Rajasthan High Court Monthly Digest: August 2022

Himachal Futuristic Communications Limited v. State of Rajasthan & Ors. 2022 LiveLaw (Raj) 211

Karan Johar v. State, Through P.p. & Anr. with other connected matters 2022 LiveLaw (Raj) 212

Madhu Saini & Ors. v. Rajasthan University of Health Sciences & Ors. 2022 LiveLaw (Raj) 213

Jyotsana Rathore v. State of Rajasthan 2022 LiveLaw (Raj) 214

Ramesh Chandra Patel v. State Of Rajasthan & Ors. 2022 LiveLaw (Raj) 215

Bhanwarlal v. State Of Rajasthan & Ors. 2022 LiveLaw (Raj) 216

Vishnu Oil Mill Private Ltd. v. Union Of India & Ors. 2022 LiveLaw (Raj) 217

Abdul Majeed Versus Income Tax Officer 2022 LiveLaw (Raj) 218

Smt. Rekha Kumari v. Hemendra Choudhary @ Hemraj 2022 LiveLaw (Raj) 219

Dhanwantri Institute Of Medical Science v. State Of Rajasthan & Ors.2022 LiveLaw (Raj) 220

State Of Rajasthan & Ors. v. Rekha Kumari and other connected matters 2022 LiveLaw (Raj) 221

Punjab National Bank & Anr. v. Mukesh Kumar Soni 2022 LiveLaw (Raj) 222

Rahul Jain & Ors. v. Baroda Rajasthan Kshetriya Gramin Bank & Ors. 2022 LiveLaw (Raj) 223

M/s. Shrimali Industries Pvt. Ltd. Versus State Of Rajasthan 2022 LiveLaw (Raj) 224

Gram Panchayat, Dujana Panchayat Samiti, Sumerpur District Pali, Through Its Sarpanch Smt. Panku Devi v. Union of India & Ors. 2022 LiveLaw (Raj) 225

Judgments/ Orders of the Week

Rajasthan Stamp Act | Duty Can't Be Levied On Transaction Not Having 'Territorial Nexus' With State: High Court

Case Title: Himachal Futuristic Communications Limited v. State of Rajasthan & Ors.

Citation: 2022 LiveLaw (Raj) 211

The Rajasthan High Court recently set aside a single bench decision which permitted levy of duty under the Rajasthan Stamp Act, 1998 on an amalgamation instrument executed outside the State pursuant to sanction of Himachal Pradesh High Court, not only in relation to properties situated in Rajasthan, but also on the transfer of shares.

A division bench comprising Justices Manindra Mohan Shrivastava and Birendra Kumar observed,

"... insofar as transfer of shares by virtue of order of amalgamation passed by the High Court of Himachal Pradesh is concerned, it did not happen within the territory of the State of Rajasthan. Both the companies are situated outside the territory of Rajasthan. The entire proceedings of arrangement and amalgamation and its sanction took place outside the State of Rajasthan. Therefore, to that extent, stamp duty under the Stamp Act of 1998 would not be leviable... "

The bench made it clear that an instrument executed outside the State of Rajasthan would be chargeable with duty when it bears a "territorial nexus"; tt is not that every instrument as specified in the Schedule appended to the Stamp Act of 1998, executed outside the State, becomes chargeable to stamp duty. "Only those relating to any property situated in the State or relating to any matter or thing done or to be done in the State and received in the State."

Koffee With Karan Remarks: Rajasthan Police To File "Closure Report" In Case Against Karan Johar, KL Rahul & Hardik Pandya

Case Title: Karan Johar v. State, Through P.p. & Anr. with other connected matters

Citation: 2022 LiveLaw (Raj) 212

The Rajasthan government on Monday informed the High Court that the Police is set to file a closure report in a criminal case registered against Karan Johar and cricketers KL Rahul and Hardik Pandya over their remarks on the filmmaker's talk show- Koffee With Karan.

Dr. Justice Pushpendra Singh Bhati was hearing their petitions for quashing of FIRs when the Public Prosecutor informed that final report/ closure report has been chalked on 11.3.2021 and the same is likely to be submitted before the competent court expeditiously.

The trio was booked for allegedly making certain derogatory statements against women during an episode of the Bollywood talk show.

The FIRs were filed by one Devaram Meghwal at police station Luni, Jodhpur under sections 153(A) ,292, 295(A), 504 of IPC, 67 of the Information & Technology Act, 2000 and 3(1)(u) & 3(1)(v) of the SC ST (Prevention of Atrocities Act) 1989.

Dental College Admits 16 Aspirants Without NEET: Rajasthan HC Refuses To Regularize Admissions, Orders ₹10 Lakh Compensation Each

Case Title: Madhu Saini & Ors. v. Rajasthan University of Health Sciences & Ors.

Citation: 2022 LiveLaw (Raj) 213

The Rajasthan High Court has refused to regularize the admissions of 16 medical aspirants who were admitted to a Dental College in Kota, without qualifying the NEET examination. It however granted Rs.10 Lakhs compensation to each such student, stating that the College had made a "false promise" assuring them a seat in MDS course.

The court also directed the Vice Chancellor of the respondent-Rajasthan University of Health Sciences to initiate disciplinary proceedings against the erring officials who had handed over degrees of the Petitioner-students, despite an order of the court to withhold the same.

Justice Ashok Kumar Gaur observed,

" The fact remains that the petitioners were admitted in the Course in the year 2017 and their three years in the College is sheer wastage of energy, time and money spent on their education by their parents... This Court, though cannot regularize the admissions which were granted to the petitioners, however, the petitioners need to be compensated by the respondent-College for the illegality committed by them while giving admission to the petitioners and further furnishing incorrect and false information to different authorities i.e. respondent-University and respondent-DCI."

Rajasthan High Court Dismisses Plea Against Discrimination Based On Covid-19 Vaccination Status

Case Title: Jyotsana Rathore v. State of Rajasthan

Citation: 2022 LiveLaw (Raj) 214

The Rajasthan High Court has recently dismissed a public interest litigation challenging the state government's order restricting access to indoor sports, gyms, restaurants and other public places to people who have received at least one vaccination dose against Covid-19.

A division bench of Justice Manindra Mohan Shrivastava and Justice Shubha Mehta dismissed the petition after the Advocate General informed the Court that the Supreme Court has passed a detailed order, declaring that no individual can be forced to get vaccinated and the vaccine mandates imposed by various state governments and other authorities in the context of COVID-19 pandemic are "not proportionate".

The High Court thus dismissed the PIL filed by social activist Jyotsana Rathore, noting that the government will reconsider the existing guidelines relating to Covid-19 pandemic in light of the observations given by the Supreme Court.

The Petitioner had expressed concern that the impugned order makes the vaccination process mandatory and discriminates against similarly placed people based on the vaccination status.

S.18 Arms Act | No Appeal Lies Against Issuance Of Arms Licence: Rajasthan High Court

Case Title: Ramesh Chandra Patel v. State Of Rajasthan & Ors.

Citation: 2022 LiveLaw (Raj) 215

The Rajasthan High Court has held that there is no provision where appeal can be entertained under Section 18 of the Arms Act against anorder of issuance of arms licnece.

Notably, section 18 of the Arms Act states that any person aggrieved by an order of the licensing authority refusing to grant a licence or varying the conditions of a licence or by an order of the licensing authority or the authority to whom the licensing authority is subordinate, suspending or revoking a licence may prefer an appeal against that order to such authority and within such period as may be prescribed.

Justice Vijay Bishnoi observed,

"A bare perusal of Section 18 of the Act of 1959 clearly reveals that any person can file appeal under the said provision being aggrieved with the action of the licencing authority of refusing to grant a licence or varying the condition of licence or against the order of suspension or revoking of licence. There is no provision where appeal can be entertained under Section 18 of the Arms Act against the order of issuance of arms licnece."

Externment Orders Curtail Life & Liberty, Must Be Passed With Due Care & Caution: Rajasthan High Court

Case Title: Bhanwarlal v. State Of Rajasthan & Ors.

Citation: 2022 LiveLaw (Raj) 216

The Rajasthan High Court observed that since externment order curtails the life and liberty of a person, the same is required to be passed with due care and caution.

Essentially, the present writ petition was filed against the order passed by the Additional District Magistrate (city), Bikaner and the appellate order passed by the Divisional Commissioner, Bikaner, whereby the petitioner was declared as a "Goonda" and an order of externment was passed against him.

The authorities had considered the two criminal cases registered against the petitioner and it was concluded that the petitioner is involved in notorious activities and externment of the petitioner is necessary.

Rajasthan High Court Dismisses Plea Challenging Constitutional Validity Of Section 7 Of Insolvency & Bankruptcy Code, 2016

Case Title: Vishnu Oil Mill Private Ltd. v. Union Of India & Ors.

Citation: 2022 LiveLaw (Raj) 217

The Rajasthan High Court has dismissed a plea seeking to declare the Section 7 of the Insolvency & Bankruptcy Code, 2016 as unconstitutional to the extent it facilitates a joint application by multiple financial creditors, to prove minimum default of one crore rupees.

The petitioner has also approached the court on being aggrieved by the order passed by the National Company Law Tribunal, Jaipur Bench.

Justice Sandeep Mehta and Justice Kuldeep Mathur, while dismissing the petition, observed,

"Having considered the entirety of the facts and circumstances as available on record and after appreciating the arguments advanced at bar, we are of the firm view that the statute i.e., Section 7 of the IBC as amended vide Gazette Notification dated 05.06.2020, admits no other interpretation except that a group of financial creditors can converge and join hands to touch the financial limit of Rs.1 crore stipulated under Section 7 so as to initiate a CIRP under the IBC."

Collection Of Relevant Or Tangible Material Required For Opening Section 148A Proceedings: Rajasthan High Court

Case Title: Abdul Majeed Versus Income Tax Officer

Citation: 2022 LiveLaw (Raj) 218

The Rajasthan High Court has held that the authority is required to reach satisfaction that income chargeable to tax has escaped assessment but in cases where three years have elapsed from the end of the relevant assessment year, the order under Section 148A for issuance of notice could be passed if there were no statutory impediment as contained in Section 149(1)(b) of the Income Tax Act.

The division bench of Justice Manindra Mohan Shrivastav and Justice Shubha Mehta has observed that the department failed to place before the Court any material to suggest that the income exceeding Rs. 50,00,000 chargeable to tax has escaped assessment, which would warrant issuance of an order under Section 148A(d) followed by issuance of a notice under Section 148 of the Income Tax Act.

Divorce Application Cannot Be Thrown Out Only Because Exact Date Of Marriage Is Not Mentioned: Rajasthan High Court

Case Title: Smt. Rekha Kumari v. Hemendra Choudhary @ Hemraj

Citation: 2022 LiveLaw (Raj) 219

The Rajasthan High Court has observed that failure to mention the exact date of marriage in an application for divorce alone cannot be the reason for dismissing such application.

A bench comprising Justices Sandeep Mehta and Farzand Ali observed that if the Family Court suspects that the averments on the aspect of marriage are inconclusive, it can exercise powers under Section 165 of the Indian Evidence Act to put questions to the parties, so as to verify the truthfulness of the averments made in the application.

Essentially, the instant misc. appeal was filed by the appellant assailing the judgment-cum-decree passed by the Family Court whereby the application preferred by the appellant and respondent under Section 13B of the Hindu Marriage Act seeking decree of divorce by mutual consent was dismissed.

Rajasthan High Court Upholds Order Imposing ₹10 Lakh Cost On Medical Institute For "Bench Hunting"

Case Title: Dhanwantri Institute Of Medical Science v. State Of Rajasthan & Ors.

Citation: 2022 LiveLaw (Raj) 220

The Principal Bench of Rajasthan High Court at Jodhpur has upheld the single judge bench order, whereby a cost of Rs. 10 lakh was imposed on a medical institution for forum shopping.

After the petition filed by Dhanwantri Institute of Medical Science was dismissed as withdrawn from the Jaipur bench of the High Court in April, the institute had approached its principal seat the very next day, seeking similar reliefs, without disclosing the factum of the former petition.

In this light, the single judge had dismissed the second writ with 10 lakh cost. Practice of bench hunting has become common these days, the Judge had observed.

Ex-Post Facto Consent Of Panchayati Raj Institutions For Transfer Of Medical & Health Dept Employees Serving With It Valid: Rajasthan HC

Case Title: State Of Rajasthan & Ors. v. Rekha Kumari and other connected matters

Citation: 2022 LiveLaw (Raj) 221

The Rajasthan High Court has observed that ex-post facto consent of Panchayati Raj Institution for transfer of Medical and Health Department employees serving with it is lawful. The sanction is required under Rule 8 of the Rajasthan Panchayati Rules, 2011.

The court was hearing a batch of 91 State-appeals against a single bench order which held that state's decision to itself pass transfer orders without seeking the consent of the Panchayati Raj Department cannot be countenanced.

The basic controversy involved was whether employees, whose parent cadre is Medical and Health Department and whose services have been provided to the Panchayati Raj institution, can be transferred without following procedure laid down under Rule 8.

The said rule stipulates that the department concerned can issue orders for transfer from one district to another district with the consent of the Panchayati Raj Department.

Compassionate Appointment Cannot Be Granted Where Bereaved Family Does Not Face "Indigent Circumstances": Rajasthan High Court

Case Title: Punjab National Bank & Anr. v. Mukesh Kumar Soni

Citation: 2022 LiveLaw (Raj) 222

The Rajasthan High Court has upheld the decision of a bank denying compassionate appointment saying that the deceased's family was not facing "indigent circumstances" warranting employment under the State's scheme of 2014.

PNB had rejected the respondent's claim for compassionate appointment after his father expired while serving as a Head Cashier, on the ground that the family was not facing indigent circumstances.

The instant appeal was preferred against a single bench order reversing the Bank's decision.

The bank contended that the elder son of the deceased employee is employed in TCS (Tata Consultancy Services) with an annual income of ₹6.47 lakhs. The family had received terminal dues to the extent of ₹16.42 lakhs with no financial liability. Apart from this, the family owned two houses and received a family pension to the tune of ₹15,993 per month.

IBPS Can't Refuse To Recommend Names Of Eligible Candidates With Desired Merit To Fill All Notified Vacancies In Banks: Rajasthan High Court

Case Title: Rahul Jain & Ors. v. Baroda Rajasthan Kshetriya Gramin Bank & Ors.

Citation: 2022 LiveLaw (Raj) 223

The Rajasthan High Court has opined that the recruiting agency-Institute of Banking Personnel Selection (IBPS) cannot refuse to recommend names of eligible and suitable candidates to fill up all notified vacancies in Banks, if the candidates of desired merit are available.

Any delay occasioned in filling up the notified vacancies may render many eligible candidates ineligible to participate in the next recruitment process, added the court.

Justice Sandeep Mehta and Justice Kuldeep Mathur, observed,

"The Recruiting Agency cannot deny allotment of eligible candidates to participating RRBs (Regional Rural Banks) arbitrarily especially when sufficient number of candidates are available with it. The whole exercise cannot be reduced to a farce."

Description Of New Aluminium Section As Aluminium Scrap, Rajasthan High Court Upholds Detention Order

Case Title: M/s. Shrimali Industries Pvt. Ltd. Versus State Of Rajasthan

Citation: 2022 LiveLaw (Raj) 224

The Rajasthan High Court has held that, by no stretch of imagination, can brand new aluminium sections be placed on equivalence with aluminium scrap. The goods were fraudulently described as aluminium scrap.

The division bench of Justice Sandeep Mehta and Justice Kuldeep Mathur has observed that the department was justified in detaining the petitioner's vehicle and the goods after noticing the blatant mis-description during interception.

The petitioner has assailed the order by which the vehicle of the petitioner was detained by the officials of the Assistant Commissioner of State Tax, Anti-Evasion, Udaipur and also the show cause notice.

The petitioner submitted that the vehicle/goods of the petitioner were illegally detained by the respondent/department while in transit. Aluminum scrap was being transported in the vehicle, and it was falsely shown to be aluminium in the inspection/detention memo.

NHAI Can't Be Directed To Construct Highways Through Populated Areas: Rajasthan HC Dismisses 'Motivated' PIL By Gram Panchayat

Case Title: Gram Panchayat, Dujana Panchayat Samiti, Sumerpur District Pali, Through Its Sarpanch Smt. Panku Devi v. Union of India & Ors.

Citation: 2022 LiveLaw (Raj) 225

The Rajasthan High Court has dismissed a public interest litigation seeking direction to the National Highway Authority of India to not construct a by-pass on the highways.

The PIL filed by the Gram Panchayat of a village close to NH 325 also sought direction to the NHAI to construct the highway through the populated area of the village so that the development of the village can take place likewise.

The court opined that ex facie the writ petition has been filed for oblique and malafide motives.

Notably, after arguing the matter at great length, the counsel representing the petitioner, craved liberty to withdraw the petition.

Other Important Updates

Justice SS Shinde, Known For Sitting Beyond Court Hours, Retires As Rajasthan High Court Chief Justice

The Chief Justice of Rajasthan High Court S.S. Shinde demitted office on Monday.

Justice Shinde served a tenure of around 42 days at the Rajasthan High Court.

He took oath as the Chief Justice of the Rajasthan High Court on 21st June, 2022. He was elevated as an Additional Judge of the High court of Bombay on 17th March 2008 and was then confirmed as Permanent Judge on 13th March 2010.

Notably, during his tenure at Bombay High Court, he hit headlines, as the division bench headed by him sat till 8.30 pm on 9 June 2022, hearing various criminal cases. It heard over 215 out of the 265 cases listed before it. The same bench on 8 June 2022 heard 190 cases.

E-Cigarettes: Rajasthan High Court Asks Centre & State About Steps Taken To Prevent Online Sale

Case Title: Priyansha Gupta v. Union of India & Ors.

The Rajasthan High Court has asked the central and the state governments to file a status report indicating the steps taken to prevent and prohibit online sale of electronic cigarettes.

The development comes in a public interest litigation seeking directions for effective implement of the provisions of Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage, and Advertisement) Act, 2019 and to stop sale, use, consumption, possession of e-cigarettes.

Notice in the PIL filed by Priyansha Gupta, a fourth-year law student, was issued last month. A division bench of Justice Manindra Mohan Shrivastava and Justice Shubha Mehta, observed,

"On the next date of hearing, learned counsel for the respective respondents will file affidavit clearly stating as to what steps have been taken to prevent and prohibit online sale of electronic cigarettes. The status of action taken by respective respondents shall also be placed for consideration by this Court on the next date of hearing."

Plea In Rajasthan High Court Challenges "Belated" IOCL Notification Mandating CLAT Clearance For Law Officer Appointment

Case Title: Pratibha Khandelwal v. Indian Oil Corporation Limited and Anr.

A plea has been filed before the Rajasthan High Court challenging the "belated" notification issued by Indian Oil Corporation Ltd. requiring applicants to clear CLAT for applying to the post of Law Officer (Grade A) and Senior Law Officer (Grade A1).

The plea filed by law graduate and Company Secretary Pratibha Khandelwal states that the impugned notice for recruitment was issued on July 21, 2022 that is almost two months after the last date (May 09,2022) for making application for appearing in CLAT-2022. It stated that recruitment notice was published after the test itself was conducted and the result thereof was also declared.

The plea states that the advertisement of the vacancy and mode of recruitment is something which needs to be put in public domain well in advance so that all the eligible candidates who desire to appear for the exam and fight for the vacancy become aware about the same.

It is alleged that the belated publication of advertisement is to favour some specific candidates, who perhaps had the prior knowledge of the vacancy and the eligibility criteria and is illegal, arbitrary and violative of the fundamental right of the Petitioner as well as of other eligible candidates.

Rajasthan High Court Directs State To Place Inspection Report Prepared For Mid-Day Meals In Plea Against Violations of RTE Act In Govt Schools

Case Title: Legal Aid And Awareness Commt, Nlu, Jodh v. State And Anr.

Case No.: D.B. Civil Writ Petition No. 6815/2017

The division bench of Rajasthan High Court has recently directed the state to place the inspection reports prepared for mid-day meals in the last three months of at least three schools (zone wise) for the perusal of court.

During the course of hearing, on the issue of sub-standard quality of food, the court was informed that a mechanism for quality of procurement as also for service of good quality of meal is already put in place under which, regular inspection has also been carried out by the higher authorities to ensure that the quality of mid-day meal supplied to the students is not sub-standard but it fulfils the requirements as per sub-standards already fixed.

In this regard, the bench comprising Acting Chief Justice Manindra Mohan Shrivastava and Justice Vinod Kumar Bharwani, observed,

"For this purpose, we would direct the learned State counsel to ensure that on the next date of hearing inspection reports prepared for mid-day meal in atleast three school in the last three months, (zone wise) be placed for perusal of this Court. In respect of each zone (seven zone in total) separate report would be placed for perusal."

PIL In Rajasthan High Court Seeks Implementation of Manufactured Sand Policy; Notices Issued

Case Title: Dinesh Kumar Goyal v. State of Rajasthan

Case No.: D.B. Civil Writ Petition No. 12257/2022

The Rajasthan High Court has issued notice on a public interest litigation against alleged inaction of the government in implementation of the Manufactured Sand Policy in the State.

Justice Sandeep Mehta and Justice Chandra Kumar Songara were hearing the PIL filed by Dinesh Kumar Goyal and others through Advocate Kuldeep Vaishnav.

Notably, as per the Rajasthan Minor Mineral Concession Rules, 2017, "M-Sand" means Manufactured Sand produced by crushing of minerals/ overburden.

As per the petitioners, the implementation of the aforesaid Rules would be beneficial for the public at large because a number of people will get jobs through these manufacturing units and also the state would get revenue from the waste materials lying in dumping yards.