Calcutta High Court Weekly Round-Up: March 7 To March 13, 2022

Nominal Index 

Dharanidhar Ghosh Vs. Union of India 2022 LiveLaw (Cal) 71

Unisource Hydro Carbon Services Private Limited Versus Union of India 2022 LiveLaw (Cal) 72

Sankar Mondal v. Swapan Debnath & Ors2022 LiveLaw (Cal) 73

Piyali Tewari Dey v. Baidyanath Dey & Ors 2022 LiveLaw (Cal) 74

Ashlesh Biradar v. State of West Bengal 2022 LiveLaw (Cal) 75

In the goods of Mahesh Kumar Agarwal and Anr. v. Meena Agarwal and Ors 2022 LiveLaw (Cal) 76

Tushar Kanti Das v. Kajal Saha 2022 LiveLaw (Cal) 77

Anubrata Mondal v. Union of India & Ors 2022 LiveLaw (Cal) 78

In Re : Bhajagobinda Roy alias Bhajan Roy2022 LiveLaw (Cal) 79

Orders/Judgments 

1. Calcutta High Court Quashes Penalty Imposed By Customs Dept. Without Enquiry & Adjudication

Case Title: Dharanidhar Ghosh Vs. Union of India

Case Citation: 2022 LiveLaw (Cal) 71

The Calcutta High Court consisting of Justice Md. Nizamuddin, has quashed the penalty which was imposed by the customs department without initiating any enquiry or adjudication. The petitioner/assessee has challenged the order passed by the Commissioner of Customs which imposed several punishments including Punishment No. V, imposing a penalty of Rs.1 crore under Section 112 (b) of the Customs Act on account of some past offences without initiating any proceeding and any adjudication order. The court while criticising the act of the department said that how an authority like a Commissioner can pass order without initiating any proceeding and any adjudication order and it shows total non-application of mind on his part since order of punishment on the offence is not a part of subject matter of the adjudication proceeding. The court has held that the impugned order is bad, in total non-application of mind and on the face of it, is not sustainable in law; and accordingly, punishment order imposing penalty for alleged past offence without any enquiry and adjudication, is set aside.

2. Income Tax Commissioner In Discretionary Power Of Revision Can't Act As Appellate Authority: Calcutta High Court

Case Title: Unisource Hydro Carbon Services Private Limited Versus Union of India

Case Citation: 2022 LiveLaw (Cal) 72

The Calcutta High Court has ruled that the power of an Appellate Authority is much wider than that of a Revisional Authority and the Commissioner, in the exercise of his discretionary power of revision under Section 264 of the Income Tax Act, cannot act as an Appellate Authority and go into the merits of the assessment by re-appreciating the facts and evidence. The single bench of Justice Md. Nizamuddin has observed that the petitioner/assessee has not filed any statutory appeal before the Commissioner of Income Tax (Appeals) with the sole intention of avoiding the payment of a huge amount of tax determined in the assessment order. The court stated that the High Court, in the exercise of its jurisdiction under Article 226 of the Constitution of India, cannot act as an Appellate Authority over the assessment order on merits, facts, and evidence involved in an assessment proceeding. The court noted that the petitioner has deliberately chosen the forum of revision under Section 264 of the Income Tax Act with a view to making out a case to come up before the Court again under Article 226 of the Constitution of India tactfully indirectly to get interference in the assessment order which the Commissioner in exercising the power under Section 264 of the Income Tax Act has refused.

3. Calcutta HC Stays Ex-Parte Injunction On Sale Of Books Of Veteran Cartoonist Narayan Debnath, Rs 7 Lakhs Deposit To Be Paid To Legal Heirs By Publisher

Case Title: Sankar Mondal v. Swapan Debnath & Ors

Case Citation: 2022 LiveLaw (Cal) 73

The Calcutta High Court imposed a stay on an ex-parte injunction issued by a trial Court in favour of the elder son of renowned illustrator Late Narayan Debnath against a publisher claiming infringement of copyright of several works of his deceased father. A Bench comprising Justice Ajoy Kumar Mukherjee and Justice Soumen Sen was apprised by the appellant publisher that the injunction application was moved ex parte on February 24, 2022 with the oblique motive to prevent the appellant from selling books authored by Late Narayan Debnath just before the commencement of the International Kolkata Book Fair, 2022. The Bench observed that the concerned trial Court should not have issued the ex parte ad-interim order without giving an opportunity of hearing to the publisher especially considering the fact that the Book Fair was to commence shortly and that such an order of injection would cause irreparable injury to him. However, taking into consideration that the appellant is obligated to pay royalties to the legal heirs of the deceased illustrator unless their inter se disputes are settled, the Court ordered the appellant to pay an amount of Rs 7 lakhs by March 14, 2022. Imposing a stay on the impugned order of injunction, the Court observed further, "The order of stay of operation of the impugned order shall remain stayed unconditionally till 14th March, 2022 and in the event the said amount is deposited within the aforesaid period, the stay of operation of impugned order shall continue till the disposal of the appeal."

4. 'Indian Values Being Eroded With Adoption Of Western Culture': Calcutta HC Orders Daughter To Pay Maintenance To Parents, Provide Accommodation

Case Title: Piyali Tewari Dey v. Baidyanath Dey & Ors

Case Citation: 2022 LiveLaw (Cal) 74

The Calcutta High Court directed a daughter to allow her aged parents to reside with her in a residential flat which had been gifted to her by her parents and further restrained her from alienating the disputed flat during the life time of both her parents. She was also ordered to pay a monthly maintenance of Rs 10,000 to meet the basic needs and medical expenses of her aged parents. Justice Kesang Doma Bhutia observed at the outset that the instant case represents how dynamic human relationship can be in the present socio economic condition. She further observed while directing the daughter, "The petitioner is hereby directed to provide shelter to her parents in the flat where they are residing with her but in different mess during their lifetime and to see they live peacefully their remaining days in the house which originally belonged to them. She is further restrained from alienating the disputed flat during the life time of her both parents. She is further directed to pay Rupees Ten Thousand per month towards their maintenance to meet their basic needs and medical expenses." Pertinently, the Court observed that once a gift deed in respect of the transfer of any immovable property has been executed in favour of a child, such a gift deed cannot be cancelled or declared void under Section 23 in the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (Maintenance Act) unless the deed in question is conditional in nature.

5. Calcutta High Court Stays WB Gov Order Temporarily Suspending Internet Services Amid Class 10 Board Exams

Case Title: Ashlesh Biradar v. State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 75

The Calcutta High Court on imposed a stay on an order dated March 3, 2022 issued by the State government temporarily suspending internet services in eight districts of West Bengal between March 7 and March 16. The decision was purportedly taken by the State in order to prevent mass cheating in the upcoming Class 10 State board (Madhyamik) examination.Pursuant to the perusal of the record, the Court noted that the impugned order for suspension of internet service in specified districts has been issued by the Additional Chief Secretary, Home & Hill Affairs Department, Government of West Bengal under Section 144 of the Cr.P.C. The Court opined that such an order under Section 144 CrPC can be issued only by a District Magistrate or Sub-Divisional Magistrate or any other Executive Magistrate empowered by the State Government. Reference was also made to the Supreme Court judgment in Anuradha Bhasin v. Union of India wherein the Apex Court had considered the scope of Rule 2(2) of the 2017 Rules by holding that such an order must be a reasoned order and reasoning of the authorities and officers should indicate unavoidable circumstances necessitating passing of such an order. In this regard, the Court observed that although the impugned order had made reference to 'intelligence inputs', the report of the Review Committee had made no such mention of intelligence inputs. The Bench held that no material had been placed by the State government to show that such an order suspending internet services was require on account of a 'public emergency' or 'public safety'. Reliance was also placed on the Supreme Court judgment in People's Union For Civil Liberties (PUCL) v. Union of India and Another in this regard.

Also Read: PIL In Calcutta High Court Challenges State's Decision To Suspend Internet Services Amid Class 10 Board Exams, Govt To Respond By Tomorrow

6. 'Unfortunate': Calcutta HC Judge Recuses From Hearing Saying Lawyer Approached Him Personally For Favourable Order

Case Title: In the goods of Mahesh Kumar Agarwal and Anr. v. Meena Agarwal and Ors

Case Citation: 2022 LiveLaw (Cal) 76

In an unprecedented development, Justice Shekhar B. Saraf of the Calcutta High Court on Friday recused from hearing a matter after alleging that a lawyer representing one of the parties had approached him personally to issue a favourable order. Calling the incident 'extremely unfortunate' Justice Saraf indicated to senior advocate Harish Salve who was appearing through video conferencing that the errant lawyer also belonged to the party the he was appearing for i.e. the petitioner. Consequently, senior counsel Salve underscored that he was returning the brief immediately by terming the entire incident to be 'obnoxious'. He also highlighted that unfortunately, this was not the first time that he was being made aware of such a complaint alleging corrupt practices. Recusing from hearing the matter, Justice Saraf recorded in the order, "Due to circumstances which are quite unfortunate, I release this matter on my personal ground". 

7. 'Conduct Not Fit To Be Guardian': Calcutta HC Overrules Prior Direction, Grants Custody Of 4 Yr Old To Father Over Deceased Mother's Friend

Case Title: Tushar Kanti Das v. Kajal Saha

Case Citation: 2022 LiveLaw (Cal) 77

The Calcutta High Court has recently overruled its prior decision in a case by granting the custody of a four and a half years old girl child to her biological father instead of a family friend of her deceased mother. The Court issued the direction by relying upon the report of a clinical psychologist who had personally interacted with the child. The Court had earlier refused to grant custody of the minor girl to her biological father and had instead permitted the child to be in the care and protection of the family friend of her deceased mother. The biological father had however been granted visitation rights. Overruling the Court's prior direction, a Bench comprising Justice Ajoy Kumar Mukherjee and Justice Soumen Sen opined that the family friend, Julie Roy, is incapable of taking care of the minor child in question and further remarked, "we were of the view that Julie Roy was unfit for the custody of the child. Her conduct does not make her fit to become a guardian of the child. She is neither financially capable of rearing of the child nor can provide the child with education. She has her own family along with grown up son. On the contrary, the biological father is an engineer and is financially sound. He also had an attachment towards his child, and over a period of time as the report would suggest a bonding has developed between the father and the child."

Also Read: Calcutta HC Grants Custody Of 4-Yr-Old Girl To Deceased Mother's Friend Over Biological Father, Grants Visitation Rights To Father

8. 'Medical Ailments Not As Serious': Calcutta HC Refuses To Grant Relief To TMC Leader Anubrata Mondal From Appearing Before CBI In Cattle Smuggling Probe

Case Title: Anubrata Mondal v. Union of India & Ors

Case Citation: 2022 LiveLaw (Cal) 78

The Calcutta High Court on Friday dismissed a petition moved by Trinamool Congress (TMC) leader Anubrata Mondal seeking relief from appearing before the Central Bureau of Investigation (CBI) in Kolkata for questioning in the ongoing cattle smuggling probe. Mondal had moved the High Court pursuant to the issuance of a CBI notice under Section 160 of CrPC directing him to appear before its investigating team for questioning in the CBI office at Nizam Palace, Kolkata. He had declined to appear before the CBI on three prior occasions citing various medical ailments. Mondal had also requested for the questioning to take place at a place nearer to his residence considering the ongoing pandemic.Justice Rajasekhar Mantha on Friday dismissed the plea of Mondal after noting that he had travelled outside Bolpur on several occasions and that his aliments as examined by the Medical Board are not that serious that would requirement confinement to his home or a hospital. "Having carefully heard the submissions of the parties, this Court notes that indeed the petitioner has been traveling outside Bolpur and on a couple of instances traveled all the way to Howrah. He has appeared in Kolkata before the Medical Board, the ailments referred to by the Medical Board are not as serious as to require the petitioner to remain confined to his home or a hospital", the Court recorded. The Court further observed that the instant case does not warrant an interference under Article 226 of the Constitution of India as an alternate remedy is available under Section 438 of CrPC.

9. 'Exposes Unfortunate & Deplorable Sharp Practices': Calcutta HC Raps Lawyer For Procuring Anticipatory Bail By Misleading Sessions Court

Case Title: In Re : Bhajagobinda Roy alias Bhajan Roy

Case Citation: 2022 LiveLaw (Cal) 79

The Calcutta High Court came down heavily on a lawyer for having procured anticipatory bail before the concerned Sessions Court through 'fraud' and by making a 'brazen incorrect submission' that no such similar relief had been previously turned down by the same Sessions Court or the High Court. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi expressed displeasure at the conduct of the lawyer by underscoring that members of the legal profession are expected to perform their duties with utmost honesty. "Legal profession is a noble profession. Its members are expected to perform their duties with responsibility and honesty and uphold the high and moral ideals of the profession. The present case is one which exposes the unfortunate and deplorable sharp practices resorted to by a member of the said profession to procure an order of anticipatory bail in favour of his client by misleading the Court by making false submissions that no earlier prayer to an anticipatory bail had been turned down earlier either by the session court or the high court", the Court averred.Opining that the conduct of the concerned counsel was motivated to avoid any judicial scrutiny, the Court enumerated further, "In fact subterfuge and/or sharp practice resolved to procure the impugned order of bail is evident from the fact that the pleadings regarding rejection of similar prayer has not been pleaded in the body of the application but is surreptitiously couched in the affidavit accompanying the application so as to avoid judicial scrutiny by the presiding judge."

Important Developments 

1. BJP's Plea Seeking Deployment Of Central Forces In WB Municipal Elections: Calcutta HC Adjourns Hearing To March 11 On State Gov's Request

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

The Calcutta High Court on Monday adjourned the hearing of the plea moved by Bhartiya Janata Party (BJP) seeking the deployment of central forces during the recently held elections to the 108 municipalities of the State on the ground that large scale violence had taken place during the elections to the four municipal corporations – Siliguri, Bidhannagar, Asansol and Chandernagore which took place on February 12. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj had earlier declined to entertain the plea for deployment of central forces and had instead directed the State Election Commission (SEC) to collect information in respect of the conditions prevailing in each of the Municipalities where the elections are scheduled and hold a joint meeting with the Home Secretary of the State and the Director General and Inspector General of the Police within 24 hours. The SEC had also been directed to examine the ground situation of each of the 108 Municipalities and take a decision in writing with respect to the deployment of central paramilitary forces. The matter had been listed for hearing on Monday in order to take on record the various compliance reports pursuant to the earlier directions of the Court. However, the Bench was informed by the State counsel that Advocate General S.N Mookherjee is unavailable to appear before the Court due to some personal difficulty and accordingly a short adjournment was sought. Granting the plea for an adjournment, the Division Bench adjourned the hearing of the matter to March 11.

2. Visva Bharati University Student Protests: Calcutta High Court Seeks Police Report, Orders Personal Appearance Of SP

Case Title: Visva Bharati and Anr v. State of West Bengal and Ors

The Calcutta High Court directed the Superintendent of Police, Birbhum to submit a report addressing the grievances expressed by the authorities of Visva Bharati University amid the ongoing protests by more than 200 students inside the University campus demanding the immediate reopening of hostels and the conduct of online examinations. Justice Rajasekhar Mantha had earlier granted police protection to the Registrar, Assistant Registrar and the management of the University so that they are able to carry out their day to day duties inside the campus without any obstruction from the agitating students. Taking cognisance of the grievance raised, the Court observed, "The Superintendent of Police, Birbhum shall in the meantime ensure that the University functions normally and without obstruction." The Superintendent of Police, Birbhum was also ordered to submit a physical report before the Court on the grievances raised and appear before the Court via virtual mode on March 8 at 10:30 am.

3. 'All Recommendations Signed By Him': Calcutta HC Seeks Personal Appearance Of WBSSC Ex-Chairperson Soumitra Sarkar In Teacher Recruitment Scam

Case Title: Md. Abdul Gani Ansari v. The State of W. B. & Ors

The Calcutta High Court sought the personal appearance of the former Chairman of West Bengal Central School Service Commission Soumitra Sarkar while adjudicating upon a plea alleging illegal appointment of assistant teachers in State run schools in West Bengal pertaining to the State Level Selection Test (SLST). Justice Abhijit Gangopadhyay had earlier ordered the cancellation of appointment of six assistant teachers in the Murshidabad district after noting that they had been illegally appointed pursuant to the illegal recommendation of the West Bengal School Service Commission (WBSSC). The Court had further directed that the illegally recruited teachers should not be paid any salary henceforth and further ordered that the salaries already paid to them must be recovered by the District Inspector of Schools (SE), Murshidabad. On Monday, the Court sought the personal appearance of the former Chairman of the School Service Commission, Programme Officer and the Ex-Advisor on March 9 by directing, "I direct the learned advocate for the School Service Commission to communicate this direction of personal appearance of Mr. Soumitra Sarkar, Ex-Chairman of the School Service Commission, Mr. Samarjit Acharya, Programme Officer and Mr. Shanti Prasad Sinha, Ex-Advisor on 9th March, 2022 at 2 p.m. and I also direct the petitioner to communicate this order to the School Service Commission."

4. PIL In Calcutta High Court Challenges State's Decision To Suspend Internet Services Amid Class 10 Board Exams, Govt To Respond By Tomorrow

Case Title: Ashlesh Biradar v. State of West Bengal

The Calcutta High Court  sought response from the State government in a Public Interest Litigation (PIL) challenging the decision of the State government to temporarily suspend internet services in eight districts of West Bengal between March 7 and March 16. The decision was purportedly taken by the State in order to prevent mass cheating in the upcoming Class 10 State board (Madhyamik) examination. A bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj directed the State government to file an affidavit containing the relevant documents relied upon, by March 10 at 10:30am. Pertinently, the Advocate General apprised the Bench that a meeting of the Review Committee constituted under Rule 2(6) of the 2017 Rules is scheduled to be held on March 10 at 11am. Accordingly, the Court listed the matter for further hearing on March 10 at 2pm after directing the State government to apprise the Court about the decision taken by the Review Committee. 

5. Calcutta High Court Directs Visva Bharati University To Reopen Hostels In Presence Of Police, Student Representatives

Case Title: Visva Bharati and Anr v. State of West Bengal and Ors

The Calcutta High Court directed the Visva-Bharati University authorities to immediately open hostels for its students. The Court ordered that the police should break open the locks in hostel rooms in the presence of two student representatives and other university officials. The direction was issued amid the ongoing protests by more than 200 students inside the University campus demanding the immediate reopening of hostels and the conduct of online examinations. Justice Rajasekhar Mantha had earlier sought a report from the concerned police authorities while University's concerns over obstruction of its daily functioning by the agitating students.Opining that the locks in the hostel rooms should be broken in the presence of student representatives, police personnel and university authorities, the Court directed, "The students shall nominate two representatives to such committee. The presence of the students, police and the committee members is necessary while breaking open locks of some hostel rooms." The Court further ordered that the Officer-in-Charge, Santiniketan Police Station should also depute two constables for the aforesaid purpose. It was also directed that belongings inside the rooms should be inventoried and kept in a separate place. "The rooms shall then be made ready for the students. Priority for occupation shall be given to students in terms of examination schedule i.e. those students who have examinations coming immediately shall be given priority over those students whose examinations are scheduled later", the Court specified further.

6. Calcutta HC Seeks Personal Appearance Of Doctor On The Basis Of Whose Medial Certificate Former Advisor Of WBSSC Had Declined Appearance In Teacher Recruitment Scam Case

Case Title: Md. Abdul Gani Ansari v. The State of West Bengal & Ors.

The Calcutta High Court  sought the personal appearance of a doctor on the basis of whose medical certificate the former advisor of the West Bengal Central School Service Commission Prof. Santi Prasad Sinha had sought the Court's leave to not appear before it despite a prior direction to this effect. The Court was adjudicating upon a plea alleging illegal appointment of assistant teachers in State run schools in West Bengal pertaining to the State Level Selection Test (SLST). Justice Abhijit Gangopadhyay had earlier directed the former Chairman of the School Service Commission Soumitra Sarkar, Programme Officer Samarjit Achary to appear in person along with the former advisor of the Commission. On Wednesday the counsel appearing for the former advisor apprised the Court that his client is ill and further produced before the Court a medical certificate by a doctor one one Prof. (Dr.) Debasis Ray. Directing the concerned doctor to appear personally before the Court tomorrow i.e. on March 10 at 10:30am, the Court observed, "I direct the Registrar General to call the doctor over phone by 3:45 p.m. today, directing him to appear before this court personally at 10:30 a.m. tomorrow. Communication should also be made through email to the said doctor." The Court further underscored that if the doctor fails to appear before the Court then further steps would be taken to ensure his presence.

7. Alleged Violence During Contai Municipality Polls: Calcutta HC Asks ECI If It Can Conduct Forensic Audit Of CCTV Footage

Case Title: Soumendu Adhikari v. State of West Bengal

The Calcutta High Court on Friday directed the Election Commission of India (ECI) to apprise the Court whether forensic audit of CCTV cameras used during the recently concluded Contai Municipality elections can be conducted by it through some independent agency. The Court was adjudicating upon a Public Interest Litigation (PIL) petition moved by BJP leader Soumendu Adhikari alleging that large scale violence and rigging of votes had taken place in the recently concluded Contai Municipality elections. Elections to 108 municipalities in the State including the Contai municipality took place on February 27. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj had earlier refused to grant a stay on the counting of votes pertaining to the Contai Municipality elections which took place on March 2. On Friday, the counsel appearing for the ECI apprised the Court that the central authority does not have the infrastructure or any prior experience in conducting such forensic audit of CCTV footage. To this, the Chief Justice remarked, "Can you get it done in your supervision by some independent agency?" Accordingly, a short adjournment was sought by the counsel for the ECI to come back before the Court with instructions in this regard.The Court further underscored that the State Election Commission must in the meantime take all possible measures to preserve the relevant CCTV footage and other records and keep them in safe custody in order to prevent any instance of tampering.

8. 'Take Effective Steps To Secure Her': Calcutta HC Seeks Investigation Report In Habeas Corpus Plea Filed By Missing Girl's Father

Case Title: Khokan Jana v. The State of West Bengal & Ors.

The Calcutta High Court directed the concerned police authorities to take all possible steps to find out the whereabouts of a 17 year old girl who had allegedly been abducted, and further submit a report detailing the progress of the investigation. A Bench comprising Justice T. S. Sivagnanam and Justice Hiranmay Bhattacharyya were adjudicating upon a habeas corpus plea filed by the father of the minor girl. It was alleged that although an FIR has been registered against the accused persons, no progress has been made in the investigation. Directing the concerned police authorities to file a report in the form of an affidavit detailing the progress of the probe before the next date of hearing, the Court observed, "We direct the respondent police to take further effective steps in securing the missing minor girl and take all steps to arrest the respondent nos.4 to 7 and produce them before this Court at the earliest." The petitioner alleged that his minor daughter aged about 17 years had been abducted by the 4th respondent, who has been actively assisted by the respondent nos.5 to 7, who are none other than the father, mother and brother of the 4th respondent.

9. Anis Khan Death: Calcutta High Court Takes On Record Status Reports Filed By SIT & District Judge

Case Title: Salem Khan v. State of West Bengal and Ors

The Calcutta High Court on Friday took on record the status report submitted by the Special Investigation Team (SIT) in the ongoing probe into the death of 28 year old student leader of West Bengal's Aliah University, Anis Khan, under mysterious circumstances at Amta in Howrah district. The Court had earlier taken suo moto cognisance of the case after terming the incident as 'grave and shocking'. Justice Rajasekhar Mantha had earlier turned down a prayer for a CBI probe and had allowed the State government-appointed Special Investigation Team to continue with its probe but under the supervision of a Howrah district judge. The Court had also ordered for a second post mortem to be conducted by the SIT under the supervision of the Howrah district judge. "The Special Investigation Team (SIT) has filed a detailed report comprising of 20 pages. Concealing the names of certain persons, disclosure whereof, the SIT thinks may prejudice the investigation, let a copy of such investigation report be made available to Mr. Bikash Ranjan Bhattacharya, learned senior advocate appearing for the petitioner", the Court recorded in its order. The Court also took on record the progress report filed by the District Judge, North 24 Parganas appointed in the matter.