Calcutta High Court Weekly Round Up: February 7 To February 12, 2022

Judgments/Orders of the Week 

1. 'Suffered Unnecessary Ignominy And Harassment': Calcutta HC Orders WBSEDCL To Pay Rs 6 Lakhs Compensation To Consumer For Unauthorised Disconnection Of Electricity Supply

Case Title: West Bengal State Electricity Distribution Company Limited v. Sukanta Kumar Singha and Anr

Case Citation: 2022 LiveLaw (Cal) 30

The Calcutta High Court has directed the West Bengal State Electricity Distribution Company (WBSEDCL) to pay an amount to the tune of Rs.6,07,000 to a consumer for unauthorised disconnection of electricity supply due to which the consumer had suffered unnecessary harassment. Calling the conduct of WBSEDCL as 'deplorable', Justice Sabyasachi Bhattacharyya observed, "In cases such as the present one, it is the gross laches of the Distribution Licensee which compelled the respondent no.1, a consumer, to suffer unnecessary ignominy and harassment..As far as the conduct of the Distribution Licensee in the present case is concerned, the same is deplorable and the consumer was compelled to run from pillar to post at every point of time."  Accordingly, the Court directed, "Hence, there was no scope of reducing the total amount of compensation at the rate of Rs. 500/- per day, as calculated by the Ombudsman. Rather, in exercise of this court's powers under Article 226 of the Constitution of India, the impugned order of the Ombudsman is modified to the effect that the Distribution Licensee shall pay compensation not to the tune of Rs.1,21,400/- as awarded but will pay a total amount of Rs.6,07,000/- to the consumer-respondent no.1 within a month from date, deducting any amount, if already paid pursuant to the impugned order of the Ombudsman."

2. Married Daughter Who Became Widowed After The Death Of The Pensioner Is Not Entitled To Family Pension: Calcutta High Court

Case Title: Union Of India and Others v. Ratna Sarkar

Case Citation: 2022 LiveLaw (Cal) 31

The Calcutta High Court observed that the benefit of family pension cannot be extended to a widowed daughter of a pensioner who was married at the time of the death of her father/mother. The Court held that a daughter who became widowed after the demise after her father/mother does not possess any fundamental or statutory right to claim family pension. The issue in consideration before a Bench comprising Justices Harish Tandon and Rabindranath Samanta was whether a daughter of a pensioner who was married, but became widowed after the death of the pensioner is entitled to family pension. Answering in the negative, the Court observed, "As the legislative intent is demonstrated, the scheme of family pension never included a daughter of a pensioner who was married at the time of the death of the pensioner..A daughter who became widowed after the demise after her father/mother does not possess any fundamental or statutory right to claim family pension. In the absence of any legislation in this regard, the benefit of family pension cannot be extended to a daughter of a family pensioner who was married at the time of the death of her father/mother. It will be unwise on the part of this Court to exercise its extraordinary or discretionary power to come to any inference contrary to the policy decision of the Government."

3. Disclosure Of Identity Of Protected Witness Defeats The Purpose Of Section 44 (3) UAPA: Calcutta HC Orders Trial Court To Redact Name Of Protected Witness

Case Title: Surojit Mandal v. National Investigation Agency (NIA)

Case Citation: 2022 LiveLaw (Cal) 32

The Calcutta High Court on Friday observed that Section 44 (3) of the Unlawful Activities (Prevention) Act, 1967 (UAPA) mandate Courts to undertake measures to protect the identity of a protected witness and accordingly directed the concerned Trial Court to to redact the name, address and other particulars of the protected witness from the records immediately. A Bench comprising Justices Joymalya Bagchi and Bivas Pattanayak noted that in the instant case, the statement of the protected witness recorded under Section 164 CrPC discloses his indignity. Opining that such disclosure of indignity defeats the provision of Section 44 (3) of the UAPA, the Bench observed, "Sub-section (3) of section 44 of the Unlawful Activities (Prevention) Act, 1967, inter alia, provides the measures which the court may undertake to protect the identity of a protected witness which includes avoiding to mention the name and address of the witness in its orders or judgment and any record of the case accessible to public. Statement under section 164 Cr.P.C. of the witnesss is required to be served upon the accused. Hence, disclosure of identity of the protected witness in such statement clearly defeats the purpose of the aforesaid provision of law." The Court further directed the Trial Court to exercise more caution in ensuring that the indignity of protected witnesses are not divulged. 

4. Lacunae In Prosecution Case Due To Patent Contradictions Cannot Be Cured By Resorting To Statutory Presumption U/S 29 POCSO Act: Calcutta HC

Case Title: Ganesh Orang v. State of West Bengal & Anr

Case Citation: 2022 LiveLaw (Cal) 33

The Calcutta High Court observed that lacunae in the prosecution case due to patent contradictions or inherent improbabilities cannot be cured by resorting to statutory presumption under Section 29 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). A Bench comprising Justices Joymalya Bagchi and Bivas Pattanayak observed, "Glaring lacunae in the prosecution case undermines the credibility of the factual foundations which require to be prima facie established to attract the statutory presumption. When the primary facts relating to time, place and circumstances constituting the offence are not prima facie established due to patent contradictions or inherent improbabilities, such lacuane cannot be cured by resorting to statutory presumptions in law". Accordingly, the Court acquitted the appellant by observing, "In order to attract the statutory presumption under Section 29 of the POCSO Act the factual foundations with regard to the ingredients of the offence under Section 6 of the said Act require to be established in the first place..in the light of the contradictory and inconsistent versions with regard to the allegation of rape levelled against the appellant, the factual foundations of the prosecution case has not been laid on the basis of preponderance of probabilities so as to attract the statutory presumption and the appellant is therefore entitled to an order of acquittal."

5. 'Period Of 4-6 Weeks Was Only Suggestive': Calcutta High Court Dismisses Contempt Petition Against SEC Regarding Postponement Of 4 Civic Polls

Case Title: Bimal Bhattacharya v. State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 34

The Calcutta High Court has dismissed a contempt petition filed against the State Election Commission (SEC) alleging that it had failed to comply with an earlier order of the Court directing the SEC to consider postponing elections to four municipal corporations for a short period of 4 to 6 weeks in the wake of the rising number of Covid-19 cases. The Court vide order dated January 14 had directed the SEC to consider postponing the conduct of the upcoming municipal elections in Siliguri, Chandernagore, Bidhannagar and Asansol for a short period of 4 to 6 weeks in the wake of the 'galloping speed with which the COVID cases are increasing' in the State of West Bengal. Thereafter, the State Election Commission had decided to postpone the date of election by 3 weeks and had notified that elections to the four municipal corporation would take place on February 12. A Division Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj observed, "The period of 4 to 6 weeks mentioned in the order was only suggestive leaving it upon to the State Election Commission to take a decision in this regard within a time bound period..Having regard to the nature of the order passed by this Court and considering the fact that there was no positive direction in the order of this Court, we are of the opinion that there is no deliberate non-compliance or violation of the order of this Court by the respondents herein, hence no case for initiating the contempt proceedings is made out."

6. 'Misleading Statements Cannot Be Allowed Under Guise Of Free Speech': Calcutta HC Injuncts Chyawanprash Ads Of Baidyanath Ayurved For Disparaging Dabur Trademark

Case Title: Dabur India Limited v. Shree Baidyanath Ayurved Bhawan Pvt Ltd

Case Citation: 2022 LiveLaw (Cal) 35

The Calcutta High Court permanently injuncted four advertisements by the makers of Baidyanath Chyawanprash Special for being disparaging to all other brands of Chyawanprash including Dabur Chyawanprash. Justice Shekhar B Saraf was adjudicating upon a plea moved by Dabur seeking an injunction against the uploading of five advertisements that had allegedly disparaged the goodwill and reputation of its trademark. "Precedents cited by both parties make it clear that true statements can be made even if it denigrates the rival's product, but false and misleading statements cannot be allowed under the guise of free speech. In light of the same, this video advertisement is disparaging and an action from this Court would lie. In light of the reasons provided above, this video advertisement is permanently injuncted", the Court observed. The Court further underscored that the concerned advertisements are misleading and accordingly opined, "A misleading advertising, as the term implies, is one that deceives, manipulates, or is likely to deceive or manipulate the consumer. These commercials have the potential to influence consumer's purchase preference in the market and it also harms its rivals, hence, they must be used with caution. There should be a balance between the right of commercial speech and the interest of public and competitors. In the present case, the video advertisement is, to a large extent, misleading". 

7. NEET-PG| Service In Specialized Units Doesn't Amount To Serving In Rural/ Difficult Area To Qualify For 40% In-Service Quota

Case Title: Tania Mukherjee & Ors v. State of West Bengal & Ors

Case Citation: 2022 LiveLaw (Cal) 36

The Calcutta High Court observed that service in Specialized Units would not amount to serving in "remote and/or difficult areas" for the purpose of qualifying for the stipulated 40% in-service quota in Post Graduate Medical counselling for seats in Government/private colleges in West Bengal. Justice Moushumi Bhattacharya was adjudicating upon a plea moved by 53 graduate doctors who are serving as Medical Officers in different hospitals in the State and had contended that they should be eligible for availing the 40% in-service quota for presently serving in Specialized Units. "This Court recognizes the commitment shown by the in-service doctors who render 24x7 service in these Specialized Units. However, to include service in such Specialized Units within the definition of "rural and/or difficult areas" would amount to making in-roads into the policy frame-work of the State Government which a Writ Court should normally hesitate to do unless compelling reasons exist. A policy decision is not a perpetual no-go area and a Writ Court can certainly interfere in fit cases including where the policy is not backed by legislative competence or where there is an excessive delegation of essential legislative functions or an infraction of the fundamental rights guaranteed under the Constitution of India", the Court observed. 

8. Gross Suppression Of Facts, Petitioner Himself Contesting Candidate: Calcutta HC Imposes 50K Cost On Plea Alleging Fake Caste Certificate For Elections

Case Title: Tapan Saha v. State Election Commissioner & Ors

Case Citation: 2022 LiveLaw (Cal) 37

The Calcutta High Court while hearing a plea alleging issuance of fake Scheduled caste certificate to a candidate contesting from a scheduled caste constituency, imposed costs to the tune of Rs. 50,000 on the petitioner for suppressing the fact that he himself was also a contesting candidate in the concerned Bidhannagar municipal polls. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj observed, "The fact now revealed by the respondents shows that the petition is by one contesting candidate against another. This fact has changed the entire complexion of the case. Hence, we dismiss this writ petition by imposing costs of 50,000/- which is to be deposited by the petitioner with the Legal Services Authority within a period of two weeks from today." Opining that the conduct of the petitioner amounts to 'gross suppression of facts', the Court further underscored, "The petitioner has suppressed this fact in the petition that he is one of the candidates contesting election of concerned municipal corporation. This amounts to gross suppression of fact and the present writ petition is liable to be dismissed with costs on the sole ground of suppressing the fact."

9. Running Of Mill By Neighbour Causing Rattling Noise Amounts To Actionable Nuisance

Case Title: Srimanta Ghosh & Ors v. Debabrata Ghosh

Case Citation: 2022 LiveLaw (Cal) 38

The Calcutta High Court has observed that while it is acceptable that every little discomfort or inconvenience cannot be brought into the category of an actionable nuisance, however if such inconvenience or annoyance exceeds all reasonable limits then the same would amount to an actionable nuisance. A Bench comprising Justice Soumen Sen and Justice Ajoy Kumar Mukherjee was adjudicating upon a plea wherein the plaintiff had contended that the defendant had been running a mill in the adjoining plot which caused rattling noise and vibration thereby causing discomfort to him and his wife. Taking cognisance of the grievance raised, the Court observed, "While it is acceptable that every little discomfort or inconvenience cannot be brought on to the category of an actionable nuisance but if such inconvenience or annoyance exceeds all reasonable limits then the same would amount to an actionable nuisance. Frequent and loud noise has been proved to trigger stress and anxiety in both adult and children – more often affecting mental health. A constant cacophony in neighbour's land causing disquietude in one's own abode is beyond a common man's realm of expected endurance."

10. 'Serious Question About Locus Of Petitioner': Calcutta HC Dismisses PIL Against Physical Classes For Unvaccinated Students Aged Below 15 Yrs

Case Title: Gaurav Purakayastha v. State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 39

The Calcutta High Court  dismissed a Public Interest Litigation (PIL) seeking directions to ensure that conduct of physical classes for Class VIII students in the State should resume only for vaccinated children and that children who are below 15 years of age i.e. are born after the year 2007 should be permitted to attend online classes. It may be noted that the Central government had issued a notification stipulating that children aged 15 years or more i.e. all those whose birth year is 2007 or before shall be eligible for Covid-19 vaccination with effect from January 3, 2022. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj dismissed the plea on the ground that there arises 'serious question about the locus of the petitioner' and further observed that the plea filed is not supported by adequate materials and documents. The Bench further opined that since one PIL is already pending before the Court regarding the issue of reopening of schools, entertaining the instant petition would result in multiplicity of proceedings. However, liberty was granted to the petitioner to file a fresh application along with all relevant materials as so advised.

Important Weekly Updates 

1. 'Mouthpiece Of Bharatiya Janata Party': PIL Filed In Calcutta High Court Seeking Removal Of WB Governor Jagdeep Dhankhar

Case Title: Ramaprasad Sarkar v. Union of India

A Public Interest Litigation (PIL) petition was filed before the Calcutta High Court on Tuesday praying for a direction to the Central government to remove Jagdeep Dhankhar as the Governor of West Bengal, claiming that he was acting as the 'mouthpiece of the Bharatiya Janata Party'. The PIL has been filed by petitioner Rama Prasad Sarkar who is also a lawyer by profession. Opining on the conduct of the Governor, the petitioner averred, "The present Hon'ble Governor of West Bengal Mr. Jagdeep Dhankhar is acting as the mouthpiece of Bharatiya Janata Party (BJP). He is not only interfering in the functioning of the state of affairs but is also maligning the West Bengal government. This is unparalleled in the history of West Bengal's democracy".The petitioner also submitted that the immunity granted to the Governor under Article 361 of the Constitution is not absolute and that the actions of the Governor are subject to judicial scrutiny when challenged for arbitrariness, dishonesty and bad faith. "The Governor is also a formal head who is bound by the aid and advice of the Council of Ministers. Therefore, Mr. Jagdeeo Dhankar's observations about the functioning of the various ministries under the State government carry deeper political repercussions as they have the potential to affect the federal structure and amount to a misuse of political office", the plea further averred.

2. SSC 'Group-D' Recruitment Scam: Calcutta HC Prohibits Payment Of Salary To 573 Illegally Appointed Candidates, Raps Enquiry Commission For Non-Filing Of Inquiry Report

Case Title: Sandeep Prasad & Ors v. State of West Bengal

The Calcutta High Court directed the concerned District Inspectors of Schools to not pay any further salary to 573 candidates who had allegedly been appointed for the post of 'Group-D' (non-teaching staff) in sponsored Secondary and Higher Secondary schools under the West Bengal Board of Secondary Education (WBBSE) despite no such recommendation by the West Bengal Central School Service Commission (WBSSC). Justice Abhijit Gangopadhyay was adjudicating upon a batch of petitions pertaining to the alleged irregularities in the appointment of 'Group-D' (non-teaching staff) in sponsored Secondary and Higher Secondary schools under the WBBSE on the purported recommendation by the WBSSC. The Court underscored, "From the above provision of the Act, it is clear that the appointment of the said 573 candidates are wholly invalid and have no effect for want of recommendation by the commission and, therefore, they cannot work in a school as a recommended candidate by the Commission and their appointment letters of the Board are of no effect. All such appointments given to such 573 candidates are invalid and of no effect." Expressing strong displeasure against the conduct of the inquiry committee, the Court remarked, "The appeal court mandated the committee to file the report by two months from the date of the order of the appeal court. The order of the appeal court was passed on 6th December, 2021. Today we are on 9th February, 2022. Although the said mandatory period of two months have elapsed, not only no inquiry report has been submitted before this court but also nobody of the committee, or on behalf of the committee, did care to appear before this court. This non-appearance is taken very very seriously by this court."

3. Deployment Of Central Forces For Bidhannagar Municipal Polls: Calcutta HC Directs SEC & WB Govt To Decide Within 12 Hours

Case Title: Pratap Banerjee v. State of West Bengal and other connected matters

The Calcutta High Court directed the State Election Commission to hold a joint meeting with officials of the West Bengal government within 12 hours and decide as to whether deployment of central paramilitary forces will be required for the peaceful conduct of the upcoming elections to the Bidhannagar Municipal Corporation. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajrashi Bharadwaj observed,"We hereby direct that the Commissioner, State Election Commission will hold the joint meeting with the Chief Secretary and Home Secretary of the State and the Director General and Inspector General of Police within 12 hours and will do the reappraisal of the ground situation in Bidhannagar Municipal Corporation area and ascertain if deployment of paramilitary forces is necessary for ensuring the peaceful conduct of election of Bidhannagar Municipal Corporation and if require, he will submit and requisition to the Union Ministry of Home Affairs or the competent authority for deployment of paramilitary forces and any request in this regard will be duly considered having regard to the ground situation and in the interest of ensuring peace, security and orderly conduct of the forthcoming Bidhannagar Municipal Corporation Election without any delay." Opining that the Commissioner of the State Election Commission will be held personally liable to ensure that no violence takes place, the Court further remarked, "In case, if the Commissioner, State Election Commission forms an opinion that deployment of the paramilitary forces during Bidhannagar Municipal Corporation election is not necessary, then he will be personally liable to ensure that no violence takes place and free, fearless and peaceful elections are held in Bidhannagar."

Also Read: Calcutta High Court Seeks Response From State, SEC In Plea Seeking Deployment Of Central Forces During Upcoming WB Municipal Elections

Also Read: Calcutta High Court Reserves Judgment In Plea Seeking Deployment Of Central Forces For Bidhannagar Municipal Polls

4. Bidhannagar Municipal Polls: Calcutta HC Refuses To Exclude WB Chief Secretary From Panel Assessing Need To Deploy Central Forces

Case Title: Pratap Banerjee v. State of West Bengal and other connected matters

The Calcutta High Court on Friday dismissed an application seeking modification of its order dated February 10, 2022 whereby the Court had directed the State Election Commission to hold a joint meeting with the Chief Secretary and Home Secretary of the State as well as the Director General and Inspector General of Police within 12 hours and decide as to whether deployment of central paramilitary forces will be required for the peaceful conduct of the upcoming elections to the Bidhannagar Municipal Corporation. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajrashi Bharadwaj on Friday was apprised by one of the counsels for the petitioners that a Division Bench of this Court in the case of Sayan Banerjee v. The Election Commission of India and Ors had recorded adverse observations against the Chief Secretary of West Bengal. Accordingly, the counsel had objected to the order of the Court directing the involvement of the Chief Secretary of the State in the decision making process for the deployment of central forces for the Bidhannagar Municipal polls. Dismissing such a contention raised, the Court observed, "Having regard to the nature of direction which has been issued by this Court, we are of the opinion that no modification of the order of this Court is required on the basis of the observations made by the earlier Division Bench in the order dated 28.09.2021 in WPA (P) 245 of 2021 in respect of the Chief Secretary of the State."

5. Consider Mental & Physical Health Of Mother As Well As Foetus: Calcutta HC Directs Constitution Of Medical Board In Plea Seeking Termination Of 34 Weeks Foetus

Case Title: Nivedita Basu v. State of West Bengal

The Calcutta High Court on Friday directed the Director of IPGME&R, (SSKM Hospital), Kolkata to constitute a medical board as per the provisions of the Medical Termination of Pregnancy Act, 1971 while adjudicating upon a plea of a woman seeking medical termination of her 34 weeks old foetus. Justice Rajasekhar Mantha observed, "This Court directs the Director of IPGME&R, (SSKM Hospital), Kolkata, respondent no. 4 to constitute a medical board comprising of experts, inter alia, in gynaecology and obstetrics as per the Medical Termination of Pregnancy Act, 1971 (as amended in the year 2021) to assess the medical condition of the petitioner and the necessity and advisability of the MTP at this stage."The Court further ordered that the report containing the medical opinion must be submitted before the Court by February 15 and accordingly remarked further, "The mental and physical health of the petitioner as well as the foetus should be considered and opinion should be submitted to this Court as expeditiously as possible but not later than Tuesday 15th February, 2022."