurisdiction To Hear Child Custody Matters On Original Side

The Chief Justice of Madras High Court Munishwar Nath Bhandari has constituted a full bench comprising five judges of the Madras High Court to hear the question pertaining to the High Court's jurisdiction on the original side to make decisions on child custody and guardianship cases, owing to the advent of the Family Courts Act, 1984.

The five judges who are part of the full bench are Justice P.N Prakash, Justice R Mahadevan, Justice M Sundar, Justice N. Anand Venkatesh, and Justice AA Nakkiran.

2. "Serious Allegations Of Encroachment, Will Cause Inconvenience To Public": Madras High Court Directs District Collector To Conduct Site Inspection

Case Title: G.Karthick v. The State of Tamil Nadu and Others

Case No: W.M.P No. 12421 & 12422 of 2022 in WP No. 12929 of 2022

The Madras High Court has directed the District Collector, Thiruvannamalai to inspect specified areas around Vengikkal Village to ascertain the facts with respect to alleged encroachment of a water culvert connecting the town water channel with the "Nochi Eri" river.

The bench of Justice SM Subramaniam and Justice J Sathya Narayana Prasad passed the interim order on a writ petition filed by one G. Karthick who contended that the respondents colluded with government authorities and encroached upon the said public land.

Considering the gravity of the allegation raised by the petitioner and that the fact that encroachment would cause inconvenience to the people at large and may even cause flooding during the monsoon season, the Court deemed it necessary to ascertain whether there was any encroachment. Hence, directions were issued to the District Collector.

3. Madras High Court Keeps In Abeyance Single Judge Order Allowing Two Sects To Chant Recitals In Temple

The Madras High Court on Friday kept in abeyance the order of the Single judge allowing two sects- Thengalai sect and the Vadagalai Sect to chant the initial recital namely Srisaila Dayapathram. at the Devarajaswamy temple in Kancheepuram.

The bench of Justice R Mahadevan and Justice G.K Ilanthiraiyan was informed that other cases with respect to disputes between the sects were pending before different benches of the High Court. The court therefore opined that all of these connected matters needed to be heard together and directed the registry to post all the matters after summer vacations.

Also Read: Freedom Of Religion Also Extends To Rites And Ceremonies Associated With A Religion: Madras High Court

Manipur High Court

1. Order 14 Rule 2 CPC | Where Suit Involving Mixed Question Of Law & Fact Can Be Disposed On Issue Of Law Alone, Same Must Be Decided First: Manipur HC

Case Title: Michael Zimik v. Ngathinkhui Singhnaisui & Anr.

Case Citation: 2022 LiveLaw (Man) 8

The Manipur High Court has recently held that Order 14 Rule 2(1) CPC is a general rule which provides that the Court shall pronounce judgment on all issues, notwithstanding the fact that the case may be disposed of on a preliminary issue.

However, it added that an exception to this Rule is provided under Order 14 Rule 2(2), which states that where issues of law and of fact arise in the same suit and the Court finds that the suit, or any part thereof, may be disposed of on an issue of law only, it may try that issue first.

Orissa High Court

Nominal Index

1. Roshni Meher v. State of Odisha, 2022 LiveLaw (Ori) 68

2. M/s. Oripol Industries Ltd., Balasore v. Joint Commissioner of Income Tax, Balasore and Ors., 2022 LiveLaw (Ori) 69

3. Amitav Tripathy v. Orissa High Court, represented by the Registrar General, 2022 LiveLaw (Ori) 70

4. Emcure Pharmaceuticals Ltd v. The Managing Director, Odisha State Medical Corporation & Ors., 2022 LiveLaw (Ori) 71

5. Baisakhu Sethy @ Behera v. State of Odisha, 2022 LiveLaw (Ori) 72

6. Sambara Sabar v. State of Odisha & Ors., 2022 LiveLaw (Ori) 73

7. State of Odisha & Ors. v. Larsen and Toubro Ltd., 2022 LiveLaw (Ori) 74

8. State of Odisha, represented by the Asst. District Veterinary Officer (Disease Control), Balasore v. Kailash Chandra Mallick & Ors., 2022 LiveLaw (Ori) 75

9. Mita Das v. State of Odisha & Ors., 2022 LiveLaw (Ori) 76

10. Prasant Kumar Jagdev v. State of Odisha, 2022 LiveLaw (Ori) 77

11. Daku @ Dasarathi Dehury v. State of Odisha, 2022 LiveLaw (Ori) 78

12. Bimalendu Pradhan v. State of Odisha & Ors., 2022 LiveLaw (Ori) 79

13. Milan @ Makardhwaja Khadia v. State of Odisha, 2022 LiveLaw (Ori) 80

Judgments/Orders Reported This Week:

1. Child In Conflict With Law Gets Bail After 3 Yrs Custody; Orissa High Court Raps Police For 'Lackadaisical Attitude'

Case Title: Roshni Meher v. State of Odisha

Citation: 2022 LiveLaw (Ori) 68

The Court granted bail to a child in conflict with law on Thursday after she remained in custody for over 'three years'. A Single Judge Bench of Justice V. Narasingh came down heavily on the police for its apathetic approach and observed,

"Proceedings of the High Court cannot be held hostage to the whims of the investigating agency and for their lackadaisical attitude, rights of an accused cannot be marginalized, needs no emphasis."

The Court hoped that necessary corrective action shall be taken so as to make the Police machinery more responsive to the needs of administration of justice.

2. Commission Paid To Persons Who Are Not Beneficial To Business Of Assessee Is Taxable: Orissa High Court

Case Title: M/s. Oripol Industries Ltd., Balasore v. Joint Commissioner of Income Tax, Balasore and Ors.

Citation: 2022 LiveLaw (Ori) 69

The High Court dismissed a challenge against an order of the Income Tax Appellate Tribunal, Cuttack (ITAT) which disallowed commission expenses as claimed by the appellant. It held that the appellant was not able to prove the expertise of persons to help him in business to whom the said commission was paid. Denying the arguments of the appellant, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik observed,

"In the present case, all the persons to whom commission was paid were either Directors of the Company or their relatives. None of them is shown to have any expertise in procuring IOF from the Indian markets for enabling the Appellant to meet the purchase order placed on it for IOF. The amounts paid as commission were also not insubstantial."

3. Candidate In 'Direct District Judge Recruitment Exam' Fails To Qualify For Interview By 1 Mark After Revaluation; Orissa HC Dismisses Case

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

Citation: 2022 LiveLaw (Ori) 70

The High Court dismissed the writ petition filed by Mr. Amitav Tripathy, who had challenged marks assigned to him in the examination conducted for direct recruitment from the Bar in the cadre of District Judge. A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik, in its order passed on 11th May 2022, had observed the case to be "rare and exceptional" and had ordered the Registrar (Examinations) to send two questions for revaluation by a 'Law Expert'. The revaluated answer-sheet was produced before the Court. After such revaluation, the petitioner got only additional 0.5 mark, which was 1 mark less than the qualifying marks for the interview. Thus, the Court dismissed the petition and observed,

"The net result is that the candidate gets just 0.5 mark additional for the answer to Question No.1 in Group-D. In all, therefore, the Petitioner secures 45.5 + 0.5 i.e. 46 marks. Since he does not secure 47% in paper II, there is no scope for calling him for interview."

4. Invocation Of Arbitration Clause In Tender Document Is Possible Only If Purchase Order Is Placed: Orissa High Court

Case Title: Emcure Pharmaceuticals Ltd v. The Managing Director, Odisha State Medical Corporation & Ors.

Citation: 2022 LiveLaw (Ori) 71

The High Court has ruled that till a purchase order is issued by the tenderee pursuant to the acceptance of an offer to supply, no completed 'contract' arises between the parties and thus the arbitration clause contained in the tender document is not attracted. A Single Judge Bench of Chief Justice Dr. S. Muralidhar reiterated that the arbitration clause contained in the tender document was not an arbitration agreement in praesenti, but a provision that was to come into existence in the future, if a purchase order was placed.

5. "No Reason For Close Relatives To Falsely Accuse": Orissa High Court Upholds Life Sentence Awarded To Man For Murder Of Cousin Brother

Case Title: Baisakhu Sethy @ Behera v. State of Odisha

Citation: 2022 LiveLaw (Ori) 72

The High Court upheld the conviction of a person, who was sentenced to life for committing murder of his cousin-brother. While dismissing the appeal, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik observed,

"This is not a case of mistaken identity since all the witnesses are close relations of both the accused and the deceased. The fact that the accused hits the deceased with Bala on the head clearly reveals his intention to cause the death of the deceased. This was not on the spur of the moment. The quarrel happened in the evening whereas the incident happened in the night when the deceased was sleeping and wholly unarmed. There was no need for the close relations of the accused to falsely implicate him in the homicidal death of the deceased."

6. Orissa High Court Orders Probe Into Death Of Woman & Her Baby Due To Alleged Medical Negligence In 2015

Case Title: Sambara Sabar v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 73

The High Court ordered a probe into the alleged death of a woman and her baby in 2015, who died allegedly due to 'medical negligence'. A petition was filed by the father-in-law of the woman, who not only lost her baby due to an intra-uterine death but herself died while receiving treatment on 25th March, 2015. The petitioner submitted that the death of the baby as well as the woman was due to medical negligence and was avoidable.

The Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik noted that the pleadings in the petition presented disputed questions of fact with the opposite parties claiming that there was no medical negligence. With a view to obtain an objective assessment of the materials on record, the Court requested the State Commission for Women, Odisha (SCWO) to assist it in the task. It required the SCWO to constitute an appropriate enquiry team to examine the papers and also visit and record statements of the Petitioner and his family members, the concerned treating doctors, the place of treatment, the medical case record and make an assessment as to the veracity of the claims of either party on the basis of the materials gathered. It also ordered that the report of the SCWO pursuant to the above directions be made available to the Court not later than 1st July 2022.

7. Mere Filing Of Curative Petition Is Not A Ground To Stay Proceedings Of Execution Petition: Orissa High Court Affirms

Case Title: State of Odisha & Ors. v. Larsen and Toubro Ltd.

Citation: 2022 LiveLaw (Ori) 74

The High Court has confirmed the judgment of an Executing Court, which held that mere filing of curative petition does not constitute a ground to put a stay on the proceedings of execution petition. In light of the dispute between the parties in the present case, the Petitioners (State) had challenged the award and, thereafter filed an appeal in the Supreme Court. When the civil appeal went against them in the Supreme Court, the petitioners preferred review. That also went against them. Subsequently, they have filed a curative petition. The Court highlighted that the Executing Court said in impugned order that merely filing of curative petition is not a ground to stay the further proceeding of the execution petition and rejected petitioners' prayer for stay. In aforesaid circumstances, Single Bench of Justice Arindam Sinha did not find that the executing Court proceeded illegally in exercise of its jurisdiction, or there is material irregularity in impugned order.

8. Industrial Disputes Act | "Last Come First Go" Principle Can Be Departed By Employer Only After Recording Reasons In Writing: Orissa High Court

Case Title: State of Odisha, represented by the Asst. District Veterinary Officer (Disease Control), Balasore v. Kailash Chandra Mallick & Ors.

Citation: 2022 LiveLaw (Ori) 75

The High Court has held that the principle of "last come first go" cannot ordinarily be departed from by employers while retrenching labourers under the Industrial Disputes Act, 1947 (ID Act). While departing from the principle, it is a pre-condition that the employer has to record 'reasons in writing'. While dismissing writ petition by the employer (State), a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik observed,

"The fact that the workmen were engaged for more than 240 continuous days and had worked for more than 5 to 7 years on a continuous basis which the Management was unable to dispute factually. In fact, MW 1 supported of the case of the workmen to that extent. The further fact that a person junior to the workmen had been retained while the workmen had been retrenched was also unable to be disputed by the Management."

9. Orissa High Court Orders Tahasildar To Plant At Least 50 Trees As Penalty For 'Bizarre' Disposal Of Land Encroachment Case

Case Title: Mita Das v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 76

The Court ordered the Tahalisdar, Kakatpur to plant 'at least 50 trees' as a penalty for passing a 'bizarre' order in a land encroachment case. While observing that the Tahasildar did not grant sufficient opportunity to the petitioner before passing order against her, a Single Judge Bench of Justice Biswanath Rath observed,

"Looking to the nature of the case and for involvement of eviction of a person from his residence the Tahasildar has a responsibility to find whether the encroacher is an educated and law knowing person or not. Further, the Tahasildar has to see the encroacher if belongs to weaker section or person downtrodden in the society having not even sufficient income to take aid of counsel."

10. Orissa High Court Denies Bail To MLA Prasant Jagdev Accused Of Driving Car Over A Crowd During Panchayat Elections

Case Title: Prasant Kumar Jagdev v. State of Odisha

Citation: 2022 LiveLaw (Ori) 77

The High Court denied bail to Chillika MLA Prasant Jagdev, who is accused of driving a four-wheeler over a crowd during the last Panchayat elections in Odisha. While dismissing the bail petition, a Single Judge Bench of Justice Satrughana Pujahari observed,

"As it reveals, while giving threat to run the vehicle over the protesters, he drove the vehicle into the crowd that too using the registration number of a different vehicle. Such indulgence and overt act can never be treated as becoming of a public representative. That apart, the series of criminal cases attached to his antecedent speak against his credibility to abide by condition, if any, imposed in case of his bail, more so when he has also not abided by the conditions not to indulge in any criminal activities while allowing him to be released on bail in connection with Balugaon P.S. Case No. 156 of 2021 thereafter, but still involved in two such criminal cases during the Panchayat election including the present one."

11. Orissa High Court Upholds Life Term Of Man Accused Of Killing Cousin-Brother After State Govt Remitted His Sentence

Case Title: Daku @ Dasarathi Dehury v. State of Odisha

Citation: 2022 LiveLaw (Ori) 78

The High Court confirmed the conviction and the ensuing life term imposed on a man for committing murder of his cousin-brother. While dismissing the appeal filed by the accused against his conviction, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik found no reason to interfere with the reasoned order of the Trial Court. However, it was brought to the notice of the Court that during the pendency of the appeal, the Government of Odisha in exercise of the powers conferred by Section 432 of the Code of Criminal Procedure, 1973 remitted the unexpired portion of the sentence passed against the accused and ordered his premature release. Pursuant thereto, the appellant had already been set free. Hence, the Court held that no further steps are required to be taken against the appellant and accordingly, disposed of the appeal.

12. Ensure Strict Compliance With RERA On Transfer Of Apartment Common Areas: Orissa High Court Directs Inspector General Of Registration

Case Title: Bimalendu Pradhan v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 79

The High Court has directed the Inspector General of Registration (IGR) to ensure strict compliance with the provisions of the Real Estate Regulatory Authority Act (RERA) and Rules made thereunder, until the apparent conflict between certain provisions of the RERA and the Odisha Apartment Ownership (Amendment) Rules, 2021 is reconciled. The Division Bench comprising of Chief Justice Dr. S. Muralidhar and Justice R.K. Pattanaik held,

"With the RERA Act mandating that the transfer of common areas should only be effected in favour of an Association of Apartment Owners, sale deeds presented for registration which contain clauses contrary thereto cannot be allowed to be registered by the IGR."

13. Homicidal Nature Of Death Need Not Always Be Proved Through Direct Evidence: Orissa High Court Upholds Man's Conviction For Wife's Murder

Case Title: Milan @ Makardhwaja Khadia v. State of Odisha

Citation: 2022 LiveLaw (Ori) 80

The High Court held that the homicidal nature of death need not always be proved through direct evidence. A Division Bench of Chief Justice S. Muralidhar and Justice B.P. Routray noted that a homicidal death must be inferred from the circumstances and the nature of injuries noticed on the dead body. The observation was made in an appeal preferred by a man convicted for the murder of his wife and sentenced to life imprisonment. He had argued that in the absence of specific opinion concerning the exact time of death and nature of injuries homicidal nature of the deceased is not proved.

Patna High Court

Patna High Court Grants Bail To Man Accused Of Making Fake Calls In Police Superintendent's Name To Coerce Land & Money Transactions

Case Title: Mohammad Imran Vs State of Bihar

Case Title: 2022 LiveLaw (Pat) 16

The Patna High Court has granted bail to a man accused in the case of making fake calls in the name of Superintendent of Police for pressurizing the complainant into land and money transactions. A single bench of Justice Rajiv Ranjan Prasad directed,

"The trial court shall verify the criminal antecedent of the petitioner and in case at any stage it is found that the petitioner has concealed his criminal antecedent, the court below shall take steps for cancellation of bail bond of the petitioner."

Punjab & Haryana High Court

Nominal Index

  1. Manish Singh @ Golu v. State of UT Chandigarh 2022 LiveLaw (PH) 103
  2. Raj Bala v. State of Haryana and Others 2022 LiveLaw (PH) 104
  3. Mamta Versus State of Haryana, and connected matter 2022 LiveLaw (PH) 105
  4. RANI versus ADDITIONAL DISTRICT MAGISTRATE AND ANR 2022 LiveLaw (PH) 106

  5. Harbans Kaur v. Joginder Pal [FAO-M-272 of 2017] 2022 LiveLaw (PH) 107
  6. Gurpreet Singh Versus State of Punjab 2022 LiveLaw (PH) 108
  7. Seema Rani Versus Anurag Verma and others 2022 LiveLaw (PH) 109
  8. Surjit Singh Dhaliwal Versus State of Punjab and another 2022 LiveLaw (PH) 110

Judgment/orders of the week

1.Ordinarily, Bail Shouldn't Be Granted To Accused If Court Is Of Prima Facie View That He Acted With Cruelty: Punjab & Haryana High Court

Case Title: Manish Singh @ Golu v. State of UT Chandigarh

Case Citation: 2022 LiveLaw (PH) 103

Stressing that cruelty is one of the factors in deciding on bails, the Punjab and Haryana High Court recently observed that ordinarily, once the courts form a prima facie opinion that the accused acted with cruelty, then such an accused should not be granted bail.

2.Child Adopted Post-Retirement Can't Be Denied Family Pension: Punjab & Haryana High Court

Case Title: Raj Bala v. State of Haryana and Others 

Citation: 2022 LiveLaw (PH) 104

Punjab and Haryana High Court held that an adoption post-retirement would not be a ground to deny the benefit of the family pension to a child. Merely because the adoption is post retirement which is mainly for the purpose of providing dependency and also some light in the evening of the life of the couple. The same would not as such be good enough to deny the said child the benefit of the family pension merely on account of the fact that the decision as such to adopt was taken at a belated stage.

3.S.437 CrPC Does Not Give Absolute Right To Bail To A Lady Accused In Multiple FIRs For Duping ₹167 Crores: Punjab & Haryana High Court

Case Title: Mamta Versus State of Haryana, and connected matter

Citation: 2022 LiveLaw (PH) 105

Punjab and Haryana High Court while dealing with a case where the petitioners conspired and duped several victims of an amount of Rs. 167 crores by alluring innocent persons on the pretext of providing them tenders with National Security Guards (NSG), Manesar, held that there are serious allegations of fraud and cheating against the petitioners, and no ground is made out to grant them the concession of regular bail.

4. Jurisdiction Of Senior Citizens Maintenance Tribunal Can't Be Invoked When Complainant Woman Is Aged Below 58 Yrs: Punjab & Haryana High Court

Case Title: RANI versus ADDITIONAL DISTRICT MAGISTRATE AND ANR

Citation: 2022 LiveLaw (PH) 106

Punjab and Haryana High Court while dealing with a challenge to the order of the Additional District Magistrate passed in response to a maintenance petition filed by a woman claiming to be a senior citizen under the Maintenance and Welfare of Parents and Senior Citizen Act, 2007, held that the Maintenance Tribunal could not have invoked its jurisdiction for the reason that the age of the woman was less than 58 years on the relevant date i.e. the date of institution of the proceedings before such Tribunal.

The bench comprising Justice Arun Monga quashed the impugned order and further held that in the premise, on that short ground alone, Tribunal could not have invoked the jurisdiction of the Maintenance Tribunal under the Act because the respondent was not a senior citizen on the relevant date.

4."Enough Mental Cruelty Caused To Husband": PH High Court Upholds Divorce Decree Granted In Favour Of Husband On Grounds Of Cruelty

Case title: Harbans Kaur v. Joginder Pal [FAO-M-272 of 2017]

Case Citation: 2022 LiveLaw (PH) 107

The Punjab and Haryana High Court noted that the Supreme Court had held that even one complaint lodged by the wife found to be false against the husband and his family members amounted to cruelty. Even if husband and wife are staying together and husband does not speak to the wife, it would cause mental cruelty and a spouse staying away by sending vulgar and defamatory letters or notices or filing complaints containing indecent allegations or by initiating number of judicial proceedings can make the life of other spouse miserable, the Court added.

5.S.82 CrPC | 30 Days Period Between Actual Date Of Effecting Proclamation & Date Nominated For Appearance Is Mandatory: Punjab & Haryana High Court

Case Title: Gurpreet Singh Versus State of Punjab

Citation: 2022 LiveLaw (PH) 108

The Punjab and Haryana High Court has held that a clear period of 30 days starting from the date when a proclamation under Section 82 of the Cr.P.C. is actually affected up to the date nominated for causing appearance is mandatory.

6.Punjab & Haryana HC Orders State To Withhold Salary Of Home Secretary Until Payment Of Entire Pensionary Benefits To Widow Of A Class IV Employee

Case Title: Seema Rani Versus Anurag Verma and others

Citation: 2022 LiveLaw (PH) 109

Punjab and Haryana High Court while dealing with the plea moved by the widow of a Class IV employee of the State, contending her right to pensionary benefits, ordered the salary of the Home Secretary, Punjab, to remain stayed till the entire amount of the pensionary benefits is released to her.

7.Punjab & Haryana High Court Stays Arrest Of Proclaimed Offender, Says His Approaching The Court On Own Establishes His Bonafide

Case Title: Surjit Singh Dhaliwal Versus State of Punjab and another

Citation: 2022 LiveLaw (PH) 110

The Punjab and Haryana High Court recently stayed the arrest of a man, who was declared a proclaimed offender by the trial Court, while directing him to surrender before the Court with a stipulation that he shall be released on bail on the same day, subject to furnishing bail bonds and other appropriate additional conditions.

Rajasthan High Court

Nominal Index

State Of Rajasthan, Through P.P v. Komal Lodha 2022 LiveLaw (Raj) 164

Simorna v. State of Rajasthan through PP 2022 LiveLaw (Raj) 165

M/s Vivek Pharmachem (India) Ltd. v. State Of Rajasthan & Anr. 2022 LiveLaw (Raj) 166

Om Prakash Kumawat v. Hero Housing Finance Ltd 2022 LiveLaw (Raj) 167

Asstt. Commercial Taxes Officer Versus M/s. Punusumi India Limited 2022 LiveLaw (Raj) 168

Judgments/ Orders of the Week

  1. Rajasthan High Court Finds Man On Death Row Wrongly Convicted For Rape & Murder Of 7-Yr Old, Modifies Sentence To Life Citing Conviction By SC

Case Title: State Of Rajasthan, Through P.P v. Komal Lodha

Citation: 2022 LiveLaw (Raj) 164

The Rajasthan High Court recently commuted death sentence awarded to a man convicted for the offence of sodomy, rape and murder of a 7-year old girl child, while observing that it appeared to be a case of wrong conviction whereby the actual offenders had, with the help of the Police, shifted the crime on the present convict.

The case had travelled up to the Supreme Court which did not upset the conviction and had remitted the matter back to the High Court only to decide the question of sentence upon consideration of aggravating and mitigating circumstances.

While dealing with this criminal death reference, a division bench of Justices Pankaj Bhandari and Anoop Kumar Dhand observed,

" It appears that two persons committed the horrendous act of rape and sodomy with a seven ones year old girl and murdered the girl and thereafter, with the help of the police shifted the crime to the present appellant...We are alive of the fact that the conviction of the accused has been upheld by the Apex Court...Since we have been directed to confine our judgment only on the question of sentence for offence under Section 302 IPC, we with heavy heart and with hope that justice would be done to the accused, who has been sentenced to imprisonment till death for crime committed by two other persons, commute sentence from death penalty to life imprisonment."

  1. Rajasthan High Court Grants Bail To Murder Accused In Custody Since 2015 Along With Her Minor Daughter

Case Title: Simorna v. State of Rajasthan through PP

Citation: 2022 LiveLaw (Raj) 165

The Rajasthan High Court has granted bail to a woman, accused in a murder case, who has been incarcerated since June 2015, along with her minor daughter.

While observing that the trial is still pending and on being informed that the same is held up on account of delay caused by witnesses, Justice Manoj Kumar Garg allowed her second bail application.

Essentially, the lady has been in judicial custody since June 2, 2015 in connection with an FIR registered at Police Station Kuri Bhagtasni, Jodhpur for the offences punishable under Sections 302 (Murder), 120-B (Criminal conspiracy) and 201 (Causing disappearance of evidence of offence) of the IPC and Section 4/25 of the Arms Act.

Notably, her first bail application was dismissed on 15.12.2016 by the court.

"Having regard to the totality of the facts and circumstances of the case and considering the facts that the accused-petitioner is a lady and she is inside jail since 02.06.2015 along with her minor daughter aged about three years and the trial of the case is yet pending, therefore, without expressing any opinion on the merits of the case, I deem it just and proper to grant bail to the accused petitioner under Section 439 Cr.P.C," the Court said.

  1. Manufacturer Entitled To Receive One Sample Of Seized Goods U/S 23(4) Of Drugs & Cosmetics Act: Rajasthan High Court

Case Title: M/s Vivek Pharmachem (India) Ltd. v. State Of Rajasthan & Anr.

Citation: 2022 LiveLaw (Raj) 166

The Rajasthan High Court has observed that Section 18A of Drugs and Cosmetics Act, 1940 requires disclosure of name of manufacturer also and not only of the stockists and thus, he is entitled to receive one portion sample of seized drugs in terms of Section 23(4) of the Act.

Section 18A of the Act deals with the disclosure of the name of the manufacturer, etc. It states, "Every person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall, if so required, disclose to the Inspector the name, address and other particulars of the person from whom he acquired the drug or cosmetic.".

Section 23(4) r/e 23(3) provides that where an Inspector takes a sample of a drug for the purpose of test or analysis, he shall divide the sample into four portions and restore one portion of it to the person from whom he takes it, and shall retain the remainder.

  1. Proceedings Under The A&C Act And SARFAESI Act Can Be Resorted To Simultaneously: Rajasthan High Court Reiterates The Legal Position

Case Title: Om Prakash Kumawat v. Hero Housing Finance Ltd

Citation: 2022 LiveLaw (Raj) 167

The High Court of Rajasthan has held that proceedings under the A&C Act and SARFAESI Act can be resorted to simultaneously.

The Single Bench of Justice Mahendra Kumar Goyal has held that the existence of an arbitration clause and filing of an application under Section 9 of the A&C Act is not a bar to the institution of proceedings under the SARFAESI Act.

The writ petitioner challenged that order of the Chief Metropolitan Magistrate, Jaipur passed under Section 14 of the SARFAESI Act on the ground that the loan agreement between the parties contains an arbitration clause and the respondent having filed an application under Section 9 of the A&C Act, therefore, the remedy under SARFAESI Act cannot be resorted to and the CMM erred in entertaining the application.

  1. Rajasthan High Court Refuses To Grant Priority of Government Dues Over Debts Due To Secured Creditors

Case Title: Asstt. Commercial Taxes Officer Versus M/s. Punusumi India Limited

Citation: 2022 LiveLaw (Raj) 168

The Rajasthan High Court bench of Justice Ashok Kumar Gaur has refused to grant the priority of the government dues over the debts due to secured creditors.

The petitioner/department has pleaded that the company M/s. Punsumi India Ltd. is under liquidation and the Officer Liquidator (OL) had invited claims with regard to outstanding dues against the company. The department had sent its claim via communication and the OL communicated that the claim was not in the prescribed format and the same was time barred and delay was to be condoned by the High Court.

The department submitted its claim before the OL with the documentary evidence and affidavit, and the OL called for certain information from the department, which was responded to by them.

Others Important Updates

  1. Supreme Court Collegium Recommends Elevation Of Justice S. S. Shinde As Rajasthan High Court's Chief Justice

The Supreme Court Collegium has recommended the name of Justice S. S. Shinde as the new Chief Justice of the Rajasthan High Court. Presently, Justice Shinde is serving as a Judge of the Bombay High Court.

Pursuant to the retirement of Justice Akil Kureshi as the Chief Justice of the Rajasthan High Court, Justice Manindra Mohan Shrivastava had taken over as the Acting Chief Justice of the High Court.

Justice Shinde was born on 02nd August 1960. He completed LL.B. Course from Marathwada University (now Dr. Babasaheb Ambedkar Marathwada University) at Aurangabad.

He obtained LL.M Degrees from Pune University, and from Warwick University, United Kingdom. He enrolled on 9th April 1987 as an Advocate on the Roll of the Bar Council of Maharashtra & Goa, and started practice as an advocate in the High Court of Bombay, Bench at Aurangabad in November 1989.

  1. [Jodhpur Violence] Rajasthan High Court Grants Interim Protection From Arrests To 3 Accused Persons

Case Title: Hitesh Vyas & Ors. .v. State Of Rajasthan & Anr.

The Rajasthan High Court has granted interim protection from arrest to three accused persons, namely Hitesh Vyas, Arvind and Khimanshu Gehlot in the recent incident of Jodhpur Violence that took place on 02.05.2022 at Jalori Gate Chouraha, Jodhpur.

The court has directed the Investigation Officer to remain present with case diary and CCTV Footage of the incident (if any) on the next date of hearing.

Justice Dinesh Mehta, observed,

"Having regard to the facts and circumstances of the case, the Investigating Officer is directed to remain present with case diary and CCTV Footage of the incident (if any) on 23.05.2022. The matter shall be taken up at 11.00 a.m. on 23.05.2022. Till then, the petitioners shall not be arrested in connection with FIR No.127/2022, P.S. Sardarpura, Jodhpur."

  1. Internet Suspended For 506 Hrs Through 26 Shutdown Orders In Udaipur: PIL In Rajasthan High Court, Notice Issued

Case Title: Udaipur Chamber of Commerce and Industry & Anr. v. State of Rajasthan

The Rajasthan High Court has issued notice on a public interest litigation challenging the validity of frequent "Internet Shutdown" orders being passed by the Divisional Commissioner of the area.

It is alleged that since the Supreme Court's orders in Anuradha Bhasin v. Union of India, which held that internet shutdowns should be resorted to only in exceptional circumstances, at least 26 shutdown orders restricting internet access for around 506 hours in the Udaipur Division have been issued.

A division bench comprising Acting Chief Justice Manindra Mohan Shrivastava and Justice Madan Gopal Vyas has issued notices in the matter.

The public interest litigation has been filed by Udaipur Chamber of Commerce and Industry as well as Hotel Association, Udaipur. It seeks a direction to the State to immediately publish all orders suspending internet services on its official websites as well as Twitter Handle i.e. @RajGovOfficial.

  1. Rajgarh Temple Demolition | "Urgent & Immediate Interrogation Not Required", Rajasthan HC Grants Interim Relief To Arnab Goswami On Pawan Khera's Complaint

Case Title: Arnab Goswami v. State of Rajasthan

Case No.: CRLMP / 3015 / 2022

The Rajasthan High Court has granted interim relief from arrest to news anchor Arnab Goswami in an FIR registered against him based on the complaint by Congress Spokesperson Pawan Khera taking objections regarding broadcast of certain news on Republic Bharat regarding alleged temple demolition in Rajgarh.

Essentially, the FIR was registered at Ambamata Police Station, Udaipur on 17.05.2022 against Arnab Goswami along with other persons of Republic Bharat under Sections 153A, 295A, 120B, 499, 501, 504 & 505 of the Indian Penal Code and other relevant sections of Information Technology Act, 200 read with N.S.A. Act. The FIR was registered pursuant to the news reporting conducted by Republic Bharat with regards to demolition of temple at Rajasthan. In this regard, Arnab Goswami has moved to the High Court seeking quashing of the aforesaid FIR.

The matter was mentioned before the bench today by Sr. Adv. Mahesh Jethmalani. Consequently, Justice Dinesh Mehta, observed,

"Having regard to the facts and circumstances of the case and considering that the omnibus allegations levelled in the FIR relate to an attempt to de-establish the State Government, this Court is of the view that the immediate and urgent interrogation of the petitioner is not required, particularly when neither details of programme nor any specific incident have been indicated in the written information."

Telangana High Court

1. CIT(A) Is A Quasi-Judicial Authority, Not Bound By Administrative Circulars Issued By CBDT: Telangana High Court

Case Title: APR Jewellers Private Limited Versus The Commissioner of Income Tax

Case Citation: 2025 LiveLaw (Tel) 42

The Telangana High Court held that the CIT (A) is a quasi-judicial authority and is not bound by the administrative circulars issued by the Central Board of Direct Taxes (CBDT).

Uttarakhand High Court

1. In Case Depending Largely Upon Circumstantial Evidence, There Is Always Danger That Conjecture May Take Place Of Legal Proof: Uttarakhand High Court

Case Title: Hidayat Ali v. the State of Uttarakhand

Case Citation: 2022 LiveLaw (Utt) 18

The Uttarakhand High Court has recently held that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. A Division Bench of Acting Chief Justice Sanjaya Kumar Mishra and Justice Ramesh Chandra Khulbe noted that,

"The law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible."

The division bench of Justice Ujjal Bhuyan and Justice Surepalli Nanda has remanded the matter back to the CIT (A) for a fresh decision on the prayer for stay of the petitioner in accordance with law after complying with the principles of natural justice.

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