Calcutta High Court Weekly Round Up: June 13 To June 19, 2022

Nominal Index  [Citations 235- 247]

Shri Adhir Ranjan Chowdhury v. State of West Bengal 2022 LiveLaw (Cal) 235

Niladri Saha v. State of West Bengal and other connected matters 2022 LiveLaw (Cal) 236

Ramesh Malik & Ors v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 237

M/S. Dunlop India Limited and Ors v. Mathai and Sons 2022 LiveLaw (Cal) 238

Abhisek Panda & Ors v. West Bengal National University of Juridical Sciences & Ors 2022 LiveLaw (Cal) 239

Electrosteel Castings Limited Versus The Assistant Commissioner 2022 LiveLaw (Cal) 240

Niladri Saha v. State of West Bengal and other connected matters 2022 LiveLaw (Cal) 241

Ramesh Malik & Ors v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 242

Mahendra Kumar Jain v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 243

Suresh Babu @ Arakkal Arjunan Suresh Babu v. State of West Bengal 2022 LiveLaw (Cal) 244

Pranati Aguan v. State of West Bengal and Ors 2022 LiveLaw (Cal) 245

Suvendu Adhikari and Ors v. Hon'ble Speaker, West Bengal Legislative Assembly 2022 LiveLaw (Cal) 246

Raj Kumar Singh & Anr. versus Assistant Commissioner 2022 LiveLaw (Cal) 247

Orders/Judgments 

1. BREAKING | 'Not Illegal Or Arbitrary': Calcutta High Court Refuses CBI Probe In WB Govt's Metro Dairy Disinvestment

Case Title: Shri Adhir Ranjan Chowdhury v. State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 235

The Calcutta High Court refused to initiate a probe by the Central Bureau of Investigation (CBI) into the alleged Metro Dairy scam, by opining that no case has been made out for interference as the State has not adopted any non-transparent or opaque sale of shares. The Court was adjudicating upon a Public Interest Litigation (PIL) petition moved by West Bengal Congress President Adhir Chowdhury alleging a lack of transparency in West Bengal government's sale of its 47 percent stake in Metro Dairy to private dairy organisation Keventer Agro Ltd in 2017. In the same year, one Singapore-based company had reportedly bought Metro Dairy's 15 per cent share at a much higher price. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj observed that the policy decision of the West Bengal government to sell its 47 per cent stake in Mother Dairy (respondent no. 5) to Keventer Agro Ltd in an auction for Rs 85 crore was neither illegal nor arbitrary. "Having regard to the above, we find that policy decision of the State to sell 47 % shares of respondent no. 5 MDL was neither illegal nor arbitrary and State had also not adopted non-transparent or opaque procedure for sale of shares, hence no case for interference in the present writ petition is made out which is accordingly, dismissed", the Court ruled.

2. Prophet Remark Row: Calcutta High Court Asks State To Prevent Untoward Incidents, Seek Help From Central Paramilitary Forces If Required

Case Title: Niladri Saha v. State of West Bengal and other connected matters

Case Citation: 2022 LiveLaw (Cal) 236

The Calcutta High Court on Monday sought the State government's response in a batch of Public Interest Litigation (PIL) petitions seeking deployment of central paramilitary forces in West Bengal amid the ongoing protests against offensive remarks made against Prophet Mohammed by now suspended BJP leaders. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj underscored that the State authorities must ensure that no untoward incident takes place and further directed that the State should seek help from central forces in case they fail to control the situation. "In the meanwhile we express hope that the State authorities will take all possible steps to ensure that no untoward incident takes place and peace is maintained. In case, the State Police is unable to control the situation at any place then State authorities will take immediate steps to call the central forces", the Court observed. The Bench further directed the State government to consider looking into appropriate video footage to identify the miscreants responsible for the violence. The Advocate General was also instructed to consider the issue of grant of compensation to those who have suffered loss of property in the alleged incidents of violence and accordingly apprise the Court about the steps taken on the next date of hearing.

3. Calcutta High Court Orders CBI To Probe Alleged 'Illegal' Appointments By State's Primary Education Board

Case Title: Ramesh Malik & Ors v. The State of West Bengal & Ors

Case Citation: 2022 LiveLaw (Cal) 237

The Calcutta High Court ordered the Central Bureau of Investigation (CBI) to probe into recruitment of teachers in government-aided primary schools by the State's primary education board. Justice Abhijit Gangopadhyay directed the CBI to file an FIR to initiate an investigation into alleged illegal recruitment of teachers by the board based on the teachers' eligibility test in 2014. Furthermore, the primary education board secretary Ratna Chakraborti Bagchi and president Manik Bhattacharya were also ordered to appear before the CBI at its office later by 5pm on Monday. "In view of the illegality committed in respect of the second panel (termed as Additional Panel, by the Secretary of the Board), which is wholly illegal and giving illegal appointment to 269 candidates by a queer method unknown to law, I direct the Central Bureau of Investigation ('CBI', for short) to start investigation by registering a case immediately against the Board and start interrogating the President of the West Bengal Board of Primary Education, Dr. Manik Bhattacharya, and the Secretary of the said Board Dr. Ratna Chakraborty Bagchi, which shall start today itself. I direct the petitioners to add Dr. Manik Bhattacharya, the President of the West Bengal Board of Primary Education and Dr. Ratna Chakraborty Bagchi, the Secretary of the said Board as party respondents and they are to go to the CBI office at Nizam Palace by 5:30 p.m. today to face interrogation", the Court ordered.

4. 'Desperate Attempt To Keep Claims In Limbo': Calcutta High Court Rejects Unsecured Creditor's Plea To Stay Dunlop E-Auction With ₹2 Lakh Cost

Case Title: M/S. Dunlop India Limited and Ors v. Mathai and Sons

Case Citation: 2022 LiveLaw (Cal) 238

The Calcutta High Court came down heavily on an unsecured creditor seeking a stay of the e-auction process to liquidate plant and machinery of Dunlop India Ltd, opining that it is a desperate attempt to keep the claims of the creditors and workers uncertain and in a limbo for all times to come. Justice Moushumi Bhattacharya was adjudicating upon an application moved by one Miller Traders Private Limited, an unsecured creditor of Dunlop India Ltd seeking a stay of an e-auction sale notice dated February 21, 2022. The Court imposed costs on the applicant to the tune of Rs 2 lakhs and further observed, "The irrefutable conclusion is that the applicant does not want closure or any constructive resolution of the matter but seeks to keep the claims of the creditors and workers uncertain and in a limbo for all times to come. If a reference can be drawn to the meat of the matter – the conduct of the applicant is simply not kosher. This Court is therefore of the view that the applicant should be subjected to pay costs of Rs. 2,00,000/- to the welfare fund of the workers of the company (in liquidation). The said amount shall be paid to the Official Liquidator for being kept in a separate interest-bearing account for the benefit of the workers of the company (in liquidation)."

5. 'Inequitable & Unjust': Calcutta High Court Restrains NUJS From Discontinuing Online Course For Already Enrolled Students

Case Title: Abhisek Panda & Ors v. West Bengal National University of Juridical Sciences & Ors

Case Citation: 2022 LiveLaw (Cal) 239

The Calcutta High Court restrained the West Bengal National University of Juridical Sciences (NUJS) from discontinuing online courses started by it in 2012 for already enrolled students and further opined that degrees and diplomas awarded on successful completion of the courses will be deemed to have been issued with the approval of the University Grants Commission. In or about in 2012, NUJS had decided to start online courses in various subjects and for proper administration of these courses it took the assistance of a facilitator- an organisation called Ipleaders. Thereafter, IPleaders and NUJS made an arrangement between themselves with regard to allocation of work and responsibilities and the sharing of revenue earned from the students. A Bench comprising Justice Subhendu Samanta and Justice I. P. Mukerji opined that it would be inequitable to discontinue the courses and accordingly underscored, "In our opinion, at this point of time it would be most inequitable and unjust to de-recognise the course cancel it and direct refund of fees. Since on the representation of the University the students had undertaken this method of study and thus altered their position, the doctrine of promissory estoppel would prevent the University from calling off this course. It would also prevent the University Grants Commission from de-recognising it." Accordingly, the Court disposed of the petitions by observing that students who have already enrolled themselves for the online courses from 2012 and not completed it should be allowed to complete the courses if otherwise entitled to do so. The Court however clarified that no new enrolment for the online course shall be permitted, unless expressly authorised by the University Grants Commission.

6. No Cess Applicable On Coal Used As An Input For Manufacturing Finished Goods Used For Domestic Supply: Calcutta High Court

Case Title: Electrosteel Castings Limited Versus The Assistant Commissioner

Citation: 2022 LiveLaw (Cal) 240

The Calcutta High Court has ruled that cess is not applicable on the coal used as an input for manufacturing finished goods for the domestic supply. The single bench of Justice Md. Nizamuddin has observed that goods which are subject to a nil rate of cess would be construed as exempt supplies for purposes of the formula prescribed in Rule 89 (4) of the CGST Rules. Therefore, it deserves to be excluded from the calculation of adjusted total turnover. he court noted that cess is akin to the components of GST, which is a constitutionally approved amalgam of State taxes, which existed prior to the commencement of the GST regime. The Goods and Services Tax Compensation Cess Rules, 2017 were also framed and made effective from 1st July, 2017, wherein the Central Goods and Services Tax Rules, 2017 were adapted. Having regard to the conscious use of the expression "mutatis mutandis" in Section 11 of the Cess Act, all the provisions of the CGST and IGST Acts would be squarely applicable to the levy, collection, and refund of the Cess Act. The words "tax" and "cess" for the purpose of the Act would have to be used interchangeably.

7. Prophet Row | Calcutta High Court Asks WB Govt To Assess Ground Situation, Call For Central Forces Before Situation Goes Out Of Control

Case Title: Niladri Saha v. State of West Bengal and other connected matters

Case Citation: 2022 LiveLaw (Cal) 241

The Calcutta High Court vide order dated June 15 has reiterated that the State authorities must assess the ground situation and take steps to deploy central paramilitary forces if the need arises before any loss of life or property takes place. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj was adjudicating upon a batch of Public Interest Litigation (PIL) petitions seeking deployment of central paramilitary forces in West Bengal amid the ongoing protests against offensive remarks made against Prophet Mohammed by former BJP spokespersons Nupur Sharma and Naveen Kumar Jindal. Pursuant to a perusal of the rival submissions on Wednesday, the Court ordered, "Having regard to the apprehension which have been expressed, we direct the State authorities to assess the ground situation in advance and take steps to call for the Central Forces in terms of earlier directions in case if the need so arises, before the situation goes out of control or before any loss of life or property takes place." The Court further stated that the State authorities must take all possible preventive steps to ensure that no such incident takes place. The State authorities were also directed to expeditiously collect video footages and take action against the miscreants in terms of Sections 15A, 15B and 15C of the West Bengal Maintenance of Public Order Act, 1972

Also Read: Prophet Row | 'Maintain Communal Harmony': Calcutta High Court Reserves Order On Deployment Of Central Forces, NIA Probe Into Violent Protests

8. Primary Teacher Recruitment Scam: Calcutta High Court Orders CBI To Set Up SIT, Declares Court-Monitored Probe

Case Title: Ramesh Malik & Ors v. The State of West Bengal & Ors

Case Citation: 2022 LiveLaw (Cal) 242

The Calcutta High Court ordered the Central Bureau of Investigation (CBI) to set up a special investigation team (SIT) under the supervision of a Joint Director of its anti-corruption branch to probe alleged irregularities in the recruitment of teachers in state government-sponsored and aided primary schools. The Court also directed that the SIT members cannot be transferred from Kolkata until the conclusion of the probe. Justice Abhijit Gangopadhyay on the last date of hearing had directed the CBI to file an FIR to initiate an investigation into alleged illegal recruitment of teachers by the board based on the teachers' eligibility test in 2014. Furthermore, the primary education board secretary Ratna Chakraborti Bagchi and president Manik Bhattacharya were also ordered to appear before the CBI at its office later by 5pm on Monday. "CBI shall constitute a Special Investigation Team (SIT) of competent officers who will be the only members of the SIT and whose names will be supplied to this court on 17th June, 2022 when these two matters will appear under the heading "To Be Mentioned" at the top of the list. The Joint Director who is now heading the Anti-Corruption Bureau of CBI shall be the head of the SIT whose name also shall be intimated to this court by CBI on 17.06.2022. The members of SIT and the said Joint Director shall not be transferred from Kolkata till the investigation is complete in every respect", the Court ordered.

Also Read: 'CBI Investigation Unsatisfactory, No Substantial Progress': Calcutta High Court Expresses Displeasure In SSC Recruitment Scam Cases

9. 'Slow & Directionless Investigation': Calcutta High Court Orders IPS Led SIT To Probe Into Alleged Dowry Death Of 25-Yrs-Old Rasika Jain

Case Title: Mahendra Kumar Jain v. The State of West Bengal & Ors

Case Citation: 2022 LiveLaw (Cal) 243

The Calcutta High Court ordered the setting up of a special investigating team (SIT) to investigate the death of a 25-year-old woman Rasika Jain, who had fallen from the third-floor terrace of her in-law's house in February 2021, following which her family members complained of foul play. They moved the High Court claiming that the police were not properly pursuing the case and prayed for the court's intervention. Justice Shampa Sarkar opined that the investigation into the case by the State police authorities has been 'slow and directionless' and further underscored, "Having considered the graveness of the allegations, the social position of the parties and the unfortunate events which led to the death of the young lady and especially in view of the delay which has occurred in the interregnum period, this Court is of the view that the investigation ought to have been conducted in a more speedy and systematic manner. It has been rather slow and directionless. The offences relate to dowry death and crime against women. It has a huge social impact." Directing the special commissioner of police, Kolkata, Damayanti Sen to set up the SIT within seven days and start the investigation, the Court ordered, "The Court directs Smt. Damayanti Sen, Special Commissioner of Police (II), Kolkata Police, to constitute her own team of competent officers to take over the investigation. At least a team of five officers must be constituted."

10. 'Not Living On Earnings Of Sex Workers': Calcutta High Court Quashes Proceedings Against Brothel Customer

Case Title: Suresh Babu @ Arakkal Arjunan Suresh Babu v. State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 244

The Calcutta High Court held that a customer merely visiting a brothel for sexual pleasure cannot be held liable for offences under the Immoral Traffic (Prevention) Act 1956 (Act). Justice Ajoy Kumar Mukherjee underscored that what is punishable under the Act is sexual exploitation or abuse of a person for commercial purpose and to earn the bread thereby, keeping or allowing a premises as brothel. "Mere visiting the house of sex worker as customer cannot be presumed to be living on earnings of sex workers. To invoke the presumption it must be shown that he was found in the company of the sex worker on some other occasion," the Court observed. Accordingly, the Court quashed the chargesheet and the criminal proceedings initiated against the petitioner by observing, "Having regard to the facts and circumstances of the present case and considering the materials that the petitioner was found in the alleged brothel as customer and that on the date of occurrence he only went there after coming from Dubai to have sex with a sex worker in lieu of money and in the absence of any evidence that he is living on the earning of any of the accused/sex worker or is a habitual visitor of the said place and thereby has exercised control, direction or influence over the movement of any of the sex worker against which can be said to be aiding or abetting their sex work or that he was habitually living with any of the accused sex worker, I find that the sections in which the cognizance has been taken by the Magistrate against the present petitioner is bad in law and the said cognizance is taken without considering the materials in the case diary."

11. Article 14 Does Not Envisage Equal Treatment For Unequals: Calcutta High Court Upholds Eligibility Criteria For Govt School Principals

Case Title: Pranati Aguan v. State of West Bengal and Ors

Case Citation: 2022 LiveLaw (Cal) 245

The Calcutta High Court has recently observed that the right to equality enshrined under Article 14 of the Constitution does not mean giving equal treatment or equal protection of the law to persons who are unequals and that its violation would entail giving iniquitous treatment to persons falling within the same bracket despite their homogeneous characteristics. Justice Moushumi Bhattacharya was adjudicating upon a plea seeking cancellation of amendments made to the West Bengal School Service Commission (Selection for appointment to the Posts of Headmaster/Headmistress in Secondary or Higher Secondary and Junior High Schools) Rules, 2016 as notified on March 24, 2017 and all subsequent Notifications issued thereafter to the extent of imposing enhanced qualifications for selection of Headmasters/Headmistresses in Secondary, Higher Secondary and Junior High Schools. Enumerating further upon what constitutes 'reasonable classification' under Article 14 of the Constitution, the Court underscored, "The safeguard in Article 14 of the Constitution is to prevent discriminatory treatment of persons who claim to be equals; the right does not mean giving equal treatment or equal protection of the law to persons who are unequals and would hence require differential treatment for preserving their unique and individual characteristics. The image which comes to mind is of 3 persons of unequal height being given 3 ladders to see beyond a wall; the idea is not to give 3 equal-sized ladders to the 3 persons but giving the tallest ladder to the shortest person and the shortest ladder to the tallest person so that all 3 can look beyond the wall (wishfully at a brighter and more equal future)."

12. Calcutta High Court Disposes BJP MLA Suvendu Adhikari's Plea After Speaker Revokes Suspension

Case Title: Suvendu Adhikari and Ors v. Hon'ble Speaker, West Bengal Legislative Assembly

Case Citation: 2022 LiveLaw (Cal) 246

The Calcutta High Court disposed of a writ petition challenging the decision of West Bengal Assembly Speaker Biman Bandyopadhyay to suspend Leader of the Opposition Suvendu Adhikari and four other BJP MLAs from the West Bengal Legislative Assembly. The Court was apprised that the Speaker on Thursday had revoked the suspension of the BJP MLAs including that of Leader of Opposition Suvendu Adhikari after consultation with the State's Parliamentary Affairs Minister Partha Chatterjee. Justice Rajasekhar Mantha had earlier sought response from Speaker Biman Bandyopadhyay in the plea filed by the saffron party legislators challenging his decision. Thereafter, the Court had underscored that the pendency of the plea would not stand in the way of the parties resolving the issue in accordance with rules. "This Court is relieved to note that the motion suspending the petitioners from the House has come for consideration on another motion moved to withdraw the same. Suspension has been terminated", the Court observed.

13. Nowhere It Appears That Petitioners' Request For A Personal Hearing Was Considered Or Rejected: Calcutta High Court Sets Aside GST Adjudication Order

Case Title: Raj Kumar Singh & Anr. versus Assistant Commissioner

Case Citation: 2022 LiveLaw (Cal) 247

The Calcutta High Court bench of Justice Md. Nizamuddin has held that the GST order passed without giving an opportunity of personal hearing is against the principles of natural justice. The petitioner has challenged the adjudication order passed by the Adjudicating Authority. The primary ground of challenge was that the order was passed in violation of the principle of natural justice by not affording an opportunity of personal hearing to the petitioners in spite of a specific request. The court set aside the GST order and remanded the matter back to the Adjudicating Officer to pass a fresh order after giving an opportunity of hearing to the petitioners or their authorised representative within eight weeks.

Important Developments 

1. Prophet Remark Row | Calcutta HC Seeks State's Response On Plea To Initiate Criminal Proceedings Against Nupur Sharma & Naveen Kumar Jindal

Case Title: Masum Ali Sardar v. State of West Bengal & Ors and other connected matters

The Calcutta High Court sought the State government's response in a Public Interest Litigation (PIL) petition seeking initiation of criminal proceedings against suspended BJP leaders Nupur Sharma and Naveen Kumar Jindal over their derogatory remarks against Prophet Mohammad that led to an outrage in India and in Gulf countries. The plea also sought the recall of orders suspending internet services and imposition of Section 144 of CrPC in areas wherein protests broke out in Howrah district of West Bengal. Furthermore, the constitution of a Committee under the supervision of a retired Judge of the High Court was also sought to inquire into the excesses of law enforcement personnel in the affected areas. The PIL filed by practicing Advocate Masum Ali Sardar through advocate Jhuma Sen averred, "For that not only the petitioner and his community but also a large section of sensible people of other communities of the state expected that the Government, both at the Centre as well the State, would rise to the occasion and take appropriate action against those who had deliberately and publicly acted in a sacrilegious manner so as to humiliate the Prophet." Thus, the petitioner sought for the initiation of criminal proceedings against the suspended BJP leaders under Sections295A, 298, 153 and 153A of the Indian Penal Code, 1860. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj directed the State government to file a report in the form of affidavit responding to the plea before the next date of hearing which is slated to take place on June 15.