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id_1774	0	Criminal Revision Jurisdiction Appellate Side Present: The Honourable Justice Bibek Chaudhuri, Criminal Revision Petition No. 1815 of 2023, Suvendu Adhikari, State of West Bengal, for the petitioner: Mr. Sekhar Kumar Basu, Senior Advocate, Mr. Sourav Chatterjee, Mr. Rajdeep Mazumdar, Mr. Mayukh Mukherjee, Mr. Soumya Nag, Mr. Aditya Tiwari, Ms. Namrata Chatterjee. Judgment on: 18 May 2023., The Honourable Justice Bibek Chaudhuri. The petitioner is a Member of Legislative Assembly and leader of the opposition. The Public Prosecutor of the City Sessions Court has lodged a complaint before the learned Chief Judge of the City Sessions Court alleging commission of an offence under Sections 499 and 500 of the Indian Penal Code by the petitioner by uploading a certain statement on his Twitter handle regarding the detention of a bus on 17 April 2023., Without going into the merits of the case, this Court fails to understand how the learned Chief Judge took cognizance of the offence in view of the decision of the Honourable Supreme Court in Ashwani Kumar Upadhyay's case, which held that a criminal case must be instituted and tried before the competent Court of the learned Magistrate., This Court, in Criminal Revision Petition No. 1086 of 2022, has issued detailed guidelines regarding the constitution of such Courts in the State of West Bengal, and by virtue of two notifications dated 6 March 2018 and 27 January 2021, the special Courts to try magistrate‑triable and sessions‑triable cases have been set up in the State of West Bengal., This case is exclusively triable by the learned Special Magistrate or the learned Special Judge for trial of cases relating to Members of Parliament and Members of Legislative Assembly in the State of West Bengal., Therefore, the initial cognizance and the order of issuance of process are erroneous, and I do not require even the assistance of the learned Public Prosecutor to quash the proceedings of Complaint Case No. 2/2023. Accordingly, Complaint Case No. 2/2023 pending before the learned Chief Judge of the City Sessions Court, Calcutta, is quashed., The complainant is at liberty to withdraw the written complaint and file the same in the appropriate Court. With this order, the instant revision is disposed of. The instant order shall be communicated to the learned Chief Judge of the City Sessions Court through a special messenger, the cost of which is to be paid by the petitioner.
id_1779	0	This petition is filed under Section 439 of the Criminal Procedure Code, by accused No.1, praying to enlarge her bail in Crime No. 134/2022 of Yeshwanthapura Police Station. Heard the learned counsel for petitioner and the learned High Court Government Pleader for the respondent State and perused the material on record., Charge sheet is filed against accused Nos.1 and 2 for offences punishable under Section 120(B), 118, 302 read with Section 34 of the Indian Penal Code., The prosecution case in brief is that petitioner/accused No.1 is the wife of the deceased R. Shankarareddy. There was an illicit relationship between petitioner and accused No.2. The deceased was working in Bengaluru. Petitioner was staying in Andhra Pradesh along with her two minor children. Since the deceased decided to bring his wife and children to Bengaluru for the purpose of children's education, petitioner and accused No.2 conspired with each other to commit his murder, so that they could continue their illicit relationship. On 24.02.2022 petitioner along with her children came to Bengaluru and stayed with her husband in a rented house situated at Mohan Kumar Nagar, 1st 'C' Cross, Yeshwanthpura. As per the conspiracy hatched and at the instigation of accused No.2, at about 11.30 pm, when the deceased was sleeping in the house, petitioner herein stabbed him with a knife on his neck and committed his murder. Then with the same knife, she caused injuries to her hand and removed her Mangalsutra chain, ear stud etc., and concealed them, to make it appear as a case of robbery and murder., On the basis of the complaint lodged by the landowner of the house, initially the case was registered against unknown persons for the offence punishable under Section 302 of the Indian Penal Code. In the course of investigation, petitioner/accused No.1 and accused No.2 were arrested and their voluntary statements were recorded., It is contended by the learned counsel for petitioner that the entire allegations are false. He has contended that the petitioner has also sustained injuries in the incident and therefore she is innocent and some other accused might have committed the offence. He has further contended that the petitioner is a woman and she has been languishing in judicial custody since 24.09.2022 and accused No.2 has already been enlarged on bail; therefore, he seeks to allow the petition and to grant bail to the petitioner., The learned High Court Government Pleader, on the other hand, has opposed the prayer seeking bail and has sought to reject the petition, contending that there is sufficient material collected against the petitioner proving her role in the crime. He has contended that the prime witness is the son of the petitioner and, therefore, in the event of grant of bail to the petitioner, she may tutor him and thereby hamper the prosecution case., The deceased was found murdered in the house where he was residing with the petitioner and two minor children. It is contended by the learned counsel for petitioner that even the petitioner has sustained injuries, and therefore she is innocent. According to the prosecution, there was an illicit relationship between the petitioner and accused No.2. Since the deceased was an obstacle to the said relationship, both the accused conspired with each other to commit his murder and, when he was sleeping, petitioner herein stabbed him and committed his murder and then caused injuries to herself with the same knife to mislead the investigation., The prosecution has recorded the statements of C.W.s 10, 11 and 13 who speak about the illicit relationship and motive for the offence. Further, the Mangalsutra chain and ear stud belonging to the petitioner, which was concealed by her, have been recovered. Her blood‑stained nightie is also recovered. More importantly, the statement of C.W.2, namely the minor son of the petitioner and the deceased, reveals that there was a quarrel between the deceased and the petitioner in the night and when he woke up, he saw his father lying dead with stab injuries. At this stage, there is a prima facie case against the petitioner. The offence alleged is grave in nature. Merely because the petitioner is a woman is not a ground to grant her bail. Insofar as accused No.2 is concerned, who has been granted bail by this Court in CrL.P. No. 7503/2022, the allegations are that he conspired with the petitioner. Hence, grant of bail to the said accused will not ensure the benefit of the petitioner. Considering the nature and gravity of the offence, this is not a fit case to grant bail to the petitioner. Hence, the petition is dismissed.
id_178	0	Reserved Appellant: State of Uttar Pradesh. Respondent: Mukhtar Ansari. Counsel for Appellant: Government Advocate. Counsel for Respondent: Abhishek Misra, Karunesh Singh, Satendra Kumar (Singh). Honourable Dinesh Kumar Singh, J., Present appeal has been filed under Section 378 Criminal Procedure Code with an application for leave to appeal against the judgment and order dated 23.12.2020 passed by Special Judge, Member of Parliament/Member of Legislative Assembly, Additional Sessions Judge, Court No.19, Lucknow in Criminal Case No. 1818 of 2012: CNR No. U.P.L.K.O.10052862012 arising out of Case Crime No.131 of 2003 under Sections 353, 504, 506 Indian Penal Code, Police Station Alambagh, Lucknow., Learned Trial Court has acquitted respondent, Mukhtar Ansari of all charges., Supreme Court of India vide order dated 27.04.2021 had granted leave to appeal and admitted the appeal., Prosecution case in brief is that the complainant, S.K. Awasthi was posted as Jailer in District Jail, Lucknow in the year 2003. On 23.04.2003 at around 10:30 A.M., when he was sitting in his office inside the jail, Gatekeeper, Prem Chandra Maurya told him that some persons had come to meet prisoner, Mukhtar Ansari, the respondent. Mukhtar Ansari, who was also an Member of Legislative Assembly, came to the office of the Jailer. The complainant ordered for his frisking, on which Mukhtar Ansari got highly annoyed. He said, \You Jailer think yourself very high. You create hurdles in coming persons to meet me.\ Mr. S.K. Awasthi told the respondent that these persons cannot come inside without being frisked. Mukhtar Ansari said, \You come out of Jail today, I would get you killed.\ Prisoner, Mukhtar Ansari abused him and took revolver from one of the persons who had come to meet him and pointed it towards the complainant. Some people caught hold of Mukhtar Ansari and some caught hold of the complainant, otherwise any untoward incident could have taken place. Prisoner, Mukhtar Ansari sent his men, who came to meet him, out of prison and said to the complainant, \Now your days are over and nobody can save you now.\, At the time of incident, Deputy Jailer, Mr. Sarvesh Vikram Singh, Deputy Jailer, Shailendra Pratap Singh, Gate Keeper, Prem Chandra Maurya, Investigating Officer Rudra Bihari Srivastava, Investigating Officer Radheyshyam Yadav, Investigating Officer Ram Swaroop Pal were present., Mr. S.K. Awasthi, the complainant, gave a complaint to this effect on 28.04.2003 at Police Station Alambagh, Lucknow on which the FIR at Case Crime No.131 of 2003 under Sections 353, 504, 506 Indian Penal Code came to be registered on the same day against respondent Mukhtar Ansari. The investigation of the case was entrusted to Sub Inspector, Mr. Ganesh Singh and Shrimati Indu Srivastava., After completing the investigation, charge-sheet against the accused respondent was filed under Sections 353, 506, 504 Indian Penal Code, 2/3 Uttar Pradesh Gangsters and Anti Social Activities (Prevention) Act (for short the Gangsters Act) on 08.06.2003. Thereafter, on 05.02.2005 a supplementary charge-sheet No.137 of 2003 under Sections 353, 506, 504 Indian Penal Code was submitted in the Court. Learned Magistrate took cognizance on Charge-sheet No.137 of 2003 arising out of Case Crime No.131 of 2003 under Sections 353, 506, 504 Indian Penal Code., Charges were framed for offences under Sections 353, 504, 506 Indian Penal Code on 28.06.2003. The accused respondent denied the charge and claimed for trial., Prosecution to prove its case, proved documentary evidence i.e. complaint (Exh.Ka-1), Chik FIR (Exh.Ka-2), GD Entry (Exh.Ka-3), Site Map (Exh.Ka-4), Charge-sheets (Exh.Ka-5 and Exh.Ka-6)., Prosecution also examined following witnesses to prove its case: Gate Keeper, Prem Chandra Maurya as PW-1; Jailer, S.K. Awasthi, the complainant, as PW-2; Jail Warden, Shailendra Pratap Singh as PW-3; Investigating Officer Rudra Bihari Srivastava as PW-5; Inspector, Shrimati Indu Srivastava as PW-6; Inspector Ganesh Singh as PW-7., PW-1, Prem Chandra Maurya in his evidence has deposed that he had been posted as Jail Warden in Lucknow District Jail since 06.07.2002. On 27.04.2003, he was deputed as Gate Keeper on the main gate of Lucknow District Jail. Between 10:30 A.M. and 11:00 A.M. some persons came to meet prisoner, Mukhtar Ansari. The witness asked Jailer, Mr. S.K. Awasthi present in his office to allow these persons. The jailer denied permission to these persons to come inside to meet Mukhtar Ansari. Persons who came to meet prisoner, Mukhtar Ansari returned. Thereafter, he started doing his desk work. He did not know what happened between the Jailer, S.K. Awasthi and Mukhtar Ansari in the Jailer’s office. He further said that distance between the Jailer’s office and main gate of the Jail would be around 40-50 ft and duty of gate keeper is quite onerous and busy. He said that he could not explain how the Jailer’s report stated that some persons came inside the jail from outside, and when the Jailer asked to frisk these persons, prisoner Mukhtar Ansari got highly annoyed. He said that he did not see the incident that took place between Jailer, S.K. Awasthi and Mukhtar Ansari. In his report, Jailer had shown him as an eye witness, but he could not say why he did so. The Investigating Officer did not take his statement. He further said that he did not know how the Investigating Officer had written that this witness out of fear opened the main gate and some persons came inside, and the alleged incident took place. This witness was not cross examined by the defence., PW-2, Mr. S.K. Awasthi, the complainant supported the FIR version and said that the incident was of April 2003. It took place during daytime. He was posted as Jailer in District Jail, Lucknow. The accused respondent was a prisoner in the jail. Some persons had come from outside to meet the accused respondent, and a dispute took place in respect of frisking these persons. The incident took place inside the jail. Prisoner, Mukhtar Ansari took out a revolver from one of the persons who had come to meet him. He further said that along with him the entire staff and two Deputy Jailers, Sarvendra Vikram Singh and Shailendra Pratap Singh were present. The gate keeper, under pressure and fear of the accused respondent, allowed these persons who had come to meet prisoner Mukhtar Ansari inside the jail. Prisoner, Mukhtar Ansari had extended threats to him. He lodged the FIR at the police station regarding this incident. He proved the complaint given at the police station which was marked as Exh. Ka-1. After examination-in-chief got concluded, no cross examination of the witness was conducted on behalf of the accused respondent and the trial Court closed the examination of the said witness vide order of date i.e. 12.12.2003 when his examination-in-chief was recorded., Mr. Shailendra Pratap Singh, who was posted as Deputy Jailer, was examined as PW-3. He said that on 27.04.2003, he was present in his office. Someone told him that some hot talk was taking place between prisoner Mukhtar Ansari and Jailer Mr. S.K. Awasthi. On this, he went to the office of the Jailer and found Mukhtar Ansari coming out of the office of the Jailer. Mr. S.K. Awasthi was sitting in his office. Mr. S.K. Awasthi told him that some hot talk had taken place between him and prisoner Mukhtar Ansari in respect of some persons coming to meet him. No cross examination of this witness was conducted on behalf of the defence., Mr. Ram Swaroop Pal was examined as PW-4. He on oath said that he was posted as Warden in District Jail, Lucknow on 27.04.2003 and Mr. S.K. Awasthi was the Jailer. On the date of incident at 10:30, he was in lock‑up office. Office of Mr. S.K. Awasthi was not visible from his office. Distance between two offices was more than 500 metres. On 27.04.2003 at around 10:00 A.M., no disturbance or deterrence was created in discharge of the official function of the Jailer, Mr. S.K. Awasthi. Mukhtar Ansari did not abuse the Jailer, humiliate him nor give threat of killing him. This witness was declared hostile and was cross examined by the prosecution. During the cross examination, he said that on the alleged date of incident his duty was in the lock‑up complex from 5:30 A.M. to 8:00 P.M. He did not have any information in respect of the incident, subject matter of the case. After finishing his duty, he went to his residence. The investigating officer did not make enquiry from him. The witness was confronted with his statement recorded under Section 161 Criminal Procedure Code. He said that he did not give any such statement. He denied the suggestion that he was giving false statement under pressure and fear of the accused., P.W.5, Mr. Rudra Bihari Srivastava (retired), aged around 66 years, in his statement said that he was posted as Chief Warden on 27.04.2003, and Mr. S.K. Awasthi was the Jailer of the District Jail, Lucknow. His duty on the said date at 10:30 A.M. was on the second gate, and the distance of the Jailer’s office from his duty place would be around 250 metres. Office of the Jailer was not visible from his office as the window remained closed. He said that at around 10:30 A.M. on 27.04.2003, prisoner Mukhtar Ansari did not create any disturbances or deterrence in the official duty/function of the Jailer nor he abused the Jailer to humiliate him nor he gave any threat of killing him. No incident took place in front of him. This witness was also declared hostile and was cross examined by the prosecution., In his cross‑examination, he said that his duty on the date of incident was from 8 A.M. to 8 P.M., and while he was on duty he did not get any information regarding the alleged incident. After duty got over, he went to his residence. The investigating officer did not make any enquiry from him nor recorded any statement of him. The witness was confronted with his statement recorded under Section 161 Criminal Procedure Code and then he said he was not aware how the investigating officer had written his statement. He denied the suggestion that he was giving evidence under pressure mounted by the accused Mukhtar Ansari out of fear., P.W.-6, Shrimati Indu Srivastava said that in the year 2003, she was posted as Sub‑Station Inspector at Police Station Alambagh. Investigation of the offence registered at Case Crime No.137 of 2003 under Sections 353, 504, 506 Indian Penal Code, 2/3 Gangsters Act was entrusted to her after the previous investigating officer, Shri Ganesh Singh was transferred from the police station. Earlier, the Investigating Officer had completed the investigation up to Parcha No.5. She had requested the district authorities for approval of the gang chart against the accused respondent, however, the District Magistrate did not approve the gang chart. Report for deleting the provisions of the Gangsters Act was sent to Superintendent of Police (East), Lucknow on 11.01.2004. Supplementary charge sheet and Parcha No.6 were completed by her. She made efforts to get the earlier charge‑sheet cancelled on 15.05.2004. She completed Parcha No.7 and again efforts were made to get earlier charge‑sheet cancelled., On 10.06.2004, an additional Parcha No.8 was completed by P.W.6, and on the said date, she went to District Jail and a request was made from the District Jailer's office to give the list of persons who had come to visit the jail on 27.04.2003. On this request, information was given that no application or name was mentioned of the person(s) who came to meet Mukhtar Ansari on the said date. On 20.07.2004, she submitted Parcha No.9 and went to District Jail and met Deputy Jailer S.P. Singh and Jailer R.C. Gupta, and their statements were recorded. She tried to collect information regarding the incident, however, no one was ready to give any statement against the accused. On 10.06.2004 she completed supplementary Parcha Nos. 10 and 11 and made efforts to get the previous charge‑sheet cancelled. However, she did not receive any order during her investigation from the witnesses. Thereafter, she was transferred. She also said that Constable Moharir who was posted during her tenure, she had seen him reading and writing. She recognized his writing. She said that the chik FIR and carbon copy were prepared by Head Moharrir., In her cross examination, P.W.-6 said that she was entrusted with the investigation on 11.01.2004 and the investigation was complete on 29.09.2004. She also said that she had made an entry in the General Diary regarding her going to jail. She denied the suggestion that she had completed the charge‑sheet sitting in the police station. She also denied the suggestion that she was giving evidence under pressure of the higher authorities., It would be relevant to take note of the fact that examination‑in‑chief of Jailer, S.K. Awasthi, aged around 61, was recorded on 12.12.2003, and he was not cross examined by the accused and right to defence to cross examine him was closed on the said date. Vide an order dated 30.01.2014 on an application moved on behalf of the accused under Section 311 Criminal Procedure Code, the said witness was recalled and cross examined on 25.02.2014. In his cross examination, he said that he was posted in Lucknow District Jail in 2002‑03. Complete information including entry of any visitor inside the jail was made in the jail book. He denied the suggestion that it was not necessary to mention name of the visitor who would meet which prisoner, and only number of persons coming to meet the prisoner was mentioned. He clarified that the visitor would give an application in which he would write name of the prisoner whom he would like to meet. However, it was not necessary to get the signature of the visitor made on gate register. He also accepted the suggestion that as per the Jail Manual, only three persons can be allowed to meet a prisoner in a day, and only twice a prisoner can meet the visitors in a week. Any visitor coming to meet a prisoner is frisked and thereafter he comes inside. Frisking is done outside the gate as well as inside the gate. When incident took place he was in the office, the accused respondent came in the office and he protested. The witness said, \I had stopped visitors coming to meet him, he became angry and went out of the office.\ Thereafter, the witness remained sitting in the office. He further said that the fact of showing weapon and threats of killing him were heard by him but he did not see from his own eyes. These facts were told to him by staff and, thereafter, he got the FIR registered. FIR was registered as per his own wisdom. Whatever information regarding the incident was recorded by him, he informed his higher officials and then lodged the FIR., He further deposed that it was prohibited to take mobile and firearm inside the jail. No person could have a firearm inside the jail as only after frisking, prisoners were sent inside the jail. Routine checking would also take place inside the jail. He also said that FIR was registered after consultation with the higher officials. He denied the suggestion that under pressure of the Government, he lodged a false FIR. He accepted the suggestion that he did not see a weapon in the hands of Mukhtar Ansari and he did not extend threats to anyone before him, and he also did not abuse the witness on the said date. Mukhtar Ansari did not create deterrence or disturbance in performing the official duties by him., P.W.-7, Inspector Ganesh Singh, deposed that on 28.04.2003 he was posted as Sub‑Station Inspector in Alambagh Police Station. He conducted the investigation of the Case Crime No.131 of 2003 under Sections 353, 504, 506 Indian Penal Code. He received the copy of the FIR to conduct the investigation. On the said date, he recorded statement of the complainant, Mr. S.K. Awasthi. He inspected the place of incident, prepared site plan, which was marked as Exh‑Ka‑4. He recorded the statement of Chief Warden, Rudra Bihari Srivastava and Radhey Shyam, eye witnesses. He also recorded the statement of Deputy Jailer, Shailendra Pratap Singh and after having sufficient evidence against the accused Mukhtar Ansari, he prepared charge‑sheet under Sections 353, 504, 506 Indian Penal Code, 2/3 of the Gangsters Act. He submitted charge‑sheet No.134 of 2003 in the Court, which was in his handwriting and signature. This was marked as Exh Ka‑5. He prepared supplementary Parcha No.SCD‑5 and from supplementary SCD‑6 to 13 were completed by Shrimati Indu Srivastava. Supplementary charge‑sheet was submitted under Sections 353, 504, 506 Indian Penal Code in the Court, which was marked as Exh‑Ka‑6., In his cross examination, he said that he carried out the investigation outside the jail and inside the jail. He denied the suggestion that he completed the investigation sitting in the police station. He also denied that provisions of the Gangsters Act were added under pressure of higher authorities. District Magistrate did not sanction the gang chart. He denied that the case diary was not sent to the circle officer. He denied that he carried out the investigation under pressure of higher authorities. He also denied that he used to receive calls from a Minister for filing of charge‑sheet, and he denied that he prepared the charge‑sheet under political pressure. He also denied that he was coming to give evidence after 17 years under pressure of higher officials., In his statement recorded under Section 313 Criminal Procedure Code the accused respondent denied the incident and said that no hot talk between him and the Jailer took place on the date of incident and for this reason, Gatekeeper Prem Chandra Maurya did not hear anything. He further said that the complainant, S.K. Awasthi had given false evidence regarding the fact that when the incident took place, his entire staff including two Deputy Jailers, Sarvendra Vikram Singh and Shailendra Pratap Singh were present. He denied that the Warden allowed the visitors inside the Jail under his fear and terror. In respect of the statement of PW-3, Shailendra Pratap Singh, that while he was sitting in the office some hot talk had taken place between S.K. Awasthi and Mukhtar Ansari, and when he went to the office of the Jailer he found the accused going out of the office and S.K. Awasthi was sitting in his office, he denied the incident. He also denied the statement regarding the version given by other witnesses and said that the investigation was conducted under political pressure to falsely implicate him. He said that he had been Member of Legislative Assembly for five terms from different political parties. He defeated the candidates of different political parties. He was quite popular in the constituency and he was falsely implicated in the case., Learned Trial Court after considering the evidence and submissions on behalf of the prosecution and the defence vide impugned judgment and order held that from the evidence, offences under Sections 504, 506 did not get proved against the accused respondent nor the offence under Section 353 Indian Penal Code was made out and, therefore, learned Trial Court acquitted the accused., Mr. U.C. Verma, learned Additional Government Advocate appearing for the State‑appellant assisted by Mr. Rao Narendra Singh, learned Additional Government Advocate has submitted that place of incident, presence of the complainant and witnesses are not in dispute. Alleged incident had taken place inside the jail. The accused respondent is the biggest bahubali of the State, facing several dozens of cases of heinous offences. Accused respondent's name strikes fear and terror in the hearts and minds of the general public, and even in the Government officials. Mr. R.K. Tiwari, earlier Jailer, was killed in a cold‑blooded manner in broad daylight near Governor House, Lucknow allegedly on the behest of the accused respondent and other accused as he was enforcing the rules and regulations of the jail which was causing hindrance in carrying out illegal and criminal activities of the accused respondent from jail in an organized manner. These accused, however, could secure acquittal as witnesses turned hostile which is a pattern in all cases where the accused respondent had secured acquittal., This Court recently while rejecting Criminal Miscellaneous Bail Application No.46494 of 2021 of the accused respondent in a case registered as Case Crime No.185 of 2021 under Sections 419, 420, 467, 468, 471, 120B Indian Penal Code, Police Station Sarai Lakhansi, District Mau vide order dated 30.06.2020 while rejecting the bail of the accused respondent, has held as under: \4. The applicant deserves no introduction in the State of Uttar Pradesh on account of his alleged 'Robin Hood' image in Hindi speaking States of India. He is the hardened and habitual offender, who is in sphere of crime since 1986 but surprisingly, he has managed not a single conviction against him. It is indeed astounding and more amusing angle of the issue, that a person having more than 50+ criminal cases to his credit of various varieties, has managed his affairs in such a way that he has not received a single conviction order against him. In fact it is slur and challenge to the judicial system that such a dreaded and 'White Collored' criminal in the field of crime undefeated and unabetted.\, This Court has noted the long criminal history of the accused respondent in the aforesaid judgment which is reproduced as under: Cases registered at Gazipur Case Crime No. Under Sections Police Station/District 1. 493/05 302, 506, 120B IPC Mohammdabad 2. 589/05 302, 504, 506, 120B IPC Bhanwar Col 3. 169/86 302 IPC Mohammadabad 5. 172/91 147, 323, 504, 506 IPC Mohammadabad 6. 237/96 136(2), 130, 135, 136(1) Public Property Act & 384, 506 IPC Mohammadabad 7. 1182/09 307, 506, 120B IPC Mohammadabad 8. 1051/07 3(1) U.P. Gangster Act Mohammadabad 9. 482/10 3(1) U.P. Gangster Act Karanda 10. 361/09 302, 120 IPC & 7 C.L.Act Karanda 11. NCR No. 219/78 506 IPC Saidpur 12. NCR No. 19/97 506 IPC Saidpur 13. 106/88 302 IPC Kotwali 14. 682/90 143, 506 IPC Kotwali 15. 399/90 147, 148, 149, 307 IPC Kotwali 16. 44/91 302, 506 IPC Kotwali 17. 165/96 147, 148, 149, 307, 332, 353, 506, 504 IPC & 7C.L Act Kotwali 18. 834/95 353, 504, 506 IPC Kotwali 19. 284/96 3(2) NSA Act Kotwali 20. 33/99 3(2) NSA Act Kotwali 21. 192/96 3(1) U.P. Gangster Act Kotwali 22. 121/21 21/25 Arms Act Mohammadabad Cases registered at District Varanasi 1. 58/98 3 NSA Act Bhelupur 2. 17/99 506 IPC Bhelupur 3. 285/17 302 IPC Bhelupur 4. 19/97 364A, 365 IPC Bhelupur 5. 229/91 147, 148, 149, 302 IPC Chetganj 6. 410/88 147, 148, 149, 302, 307 IPC Cantt. Cases registered at District Lucknow 1. 209/02 3/7/25 Arms Act Hazratganj 2. 106/99 307, 302, 120B IPC Hazratganj 3. 91-A/04 147, 148, 149, 307, 427 IPC Cantt. 4. 428/99 2/3 Gangster Act Hazratganj 5. 126/99 506 IPC Krishna Nagar 6. 66/2000 147, 336, 353, 506 IPC Alambagh 7. 236/20 468, 471, 120B IPC & Section 3 of Damages of Public Property Act Hazratganj Case registered at District Chandauli 1. 294/91 302, 307 IPC Mughalsarai/Chandauli Case registered at District Shonbhadra 1. 121/97 364A Anpara Cases registered at District Mau 1. 808/04 147, 148, 149, 393, 307, 504, 506, 342 IPC Kotwali 2. 1580/05 147, 148, 149,302, 435, 436, 427, 153A IPC Kotwali 3. 1866/09 147, 148, 149,302, 307, 120B, 404, 325/34 IPC & 7 CLAct Kotwali 4. 399/10 302, 307, 120B, 34 IPC & 7 CL Act & 25/27 Arms Act Dakshin Tola 5. 891/10 3(1) Gangster Act Dakshin Tola 6. 185/21 419, 420, 467, 468, 471, 120B IPC Sarai Lakhansi 7. 55/21 3(1) of U.P. Gangster Act Dakshin Tola 8. 4/20 30 Arms Act and Sections 419, 420, 467, 468, 471, 120 B IPC Dakshin Tola Cases registered at New Delhi 1. 456/93 364A, 365, 387 IPC Tilak Marg 2. 508/93 24/54/59 Arms Act & S. Tada K.G. Marg Case registered in State of Punjab 1. 5/19 386/506 IPC Mathaur, Mohali Cases registered at District Azamgarh 1. 20/14 147, 148, 149, 302, 307, 506, 120B IPC & Tarwa 7 Crl. Law Amendment Act 2. 160/20 3(1) U.P. Gangster Act Tarwa Cases registered at District Barabanki 1. 369/21 419, 420, 467, 468, 471, 120B, 506, 177 IPC & 7 Crl. Law Amendment Act Kotwali., This Court also commented about the criminals like the accused respondent being elected by the public as their representative for six consecutive terms in following words: \26. The above mentioned is a rich criminal horoscope of the applicant on which the applicant can boast and claim himself to be a popular public figure, who was elected as MLA for the six consecutive time. As mentioned above, this is a most unfortunate and ugly face of our democracy where a person on one hand facing almost two dozen Sessions Trials and on the other hand the public is electing him as their representative for six consecutive times. It is really uphill task to adjudicate, as to whether he is really a popular public figure? Or his nuisance value, which are giving dividends to him?\, Mr. U.C. Verma has submitted that the incident is dated 27.04.2003. The accused respondent did not allow trial to proceed until he was sure of turning the witnesses hostile. Most of the witnesses got retired when they turned up for examination in the Court. He has submitted that trial court started only in July 2013., Mr. U.C. Verma has further submitted that the accused respondent used to enjoy high status and privileges inside the jail and, therefore, would carry out his organized criminal activities from the jail including killing of people for exhortation, political opponents and officials, who he thought were coming in his way of his crime world or could challenge him politically or otherwise. He used to treat jail as his seat of power where his people could come and meet him freely at any time even carrying arms without any hindrance or obstacle by jail officials. Mr. S.K. Awasthi, the complainant, PW-2 tried to regulate visitors according to Jail Book and Jail Manual, and this could not be tolerated by the accused respondent. He has further submitted that there was no enmity between the complainant and accused respondent Mukhtar Ansari for his false implication. He has further submitted that PW-2, who was the complainant, his examination was completed on 12.12.2003, the accused did not cross examine on that day and the right of cross examination was closed. The witnesses got retired soon thereafter and after his retirement when he was won over for fear and terror of the accused respondent, an application came to be filed under Section 311 Criminal Procedure Code to recall the said witness, and vide order dated 30.01.2014, the witness was recalled. He has submitted that the said witness in his examination‑in‑chief has fully supported the prosecution case in all respects and evidence given in cross‑examination after he was won over was because of fear and terror as after retirement there would be concern for his security and security of his family. Even PW-3 has supported the prosecution case and deposed that the dispute took place between the accused respondent and the complainant in respect of visitors coming to meet the accused respondent Mukhtar Ansari and hot talk between the accused respondent and the complainant. He saw the complainant coming out of the office of the complainant., P.W.-6, second Investigating Officer, Shrimati Indu Srivastava who completed the investigation had said that her staff was not willing to give evidence against the accused respondent. P.W.-7, who conducted the final investigation, has also supported the prosecution case. She further said that there was no application and record of visitors who had come to meet the accused respondent. This would mean that the accused respondent wanted the visitors to meet him without any formality. Mr. U.C. Verma, learned Additional Government Advocate for the appellant‑State has, therefore, submitted that the offence under Sections 353, 504, 506 Indian Penal Code are proved on the basis of evidence of prosecution, and the trial Court erred in acquitting the accused respondent. He has further submitted that even if there is contradiction in the evidence of PW-2 given in examination‑in‑chief and cross examination, it is for the Court to separate wheat from the chaff and find out the truth. Statement in examination‑in‑chief has equal value as of cross examination. Even from the evidence of PW-3, and PW-6 charges against the accused respondent for offence under Sections 504, 506, 353 Indian Penal Code are clearly proved and the appeal is liable to be allowed., On the other hand, Mr. Jyotindra Mishra, learned Senior Advocate assisted by Mr. Satendra Kumar (Singh), Advocate appearing for the accused respondent has submitted that evidence of none of the witnesses is cogent and credible. PW-1, PW-4, PW-5 did not support the prosecution case either in their examination‑in‑chief or cross examination. PW-2 supported the prosecution case in his examination‑in‑chief but did not support the prosecution case in his cross examination. Evidence of PW-6 and PW-7 independently are not enough to prove the prosecution case as they are the formal witnesses who conducted the investigation. He, therefore, has submitted that the Trial Court after considering the evidence brought by the prosecution did not find the prosecution case proved against the accused respondent. From the evidence available on record, it cannot be said that the prosecution was able to prove the case against the accused respondent beyond reasonable doubt, and there is no error in the impugned judgment and order passed by learned Trial Court. He has, therefore, submitted that the appeal is without any merit and substance and is liable to be dismissed., Mr. Jyotindra Mishra, learned Senior Advocate has further submitted that in case of appeal against acquittal, the appellate court is required to consider whether the view taken by the Trial Court is possible one or not. If the view of the Trial Court is possible one, then acquittal should not be set aside by merely substituting its reason.
id_178	1	He in support of the aforesaid submission has placed reliance on the judgment in the case of Dhanapal vs State by Public Prosecutor, Madras (2009) 10 Supreme Court Cases 401 wherein the Supreme Court of India has culled out the principle for dealing with the judgment of acquittal of a trial court by an appellate court in paragraph 39 which reads as under: The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent. The power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the appellate court must give due weight and consideration to the decision of the trial court. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has very substantial and compelling reasons for doing so. If two reasonable or possible views can be reached, one that leads to acquittal and the other to conviction, the High Court of India or appellate courts must rule in favour of the accused., Mr. Jyotindra Mishra, learned Senior Advocate has further submitted that in an appeal against acquittal under Section 378 and Section 386 of the Code of Criminal Procedure the appellate court should not likely interfere with the judgment of acquittal, even if the appellate court believes that there is some evidence pointing finger towards the accused. In support of the said submission, he has placed reliance on the judgments in the cases of State of Rajasthan vs Naresh @ Ram Naresh (2009) 9 Supreme Court Cases 368 and State of Uttar Pradesh vs Banne @ Baijnath & Ors (2009) 4 Supreme Court Cases 271. He also submitted that criminal jurisprudence presumes innocence until guilt is proved beyond reasonable doubt. If an accused is acquitted in the trial, the presumption of innocence is reinforced, and the appellate court exercising jurisdiction under Section 378 and Section 386 of the Code of Criminal Procedure should reverse an acquittal only when it has very substantial and compelling reasons. For this submission, he placed reliance on the judgment of the Supreme Court of India in the case of Ghurey Lal vs State of Uttar Pradesh (2008) 10 Supreme Court Cases 37. He further submitted that if the view taken by the trial court is not perverse or impossible, the High Court of India should not interfere with the order of acquittal. Paragraph 17 of the judgment in the case of Samghaji Hariba Patil vs State of Karnataka (2006) 10 Supreme Court Cases 494 has been placed on record, which reads as under:, The learned Senior Advocate quoted paragraph 17 which states: We have noticed hereinbefore that the High Court has taken a contrary view. Had the High Court been the first court, probably its view could have been upheld, but it was dealing with a judgment of acquittal. We have taken notice of the depositions of the main prosecution witnesses only to show that the view of the learned trial Judge cannot be said to be perverse or the same was not possible to be taken. While dealing with a case of acquittal, it is well known, the High Court of India shall not ordinarily overturn a judgment if two views are possible. The appellant had no axe to grind. The prosecution had not proved that he had any motive. He was only said to be the friend of Accused 1. If the accused had gone there with six others to assault the deceased and his family members, it is unlikely that the appellant would take with him for the said purpose, a hammer to an agricultural field. The hammer is not ordinarily used for agricultural operations. Even if we assume that Accused 1 had been nurturing any grudge against the deceased, it is unlikely that the appellant would be involved therein., Section 353 of the Indian Penal Code defines assault or criminal force to deter a public servant from discharging his duties as follows: Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty, or with intent to prevent or deter that person from discharging his duty, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty, shall be punished with imprisonment for a term which may extend to two years, or with fine, or with both., Section 503 of the Indian Penal Code defines criminal intimidation as follows: Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. Explanation: A threat to injure the reputation of any deceased person in whom the person threatened is interested is within this section. Illustration A: for the purpose of inducing B to desist from prosecuting a civil suit, A threatens to burn B’s house. A is guilty of criminal intimidation., Section 506 of the Indian Penal Code provides punishment for criminal intimidation: Whoever commits the offence of criminal intimidation shall be punished with imprisonment for a term which may extend to two years, or with fine, or with both. If the threat is to cause death or grievous hurt, or to cause the destruction of any property by fire, or to commit an offence punishable with death or imprisonment for life, or to impute unchastity to a woman, the punishment may extend to seven years, or with fine, or with both. By State amendment in Uttar Pradesh, the punishment for an offence under Section 506 is imprisonment for seven years or fine, or both. The offence is cognizable and non-bailable., Section 504 of the Indian Penal Code defines intentional insult with intent to provoke breach of the peace as follows: Whoever intentionally insults, thereby giving provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment for a term which may extend to two years, or with fine, or with both., The facts of the case regarding the place of the incident, presence of the accused at the place, presence of the complainant and the witnesses of fact are not in dispute. The date and time of the incident are not in dispute. The accused-respondent has a reputation as a most dreaded criminal and mafia don who has more than sixty cases of heinous offences to his credit. No one can dispute his credibility in striking terror and fear in the minds and hearts of people including Government officials. Mr. U.C. Verma, learned Additional Government Advocate has submitted that the accused-respondent used to have free run even inside the jail and he had been carrying on his criminal activities in an organized manner from the jail. During his incarceration, he committed several heinous offences including elimination of political rivals, kidnapping, usurping private and public properties, and amassing wealth and properties from proceeds of crime. Even inside the jail, his people would come to meet him without any hindrance created by any jail staff. The warden opened the gate and allowed the people who had come to meet the accused-respondent out of fear and terror of the accused without due permission. He has submitted that in most of the cases the witnesses turned hostile, and he secured acquittal. This fact cannot be disputed for which the Supreme Court of India has taken judicial notice as mentioned earlier., Jailer Mr. S.K. Awasthi, the complainant, Prosecution Witness 2 did not have any enmity with the accused-respondent Mukhtar Ansari but it appears that he was trying to enforce rules inside the jail and therefore ordered that no visitor should be allowed to meet the prisoners unless permission is granted. Prosecution Witness 2, in his examination-in-chief, stated that the accused-respondent got highly enraged by the fact that the jailer was not allowing visitors who had come to meet the accused-respondent inside the jail without permission. He took out a revolver from one of the visitors who had been allowed inside the jail by the jail warden and also extended verbal threats of killing the jail warden. Interestingly, the said witness was not cross-examined on 12.12.2003 when his examination-in-chief took place. The submission of Mr. U.C. Verma, learned Additional Government Advocate, finds substance in that after the witness was won over, an application was filed to recall the said witness which was allowed by the learned trial court vide order dated 30.01.2014, and then the witness to some extent did not support the prosecution case in his cross-examination., The evidence given in the examination-in-chief does not get completely obliterated if the witness in his cross-examination turns hostile or does not support his evidence given in examination-in-chief. Evidence of a witness who has supported the prosecution case in examination-in-chief does not get effaced or washed off the record altogether. In such a situation, it is the duty of the Supreme Court of India to examine the evidence carefully and find that part of the evidence which can be accepted and be acted upon., The Supreme Court of India in the case of Dayaram and another vs State of Madhya Pradesh (2020) 13 Supreme Court Cases 382, while dealing with hostile witnesses in paragraphs 10.4 to 10.7, held as under: From their examination-in-chief it is evident that the deceased was conscious and in a state to lodge the FIR. In their cross-examination, these witnesses denied having any knowledge about the persons who attacked the deceased. They were declared hostile during their cross-examination. The testimony prior to cross-examination can be relied upon. Reliance is placed on the decisions of this Court in Bhagwan Singh v. State of Haryana (1976) 1 Supreme Court Cases 389, Rabindra Kumar Dey v. State of Orissa (1976) 4 Supreme Court Cases 233 and Syad Akbar v. State of Karnataka (1980) 1 Supreme Court Cases 30, wherein it has been held that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution witnesses turned hostile. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on careful scrutiny. In Khujji v. State of Madhya Pradesh (1991) 3 Supreme Court Cases 627, paragraph 6 held that the evidence of a witness declared hostile is not wholly effaced from the record and the part of the evidence which is otherwise acceptable can be acted upon. This position in law was reiterated in Vinod Kumar v. State of Punjab (2015) 3 Supreme Court Cases 220, wherein the Court held that even if a witness is characterised as a hostile witness, his evidence is not completely effaced. The said evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence., There is no legal bar for conviction upon the testimony of a hostile witness given in examination-in-chief, if it is corroborated by other reliable evidence., The Supreme Court of India in the case of Ramesh and others vs State of Haryana (2017) 1 Supreme Court Cases 529 held that evidence of a hostile witness cannot be totally rejected but requires its closest scrutiny and the portion of evidence which is consistent with the case of the prosecution or defence may be accepted. The Court noted the disturbing phenomenon that in criminal cases witnesses turn hostile for various reasons. Paragraph 39 of the judgment reads: We find that it is becoming a common phenomenon, almost a regular feature, that in criminal cases witnesses turn hostile. There could be various reasons for this behaviour. It is possible that when the statements of such witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 by the police during investigation, the investigating officer forced them to make such statements and, therefore, they resiled while depose in court. However, this is no longer the reason in most cases. The trend is due to fear of deposing against the accused, political pressure, pressure of family members or other sociological factors, and monetary considerations. Earlier judgments have commented on this behaviour. In Krishna Mochi v. State of Bihar (2002) 6 Supreme Court Cases 81, the Court observed a decline of ethical values and that witnesses may not have courage to depose against an accused because of threats, especially when offenders are habitual criminals or have political, economic or muscle power. In Zahira Habibullah Sheikh (5) v. State of Gujarat (2006) 3 Supreme Court Cases 374, the Court highlighted the need to protect witnesses, stating that witnesses are the eyes and ears of justice and must be able to depose without fear. The State has a definite role to protect witnesses, especially in sensitive cases involving powerful persons. In Sakshi v. Union of India (2004) 5 Supreme Court Cases 518, the Court suggested measures such as screens to protect victims and witnesses from seeing the accused, and that cross‑examination questions be put in writing to avoid embarrassment. In State v. Sanjeev Nanda (2012) 8 Supreme Court Cases 450, the Court reiterated that hostile witnesses are a major disturbing factor and that their evidence, if consistent with the case, may be accepted. The Court also observed that even an injured witness present at the spot may turn hostile, and that the criminal justice system cannot be overturned by such witnesses. Section 193 of the Indian Penal Code imposes punishment for giving false evidence but is seldom invoked., The analysis of various cases discerns the following reasons why witnesses retract their statements before the court and turn hostile: (i) Threat or intimidation; (ii) Inducement by various means; (iii) Use of muscle and money power by the accused; (iv) Use of stock witnesses; (v) Protracted trials; (vi) Hassles faced by the witnesses during investigation and trial; (vii) Absence of clear‑cut legislation to check hostility of witnesses., Had Prosecution Witness 1 been examined on the same day, he would in all likelihood have supported the prosecution case as he did in his examination-in-chief. The accused-respondent deliberately did not cross‑examine the said witness on that date and after the witness was won over, an application was filed under Section 311 of the Code of Criminal Procedure to recall the witness, which was allowed vide order dated 30.01.2014, and in the cross‑examination he deviated from the prosecution case to some extent., The Supreme Court of India noted in Swaran Singh vs State of Punjab (2000) 5 Supreme Court Cases 668 that a criminal case is built on the edifice of evidence admissible in law. The Court observed that witnesses are often harassed, that cases are adjourned repeatedly until witnesses tire or give up, and that such practices lead to miscarriage of justice. The Court emphasized that witnesses should be treated with respect, provided with proper diet money for every adjourned hearing, and that the criminal justice system should be monitored by linking district and subordinate courts to the High Court of India through a computerised system. The Bar Council of India and State Bar Councils must support reforms, and the law may need amendment to clause (b) of Section 340(3) of the Code of Criminal Procedure to enable the High Court of India to direct any officer to file a complaint against perjury.
id_178	2	To get rid of the evil of perjury, the Supreme Court of India should resort to the use of the provisions of law as contained in Chapter XXVI of the Code of Criminal Procedure., The Supreme Court of India in paragraph 7 of Radha Mohan Singh @ Lal Saheb v. State of Uttar Pradesh (2006) 2 SCC 450 held: “It is well settled that while hearing an appeal under Article 136 of the Constitution, the Supreme Court of India will normally not enter into reappraisal or review of evidence unless the trial court or the High Court is shown to have committed an error of law or procedure and the conclusions arrived at are perverse. The Court may interfere where, on proved facts, a wrong inference of law is shown to have been drawn. (See Duli Chand v. Delhi Administration [(1975) 4 SCC 649 : 1975 SCC (Cri) 663], Dalbir Kaur v. State of Punjab [(1976) 4 SCC 158 : 1976 SCC (Cri) 527], Ramanbhai Naranbhai Patel v. State of Gujarat [(2000) 1 SCC 358 : 2000 SCC (Cri) 113] and Chandra Bihari Gautam v. State of Bihar [(2002) 9 SCC 208 : 2003 SCC (Cri) 1178 : JT (2002) 4 SC 62]). Though the legal position is quite clear, we have gone through the evidence on record in order to examine whether the findings recorded against the appellants suffer from any infirmity., The testimony of Prosecution Witness 1 Ganesh Singh, who is an injured witness, and Prosecution Witness 4 Ramji Singh clearly establish the guilt of the accused. According to the prosecution case, the incident took place shortly after sunset. The eyewitnesses deposed that after the incident the deceased Hira Singh was carried on a cot to the bandh, which is on the outskirts of the village. As no conveyance was available, the first informant had to wait for some time and thereafter a tempo was arranged on which the deceased was taken to the district hospital where he was medically examined by Prosecution Witness 2 Dr. Siddiqui at 9.00 p.m. It has come in evidence that the village is at a distance of six miles from Police Station Kotwali, Ballia. The non‑availability of any conveyance is quite natural as it was the Holi festival. Prosecution Witness 3 Mohan Yadav fully supported the prosecution case in his examination‑in‑chief. In his cross‑examination, recorded on the same date, he gave details of the weapons being carried by each of the accused and also the specific role played by them in assaulting the deceased and other injured persons. As his cross‑examination could not be completed, it was resumed on the next day and then he gave a statement that he could not see the incident on account of darkness. His testimony has been carefully examined by the learned Sessions Judge and also by two learned Judges of the High Court, Honourable K.K. Mishra, Justice and Honourable U.S. Tripathi, Justice, who held that the witness, on account of pressure exerted upon him by the accused, tried to support them in his cross‑examination on the next day. It has been further held that the statement of the witness, as recorded on the first day including his cross‑examination, was truthful and reliable., It is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross‑examine him. The evidence of such a witness cannot be treated as effaced or washed off the record altogether but can be accepted to the extent his version is found to be dependable on careful scrutiny. (See Bhagwan Singh v. State of Haryana [(1976) 1 SCC 389 : 1976 SCC (Cri) 7 : AIR 1976 SC 202], Rabindra Kumar Dey v. State of Orissa [(1976) 4 SCC 233 : 1976 SCC (Cri) 566 : AIR 1977 SC 170], Syed Akbar v. State of Karnataka [(1980) 1 SCC 30 : 1980 SCC (Cri) 59 : AIR 1979 SC 1848] and Khujji v. State of Madhya Pradesh [(1991) 3 SCC 627 : 1991 SCC (Cri) 916 : AIR 1991 SC 1853]). The evidence on record clearly shows that the FIR of the incident was promptly lodged and the testimony of Prosecution Witness 1 Ganesh Singh, Prosecution Witness 4 Ramji Singh and Prosecution Witness 3 Mohan Yadav finds complete corroboration from the medical evidence on record. We find absolutely no reason to take a different view., From the aforesaid discussion, it can be seen that the law is very clear that the Appellate Court should not interfere with the judgment and order of acquittal unless the judgment is perverse or the view taken by the learned Sessions Court is impossible. It is also well settled that the testimony of a hostile witness does not get effaced completely and washed off the record, but it is for the Supreme Court of India to closely scrutinize such testimony in the facts and circumstances of the case and to consider, while convicting or acquitting the accused, that part of the testimony which supports the prosecution case and can be relied on for conviction., Witness Prosecution Witness 2, who was given threats of life by pointing a revolver by the accused‑respondent, has fully supported the prosecution case in all respects in his examination‑in‑chief. His testimony in his examination‑in‑chief is fully in tune with the prosecution case. The witness did not have any enmity with the accused‑respondent, and there was no reason to falsely implicate the accused‑respondent for the commission of the offence for which the accused‑respondent was charged. There is no reason to disbelieve his testimony given in examination‑in‑chief. His testimony in his cross‑examination, which takes place after he could have been won over, does not appear to be credible. The submission of Mr. U.C. Verma, learned Additional Government Advocate, cannot be brushed aside that the application for his re‑examination came to be filed after the witness was won over for threat or some other reasons. If the testimony of such a witness is read together with the testimony of Prosecution Witness 3, Prosecution Witness 6 and Prosecution Witness 7, charges against the accused‑respondent for committing offences under Sections 504, 506 and 353 of the Indian Penal Code are proved beyond reasonable doubt., The Sessions Court had completely ignored the evidence of Prosecution Witness 2 given in examination‑in‑chief and had only considered his cross‑examination. The approach of the Sessions Court is palpably erroneous and against the well settled legal position as discussed above. The impugned judgment and order passed by the learned Sessions Court is unsustainable., Admittedly, the complainant was posted as Jailer in the District Jail, Lucknow on the date of the incident. He was present in his office when the alleged incident took place and was discharging public duty. From the evidence brought on record, it is proved that the accused‑respondent used criminal force by pointing a pistol towards him with intent to prevent and deter the complainant from discharging his duty as a Jailer; therefore, the offence under Section 353 of the Indian Penal Code is clearly proved against the accused‑respondent and he is convicted for committing the said offence., From the evidence on record, it is also proved that the accused‑respondent abused the complainant and insulted him, knowing fully well that it would undermine the authority of the Jailer and would cause a breach of peace inside and outside the jail, because if a public servant can be humiliated and abused, the authority of a public functionary would be diminished and people would not respect lawful authority. Therefore, the accused‑respondent is found guilty of committing the offence under Section 504 of the Indian Penal Code., From the evidence on record, it is proved that the accused‑respondent on the date, time and place of the incident took a pistol/revolver from a visitor and pointed it towards the complainant, threatening his life. He is found guilty of committing the offence under Section 506 of the Indian Penal Code. He intimidated the complainant, who as a Jailer was performing public duty, by abusing him and pointing the revolver/pistol towards him and threatening to kill him. This would have invoked excitement inside the jail likely to create a breach of peace, tumult and disorder in the discharge of public duties by the jail staff., In view of the foregoing discussion, the present appeal is allowed. The impugned order dated 23 December 2020 passed by the Special Judge, Additional Sessions Judge, Court No.19, Lucknow is set aside. The accused‑respondent is convicted for offences under Sections 353, 504 and 506 of the Indian Penal Code. He is sentenced for the offence under Section 353 of the Indian Penal Code to undergo rigorous imprisonment for two years with a fine of Rs 10,000. For the offence under Section 504 of the Indian Penal Code, he is sentenced to undergo rigorous imprisonment for two years with a fine of Rs 2,000. For the offence under Section 506 of the Indian Penal Code, the accused is sentenced to undergo rigorous imprisonment for seven years with a fine of Rs 25,000. All the sentences will run concurrently., Let the learned Sessions Court record be remitted back for preparing the custody warrant of the accused‑respondent as per the law.
id_1780	0	Standard Operating Procedure for hearing of matters through Virtual Mode at the Principal Seat, Bombay High Court (effective from 11 January 2022) is issued in partial modification of the Standard Operating Procedure dated 3 January 2021. It is notified for the information of advocates and parties appearing in person that the Honourable Chief Justice has been pleased to issue the following Standard Operating Procedure for hearing matters through virtual mode at the Bombay High Court with effect from 11 January 2022 till 28 January 2022., The benches will function between 12.00 noon and 3.00 p.m. and will take up matters as per judicial assignment with preference to urgent matters. The benches will take up the already published board of 11 January 2022., Circulation of a matter shall be allowed through virtual mode in urgent cases only with permission of the concerned bench. It is left to each individual bench to settle its board considering the priority in hearing to be given to any particular matter., Advocates shall seek circulation of matters only by filing a Praecipe through email on the designated email ID of the concerned court, given hereinbelow., In case of a fresh matter, the advocate shall first file the matter, obtain the stamp/lodging number and then move the Praecipe by mentioning the said stamp/lodging number on it. Filing of fresh matters will be allowed through electronic filing only. However, the option of filing fresh matters physically is permitted till 28 January 2022. Advocates shall file fresh matters through electronic filing by visiting the efiling.ecourts.gov.in portal., Electronic filing of fresh matters will be allowed for all types of matters. The filing of matters through electronic filing is illustrated in the Standard Operating Procedure dated 22 December 2021. Advocates shall follow the instructions given in that Standard Operating Procedure. Advocates should NOT file their matter through email on the designated email address; such filing will not be taken into cognizance., Filing of testamentary matters physically will be allowed notwithstanding clauses five and six above. No Praecipe without mentioning the number of the matter will be entertained. Advocates shall also serve the Praecipe on the other side in advance. All Praecipes should be sent 48 hours (excluding holidays) in advance before the proposed listing of the matter. Praecipes received after the stipulated time will not be responded to or placed before the Honourable Judge. If the matter is not listed, it is deemed that the bench has declined circulation of the matter., In the Praecipe itself, advocates shall mention the names of a maximum of three persons with their email IDs who would attend the hearing through virtual mode. Similarly, respondents or defendants seeking to enter appearance shall intimate email IDs of a maximum of three persons who would attend the hearing. Only those persons whose email IDs are intimated to the Registry will be allowed to attend the hearing through virtual mode. Advocates shall mention their Bar Council enrolment or registration number, phone number and email ID in the Praecipe., If the Honourable Judge allows the Praecipe, the Registry shall communicate the date and time slot for hearing through virtual mode and shall share the link and PIN of the Video Conference Room with the concerned advocates. The link and PIN shall be used only for the video conference of that particular case at the allotted time., Pre‑requisites for joining a Video Conferencing based meeting: (i) Internet connection of minimum 2 Mbps from any service provider (Broadband, FTTH, 4G, etc.); (ii) Laptop or desktop with a working camera running Windows (recommended) or any other operating system – use of mobile phones for video conferencing is deprecated for all users; (iii) The laptop or PC used should ideally be identifiable by the name of the advocate joining the meeting; (iv) It is recommended to use wired earphones or headphones with a good quality microphone. Advocates are discouraged from using the in‑built microphone of the PC or laptop., In order to join the video conference, advocates should install the required video conferencing software on their computer or laptop. No technical support for installation will be provided in this regard., The concerned advocates may connect to virtual mode using the link or meeting ID and PIN shared with them. They shall enter the serial number of their matter on the board as their login ID for identification., Please ensure that your camera is in a stable position, focused at eye level and that there is sufficient light on you. Do not sit too far from or too close to the camera. On the screen, the face should not be blurred or dark but must be clearly identifiable., To ensure a good conference during multi‑party hearing, maintain discipline by speaking one at a time. Keep your microphone muted and unmute it only when you speak. Only the speaker’s microphone should be unmuted at any given time., Only the advocate or duly authorized person shall address the Court. The Registry is authorized to mute or unmute any of the participants., A complaint regarding the quality or audibility of the feed, if any, shall be communicated on the helpline number 022‑22676751 during the proceeding or immediately after its conclusion; failing which no grievance shall be entertained thereafter., Persons whose presence is not necessary or who disturb or otherwise impede the smooth conduct of the proceedings or violate etiquette will be removed without notice or warning. Persons removed will not be able to re‑join. No complaint will be entertained against removal., Litigants who do not have the means or access to video conferencing facilities may use the facility of video conferencing through the unit installed in Court Room No. 25 Annex., Recording of the video conference court proceeding or hearing in video, audio or any other form is strictly prohibited., The word ‘Advocate’ wherever it occurs in this Standard Operating Procedure, unless the context otherwise requires, shall also include a party‑in‑person., Advocates and parties should avoid visiting the Court premises unless their presence is absolutely required., Bar Associations should discourage the presence of advocates in bar rooms and of advocate clerks within the Court premises., The following mandatory norms are to be followed by all persons permitted to enter the Court premises: (i) Wearing of mask at all times; (ii) Adherence to all directions, guidelines, Standard Operating Procedures and advisories issued by the Government of India and the State Government in respect of COVID‑19 protocol., Dated the 10th day of January 2021. By Order, (Sachin B. Bhansali) (V. R. Kachare) Prothonotary and Senior Master, Registrar (Judicial‑I), Bombay High Court, O.S. Bombay. High Court, A.S., Bombay.
id_1781	0	Dated this the 9th day of November, 2022 A. Muhamed Mustaque, Judge. What God has joined together, let no one separate is the sublime ideal read in the Bible (Matthew 19:6, Mark 10:9). Do spouses in that union have the right to separate their marriage, mutually, before the aura of the marriage period of one year vanishes, is the question presented in these matters. Two young Christians are before us. Their marriage was solemnized on 30 January 2022, in accordance with the Christian rites and ceremonies. They realised that their marriage was a mistake. The marriage was not consummated. On 31 May 2022, they moved a joint petition for divorce before the Family Court of Ernakulam, under Section 10A of the Divorce Act, 1869 (hereinafter referred to as the Act). The Family Court registry refused to number the same, apparently noting the bar in filing a joint petition within one year after the marriage, as referable under Section 10A of the Act. The petition was filed under Section 151 of the Code of Civil Procedure. This was taken up on the judicial side. The Family Court rejected the petition holding that one‑year separation after the marriage is an essential condition to maintain a petition under Section 10A of the Act. Challenging this order, both parties approached the Supreme Court of India in Original Petition No. 398 of 2022. Thereafter, the matter was heard at length. In Original Petition No. 398 of 2022, the Supreme Court of India appointed Advocate Sandhya Raju and Advocate Leela R. as amici curiae to assist the Court. Realising that the bar is created by statute, the couple filed Writ Petition (Civil) No. 28317 of 2022 to declare that the waiting period of one year fixed under Section 10A(1) of the Act is unconstitutional. Both matters were taken up together., Heard the learned counsel Shrimati Sikha G. Nair appearing for the petitioners, amici curiae Advocate Sandhya Raju and Advocate Leela R., and the learned Central Government Counsel, Sri Suvin R. Menon., The Indian Divorce Act was enacted during the British period in the year 1869 to confer on certain courts the jurisdiction in matrimonial disputes of persons professing Christianity. By the Amendment Act 51 of 2001, the word Indian appearing in the name of the Act had been omitted. The 1869 law was based on the British enactment of 1858. The British scrapped the above law in 1923. The Law Commission of India in its 164th report recommended that the Parliament enact a comprehensive law governing marriage and divorce and other allied aspects of Christians in India. Based on the recommendation, the Central Government convened a meeting of prominent leaders of the Christian communities in India and members of Parliament belonging to the Christian community on 28 April 2001. Based on the understanding arrived at in the meeting, the divorce law was amended by removing the onerous conditions contained in Section 10 of the Act and also doing away with the procedures causing delay in obtaining divorce due to the provisions contained in Sections 17 and 20 of the Act. One of the salient provisions was brought in by amendment in the year 2001, namely, the dissolution of marriage by mutual consent. Section 10A of the Act was inserted as a provision for dissolution of marriage by mutual consent in addition to Section 10 of the Act, the grounds for dissolution of marriage on fault basis., Section 10A. Dissolution of marriage by mutual consent. (1) Subject to the provisions of this Act and the rules made thereunder, a petition for dissolution of marriage may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Indian Divorce (Amendment) Act, 2001, on the ground that they have been living separately for a period of two years or more, that they have not been able to live together and they have mutually agreed that the marriage should be dissolved. (2) On the motion of both the parties made not earlier than six months after the date of presentation of the petition referred to in sub‑section (1) and not later than eighteen months after the said date, if the petition is not withdrawn by both the parties in the meantime, the Court shall, on being satisfied, after hearing the parties and making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of decree., As seen from Section 10A of the Act, a petition for dissolution of marriage can be presented to the Court under Section 10A only on the ground that the parties to the marriage have been living separately for a period of two years or more and that they have not been able to live together., A Division Bench of the Supreme Court of India in Saumya Ann Thomas v. Union of India and others [MANU/KE/0255/2010] held that the stipulation of a period of two years as the minimum mandatory period under Section 10A is arbitrary and oppressive and the period of two years has to be read as one year. This was taking note of the one‑year period stipulated in Section 28(1) of the Special Marriage Act, Section 13B(1) of the Hindu Marriage Act and Section 32B(1) of the Parsi Marriage and Divorce Act., There are three types of theories that have been recognised for the separation of a legal marriage: fault theory, irretrievable breakdown theory and no‑fault basis (mutual consent)., Divorce by mutual consent reflects the will of the parties to separate and get rid of the marriage. The legislature has put safeguards against impulsive decisions that may permeate such a decision by stipulating a gestation period before presenting a petition for divorce on mutual consent. This period will insulate possible peril that may ensue for the parties as a follow‑up of the decision for mutual separation. In the Indian social context, though marriages are solemnized by two individuals, it is seen more as a union for laying the foundation for a strong family and society. Many laws have been made and many rights have been created based on familial relationships. The legislature, therefore, decided that a minimum period of separation must precede before presentation of a petition for divorce on the ground of mutual consent., The problem presented in this case is when the waiting period itself would cause hardship to the parties. Can the law command parties to sit at the fence and suffer the agony? The legislature in its wisdom contemplated possible repercussions of such fixation of minimum period that would result in hardships to spouses and accordingly allowed the courts to entertain a petition within the minimum period in exceptional cases. This is how Section 29 of the Special Marriage Act and Section 14 of the Hindu Marriage Act enabled the courts to entertain the petition to be presented before one year had lapsed from the date of marriage. There is no corresponding provision in the Divorce Act for the Court to permit the dissolution of marriage by mutual consent until the mandatory period of one year has lapsed from the date of separation. The constitutional validity of the mandatory period is, therefore, questioned in the writ petition filed by the parties. This Court in Saumya's case (supra) had no occasion to advert to the validity of the minimum mandatory period by which spouses are denied the remedy of approaching the Court before the lapse of one year from the date of marriage or from the date of separation. The reasoning of the Court found in paragraph 42 of the above judgment reads thus: Having considered all the relevant circumstances, we are of the opinion that the stipulation of a higher period of two years of mandatory minimum separate residence for those to whom the Divorce Act applies, in contradistinction to those similarly placed to whom Section 13B of the Hindu Marriage Act, Section 32B of the Parsi Marriage and Divorce Act and Section 28 of the Special Marriage Act would apply, offends the mandate of equality and right to life under Articles 14 and 21 of the Constitution. The above reasoning of the Court would clearly show that the decision rendered and the conclusion arrived at was on a premise that the mandatory minimum residence period of two years for Christians is discriminatory as there is no such prescription of two years under the Hindu Marriage Act and the Special Marriage Act etc. This Court, however, considers the question in these cases on a different ground; whether in the absence of any provisions allowing the parties to a marriage to move the Court before the lapse of one year from the date of marriage or the date of separation. Can the provisions stand the test of constitutional scrutiny? The plea of arbitrariness would arise in this context of denial of judicial remedy to approach the Court before the lapse of one year from the date of marriage or separation., Men have free choice to enter into marriage. However, the same freedom is not accorded to the men to separate the marriage. The State's interference in marriage through legislation is on the assumption that men are ill‑equipped to take a decision for themselves and the State is competent to take decisions by taking note of the welfare, needs, interests etc. of men. Legal paternalism is often justified with beneficial intent which is sought to be secured through legislation, regulation etc. From a liberal perspective, any encroachment on an individual's right to take a decision would be viewed as an encroachment on personal liberty. But in our constitutional scheme, the competency of a legislature to make laws for the common good, keeping in mind the social context and the larger community interest cannot be termed as an encroachment on personal liberty. The ideal of the constitution itself is to create a society of values. These values represent the ethos of society, invalidation of liberty affecting the lives of others, to promote the welfare and common good of the persons involved in relationships. John Stuart Mill in his book 'On Liberty', Chapter IV – 'Of The Limits To The Authority Of Society Over The Individual' discussed the problem relating to controlling the behaviour of individuals. The author says, The distinction here pointed out between the part of a person's life which concerns only himself, and that which concerns others, many persons will refuse to admit. How (it may be asked) can any part of the conduct of a member of society be a matter of indifference to the other members? No person is an entirely isolated being; it is impossible for a person to do anything seriously or permanently hurtful to himself, without mischief reaching at least to his near connections, and often far beyond them. If he injures his property, he does harm to those who directly or indirectly derived support from it, and usually diminishes, The harm likely to cause others is something that bothered the legislature to fix a mandatory minimum period to present a petition for mutual divorce. We would not have thought of interfering with a minimum period as it carries a laudable object behind it. But we are constrained to note that no remedy is provided by statute in exceptional and depraved conditions for a spouse to approach the courts to get rid of the minimum period. The legislature in their wisdom felt that some provisions are to be made to relax the rigour of the minimum period to entertain a petition within the waiting period of separation in other statutes. This essentially ensures that efficacious judicial remedy is provided in cases of exceptional hardships to the parties. The denial of such a remedy to Christians bothers us. The Court must circumvent from entering into the domain of legislature by providing measures of relaxation. Individual liberty when curtailed, the Court has to examine whether the law was passed to further any common good or to protect the larger interest of the parties. We have already found that there is a rationale behind fixing the one‑year waiting period. We also note that the very idea of fixing the waiting period before the presentation is also intended to be secured after the presentation of such a divorce petition. The Court after presentation under Section 10A(2) of the Act is bound to allow the parties to think on their decision of mutual separation. The provision states that the parties shall be given an opportunity to withdraw the petition not earlier than six months after the date of presentation of the petition. However, we find that the mandate of Section 10A(1) will become oppressive if the parties are not given the option to highlight hardships and exceptional hardships they may experience during the waiting period. The right to a judicial remedy if curtailed by statutory provisions, the Court will have to strike it down as it is violative of a fundamental right. The right to life encompasses judicial remedy as well. Article 8 of the Universal Declaration of Human Rights declares that everyone has the right to an effective remedy by the competent national tribunals for acts violating fundamental rights granted by the constitution or by law. The legislature in other statutes, having felt the need for relaxation, to redress exceptional circumstances through judicial remedy, cannot remain in oblivion when concerning the Christian community. Ronald Dworkin, in his famous book 'Taking Rights Seriously' argues that individual rights are political trumps held by individuals. Individuals have rights when, for some reason, a collective goal is not a sufficient justification for denying them what they wish, as individuals, to have or to do, or not a sufficient justification for imposing some loss or injury upon them. The collective good we find as rationale cannot trample on the rights of individuals to depart if his or her need to depart is not relatable to the collective good. We are not holding that the law is discriminatory because different communities in equal circumstances are given different treatment. Law intends to apply to a particular class or group and that group is not homogeneous with certain classes or groups being excluded, compelling the legislature to make different laws for each group. We are of the firm view that when liberty is taken away to act according to one's will, without any procedure to safeguard the fallout of such restrictions, the law will become oppressive. But for the legislation, parties would be able to separate themselves. The legislature cannot take away liberty without adequately safeguarding the interest of the individuals whose interests to seek remedy are affected even if such legislation intends to achieve laudable objects., Section 10 of the Divorce Act permits divorce on fault grounds. It is possible for a spouse to file a petition for divorce without any waiting period. The Court may be able to grant a divorce even before the period of one year, on being satisfied with the ground for divorce. One of the grounds to obtain a divorce is willful non‑consummation of marriage. On recognizing the existence of this ground on the basis of fault, one may be able to obtain a divorce from the Court by not contesting the same. However, if they have shown wisdom to avoid stigma, the Court cannot permit to move the petition without the lapse of a period of one year after separation. This exactly is the dilemma and hardship for the parties in these cases., We hold that the fixation of the minimum period of separation of one year as stipulated under Section 10A is violative of the fundamental right and accordingly, strike it down., We have interacted with the parties who came online before us on the last hearing date. They also had appeared before the earlier bench which heard the matter. On both occasions, they were firm in their decision to separate. In view of the fact that more than six months have lapsed since the presentation of the petition for divorce before the Court, we find no further reason for their appearance before the Family Court of Ernakulam again., Before parting with the judgment, we hasten to observe that the Legislature's competence to enact laws to regulate divorce cannot be doubted as it has an avowed intention to uphold the common good and welfare of the people and society. The State knows what is best for the couple and the community. The grounds of divorce on a fault basis have regulated divorce but in a practical sense, it has resulted in hardships rather than in promoting welfare. The impact of welfare objectives must reflect on the parties. Today, the Family Court of Ernakulam has become another battleground, adding to the agonies of parties seeking a divorce. This is obvious for the reason that the substantial legislation enacted prior to the Family Courts Act was fashioned on a platform to adjudicate upon adversarial interests rather than to promote the common interest or good. The time has come for a change in the law applicable to the parties on a common uniform platform. The law differentiates parties based on religion in regard to welfare qua matrimonial relationship. In a secular country, the legal paternalistic approach should be on the common good of the citizens rather than based on religion. The State's concern must be to promote the welfare and good of its citizens, and religion has no place in identifying the common good. The Union Government should seriously consider having a uniform marriage code in India to promote the common welfare and good of spouses in matrimonial disputes. The legislation on divorce must focus on the parties rather than the dispute itself. In matrimonial disputes, the law must aid parties to resolve the differences with the assistance of the Court. If a solution is not possible, the law must allow the Court to decide what is best for the parties. The procedure for seeking divorce shall not be to aggravate the bitterness by asking them to fight on preordained imaginary grounds., In the result, these cases are disposed of with the following: Writ Petition (Civil) No. 28317 of 2022 is allowed declaring that the stipulation of the one‑year period or more for the purpose of filing a divorce petition by mutual consent under Section 10A is violative of fundamental right and is declared unconstitutional. Original Petition (Family Court) No. 398 of 2022 is allowed. The Family Court of Ernakulam is directed to number the petition presented by the petitioners seeking divorce on mutual consent and dispose of the same within two weeks in the light of interaction we had with the parties before us and to grant a decree of divorce without insisting further presence of parties. We record our appreciation to amici curiae Advocate Sandhya Raju and Advocate Leela R.
id_1783	0	Walls of prison, however high they may be, the foundation of a prison is laid on the rule of law ensuring the rights of its inmates enshrined in the Constitution of India. The violation of these constitutional rights of Ankit Gujjar, who lost his life to custodial violence in Tihar Jail, compelled the petitioners Geeta, Shivani and Ankul, the mother, sister and brother of the deceased, to file the present writ petition. The petitioners have impleaded the State, Government of the National Capital Territory of Delhi, Delhi Police through its Commissioner, the Union of India through its Home Secretary, Ministry of Home Affairs, and the Central Bureau of Investigation through its Director as respondents No.1 to 4 respectively, seeking a writ of mandamus directing the Central Bureau of Investigation to take over the investigation of FIR No.451/2021 registered at Police Station Hari Nagar, Delhi from respondent No.2 and to provide adequate protection to the petitioners., According to the petitioners, Ankit Gujjar was lodged in Central Jail No.3, Tihar Prison Complex as an under‑trial prisoner who was brutally beaten by officials of Tihar Prison on the night of 3rd/4th August 2021. Despite repeated Police Control Room calls and messages, no effort was made to save Ankit, no complaint was lodged, no FIR was registered and no evidence was collected. A counter‑affidavit was registered on the complaint of jail officials against Ankit. The FIR on the death of Ankit Gujjar, caused by multiple blunt injuries, was registered only on the intervention of the learned Metropolitan Magistrate under Section 156(3) of the Criminal Procedure Code. The petitioners state that the deceased had long been harassed by jail officials as he was unable to meet their regularly increasing monetary demands. Although the FIR was registered on the petitioners’ complaint, the proceedings noted that despite repeated complaints while the deceased was alive, no effort was made to provide medical treatment, and even after his death efforts were made to support the FIR registered against the deceased. The FIR, filed pursuant to the magistrate’s directions, invoked Sections 302, 323, 341 and 34 of the Indian Penal Code despite ample material on record indicating systematic destruction of evidence and extortion by jail officials. Consequently, the petitioners seek transfer of the investigation to the Central Bureau of Investigation at the earliest so that valuable evidence can be preserved and inmate eyewitnesses can depose in a fair and free manner., When this petition came up before the Supreme Court of India on 18th August 2021, the Court, while issuing notice, directed a status report to be filed under the signatures of the Director General, Prisons on behalf of respondent No.1 and under the signatures of the Joint Commissioner of Police concerned on behalf of respondent No.2. The Director General, Prisons was also directed to preserve all closed‑circuit television footage having a bearing on the incident, that is, prior to the incident, at the time of the incident and thereafter. Status reports have been filed by the Director General, Prisons as well as the Joint Commissioner of Police, Western Range, the senior and supervisory officer of the investigation being conducted by Police Station Hari Nagar in the above‑noted FIR., The status report filed by the Director General, Prisons states that the deceased inmate Ankit Gujjar, son of Vikram Singh, was initially admitted to Central Jail No.4 in 2015 in FIR No.190/2015 under Sections 302, 307, 356 and 394 of the Indian Penal Code at Police Station Sonia Vihar and was released on 13th December 2017. He was then admitted to Central Jail No.2 on 18th August 2020, shifted to Central Jail No.4 on 2nd September 2020 and thereafter to Central Jail No.3 on 17th February 2021. He was facing trial in as many as thirteen cases registered at various police stations of Delhi, Haryana and Uttar Pradesh. Regarding the incident of 3rd August 2021, Ankit Gujjar was lodged in Central Jail No.3, Ward No.5A, Cell No.16 along with two other inmates, Gurjeet son of Jarnail and Gurmeet son of Jarnail. On 3rd August 2021 a surprise search was conducted by jail staff at around 3.30 pm in the cell of the deceased, and one mobile phone, one charger/data cable and one hand‑made knife were recovered. In terms of the Delhi Prisons Rules, 2018, a punishment ticket was prepared for Ankit Gujjar, Gurjeet and Gurmeet, and the on‑duty Warder of Ward No.5A instructed the inmates to be shifted to Ward No.1 for segregation pursuant to orders of the Jail Superintendent conveyed by the on‑duty Deputy Superintendent. Around 7.30 pm the inmates refused to be transferred and protested, which was reported by the on‑duty Warder to Deputy Superintendent Narender Meena. Narender Meena went to Cell No.16 of Ward No.5A and told the inmates to obey the Superintendent’s orders; the inmates began abusing him and a heated argument ensued, after which Ankit started a physical altercation with Narender Meena. Other jail officials intervened to control the situation. Another punishment ticket was prepared for the attack on the Deputy Superintendent and Ankit was shifted to Cell No.9 of Ward No.1, while Gurjeet and Gurmeet were lodged in Cell No.19 of Ward No.1., On the night of 3rd/4th August 2021 at around 1.00 am a call was made by jail staff to the Casualty, Central Jail Hospital, Tihar as Ankit complained of body ache. The duty doctor and nursing staff visited the ward, gave him a pain‑killer injection, and Ankit refused any further treatment or physical examination. At 6.25 am another call was made to the duty doctor; on examination he was found lying supine, pupils dilated and fixed, pulse not recordable. Ankit was shifted to isolation casualty, three cycles of CPR were performed and he was declared dead at 7.15 am on 4th August 2021 by the doctor on duty. Intimation was given to the learned Chief Metropolitan Magistrate, the local police station, the National Human Rights Commission and other authorities. Inquest proceedings under Section 176 of the Criminal Procedure Code were initiated by the learned Metropolitan Magistrate, whose report is still awaited., The status report states that 757 closed‑circuit television cameras have been newly installed in Central Jail No.3 and commissioning is at final stages. Due to a technical problem during commissioning, pursuant to a request from M/s Bharat Electronic Ltd., the agency executing the work, a shutdown of all cameras of Ward Nos.1, 2, 3, 4 and 5A was done on 3rd August 2021, resulting in those cameras being offline and their footage unavailable. The footage of the remaining cameras of Central Jail No.3 has been preserved on a hard drive and supplied to Delhi Police with a certificate under Section 65B of the Evidence Act., The internal inquiry completed by the Deputy Inspector General of Prisons resulted in the suspension of Deputy Superintendent Narender Meena, Assistant Superintendent Deepak Dabas, Assistant Superintendent Balraj, and Warder Shiva. Eight more jail officials have been shifted from Central Jail No.3 pending further orders, and the Superintendent of Central Jail No.3 has been transferred to the Prison Headquarters., The Joint Commissioner of Police, Western Range, Delhi Police filed a detailed status report on the investigation carried out to date in FIR No.451/2021 under Sections 302, 323, 341 and 34 of the Indian Penal Code registered at Police Station Hari Nagar, Delhi. The report notes that several Police Control Room calls were received on the evening of 3rd August 2021. One call at 23.09 pm concerned the medical‑legal case of Deputy Superintendent Narender Meena, recorded as Diary Dispatch No.12 7A, which was entrusted to Sub‑Inspector Pooran Mal who reached the DDU Hospital where the injured Narender Meena refused to give a statement, stating that an official complaint would be filed later. The medical‑legal case indicated a history of physical assault by an inmate in jail. Later, on 4th August 2021 at 1.10 am a written complaint was received from the Jail Administration regarding assault on Narender Meena and other staff, leading to the registration of FIR No.434/2021 under Sections 186, 332, 353 and 34 of the Indian Penal Code at Police Station Hari Nagar., On 3rd August 2021 two more Police Control Room calls were received at Police Station Hari Nagar, one at 22.55 pm recorded as Diary Dispatch No.129A and the second at 23.11 pm recorded as Diary Dispatch No.133A. In the first call, a lady caller informed that her brother Ankit Gujjar was in jail and had been assaulted by the Deputy Superintendent for money, resulting in multiple injuries to her brother and denial of medical treatment. She provided the mobile number 9311951721. The call was entrusted to Assistant Sub‑Inspector Ram Avtar, who reached Central Jail No.3 but was not allowed entry by jail staff. Deputy Superintendent on duty Vinod Thakur informed that a mobile phone, a data cable and a knife were recovered from Ankit’s cell, after which a scuffle occurred between Ankit and jail staff, resulting in injuries to both parties and treatment being provided to Ankit. ASI Ram Avtar was asked to return later to record the statement of the under‑trial prisoner. When contacted telephonically, the caller stated she was in her village at Bagpat and could not record a statement., The second Police Control Room call recorded as Diary Dispatch No.133A at 23.11 pm on 3rd August 2021 reported an incident at Jail No.3, Tihar. This call was also entrusted to ASI Ram Avtar. The mother and brother of Ankit arrived at Police Station Hari Nagar at 4.30 am on 4th August 2021 but stated they would give their statements later. They also reported that an under‑trial prisoner named Gaurav, released from Tihar Jail on the evening of 3rd August 2021, had informed them about the beating of Ankit., On 4th August 2021 another Police Control Room call was received at 9.08 am, recorded as Diary Dispatch No.32A, wherein the caller stated that his brother, lodged in Tihar Jail No.3, was assaulted by Deputy Superintendent Narender Meena and three to four staff members the previous night, leading to his death, and that Narender Meena was forcing other inmates to take accountability for the murder. In total, sixteen Police Control Room calls were made by relatives of the deceased or injured concerning the incident., While the inquest proceedings were ongoing, the petitioner No.1 filed an application under Section 156(3) of the Criminal Procedure Code. By order dated 7th August 2021, the Station House Officer of Police Station Hari Nagar was directed to register an FIR, which was done on 9th August 2021 on the written complaint of the mother of the deceased. According to the status report filed by the Joint Commissioner of Police, statements of twenty‑eight witnesses have been recorded under Section 161 of the Criminal Procedure Code, including injured eyewitnesses Gurjeet and Gurmeet. They stated that Ankit had gone for a hearing at Jhajjar Court and returned at 6.00 pm on 3rd August 2021. Since a mobile phone, knife and data cable were recovered from the cell at 4.00 pm, at about 7.00 pm Deputy Superintendent Narender Meena, accompanied by jail staff, directed the inmates to shift to Ward No.1. Ankit refused, leading to a scuffle during which other staff beat Ankit. Subsequently, Narender Meena, Vinod Meena, Dinesh Chhikara, Harphool Meena, Naveen, Deepak Dabas, Ram Avtar Meena and other staff took the inmates near the control room and beat them, resulting in Ankit’s death, which was discovered on the morning of 4th August 2021. Other under‑trial prisoners also reported seeing injuries on Ankit, Gurjeet and Gurmeet., The statement of petitioner No.3, the brother of the deceased, Ankul, was also recorded. He stated that on 1st August 2021 at about 2.00 pm Ankit called him from mobile number 8826205882 and told him that Deputy Superintendent Narender Meena and his associates were troubling him and demanding one lakh rupees, of which fifty thousand rupees had already been given. He further stated that on 3rd August 2021 at 22.41 hours his brother Prabhati called and informed that Narender Meena and other staff had beaten Ankit, leaving him in serious condition. He sent a mail from his niece’s mail ID to the Jail Superintendent., The grievance of the petitioners is that, from the first Police Control Room call itself, the family stated that Ankit was beaten because he failed to comply with the monetary demands of Deputy Superintendent Narender Meena. They have provided the numbers to which the amounts were transferred. However, the investigation, as reflected in the FIR and the status report, appears to focus on the recovery of a mobile phone, charger and knife from the deceased’s cell and the alleged scuffle arising from his refusal to be transferred, thereby ignoring the genesis of the occurrence—namely the extortion demand that was not fulfilled, which led to the merciless beating of Ankit., Learned counsel for the petitioners contends that, as stated by the Director General, Prisons, and as noted in the status report filed by the Joint Commissioner of Police, closed‑circuit television footage of 3rd and 4th August 2021 of Ward Nos.1, 2, 3, 4 and 5A of Tihar Jail No.5 is not available because the system was not operational. It is necessary that statements of the witnesses be recorded in a free and fair manner so as to uncover the truth., The post‑mortem report of the deceased indicates that he sustained multiple injuries and the cause of death was opined to be haemorrhage consequent upon the cumulative effect of multiple blunt force injuries. The injuries included: (1) a stellate‑shaped incised wound with reddish‑comused margins over the occipital protuberance, measuring 2.8 cm × 0.4 cm, with a lacerated wound 0.8 cm × 0.3 cm × 0.2 cm on the left occipital region and associated extravasation of blood over bilateral occipito‑temporal regions; underlying skull intact and patchy sub‑arachnoid haemorrhage over cerebral hemispheres; (2) a lacerated wound 2.5 cm × 0.5 cm × 0.5 cm obliquely present over the outer aspect of the right eyebrow with surrounding bluish dermal contusion; two reddish‑blue contusions over each frontal eminence measuring 3 cm × 2.5 cm on the right and 3 cm × 1.5 cm on the left, with extravasation of blood in bilateral frontal areas and intact skull; (3) a reddish‑blue dermal contusion 7 cm × 2 cm in the right submental region; (4) multiple reddish‑blue tram‑track contusions with intervening pale areas ranging from 0.7 cm to 1.2 cm over an area 60 cm × 50 cm on the back of chest and abdomen, totaling thirty contusions, the shortest measuring 10 cm × 2 cm and the longest 53 cm × 2 cm, interspersed with multiple reddish abrasions ranging from 1 cm × 1 cm to 7 cm × 2 cm and diffuse extravasation of blood in the underlying muscular planes; (5) multiple reddish‑blue contusions merging over an area 20 cm × 16 cm on the right buttock and 20 cm × 15 cm on the left buttock, with tram‑track contusions ranging from 5 cm × 2 cm to 20 cm × 2 cm and diffuse extravasation of blood in the muscular planes; (6) the right upper limb (arm, forearm and hand) showed multiple reddish‑blue contusions merging over an area 63 cm × 19 cm, with tram‑track contusions interspersed and pale areas 0.7 cm wide, along with multiple reddish abrasions ranging from 1 cm × 1 cm to 16 cm × 3 cm and diffuse extravasation of blood in the muscular planes; (7) the left upper limb showed similar multiple reddish‑blue contusions over an area 57 cm × 18 cm, tram‑track contusions with pale areas 0.7 cm wide, multiple reddish abrasions ranging from 1 cm × 1.5 cm to 14 cm × 2 cm and diffuse extravasation of blood in the muscular planes; (8) a reddish abrasion 3 cm × 1 cm obliquely placed over the inner aspect of the right collarbone, 2 cm from the midline; (9) multiple reddish contused abrasions 0.5 cm × 0.5 cm to 3 cm × 0.8 cm over an area 18 cm × 16 cm on the anterior and outer aspect of the right abdomen, lower end at the level of the anterior superior iliac spine, with extravasation of blood in the muscular planes; (10) multiple reddish abrasions 0.5 cm × 0.5 cm to 2.5 cm × 1.5 cm over an area 21 cm × 12 cm on the outer aspect of the left abdomen, lower end at the level of the anterior superior iliac spine, with extravasation of blood in the muscular planes; (11) the right lower limb (thigh, knee and leg) showed multiple reddish‑blue contusions extending from upper thigh to lower calf over an area 80 cm × 25 cm on anterior, lateral and posterior aspects, with tram‑track contusions interspersed, pale areas 0.7 cm wide, multiple reddish abrasions ranging from 0.5 cm × 2 cm to 4 cm × 2 cm and diffuse extravasation of blood in the muscular planes; (12) the left lower limb showed similar multiple reddish‑blue contusions over an area 75 cm × 23 cm on anterior, lateral and posterior aspects, tram‑track contusions with pale areas 0.7 cm wide, multiple reddish abrasions ranging from 1 cm × 0.5 cm to 3 cm × 2 cm and diffuse extravasation of blood in the muscular planes., The perusal of the post‑mortem report contradicts the version of Deputy Superintendent Narender Meena and other staff that a scuffle took place in which both Narender Meena and Ankit sustained injuries. The nature and distribution of injuries demonstrate that the deceased was brutally beaten and left unattended. The jail administration’s account states that at around 1.00 am on the intervening night of 3rd/4th August 2021 Ankit complained of body ache, the duty doctor and nursing staff gave him a pain‑killer injection, and he refused further treatment. Neither the doctor nor the nursing staff informed senior officers of Ankit’s condition nor referred him to the hospital. It is unfathomable that when the jail doctor visited at midnight he did not observe the multiple injuries later evident on the post‑mortem., The status report filed by the Director General of Prisons indicates that an in‑house inquiry conducted by the Deputy Inspector General found complicity of one Deputy Superintendent, two Assistant Superintendents and a Warder, who have been suspended. The DIG failed to notice the connivance or laxity of Deputy Superintendent Vinod Thakur, who did not permit Assistant Sub‑Inspector Ram Avtar from Police Station Hari Nagar, who had gone to inquire into the Police Control Room call, to enter the jail to record the statement of Ankit., Along with the present petition, the petitioners have placed on record Annexure‑P7, which is the bank statement of petitioner No.3 showing transfers of money to various accounts that, according to the petitioners, belong to associates or known persons of Deputy Superintendent Narender Meena. Although the Station House Officer of Police Station Hari Nagar states that the CBI details of the phone numbers to which the money was transferred have been obtained and are being examined, it is evident that, if the petitioners’ allegations are correct, a very serious offence has been committed that requires an in‑depth investigation to uncover the manner in which the alleged extortion is carried out in the prison., The Supreme Court of India deems it fit to transfer the investigation of FIR No.451/2021 under Sections 302, 323, 341 and 34 of the Indian Penal Code registered at Police Station Hari Nagar, Delhi to the Central Bureau of Investigation. The case file shall be transferred to the CBI immediately by the concerned police station. A status report will be filed by the concerned Superintendent of Police, CBI, after carrying out the investigation, before this Court well before the next date of hearing., Further, even when Ankit was injured and alive, proper medical treatment could have saved his life. Therefore, an investigation must not only identify all persons who committed the offence of brutally beating the deceased resulting in his death, but also ascertain the role of jail doctors in failing to provide timely treatment. Necessary rules and regulations must be enacted so that police are not denied entry into the jail to conduct an enquiry or investigation into the commission of a cognizable offence. The case also calls for immediate remedial actions by the State and the Director General of Prisons so that unscrupulous officers do not exploit the non‑functioning of closed‑circuit television cameras to commit illegal acts. The Director General of Prisons shall file a status report indicating measures taken to streamline the CCTV system, alternative measures when cameras are not working, accountability of jail officers and doctors, and the mechanism by which immediate police entry is provided to the jail upon receipt of information of a cognizable offence, together with the remedial steps taken.
id_1785	0	Reportable Criminal Appeal Nos. 833-834 of 2022 (Special Leave Petition (Criminal) Nos. 10039-10040 of 2016) A.G. Perarivalan, Appellant, versus State, through Superintendent of Police, Respondents. Criminal Appeal No. 835 of 2022 (Special Leave Petition (Criminal) No. 2363 of 2021) – leave granted., Appellant A.G. Perarivalan, accused No. 18 in Crime No. 329 of 1991 registered at Sriperumbudur Police Station for the assassination of Shri Rajeev Gandhi, former Prime Minister of India, on 21 May 1991, was convicted for offences under the Indian Penal Code, the Arms Act, 1951, the Explosive Substances Act, 1908, the Passport Act, 1967, the Foreigners Act, 1946, the Indian Wireless Telegraphy Act, 1933 and the Terrorist and Disruptive Activities (Prevention) Act. He was sentenced to death by the Designated Terrorist and Disruptive Activities (Prevention) Act Court. The Supreme Court of India, by a judgment dated 11 May 1999, upheld the conviction and sentence, but the conviction and sentence under the Terrorist and Disruptive Activities (Prevention) Act were later set aside. The review petition filed by the Appellant was dismissed on 8 October 1999. The Appellant and three others filed mercy petitions before the Governor of Tamil Nadu under Article 161 of the Constitution, which were rejected on 27 October 1999. The Governor, pursuant to an order of the Tamil Nadu High Court, reconsidered the Appellant’s mercy petition and rejected it again on 25 April 2000. The Appellant filed a mercy petition before the President of India under Article 72 of the Constitution, which was also rejected on 12 August 2011. Aggrieved, the Appellant filed a writ petition in the Madras High Court, which was transferred to the Supreme Court of India by an order dated 1 May 2012. The death sentence was commuted to life imprisonment by the Supreme Court of India on 18 February 2014., In view of the Appellant having undergone a sentence of 23 years, the State of Tamil Nadu proposed remission of the life imprisonment to the Government of India, requesting its views within three days. The proposal was made under Section 435 of the Criminal Procedure Code, 1973, which requires consultation of the Central Government because the case was investigated by the Central Bureau of Investigation. The Union of India immediately filed criminal miscellaneous petitions on 18 February 2014, seeking a direction to the State of Tamil Nadu not to release the Appellant. An order of status quo was passed by the Supreme Court of India on 20 February 2014. The review petitions filed by the Union of India against the judgment commuting the sentence were dismissed., On 24 February 2014, the Union of India filed a writ petition for quashing the communication from the State of Tamil Nadu dated 19 February 2014 and its decision to consider commutation or remission of the sentence imposed on the Appellant and others. The writ petition was referred to a Constitution Bench of the Supreme Court of India by order dated 25 April 2014, after formulating seven questions for consideration. By a judgment dated 2 December 2015, the Supreme Court of India answered the questions framed for consideration in Union of India v. Sriharan., On 30 December 2015, the Appellant filed a petition under Article 161 of the Constitution for remission of his sentence. The writ petition filed by the Union of India for quashing the State Government’s proposal to grant remission was disposed of by the Supreme Court of India on 6 September 2018, noting the Appellant’s petition under Article 161 and granting the concerned authority liberty to dispose of it as deemed fit. A resolution was passed by the Tamil Nadu Cabinet on 9 September 2018, recommending the release of the Appellant, and was sent to the Governor., The Appellant filed a criminal miscellaneous petition before the Designated Terrorist and Disruptive Activities (Prevention) Act Court in Chennai praying for effective monitoring of the pending investigation of the assassination. The petition was dismissed on 10 December 2013, after which the Appellant approached the Madras High Court under Section 482 of the Criminal Procedure Code by filing a criminal original petition. Another criminal original petition sought direction to the Central Bureau of Investigation to complete the pending investigation expeditiously and to file a status report before the Madras High Court every two months. The Madras High Court dismissed both petitions by separate orders on 6 March 2015, holding that the Appellant should have approached the Supreme Court of India. Appeals have been filed against those orders. Notice was issued by the Supreme Court of India in Criminal Miscellaneous Petition No. 118421 of 2017 filed by the Appellant seeking suspension of sentence., During the pendency of these appeals, the Supreme Court of India was informed that no decision had been taken by the Governor on the resolution passed by the Tamil Nadu Cabinet on 9 September 2018 recommending release of the Appellant. On 11 February 2020, the Supreme Court of India directed the Additional Advocate General for the State of Tamil Nadu to obtain instructions on the status of the Council of Ministers’ recommendation to the Governor. During the hearing of parole applications, the Madras High Court was informed that the Governor had not decided on the recommendation because the final report of the Multi-Disciplinary Monitoring Agency was awaited. The Central Bureau of Investigation filed an affidavit on 20 November 2020 informing the Supreme Court of India that no request had been made by the Governor for the MDMA report and that the petition filed under Article 161 could be decided on its own merits., The learned Solicitor General of India appeared on 21 January 2021 to inform the Supreme Court of India that a decision would be taken by the Governor on the petition filed under Article 161 without further delay. Subsequently, on 4 February 2021, an affidavit was filed by the Deputy Secretary, Ministry of Home Affairs, stating that the Governor, by order dated 25 January 2021, had determined the President of India to be the appropriate authority to decide the petition filed by the Appellant under Article 161 and had forwarded the petition along with the Tamil Nadu Cabinet’s recommendation to the President of India., By an order dated 9 March 2022, the Supreme Court of India released the Appellant on bail, taking into account that the Appellant had spent more than 31 years in jail, his conduct in jail was good, he had acquired several educational qualifications and was suffering from ill health., On behalf of the Appellant, Mr. Gopal Sankaranarayanan, learned Senior Counsel, submitted that the recommendation made by the State Cabinet to grant remission should have been decided by the Governor. He argued that the Governor does not have power to refer the recommendation of the State Cabinet to the President of India and that the recommendation is binding on the Governor, who cannot exercise independent discretion. At most, the Governor could have requested the State Cabinet to reconsider its decision, but he lacked jurisdiction to refer the recommendation to the President, as under Article 161 the Governor exercises power on the aid and advice of the Council of Ministers. He further submitted that accepting the argument that the President is the competent authority would render every pardon or suspension granted by the Governor under Article 161 unconstitutional., Mr. Rakesh Dwivedi, learned Senior Counsel appearing for the State of Tamil Nadu, supported the Appellant’s stand by arguing that the scope of Articles 161 to 163 has been explained by more than one Constitution Bench of the Supreme Court of India, according to which, unless expressly provided by the Constitution, the Governor is bound by the decision of the Council of Ministers. If a decision made by the Governor on the advice of the Council of Ministers is found to be beyond the jurisdiction of the State Government, it can be challenged before constitutional courts. However, the Governor is not constitutionally empowered to sit in judgment of the recommendation of the Council of Ministers. He further urged that there is no provision in the Constitution enabling the Governor to refer the recommendation of the State Cabinet to the President of India, and such action would violate the federal structure, a basic feature of the Constitution., Mr. K. M. Natraj, learned Additional Solicitor General of India, submitted that the appropriate Government for remission or commutation in the present case is the Union of India. He relied on passages of the judgment in Sriharan and argued that the Governor rightly referred the State Cabinet’s recommendation because only the President of India can decide on remission or commutation of the Appellant’s sentence. He further contended that the Governor is not always bound by the advice of the Council of Ministers and that recognized exceptions exist where the Governor must act in his own discretion. He relied on the judgment in M.P. Special Police Establishment v. State of Madhya Pradesh, where the Court held that when bias of the Council of Ministers is apparent or the decision is irrational, the Governor may act in his own discretion and grant sanction. He argued that the point raised by the Appellant concerning the reference of the State Cabinet’s recommendations to the President is beyond the scope of the writ petition and should not be entertained., The only point requiring consideration in these appeals is the correctness of the Governor’s reference to the President of India on 25 January 2021 without taking a decision on the State Cabinet’s recommendation for remission of the Appellant’s sentence. The preliminary objection of the learned Additional Solicitor General that this point is not within the scope of the appeal is rejected. These appeals are filed against orders of the Madras High Court refusing to entertain petitions filed by the Appellant, including one against a judgment of the Designated Terrorist and Disruptive Activities (Prevention) Act Court rejecting the request for effective monitoring of the investigation. The Supreme Court of India had issued notice in Criminal Miscellaneous Petition No. 118421 of 2017 filed by the Appellant seeking suspension of sentence, noting that despite the State Government’s proposal for premature release, the Central Government had not taken any decision on the Appellant’s fate till 2017, as required by the judgment in Sriharan. During the pendency of these appeals, the State Cabinet’s recommendation for remission on 9 September 2018 remained undecided by the Governor, who ultimately referred the matter to the President of India. In view of the importance of the issue, the Supreme Court of India proceeds to determine the point raised by the Appellant., The power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of an offence against any law to which the executive power of the State extends is vested in the Governor under Article 161 of the Constitution. Article 162 makes clear that the executive power of the State extends to matters with respect to which the State Legislature has power to make laws. Article 163 provides that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except where the Constitution requires the Governor to exercise his functions in his discretion., The limits within which the executive Government can function under the Indian Constitution can be ascertained by reference to the form of the executive set up by the Constitution. Although federal in structure, the Constitution is modeled on the British parliamentary system where the executive is primarily responsible for formulating governmental policy and transmitting it into law, subject to retaining the confidence of the legislative branch of the State. The Governor is the head of the executive in the State, but the Council of Ministers in each State carries on the executive Government. Thus, the Indian Constitution adopts the same parliamentary executive system as England, with the Council of Ministers, consisting of members of the legislature, acting as the link between the legislative and executive parts of the State., Under the Cabinet system of Government embodied in the Constitution, the Governor is the constitutional or formal head of the State and exercises all powers and functions conferred on him by the Constitution on the aid and advice of his Council of Ministers, except in spheres where the Constitution requires him to act in his discretion. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise of any power or function, such as in Articles 123, 213, 311(2) proviso (c), 317, 352(1), the satisfaction required is not personal but that of the President or Governor in the constitutional sense, i.e., the satisfaction of the Council of Ministers on whose aid and advice the President or Governor generally exercises all powers and functions., Even though the Governor may be authorised to exercise some functions under different constitutional provisions, such functions must be exercised only on the basis of the aid and advice tendered to him under Article 163, unless the Governor has been expressly authorised by a constitutional provision to discharge the function in his own discretion., A Constitution Bench of the Supreme Court of India in Maru Ram v. Union of India authoritatively summed up the position with respect to Article 161: the Governor is the formal head and sole repository of the executive power but is incapable of acting except on, and according to, the advice of his Council of Ministers. The upshot is that the State Government, whether the Governor likes it or not, can advise and act under Article 161, the Governor being bound by that advice. The action of commutation and release can thus be pursuant to a governmental decision and the order may be issued even without the Governor’s approval, although, under the Rules of Business and as a matter of constitutional courtesy, the Governor’s signature should authorise the pardon, commutation or release., Following the dictum in Samsher Singh v. State of Punjab, the Supreme Court of India in Maru Ram further held that in the exercise of powers under Articles 72 and 161, the two highest dignitaries in the constitutional scheme must act not on their own judgment but in accordance with the aid and advice of the ministers. The constitutional conclusion is that the Governor is a shorthand expression for the State Government., The law laid down by the Supreme Court of India is clear and explicit. The advice of the State Cabinet is binding on the Governor in matters relating to commutation or remission of sentences under Article 161. No provision of the Constitution has been pointed out to justify the Governor’s power to refer a recommendation of the State Cabinet to the President of India. In the present case, the Governor ought not to have sent the Cabinet’s recommendation to the President. The recommendation, made on 9 September 2018, remained pending before the Governor for almost two and a half years without a decision. Only when the Supreme Court of India inquired about the delay did the Governor forward the recommendation for remission of the Appellant’s sentence to the President of India., We are fully conscious of the immunity of the Governor under the Constitution with respect to the exercise and performance of the powers and duties of his office. However, as held by the Supreme Court of India in numerous decisions, the Court has the power of judicial review of orders of the Governor under Article 161, which can be impugned on certain grounds. Non‑exercise of the power under Article 161 is not immune from judicial review, as held in Epuru Sudhakar v. Government of Andhra Pradesh. Petitions under Article 161 pertain to the liberty of individuals; inexplicable delay not attributable to the prisoner is inexcusable as it contributes to adverse physical conditions and mental distress, especially when the State Cabinet has decided to release the prisoner by granting remission or commutation of his sentence., The learned Additional Solicitor General, relying on the judgment in M.P. Special Police Establishment v. State of Madhya Pradesh, argued that an irrational decision of the Cabinet can be examined by the Governor in his discretion to reach a different conclusion. In that case, the Governor granted sanction for prosecution under Section 197 of the Criminal Procedure Code against two Ministers of Madhya Pradesh after the Lokayukta reported sufficient grounds for prosecution under the Prevention of Corruption Act, 1988. The Council of Ministers had decided that no material was available for sanction, but the Governor, finding a prima facie case, granted sanction. The Ministers challenged the Governor’s action under Article 226, and the High Court of Madhya Pradesh held that granting sanction was not a function exercisable by the Governor in his discretion. The Supreme Court of India reversed that decision, holding that while sanction for prosecution is normally on the aid and advice of the Council of Ministers, an exception may arise where the Governor must act in his own discretion, for example when the Council of Ministers fails to consider relevant factors such as a Lokayukta report. In such cases, the Governor can act in his own discretion to prevent a breakdown of the rule of law., The judgment in M.P. Special Police Establishment is not applicable to the facts of the present case. No arguments have been raised to show that the State Cabinet failed to consider relevant factors or based its recommendation on extraneous considerations. Moreover, in that case the Governor took a decision that was subsequently challenged, whereas here the Governor merely forwarded the State Cabinet’s recommendation to the President of India., Mr. Natraj placed strong reliance on the judgment in Sriharan to contend that only the President of India has the power to pardon, remit or commute a sentence imposed under any provision of the Indian Penal Code, and that the Governor has no power to grant pardon under Article 161. One of the points framed for consideration by the Constitution Bench in Sriharan pertained to the determination of the appropriate Government for exercise of powers under Sections 432 and 433 of the Criminal Procedure Code. Justice Ibrahim Kalifulla, speaking for himself, Chief Justice Dattu and Justice Ghose, answered that the appropriate Government—Union or State—depends on the order of sentence as stipulated in Section 432(6). Where specific executive power is conferred on the Centre by a law of Parliament or the Constitution, the Union Government is the appropriate Government, as per the proviso to Article 73(1)(a). In other cases, the State Government is the appropriate Government., In a concurring opinion, Justice Lalit, speaking for himself and Justice Sapre, observed that the present case concerns an offence under Section 302 of the Indian Penal Code simpliciter. The respondents are acquitted of offences under the Terrorist and Disruptive Activities (Prevention) Act. The offence under Section 302 IPC is directly related to public order under Schedule VII List II Entry 1 of the Constitution and falls within the exclusive domain of the State Government. Even if it were argued that the offence falls under List III, in the absence of any specific provision conferring executive power on the Union, the executive power of the State must extend. Consequently, the State Government is the appropriate Government for the offence. Historically, as noted in K.M. Nanavati v. State of Bombay, matters concerning offences under Section 302 IPC are dealt with by the Governor under Article 161 or the State Government as the appropriate Government under the Criminal Procedure Code., Section 432(7) of the Criminal Procedure Code provides that the expression ‘appropriate Government’ means: (a) where the sentence is for an offence against, or the order referred to in sub‑section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government; and (b) in other cases, the Government of the State within which the offender is sentenced or the order is passed. To ascertain the extent of the executive power of the Union, the Supreme Court of India examined Articles 72, 73, 161 and 162. Article 73(1) states that the executive power of the Union shall extend to matters with respect to which Parliament has power to make laws and to the exercise of rights, authority and jurisdiction exercisable by the Government of India by virtue of any treaty or agreement, provided that such power shall not, unless expressly provided, extend to matters where the State Legislature also has power to make laws., After an exhaustive discussion, including reference to the Constituent Assembly debates on draft Article 60 (corresponding to Article 73), the Supreme Court of India held that where the State Legislature is also empowered to make laws on the same subject, the determination of whether the executive power of the Union extends to the State must consider whether executive power has been expressly conferred on the Centre by the Constitution or by a law of Parliament. Therefore, to assess whether the executive power of the Union extends to a subject‑matter in List III of the Seventh Schedule, it must be examined whether such power has been expressly conferred on the Union; otherwise, the executive power of the State remains intact. Consequently, for offences under Section 302 of the Indian Penal Code, in the absence of any specific provision conferring executive power on the Union, the executive power of the State extends, irrespective of whether the offence falls under List II or List III of the Seventh Schedule.
id_1785	1	Mister Sankaranarayanan has submitted a list of cases wherein the Supreme Court of India, in the specific facts and circumstances of those cases, has directed release of the prisoner convicted under Section 302 of the Indian Penal Code simpliciter or along with other offences, taking note of the prolonged period of incarceration, educational qualifications obtained during the period of incarceration, conduct in jail as well as the futility of subjecting the prisoners to another round of litigation. The Appellant was 19 years of age at the time of his arrest and has been incarcerated for 32 years, out of which he has spent 16 years on death row and 29 years in solitary confinement. There has been no complaint relating to his conduct in jail. On the two occasions that the Appellant had been released on parole, there had been no complaint regarding his conduct or breach of any condition of release. Medical records filed on behalf of the Appellant show that he is suffering from chronic ailments. Apart from his good behaviour in jail, the Appellant has also educated himself and successfully completed his higher secondary examinations, an undergraduate degree, a postgraduate degree, a diploma and eight certification courses. Given that his petition under Article 161 of the Constitution remained pending for two and a half years following the recommendation of the State Cabinet for remission of his sentence and continues to remain pending for over a year since the reference by the Governor, we do not consider it appropriate to remand the matter for the Governor's consideration. In the absence of any other disqualification and in the exceptional facts and circumstances of this case, in exercise of our power under Article 142 of the Constitution, we direct that the Appellant is deemed to have served the sentence in connection with Crime Number 329 of 1991. The Appellant, who is on bail, is set at liberty forthwith., The law laid down by a series of judgments of the Supreme Court of India is well settled that the advice of the State Cabinet is binding on the Governor in the exercise of his powers under Article 161 of the Constitution. Non‑exercise of the power under Article 161 or inexplicable delay in exercise of such power not attributable to the prisoner is subject to judicial review by the Supreme Court of India, especially when the State Cabinet has taken a decision to release the prisoner and made recommendations to the Governor to this effect. The reference of the recommendation of the Tamil Nadu Cabinet by the Governor to the President of India two and a half years after such recommendation had been made is without any constitutional backing and is inimical to the scheme of our Constitution, whereby the Governor is but a shorthand expression for the State Government as observed by the Supreme Court of India. The judgment of the Supreme Court of India in M.P. Special Police Establishment (supra) has no applicability to the facts of this case and neither has any attempt been made to make out a case of apparent bias of the State Cabinet or the State Cabinet having based its decision on irrelevant considerations, which formed the fulcrum of the said judgment (Maru Ram v. Union of India, supra). The understanding sought to be attributed to the judgment of the Supreme Court of India in Sriharan (supra) with respect to the Union Government having the power to remit or commute sentences imposed under Section 302 of the Indian Penal Code is incorrect, as no express executive power has been conferred on the Centre either under the Constitution or law made by Parliament in relation to Section 302. In the absence of such specific conferment, it is the executive power of the State that extends with respect to Section 302, assuming that the subject‑matter of Section 302 is covered by Entry 1 of List III. Taking into account the Appellant's prolonged period of incarceration, his satisfactory conduct in jail as well as during parole, chronic ailments from his medical records, his educational qualifications acquired during incarceration and the pendency of his petition under Article 161 for two and a half years after the recommendation of the State Cabinet, we do not consider it fit to remand the matter for the Governor's consideration. In exercise of our power under Article 142 of the Constitution, we direct that the Appellant is deemed to have served the sentence in connection with Crime Number 329 of 1991. The Appellant, who is already on bail, is set at liberty forthwith. His bail bonds are cancelled., The Appeals are disposed of accordingly. New Delhi, May 18, 2022. Petition(s) for Special Leave to Appeal (Criminal) No(s). 10039 (Arising out of impugned final judgment and order dated 06-03-2015 in Criminal Revision of Lower Court Order No. 4084/2015 and 06-03-2015 in Criminal Revision of Lower Court Order No. 5073/2015 passed by the High Court of Judicature at Madras). Date: 18-05-2022. These matters were called on for pronouncement of judgment today., For the petitioner: Mister Gopal Sankaranarayanan, Senior Advocate; Advocate Prabu Ramasubramanian; Advocate K. Paari Vendhan, Advocate on Record; Advocate Raghunatha Sethupathy B., Advocate; Advocate Vishnu Unnikrishnan; Advocate Shivani Vij. For the respondents: Mister Tushar Mehta, Learned Senior Government; Advocate Ashok Panigrahi; Advocate Vanshaja Shukla; Advocate Rekha Panday; Advocate Vatsal Joshi; Advocate Sharath Nambiar; Advocate Vinayak Sharma; Advocate Sushal Tiwari; Advocate Indira Bhakar; Advocate Kirti Dua; Advocate Arvind Kumar Sharma, Advocate on Record; Advocate G. Ananda Selvam; Advocate Thirumurugan; Advocate S. Muthu Krishnan; Advocate K. Mayil Samy; Advocate P. Soma Sundaram, Advocate on Record; Advocate Rakesh Dwivedi, Senior Advocate; Senior Advocate V. Krishnamurthy, Senior Advocate/Additional Advocate General; Additional Advocate General Amit Anand Tiwari, Additional Advocate General; Dr. Joseph Aristotle S., Advocate on Record; Advocate Eklavya Dwivedi; Advocate Mary Mitzy; Advocate Devyani Gupta; Advocate Tanvi Anand; Advocate Nupur Sharma; Advocate Shobhit Dwivedi; Advocate Sanjeev Kumar Mahara., Honourable Mister Justice L. Nageswara Rao pronounced the judgment of the bench comprising His Lordship, Honourable Mister Justice B.R. Gavai and Honourable Mister Justice A.S. Bopanna. Leave granted. The Appellant, who is already on bail, is set at liberty forthwith. His bail bonds are cancelled. The appeals are disposed of in terms of the signed reportable judgment. (Geeta Ahuja) (Anand Prakash) Court Master Assistant Registrar. Signed reportable judgment is placed on the file.
id_1788	0	Versus Writ Petition (Criminal) No.304/2020, Writ Petition (Criminal) No.308/2020, Writ Petition (Criminal) No.314/2020, Writ Petition (Criminal) No.316/2020. The petitioners and all the intervening applicants in these matters have raised concern with regard to Writ Petition (Criminal) No.296/2020 regarding the manner in which a 19‑year‑old girl from Hathras, Uttar Pradesh is alleged to have been raped, brutally assaulted, lost her life, and was cremated. Writ Petition (Criminal) No.296/2020 was initially taken on board by the Supreme Court of India and notice was ordered to the respondents returnable in a week. Meanwhile, the remaining petitions and applications were filed in respect of the same incident to seek varied reliefs, all ultimately in pursuit of a fair investigation and bringing the culprits to justice., The details of the other applications and writ petitions are as follows. Ramu alias Ram Kumar filed an Intervention Application seeking indulgence of the Supreme Court of India for ordering a Central Bureau of Investigation (CBI) investigation or formation of a Special Investigation Team (SIT) to investigate the matter under a sitting or retired Justice of the Supreme Court or High Court, and further prayed for transfer of trial to Delhi (Intervention Application No. 101799 of 2020). The All India Women Conference, a non‑governmental organization, through its General Secretary Ms. Kuljeet Kaur prayed for impleadment as a necessary party among the petitioners (Criminal Miscellaneous Petition No. 102148 of 2020). Citizens for Justice and Peace, through its Secretary, sought intervention and directions for transfer of the investigation to CBI, protection of witnesses by central paramilitary forces, and appointment of a retired Justice of the Supreme Court to investigate the circumstances leading to the cremation of the victim (Criminal Miscellaneous Petition No. 105463 of 2020). Radhika Vemula and others prayed for transfer of all connected cases of gang‑rape and death from Uttar Pradesh to a Delhi Special Court, constitution of a SIT to investigate the tragedy to avert political interference, restraining the respondents from conducting polygraph test, narco‑analysis or brain mapping on the victim’s family, protection to the victim’s family and other witnesses, and directing respondents to strictly implement the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Intervention Application No. 103488 of 2020). Members of the Delhi High Court and Supreme Court Bar Association sought orders for constitution of a SIT to investigate the gang‑rape and murder case under the Supreme Court of India’s own monitoring, adequate protection to the witnesses, transfer of trial from Uttar Pradesh to a Scheduled Castes and Scheduled Tribes Special Court in Delhi subject to consent of the victim’s family, and appointment of a Senior Advocate as special prosecutor under Section 15. Satendra Kumar applied for impleadment as respondent in Writ Petition (Criminal) No.296/2020 or, alternatively, permission to intervene in the matter (Diary No. 55441/2020)., Letter petitions received through e‑mail by citizens seeking appropriate directions from the Supreme Court of India in the gang‑rape and murder case (Diary No. 54893/2020). Shobha Gupta filed an Intervention Application seeking permission to intervene to make appropriate submissions and suggestions, emphasizing the extreme importance of the matter (Intervention Application No. 105728 of 2020). Rashtriya Dalit Bachao Andolan, through its President O. P. Shukla, applied for impleadment, stating that he belongs to the Scheduled Caste community and seeking directions to ensure dignified cremation of all victims of crime without discrimination towards Scheduled Castes and Scheduled Tribes, and investigation against officials responsible for cremation and illegal detention of family members to be monitored by the Supreme Court of India. Radhika Vemula and others applied for impleadment to uphold the rights of the Scheduled Caste and Scheduled Tribe communities and society at large, seeking CBI and SIT probe into the case as the impartial investigation was being conducted by the Uttar Pradesh police. Munnoka Samudaya Samrakshana Munnani, through its President, applied for intervention seeking investigation against the accused and alleged lapses in the administration of the case., Writ Petition (Criminal) No.304 of Chandra Bhan Singh versus State of Uttar Pradesh and others, and Writ Petition (Criminal) No.308 of Sushma Motilal Maurya versus State of Uttar Pradesh and others, are connected with Writ Petition (Criminal) No.296/2020. The petitioners pray for a mandamus directing investigation of the role of officials R3‑R7 for mishandling the body of the victim, and direction to the investigating agency to obtain statements of the mother, father and brother of the victim before the magistrate; if the family’s allegations are true, to register a First Information Report against the guilty. They also seek direction to take cognizance, constitution of a High Court‑monitored investigation, inquiry and suspension of erring police and medical personnel attempting to manipulate evidence, and framing of charges against police responsible for the cremation of the victim., Writ Petition (Criminal) No.314 of 2020, Public Mail through its Publisher versus Union of India and others, prays for a mandamus directing the authorities to fix the responsibilities of the police officials who burnt the girl at midnight and to punish them, transfer of the case to Delhi from Hathras, and direction to the authorities to create a special forum or frame guidelines for such rapes in the future., Writ Petition (Criminal) No.316 of 2020, Chetan Janardhan Kamble versus Union of India and others, seeks direction to register offences under Sections 203, 212, 217, 153A and 339 of the Indian Penal Code and Sections 3(2) and 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against government officials involved in destruction of evidence; investigation by a Special Task Force excluding the Central Bureau of Investigation and Uttar Pradesh police; deposition of all evidence, including videos collected at Safdarjung Hospital, for examination by an independent forensic laboratory; and direction granting protection by the Central Reserve Police Force to the witnesses and members of the victim’s family pending investigation., The petition in Writ Petition (Criminal) No.296/2020, filed under Article 32 of the Constitution of India, seeks that the Union of India and concerned authorities be ordered to conduct a fair investigation, with the possibility of transferring the case to the Central Bureau of Investigation or constituting a Special Investigation Team. The petitioners also pray for the appointment of a sitting or retired Supreme Court Judge or High Court Judge to oversee the matter and for the transfer of the case from Hathras, Uttar Pradesh to Delhi., The case presented is that a 19‑year‑old girl, resident of Hathras village in Uttar Pradesh, was brutally gang‑raped. Although she was shifted to Safdarjung Hospital in Delhi, she died and was cremated in the middle of the night without the presence of her family members. The petitioners contend that a fair investigation is possible only if the matter is entrusted to an independent agency., The pleadings in the other writ petitions and intervention applications relate to the same incident, though different reliefs are sought, all aiming to secure a fair investigation and punish the guilty in accordance with law., At the outset, when the first petition was taken up by the Supreme Court of India on 16 October 2020, Mr. Tushar Mehta, learned Solicitor General, submitted that the petition would not be considered an adversarial litigation and that the respondents were also interested in a fair investigation and bringing the offenders to book. It was noted that the Allahabad High Court, Lucknow Bench, having taken note of the incident, had passed a detailed order dated 1 October 2020 and ordered registration of the suo moto petition Public Interest Litigation (Civil) No.16150/2020. Consequently, the Supreme Court of India held that the petitions filed before it need not be entertained at that stage since the jurisdictional High Court was seized of the matter. However, Ms. Indira Jaising, learned Senior Counsel, while intervening on behalf of intervening advocates, raised concern regarding adequate protection for the victim’s family members and witnesses. The learned Solicitor General was requested to obtain instructions on these aspects and file an appropriate affidavit., An affidavit dated 14 October 2020, sworn by the Special Secretary, Home Department, Uttar Pradesh, details the security provided. The parents, two brothers, one sister‑in‑law and grandmother of the victim, residing in the village of Chandpa, District Hathras, Uttar Pradesh, have been provided protection under a three‑fold mechanism: (a) Armed Constabulary component, (b) Civil Police component, and (c) installation of CCTV cameras and lights. The affidavit states that the Inspector in charge of Police Station Chandpa has been made responsible for the entire arrangement, and the Circle Officer, Sadabad, is to ensure robust security by holding regular briefings to the police force and informing the family members about the security arrangements. It also notes that the family has engaged Ms. Seema Kushwaha and Mr. Raj Ratan as private advocates., The affidavit also indicates that the investigation by the Central Bureau of Investigation will be conducted under the supervision of the Supreme Court of India in a time‑bound manner. The Director General of Police, State of Uttar Pradesh, filed an affidavit stating that the State Government has sought a CBI investigation to be conducted under court supervision, and on 10 October 2020 the CBI accepted the request and commenced investigation on 11 October 2020. The orders dated 1 October 2020 and 12 October 2020 passed by the Allahabad High Court note that the High Court has been apprised that the CBI investigation is in progress., In addition to hearing Mr. Tushar Mehta, learned Solicitor General, who appeared for the State, the Court heard Mr. Harish Salve, learned Senior Counsel for the Director General of Police, and Ms. Seema Kushwaha on behalf of the victim’s family, as well as other counsel led by Ms. Indira Jaising and Mr. Colin Gonsalves, who raised concerns on behalf of the victim’s family in various writ petitions and applications. The Court also noted the submission of Mr. Sidharth Luthra, learned Senior Counsel, who sought to appear on behalf of the accused, contending that the legal rights of the accused should not be ignored., Although various contentions were raised, the undisputed fact is that the investigation has been entrusted by the State Government to the Central Bureau of Investigation on 10 October 2020, and the CBI commenced investigation on 11 October 2020. Consequently, the apprehensions expressed by the petitioners that there would be no proper investigation if the Uttar Pradesh Police conducted it are no longer open for consideration, and the grievance is redressed. While the petitioners sought, and the State through its affidavit indicated, that the Supreme Court of India could monitor the investigation, a Public Interest Litigation (Civil) No.16150/2020 has been registered in the Allahabad High Court, Lucknow Bench, suo moto pursuant to its order dated 1 October 2020. The High Court has delved into the aspects of the case to secure a fair investigation, secured the presence of the victim’s father, mother, brother and sister‑in‑law, and issued appropriate orders, including securing reports from various quarters. In this circumstance, it is not necessary for the Supreme Court of India to divest the High Court of the proceedings or to monitor the investigation. Since the incident falls within the jurisdiction of the Allahabad High Court and all particulars are available, it is appropriate for the High Court to continue monitoring the investigation as it deems fit. The writ petitioners may seek to intervene before the High Court, subject to the High Court’s consideration of such requests., Regarding protection to the victim’s family and witnesses, the affidavit filed indicates that sufficient steps have been taken by the State Government. However, Ms. Indira Jaising, learned Senior Counsel, contended that protection provided through the State Police would not be appropriate and that protection should be provided by the Central Reserve Police Force. She also contended that a special public prosecutor be appointed and that monitoring be instituted., Having taken note of the contentions and perused the affidavit filed on behalf of the State Government, we are convinced that steps have been taken to arrange security for the victim’s family and witnesses. However, given the nature of the case and prevailing apprehensions, we direct, as a confidence‑building measure, that security for the victim’s family and witnesses shall be provided by the Central Reserve Police Force within a week from today., Regarding the investigation, the CBI shall report to the Allahabad High Court as directed by the High Court through its orders from time to time. On the request of Ms. Indira Jaising for the appointment of a special public prosecutor, we see no need to pass a specific order; this matter may be considered by the High Court under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The victim’s family, having engaged Ms. Seema Kushwaha and Mr. Raj Ratan as advocates, may raise such requests on behalf of the victim as needed., Therefore, without expressing any opinion on the merits of the rival contentions, all aspects of the matter are left open to be considered by the Allahabad High Court in Public Interest Litigation (Civil) No.16150/2020, relating to the incident for which the investigation is to be conducted by the Central Bureau of Investigation and concerning the grievance of illegal cremation. Regarding protection to the victim’s family and witnesses, the respondent No. 2 (Chief Secretary, State of Uttar Pradesh) in Writ Petition (Criminal) No.296/2020 shall bring this order to the notice of the competent officer of the Central Reserve Police Force forthwith, requesting provision of adequate security to the victim’s family and witnesses; the CRPF shall take steps to provide the same and report to the Allahabad High Court., Regarding the transfer of the case to Delhi as sought by the petitioners, Ms. Seema Kushwaha, learned counsel for the victim’s family, indicated that the need for transfer would arise after the investigation is complete. We are of the view that the investigating agency should complete the investigation, and since the local police have been divested and the CBI is conducting the investigation, there are no apprehensions at this stage. The question of whether the trial should be transferred remains open for consideration if needed in the future., We note the submission of the learned Solicitor General that the names and relationships of the family members with the victim were disclosed in the order dated 12 October 2020 passed by the Allahabad High Court in Public Interest Litigation (Civil) No.16150/2020. As a requirement of law to avoid such disclosure, the High Court is requested to delete the information and amend the digital records to prevent such content from appearing in the future., In terms of the above observations and directions, the writ petitions and applications stand disposed of. No costs.
id_179	0	EP No. 1 of 2021 I A No. GA 1 of 2021 Versus Date: July 07, 2021 Appearance: Dr. Abhishek Manu Singhvi, Senior Advocate; Mr. S.N. Mookherjee, Senior Advocate; Mr. Sanjay Basu, Advocate; Mr. Samik K. Chakraborty, Advocate; Mr. Piyush Agrawal, Advocate; Ms. Utsha Dasgupta, Advocate; Mr. Aman Sharma, Advocate; Mr. Amit Bhandari, Advocate. For the petitioner., This is an application for recusal of this Bench from Election Petition No. 1 of 2021. The petitioner has challenged the election result declared on May 02, 2021, of Nandigram (assembly constituency 210), impleading the returned candidate as the respondent., The present application for recusal was filed on June 23, 2021. Since no caveat has been lodged on behalf of the respondent, and the election petition has not been heard effectively, I have decided to dispose of this application for recusal without hearing the respondent., When the matter was taken up for hearing on June 24, 2021, the petitioner was present online. Her case was argued by Mr. Abhishek Manu Singhvi, Senior Advocate, appearing with Mr. S.N. Mookherjee, Senior Advocate., Mr. Singhvi, Senior Advocate, has taken me to the various statements made in the recusal application to suggest that after filing, the election petition was mentioned before some Honourable Judges for hearing, but the same was not listed before the said Honourable Judges for want of determination., The matter was assigned to this Bench on June 15, 2021, by the Honourable Acting Chief Justice. The petitioner immediately wrote a letter to the Honourable Acting Chief Justice on June 16, 2021, for reassignment of the petition to a different Bench, expressing apprehension of bias against her by this Bench., Referring to the various paragraphs and annexures to the recusal petition, Mr. Singhvi suggested that I should recuse myself from the case since I was associated with the legal cell of the Bharatiya Janata Party and had appeared in a number of cases on behalf of the said party before the Calcutta High Court as a lawyer., Mr. Singhvi referred to two articles published in national newspapers that reported about two politically sensational cases where I represented the Bharatiya Janata Party as a lawyer before the Calcutta High Court. Two tweets made by a leader of the said party on me in the years 2014 and 2015 have also been referred. A purported list of cases where I had allegedly represented the said party before the Calcutta High Court has also been annexed, and submissions have been made that such a list is only illustrative but not exhaustive. Two photographs have been annexed to the application showing my presence in a programme organised by the BJP legal cell of the High Court at Calcutta in the year 2016, where the State BJP President was also present. An invitation letter of 2016 BJP legal cell showing my name as one of the speakers of a programme has also been annexed., Mr. Singhvi has also placed reliance upon the letter dated June 16, 2021, whereby reassignment of the case was sought by the petitioner. In the said letter, the petitioner mentioned that when her view was sought on my confirmation as a permanent Judge of the Calcutta High Court by the then Honourable Chief Justice of this Court in April 2021, she expressed her objection and reservation against such confirmation. The petitioner stated in the letter that she might not get justice from this Bench since she apprehended that the fact of her objection regarding my appointment as a Judge of this Court was known to me., After placing the application, Mr. Singhvi submitted that my long and close association with the Bharatiya Janata Party prior to my elevation is apparent. The petitioner has challenged the election of the returned candidate who contested the election under the symbol of the Bharatiya Janata Party. Mr. Singhvi suggested that there was a conflict of interest in the matter since I had a close, personal, professional, pecuniary and ideological relationship with the BJP. He urged that justice must not only be done but seen to be done. The recusal application was filed at the earliest possible opportunity, and nothing else had happened that this Bench could not decide the recusal application., Mr. Singhvi submitted that the Honourable Judge of the Calcutta High Court should be like Caesar's wife, above suspicion, and it is not worth getting involved in the controversy. He urged this Bench to recuse graciously., It is not necessary to comment upon all the statements made in the application., I must record my appreciation of the fact that the case was argued in a congenial atmosphere and the way Mr. Singhvi placed the application it never took the colour of adversarial litigation., To answer the question whether I should recuse myself from the case, it should be borne in mind that whenever a Judge is faced with a recusal petition on the ground of apprehension of bias, he should not pose unto himself the question as to whether he is biased to the litigant or not. The only limited query a Judge should make is whether the facts of the case can really give rise to the litigant's mind a reasonable apprehension of bias. The Judge should satisfy himself as to whether in the given facts before him, a reasonable man would apprehend bias. The neutrality of the Judge is totally irrelevant in the context., I am unable to persuade myself to agree to the proposition advanced by Mr. Singhvi that there is a conflict of interest in the matter since I have a long, close, personal, professional, pecuniary and ideological relationship with a political party. The argument of Mr. Singhvi takes too sombre a view of the integrity of a Judge. When a litigant raises the question of bias against a Judge, who has taken the oath to discharge his duties without any fear or favour, the test has to be a real likelihood of bias or real danger of bias. The appearance of impartiality, in such a case, should not be viewed from the perspective of a common man. It is for the Court to decide that in the given facts, a well‑informed reasonable man would perceive bias. In this case, the question of pecuniary interest does not arise at all. The interest, therefore, must be direct and not remote or tenuous. It is not the case of the petitioner that either of the parties to the proceeding is personally known to me. If a lawyer appears in several cases for a political party, his association with the legal cell of the party or with its leaders is natural. In this country, it is almost impossible not to have a person who may have some political views. Anyone interested in politics may be said to have an interest. Like any other citizen of the country, a Judge also exercises his voting rights in favour of a political party, but he lays aside his individual predilection while deciding a case. A lawyer's mind is trained not to identify himself with his client and at the same time be loyal to his duty towards his client. When a lawyer moves from Bar to Bench, he carries with him the same sense of detachment already in‑built in him. Ironically, two leading counsel engaged in the case have well‑known political identities adverse to the petitioner's party. It is preposterous to suggest that a Judge having a past association with a political party as a lawyer should not receive a case involving the said political party or any of its members. The past association of a Judge with a political party by itself cannot form apprehension of bias. This proposition, if allowed to be accepted, would be destructive to the long‑lived and deep‑rooted notion of neutrality associated with the justice delivery system and lead to the unfair practice of bench hunting to resist a fair adjudication by an unscrupulous litigant., The petitioner seeks recusal since she apprehends that her objection against my confirmation as a permanent Judge of this Court is known to me. In my view, such ground also cannot justify recusal., The petitioner cannot seek recusal based upon her own consent or objection with regard to the appointment of a Judge. A Judge cannot be said to be biased because of a litigant's own perception and action. It is ludicrous to believe that the petitioner would expect a favourable order from a Judge whose appointment she has consented to and vice versa. If such an argument is accepted, the election petition cannot be tried before this Court since the petitioner, in her capacity as the Chief Minister of the State, has either objected or gave consent to the appointments of most of the Honourable Judges of this Court., The unfortunate part of the episode is that the letter addressed to the Honourable Acting Chief Justice was also deliberately made public on June 18, 2021, and has been disclosed in this recusal application also. The letter contained highly confidential information concerning the appointment of a Judge of the High Court, and the petitioner, being the Chief Minister of the State, who took the oath of secrecy, was constitutionally obliged to maintain the secrecy of such information. In all probability, such a ground has been made in a bid to ensure that anyhow or somehow, the case is not heard by this Bench., Now, I deal with the reprehensible route that has been taken in moving this recusal application., Across the country, the practice is to approach the same Judge for recusal before whom the case is assigned. The petitioner approached the Honourable Acting Chief Justice on 16 June 2021 by way of writing the letter for reassignment of the case., The election petition was first taken up for hearing on 18 June 2021, before this Bench, and quite surprisingly, nothing regarding recusal was revealed. No clue was given to me as to the fact that the petitioner had already approached the Honourable Acting Chief Justice for reassignment of the petition., In such circumstances, the following orders were passed: Mr. S.N. Mookherjee, Senior Advocate appears for the petitioner in this election petition. As prayed for, let this matter be listed on next Thursday i.e. 24 June 2021. In the meantime, the Registrar, Calcutta High Court, Original Side, shall file a report before this Court as to whether this petition has been filed in conformity with the Representation of People Act., In the course of hearing of the case, I repeatedly asked Mr. Singhvi as to the reason for such suppression on the first date of hearing. Mr. Singhvi replied that since a formal application was yet to be filed, there was no mention of recusal. He submitted that it would not have looked nice to allege apprehension of bias on the said date without an affidavit being filed., This apparently attractive submission of Mr. Singhvi really does not jibe with the series of incidents that immediately followed after the Court proceeding was complete., The script was already prepared; the dramatis personae were ready to launch a well‑rehearsed drama outside the Court., On the showing of the petitioner in the recusal application, it appears that the chief national spokesperson and leader of the petitioner's party in the Rajya Sabha was ready by that time with two photographs of mine attending a programme of BJP legal cell in the year 2016. He uploaded the photos at 12.22 P.M. and tweeted as follows: Who is that person circled in both pics? Is he Justice Kausik Chanda of Calcutta High Court? Has he been assigned to hear the Nandigram election case? Can the judiciary sink any lower?, Another member of the Parliament of the said party also, at that time, was ready with a purported list of cases where I had appeared for the Bharatiya Janata Party as a lawyer. She uploaded the list at 1.17 P.M. and tweeted as follows: Milord‑ get a conscience or at least a better veil! Mamatadi's Nandigram petition listed before Justice Kausik Chandra, member of BJP's legal cell & BJP lawyer in numerous appearances. Save our judiciary!, Some other State leaders of the said party came up before the media and demanded recusal of this Bench from the case., A nationwide controversy ensued. The petitioner in the application has annexed a number of tweets to suggest that it is the public perception that the petitioner may not get justice if the case is tried by this Bench. During his submission, Mr. Singhvi, however, submitted there could also be several tweets suggesting that I should not recuse the case, but I should decide the case untrammelled by public perception. I agree with him. Whatever may be the public perception, a case should be decided on the judicially evolved parameters., The aforesaid chronology of the events that took place on June 18, 2021, clearly suggests that a deliberate and conscious attempt was made to influence my decision before the recusal application was placed before me for judicial consideration on June 24, 2021. The calculated psychological offensives and vilification adopted to seek recusal need to be firmly repulsed, and a cost of Rupees five lakh is imposed upon the petitioner. [See: (2014) 8 SCC 470 (Subrata Roy Sahara vs. Union of India)]., Such cost should be deposited with the Bar Council of West Bengal within two weeks from date, and upon such deposit, the Bar Council shall set aside the amount for the families of the advocates who had succumbed to the Covid‑19 pandemic., I have no personal inclination to hear out the case of the petitioner. I had no hesitation in taking up the case, either. It is my constitutional obligation and duty to hear out a case assigned to me by the Honourable Chief Justice neutrally and dispassionately. I have, however, decided to recuse myself from this case for a different reason. The imbroglio stemmed from the inception of the litigation was due to the assignment of this case before this Bench. Since the two persons involved in this case belong to the highest echelon of the State politics, in the name of saving the judiciary, some opportunists have already emerged. These trouble‑mongers will try to keep the controversy alive and create newer controversies. The trial of the case before this Bench will be a tool to aggrandise themselves. It would be contrary to the interest of justice if such unwarranted squabble continues along with the trial of the case, and such attempts should be thwarted at the threshold. The hearing of the case should proceed seamlessly, like any other litigation before this Court., In view of the discussion above, the application being IA No. GA No. 1 of 2021 is disposed of. EP 1 of 2021 stands released from my list. The advocate on record of the petitioner will file a compliance report with regard to the payment of cost before the Bench that may hear the election petition., All parties to act on a server copy of this order duly obtained from the official website of the Calcutta High Court.
id_1790	0	Petitioner is before the High Court of Karnataka calling into question the proceedings in Crime No. 347/2021 registered for offences punishable under Sections 3, 4, 5 and 6 of the Immoral Traffic Prevention Act, 1956 (the Act) and Section 370 of the Indian Penal Code. The learned counsel appearing for the petitioner, Sri Ravi R., and the learned High Court Government Pleader for the respondent, Smt K. P. Yashodha, were heard., A complaint was registered on 23 September 2021 by the Police Sub‑Inspector of the respondent police station, on the basis of credible information received, for the offences punishable under the Act and the Indian Penal Code and proceedings were initiated in Crime No. 347/2021. The petitioner was a customer who was found at the time the premises were searched on 23 September 2021. The result of the search was the seizure of several materials., It is not in dispute that the petitioner was a customer in the brothel when the search was conducted by the respondent police. A customer in a brothel cannot be hauled into criminal proceedings, a consistent view taken by the High Court of Karnataka in a plethora of cases. The High Court of Karnataka, while considering the purport of the Act and the Code in the case of Barath S.P. v. State of Karnataka, Criminal Petition No. 1757/2022 disposed on 24 March 2022, held as follows:, The afore‑narrated facts are not in dispute. The proceedings against the accused are pending consideration in Criminal Case No. 109 of 2018 where the petitioner is accused No. 4. The petitioner is arrayed as accused for the reason that he was caught as a customer in the brothel when the search or raid took place on 24 September 2015 and the proceedings are instituted for offences punishable under Sections 3 to 6 of the Act and Section 370(3) of the Indian Penal Code., Section 3 – Punishment for keeping a brothel or allowing premises to be used as a brothel: (1) Any person who keeps or manages, or acts or assists in the keeping or management of, a brothel shall be punishable on first conviction with rigorous imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand rupees; in the event of a second or subsequent conviction, with rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees. (2) Any person who (a) being the tenant, lessee, occupier or person in charge of any premises, uses, or knowingly allows any other person to use, such premises or any part thereof as a brothel, or (b) being the owner, lessor or landlord of any premises or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel, or is willfully a party to the use of such premises or any part thereof as a brothel, shall be punishable on first conviction with imprisonment for a term which may extend to two years and with fine which may extend to two thousand rupees; in the event of a second or subsequent conviction, with rigorous imprisonment for a term which may extend to five years and also with fine., Section 2A – For the purposes of sub‑section (2), it shall be presumed, until the contrary is proved, that any person referred to in clause (a) or clause (b) of that sub‑section is knowingly allowing the premises or any part thereof to be used as a brothel, or has knowledge that the premises or any part thereof are being used as a brothel, if (a) a report is published in a newspaper having circulation in the area in which such person resides to the effect that the premises or any part thereof have been found to be used for prostitution as a result of a search made under this Act; or (b) a copy of the list of all things found during the search referred to in clause (a) is given to such person., Section 3 – Notwithstanding anything contained in any other law for the time being in force, on conviction of any person referred to in clause (a) or clause (b) of sub‑section (2) of any offence under that sub‑section in respect of any premises or any part thereof, any lease or agreement under which such premises have been leased out or are held or occupied at the time of the commission of the offence shall become void and inoperative with effect from the date of the conviction., Section 4 – Punishment for living on the earnings of prostitution: (1) Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of any other person shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both; and where such earnings relate to the prostitution of a child or a minor, shall be punishable with imprisonment for a term of not less than seven years and not more than ten years. (2) Where any person over the age of eighteen years is proved (a) to be living with, or habitually in the company of, a prostitute; or (b) to have exercised control, direction or influence over the movements of a prostitute in a manner showing that such person is aiding, abetting or compelling her prostitution; or (c) to be acting as a tout or pimp on behalf of a prostitute, it shall be presumed, until the contrary is proved, that such person is knowingly living on the earnings of prostitution of another person within the meaning of sub‑section (1)., Section 5 – Procuring, inducing or taking a person for the sake of prostitution: (1) Any person who (a) procures or attempts to procure a person, whether with or without his consent, for the purpose of prostitution; or (b) induces a person to go from any place, with the intent that he may for the purpose of prostitution become the inmate of, or frequent, a brothel; or (c) takes or attempts to take a person, or causes a person to be taken, from one place to another with a view to his carrying on, or being brought up to carry on prostitution; or (d) causes or induces a person to carry on prostitution, shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees. If any offence under this sub‑section is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to fourteen years. Provided that if the person in respect of whom an offence is committed under this sub‑section (i) is a child, the punishment shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life; and (ii) is a minor, the punishment shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years. (3) An offence under this section shall be triable (a) in the place from which a person is procured, induced to go, taken or caused to be taken or from which an attempt to procure or take such person is made; or (b) in the place to which he may have gone as a result of the inducement or to which he is taken or caused to be taken or an attempt to take him is made., Section 6 – Detaining a person in premises where prostitution is carried on: (1) Any person who detains any other person, whether with or without his consent, (a) in any brothel, or (b) in or upon any premises with intent that such person may have sexual intercourse with a person who is not the spouse of such person, shall be punishable on conviction with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine; provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. (2) Where any person is found with a child in a brothel, it shall be presumed, unless the contrary is proved, that he has committed an offence under subsection (1). (2A) Where a child or minor found in a brothel, on medical examination, is detected to have been sexually abused, it shall be presumed, unless the contrary is proved, that the child or minor has been detained for purposes of prostitution or, as the case may be, has been sexually exploited for commercial purposes. (3) A person shall be presumed to detain a woman or girl in a brothel or in or upon any premises for the purpose of sexual intercourse with a man other than her lawful husband, if such person, with intent to compel or induce her to remain there, (a) withholds from her any jewellery, wearing apparel, money or other property belonging to her, or (b) threatens her with legal proceedings if she takes away any jewellery, wearing apparel, money or other property lent or supplied to her by or by the direction of such person. (4) Notwithstanding any law to the contrary, no suit, prosecution or other legal proceeding shall lie against such woman or girl at the instance of the person by whom she has been detained, for the recovery of any jewellery, wearing apparel or other property alleged to have been lent or supplied to or for such woman or girl or to have been pledged by such woman or girl or for the recovery of any money alleged to be payable by such woman or girl., None of the provisions are attracted against a customer as he neither keeps a brothel nor allows the premises to be used as a brothel under Section 3 of the Act; he does not live on the earnings of prostitution under Section 4 of the Act; he cannot be alleged of procuring, inducing or taking a person for the sake of prostitution under Section 5; and he cannot be alleged of detaining a person in premises where prostitution is carried on under Section 6. The allegations against the petitioner are punishable under the aforesaid provisions, which on their face are inapplicable to the case at hand., Section 370 of the Indian Penal Code – Trafficking of person: (1) Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives a person or persons, by using threats, or using force, or any other form of coercion, or by abduction, or by practising fraud, deception, or abuse of power, or by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking. Explanation 1: The expression ‘exploitation’ includes any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs. Explanation 2: The consent of the victim is immaterial in determination of the offence of trafficking. (2) Whoever commits the offence of trafficking shall be punished with rigorous imprisonment for a term of not less than seven years, but which may extend to ten years, and shall also be liable to fine. (3) Where the offence involves the trafficking of more than one person, it shall be punishable with rigorous imprisonment for a term of not less than ten years but which may extend to imprisonment for life, and shall also be liable to fine. (4) Where the offence involves the trafficking of a minor, it shall be punishable with rigorous imprisonment for a term of not less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine. (5) Where the offence involves the trafficking of more than one minor, it shall be punishable with rigorous imprisonment for a term of not less than fourteen years, but which may extend to imprisonment for life, and shall also be liable to fine. (6) If a person is convicted of the offence of trafficking of a minor on more than one occasion, such person shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine. (7) When a public servant or a police officer is involved in the trafficking of any person, such public servant or police officer shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine., Section 370 of the Indian Penal Code deals with offences punishable for buying or disposing any person as a slave, which is not the allegation in the present case; consequently the petitioner cannot be linked to the said offences. Therefore, on both counts the proceedings are unsustainable. For the aforesaid reasons, the Criminal Petition is allowed and the proceedings in Criminal Case No. 109 of 2018 pending before the Judicial Magistrate First Class (Second Court), Mysuru, stand quashed. The facts obtaining in the case at hand are identical, as the aforesaid criminal petition also considered the case of a customer in a brothel at the time of search; it therefore covers the case at hand on all its fours. Accordingly, the Criminal Petition is allowed and the proceedings in Crime No. 347/2021 pending before the 32nd Additional Chief Metropolitan Magistrate Court, Bangalore, stand quashed.
id_1791	0	Reportable Civil Appeal No. 8129 of 2022 Madhyamam Broadcasting Limited (appellant) versus Union of India and others (respondents). Civil Appeal No. 8130 of 2022 and Civil Appeal No. 8131 of 2022 are also involved. Dr Dhananjaya Y Chandrachud, Chief Justice of India. This judgment consists of the following sections: Requirement of security clearance for renewal of permission; Principles of natural justice: purpose and content; Constitutionalizing principles of natural justice: the impact of Maneka; Standard to test reasonableness of procedure: proportionality as ...; Whether the infringement of Madhyamam Broadcasting Limited's right to a fair hearing is justified; Natural justice and national security: decisions in Digi and Ex‑Armymen; Closed Material Procedure and Special Advocates; Proportionality standard to test public interest immunity claims; Public interest immunity or sealed cover: the less restrictive means; Substantive Challenge: the validity of the action of the Ministry of Information and Broadcasting in denying renewal., The Union Ministry of Information and Broadcasting revoked the permission it had granted to Madhyamam Broadcasting Limited to uplink and downlink a news and current affairs television channel called Media One. The appellants, comprising Madhyamam Broadcasting Limited, the trade union of working journalists, and the editor, senior web designer and senior cameraman of Planetcast Media Services Ltd, initiated proceedings under Article 226 of the Constitution before the High Court of Kerala challenging the action of the Union Ministry of Information and Broadcasting. A Single Judge dismissed the petitions on 8 February 2022, and the Division Bench of the High Court dismissed the writ appeal on 2 March 2022, relying on material disclosed in a sealed cover by the Union Ministry of Home Affairs. The appellants then instituted proceedings under Article 136 of the Constitution to challenge the correctness of the Division Bench judgment., On 19 May 2010 Madhyamam Broadcasting Limited applied for permission to uplink and downlink a news and current affairs television channel named Media One. On 7 February 2011 the Ministry of Home Affairs granted a security clearance for the operation of the channel. By an order dated 30 September 2011 the Ministry of Information and Broadcasting gave Madhyamam Broadcasting Limited permission to uplink Media One for a period of ten years under the Policy Guidelines for Uplinking of Television Channels from India. The permission was granted subject to compliance with the Uplinking Guidelines and conditions set out in the annexure to the permission letter. The annexure prescribed that the licensing authority could impose restrictions as necessary, could revoke the licence on grounds of national security and public order, could prohibit transmission of programmes prejudicial to friendly relations with foreign governments, public order, security of the state or communal harmony, and could require the licence holder to provide access to equipment, records and detailed technical information, and could take over the stations in case of public emergency or for public safety. On the same day the Ministry of Information and Broadcasting issued a registration certificate for downlinking Media One for a period of five years under the Policy Guidelines for Downlinking of Television Channels. The downlinking permission required compliance with the Downlinking Guidelines and the Programme and Advertising Code prescribed under the Cable Television Networking (Regulation) Act, 1995., In 2012 Madhyamam Broadcasting Limited applied for uplinking and downlinking of a non‑news television channel called Media One Life and a news television channel called Media One Global, later withdrawing the application for Media One Global. On 26 August 2015 the Ministry of Information and Broadcasting granted permission to uplink and downlink Media One Life for ten years. On 12 February 2016 the Ministry of Information and Broadcasting issued a Show Cause Notice proposing to revoke the permission for uplinking and downlinking granted to Media One and Media One Life in view of the denial of security clearance by the Ministry of Home Affairs. The notice stated that security clearance to the company and its directors is a prerequisite condition for grant of permission, that the licence may be revoked on grounds of national security and public order, and that due to withdrawal of security clearance the company could no longer fulfil the basic prerequisite for the permission. Seven days after the notice Madhyamam Broadcasting Limited applied to renew the downlink licence for Media One, which had expired after five years. By an order dated 11 July 2019 the Ministry of Information and Broadcasting renewed the downlink permission for Media One for a further five years and cancelled the uplink and downlink permission for Media One Life., On 3 May 2021 Madhyamam Broadcasting Limited applied to renew the downlinking and uplinking permissions for Media One, which were due to expire on 30 September 2021 and 29 September 2021 respectively. On 5 January 2022 the Ministry of Information and Broadcasting issued another Show Cause Notice invoking clause 9.2 of the Uplinking Guidelines and proposing to revoke the permission for Media One. The notice reiterated that security clearance is a prerequisite for the grant of permission, that the Ministry of Home Affairs had denied security clearance in the past and might do so in the present case, and that because security clearance had been denied Madhyamam Broadcasting Limited had ceased to fulfil the eligibility condition for renewal. Madhyamam Broadcasting Limited replied on 19 January 2022, stating that it had not received any intimation of denial of security clearance, that the grounds for denial were not disclosed, that it had not engaged in any activity warranting denial, that a similar notice had been served in 2016 and the licence was subsequently renewed, and that the actions of the Ministry of Information and Broadcasting were arbitrary and violative of Article 14 and of the right to freedom of speech and expression under Article 19(1)(a). By an order dated 31 January 2022 the Ministry of Information and Broadcasting revoked the permission to uplink and downlink Media One on the ground of denial of security clearance., Madhyamam Broadcasting Limited initiated proceedings under Article 226 of the Constitution before the High Court of Kerala to challenge the revocation order. The appellants sought: (i) setting aside of the order dated 31 January 2022; (ii) a direction to the Ministry of Information and Broadcasting and the Ministry of Home Affairs to provide an opportunity to be heard before revoking the permission; and (iii) a declaration that there were no circumstances warranting denial of security clearance or revocation of the licence. The Assistant Solicitor General of India submitted that security clearance was denied on the basis of intelligence inputs that are sensitive and secret, and that the Ministry of Home Affairs could not disclose the reasons as a matter of policy and national security. On 8 February 2022 a Single Judge of the High Court of Kerala dismissed the writ petition, holding that (a) paragraph 10.4 of the Uplinking Guidelines and paragraph 9.4 of the Downlinking Guidelines stipulate that eligibility criteria such as net worth and management experience do not apply at renewal but other terms do, including the requirement of security clearance; (b) the principles of natural justice are not applicable in matters concerning national security, relying on Ex‑Armymen’s Protection Services Private Limited v. Union of India and Digi Cable Network (India) Private Ltd. v. Union of India; and (c) the files submitted by the Ministry of Home Affairs indicated that a Committee of Officers, after taking note of intelligence inputs, advised non‑renewal, and the recommendation was accepted. The Division Bench directed that the files be placed before it. Upon perusing the files the Division Bench held that (i) although the exact nature of the issue was not discernible, there were clear indications that state security and public order would be impacted if the permission were renewed; (ii) while the State cannot ordinarily interfere with press freedom, judicial review in national security matters is limited; (iii) the Union of India may decline to provide information when constitutional considerations such as state security exist, but must justify the claim of immunity on affidavit, relying on M.L. Sharma v. Union of India; and (iv) the State justified non‑disclosure because the Ministry of Home Affairs indicated that denial of security clearance was based on sensitive intelligence inputs., The appellants instituted proceedings under Article 136 of the Constitution against the Division Bench judgment. By an order dated 15 March 2022 the Supreme Court of India, after perusing the relevant files submitted to the High Court in a sealed cover, granted an interim stay on the order of the Ministry of Information and Broadcasting dated 31 January 2022 revoking the permission to operate Media One. The Court ordered that, pending further orders, the revocation order shall remain stayed and Madhyamam Broadcasting Limited may continue operating the news and current affairs television channel Media One on the same basis as before the revocation. The Court observed that the question of whether the contents of the files should be disclosed to the appellants is expressly kept open for determination before final disposal, and that perusal of the files at this stage does not constitute an expression on the tenability of the petitioners’ contentions., Senior Counsel Dushyant Dave, appearing for Madhyamam Broadcasting Limited, submitted that the revocation order is unconstitutional because security clearance is a prerequisite only for the initial grant of permission and not for renewal, that renewal is subject only to the channel not having been found guilty of violating the Programme and Advertising Code on five or more occasions, and that security clearance cannot be denied on grounds exceeding the reasonable restrictions on freedom of the press prescribed under Article 19(2) read with Section 4(6) of the Cable Television Networks (Regulation) Act, 1995. He further argued that the Ministry of Information and Broadcasting had not provided access to the material submitted in sealed cover, thereby violating natural justice and the principle of an open court. Senior Counsel Huzefa A Ahmadi, appearing for the editor, senior web designer and senior cameraman of Media One, contended that the revocation violates Madhyamam Broadcasting Limited’s freedom of speech and expression under Article 19(1)(a), that the Show Cause Notice and the revocation order are bereft of reasons, that the Division Bench acknowledged the lack of discernible details in the files, and that the doctrine of proportionality requires the least restrictive means, which was not employed. Senior Counsel Mukul Rohatgi, appearing for the Kerala Union of Working Journalists, emphasized that press freedom is a precious right and that while the conditions for renewal differ from those for the initial grant, the High Court applied the same standard to both. He suggested that if the material contained sensitive information, it could have been redacted before being placed before the court. Additional submissions by Additional Solicitor General K.M. Nataraaj, on behalf of the respondents, asserted that paragraphs 9.2 and 10 of the Uplinking Guidelines demonstrate that security clearance is a prerequisite for renewal, that the Ministry of Information and Broadcasting was justified in revoking the permission because the Ministry of Home Affairs denied security clearance, and that the principles of natural justice are excluded when national security issues are involved., The issues for determination are: (i) whether security clearance is a condition required for renewal of permission under the Uplinking and Downlinking Guidelines; (ii) whether the denial of renewal and the approach of the Division Bench violated the appellants’ procedural guarantees under the Constitution; and (iii) whether the order denying renewal constitutes an arbitrary restriction on Madhyamam Broadcasting Limited’s right to freedom of speech and expression under Article 19(1)(a). Paragraph 10 of the Uplinking Guidelines provides that renewal of permission will be considered for a period of ten years, subject to the condition that the channel has not been found guilty of violating the terms and conditions of permission, including violations of the Programme and Advertising Code on five or more occasions. Paragraph 10.4 states that at the time of renewal the eligibility criteria of net worth and management experience do not apply, but other terms and conditions applicable at the time of grant remain in force. Paragraph 9 of the Downlinking Guidelines mirrors these provisions, indicating that renewal is not a vested right and is subject to the same conditions. The conditions for renewal are: (a) the channel must not have violated the Programme and Advertising Code on five or more occasions; (b) the channel must not have been found guilty of violating the terms and conditions of permission; and (c) the channel must fulfil all terms and conditions that apply to the grant of permission as modified by the permission letter. Media One has not been found guilty of violating the Programme and Advertising Code on five or more occasions.
id_1791	1	On 28 February 2020, a show cause notice was issued by the Ministry of Information and Broadcasting alleging a violation of the Cable Television Network Rules 1994 and Programme Code of the Cable Television Networks (Regulation) Act 1995 while telecasting reports on the violence which took place in North-East Delhi during the protests organised against the Citizenship (Amendment) Act 2019. By an order dated 6 March 2020, the Ministry of Information and Broadcasting, in exercise of powers conferred by Section 20(2) and 20(3) of the Cable Television Networks (Regulation) Act 1995 and paragraphs 8.1 and 8.2 of the Uplinking Guidelines, ordered the prohibition on the transmission and retransmission of Media One channel for forty‑eight hours. However, by an order dated 7 March 2020, the Ministry of Information and Broadcasting directed that Media Broadcast Ltd may resume uplinking the channel Media One from 9.30 am on the same day. Other than this instance, there is nothing on record to indicate that Media One violated the Programme Code. Paragraph 10.2 of the Uplinking Guidelines states that the channel should not have violated the Programme Code on more than five occasions. The solitary incident of an alleged violation of the Programme Code does not fulfil the first condition of Paragraph 10 of the guidelines., Paragraph 10.4 of the Uplinking Guidelines stipulates that at the time of considering the application for renewal, the channel should fulfil all the terms and conditions that apply to the grant of permission as modified by the letter of permission. The terms and conditions applicable for the grant of permission are spread across the Uplinking and Downlinking Guidelines and are not concentrated in a specific paragraph or clause. Paragraph 2 of the Uplinking Guidelines (and paragraph 1 of the Downlinking Guidelines) prescribes the criteria of eligibility applicable to applicant companies, including minimum net worth and prior managerial experience. Paragraph 3 of the Uplinking Guidelines (and paragraph 2 of the Downlinking Guidelines) prescribe the eligibility criteria for uplinking and downlinking a news and current affairs TV channel. Paragraph 9 of the Uplinking Guidelines (and Paragraph 8 of the Downlinking Guidelines) prescribe the procedure for grant of permission of channels. The applicant company can apply to the Secretary, Ministry of Information and Broadcasting, in triplicate, in the prescribed format Form 1 along with all requisite documents including a demand draft for an amount equal to the processing fee, payable at par at New Delhi, in favour of the Pay and Accounts Officer, Ministry of Information and Broadcasting, Shastri Bhawan, New Delhi. On the basis of information furnished in the application form, if the applicant is found eligible, its application will be sent for security clearance to the Ministry of Home Affairs and for clearance of satellite use to the Department of Space where required. Paragraph 9.2 stipulates that an application which is found to be eligible would be sent to the Ministry of Home Affairs for security clearance. Paragraphs 3 and 9 indicate that upon receipt of the application form, the Ministry of Information and Broadcasting will determine if the conditions of eligibility prescribed in Paragraphs 2 and 3 are fulfilled. If fulfilled, the application is sent to the Ministry of Home Affairs for security clearance., Paragraph 10.4 excludes the eligibility criteria of net worth of the company and managerial experience from the consideration of the renewal application. All other conditions prescribed by the guidelines for permission are applicable for renewal of permission. The requirement of security clearance arises at a stage subsequent to the fulfilment of conditions prescribed under Paragraphs 2 and 3. If the preliminary conditions are applicable at the time of renewal, there is no reason to exclude the requirement of security clearance for renewal of permission. The annexure to the permission letter does not specify any condition modifying or eliminating the condition of security clearance. Rather, the annexure provides that the licence shall be revoked on grounds of public order and national security. Although under Paragraph 10 of the Uplinking Guidelines the licencee does not have a vested interest for renewal of the permission, the grounds for denying a renewal of licence cannot be materially different from the grounds for revoking the licence, because both non‑renewal and revocation are restrictions on the right to freedom of the press. The intention behind the exclusion of the eligibility criteria of net worth and managerial experience for the purpose of a renewal application is that the freedom of the press cannot be restricted on grounds other than those stipulated under Article 19(2) of the Constitution. Thus, Paragraph 10.4 of the Uplinking Guidelines as modified by the permission letter indicates that the Ministry of Home Affairs could deny security clearance on the grounds of national security and public order. According to the Uplinking and Downlinking Guidelines, security clearance from the Ministry of Home Affairs is one of the conditions required to be fulfilled for renewal of permission for uplinking and downlinking of news channels., Article 13 of the Constitution states that all laws that are inconsistent with fundamental rights enumerated in Part III of the Constitution shall be void. Article 13(3)(a) states that for the purpose of this provision, law includes any ordinance, order, bye‑law, rule, regulation, notification, custom or usage having in the territory of India the force of law. It is a settled position of law that an administrative action can be challenged on the ground of a violation of fundamental rights. Following the expansion of the content of the right to equality under Article 14 to include the guarantee against arbitrariness, the grounds for judicial review of administrative action have expanded. Administrative action is judicially reviewable on the grounds of unreasonableness or irrationality; illegality; and procedural impropriety. The Supreme Court of India has also held that, in addition to the above grounds, administrative action can be reviewed on the ground of proportionality if it affects freedoms guaranteed under Articles 19 and 21 of the Constitution., The principle of natural justice derived from common law has two primary facets – audi alteram partem and nemo judex in causa sua. Audi alteram partem encapsulates the rule of fair hearing. Nemo judex in causa sua encapsulates the rule against bias, that is, no person should be a judge of his own case. It is the case of Media Broadcast Ltd that the Ministry of Information and Broadcasting did not comply with the principle of audi alteram partem because the reasons for the denial of security clearance and the material relevant to the decision of revocation were not disclosed. This, it is argued, infringes upon the right of Media Broadcast Ltd to a fair hearing. On the other hand, the Ministry of Information and Broadcasting contends that it was not required to comply with the principles of natural justice since the denial of security clearance involves national security, which is an established exception to the application of the principles of natural justice., The three important considerations are: (i) whether the non‑disclosure of reasons and relevant material for the decision to deny security clearance infringes upon the right to a fair hearing protected under Articles 14 and 21; (ii) whether the infringement of the right to a fair hearing would render the decision void; and (iii) if considerations of national security are an established exception to principles of natural justice, how should the Supreme Court of India resolve the competing interests represented by the principles of natural justice and national security. The case presents the Supreme Court of India with an opportunity to clarify the applicability of the principles of natural justice when issues of national security are involved. The Court must choose between permitting a complete abrogation of the principles of natural justice or attempting to balance the principles of natural justice with concerns of national security., The principles of natural justice were read into the law and conduct of judicial and administrative proceedings with an aim of securing fairness. They seek to realise four momentous purposes: fair outcome; inherent value in fair procedure; legitimacy of the decision and decision‑making authority; and dignity of individuals. Fair outcome: procedural rules are established to prevent bias and unfairness in decision making. In the context of criminal proceedings, procedural rules are prescribed in the Indian Evidence Act 1872 and the Code of Criminal Procedure 1973 to secure the correct outcome and to identify the truth., The House of Lords in Chief Constable of North Wales Police v. Evans set aside a decision because non‑disclosure of allegations violated the principles of natural justice, emphasizing the danger of proceeding without allowing the accused to test the allegations., In Kanda v. Government of Malaya, the Court held that the likelihood of bias test cannot be the sole basis for determining violation of natural justice; non‑disclosure of information is per se violative of the principles of fair trial., The perception that decisions formed following natural justice are accurate and just preserves the integrity of the system and builds public confidence in institutions., The principles of fairness express that a person should be consulted about what is done with them., Indian courts have been significantly influenced by English courts on the interpretation, application, and content of natural justice, as the principles are derived from common law and grounded in the rule of law., The Supreme Court of India followed English courts in making a functional distinction between executive and non‑judicial actions and between actions that deprive rights and those that deprive privilege for deciding the applicability of natural justice. In Ridge v. Baldwin, the House of Lords repudiated the functional distinction based on the nature of the adjudicating body and held that the duty to act judicially in compliance with natural justice can be inferred from the nature of the decision, not the nature of the decision‑making body. The Supreme Court of India has substituted the terminology of natural justice with the doctrine of fairness, as Justice Bhagwati termed it, fair‑action in play., The duty to act fairly derived from common law is not exhaustively defined in a set of concrete principles. Courts in India and abroad have demonstrated flexibility in applying natural justice by fine‑tuning them to situational variations. The Supreme Court of India has observed that the concept of natural justice cannot be put into a straitjacket formula and is incapable of a precise definition. The courts have undertaken an ends‑based reasoning to test if an action violates the common law principle of natural justice. The party alleging a violation must prove that the administrative action violated natural justice and that non‑compliance prejudiced the party. The courts, while assessing prejudice, determine if compliance with natural justice could have benefited the party in securing a just outcome. The courts have examined whether the content of natural justice and the standard for judicial review of non‑compliance have changed after natural justice was constitutionalised in Maneka Gandhi v. Union of India., Two jurisprudential developments on the interpretation of Part III of the Constitution must be noted: the expansion of the meaning of 'procedure established by law' in Article 21 to include procedural due process, and the shift from reading the provisions of Part III as isolated silos to understanding the overlapping tendencies of fundamental rights. In A.K. Gopalan v. State of Madras, the majority rejected the contention that 'procedure established by law' includes natural justice, but Justice Fazl Ali’s dissent held that it must include procedural due process, encompassing notice, an opportunity to be heard, an impartial tribunal, and an orderly procedure. Justice Fazl Ali’s opinion was followed by the Supreme Court of India in Maneka Gandhi v. Union of India, where it was held that life and liberty cannot be restricted by any procedure established by law unless it is just, fair, and reasonable. The Court observed that the right to go abroad is an extension of the right to life and personal liberty protected under Article 21, and can be taken away only by a procedure that is not unfair, arbitrary, or unreasonable. The Court linked the principle of reasonableness guaranteed under Article 14 to the procedure contemplated by Article 21. The Court held that principles of natural justice infuse reasonableness into the procedure, but they are not set‑in‑stone and may be modifiable. The test to determine if non‑compliance with natural justice has led to an unreasonable procedure is whether the procedure violates the core tenets of natural justice – the right to a fair hearing and the right against bias. The Supreme Court of India held that the procedure for impounding a passport under the Passport Act 1967 was fair and just, and that denial of pre‑decisional hearing was justified by the need for prompt action., The judgment in Maneka Gandhi spearheaded two doctrinal shifts on procedural fairness: procedural fairness is now viewed as a requirement with inherent value, not merely a means to a just outcome; and natural justice principles breathe reasonableness into the procedure, making them a constitutional requirement under Articles 14, 19, and 21. The courts are now precluded from assessing procedural infringements solely based on whether the procedure would have prejudiced the outcome; they must decide if the procedure infringed upon the right to a fair and reasonable procedure independent of the outcome. The courts have read the principles of natural justice into enactments to save them from being declared unconstitutional on procedural grounds., Once the applicant proves that the procedure followed was not reasonable with reference to the core of natural justice, the burden shifts to the State to prove that the limitation of the right is justified and reasonable. The State usually claims that the limitation is justified because following a fair procedure would be prejudicial to public interest. The Supreme Court of India has held that rights can be limited only if the limitation is reasonable, and that reasonableness runs through the entire chapter on fundamental rights. The Court employs standards such as rationality, Wednesbury unreasonableness, proportionality, and strict scrutiny to test reasonableness. Reasonableness is a normative concept identified by evaluating relevant considerations and balancing them according to their weight. The courts have adopted a higher standard of scrutiny in the form of proportionality to assess the reasonableness of limitations on fundamental rights. The proportionality analysis assesses both the object and the means utilised, and the Supreme Court of India has held that the proportionality standard can be used to assess the validity of administrative action infringing upon fundamental freedoms. The courts have used the proportionality standard mainly to test infringement of substantive rights such as the right to privacy under Article 21 and freedoms under Article 19, but the courts should also apply it to procedural rights. The Supreme Court of India, in M.H. Hoskot v. State of Maharashtra, observed that procedural reasonableness does not have an abstract standard and must be assessed on numerous factors.
id_1791	2	The nature of the right infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, all provide the basis for considering the reasonableness of a particular provision. The procedure embodied in the Act has to be judged in the context of the urgency and the magnitude of the problem, the underlying purpose of the restrictions and the prevailing conditions. The judgments of the Supreme Court of India in Justice K.S. Puttaswamy (supra) and Modern Dental College & Research Centre v. State of Madhya Pradesh, establishing the proportionality standard to test the reasonableness of the infringements on substantive rights, do not preclude the application of the proportionality standard to test the reasonableness of limitations on procedural guarantees. The standard of proportionality infuses a culture of justification, where the State has to discharge the burden of justifying that its action was reasonable and not arbitrary. Once the principle of reasonableness is read into procedural requirements, there is no reason for the Supreme Court of India to use different standards to test the reasonableness of substantive and procedural actions., MBL contends that the principles of a reasoned order, disclosure of relevant material, and open justice have been infringed by the order of the Ministry of Information and Broadcasting and the judgment of the High Court. It is contended that the abrogation of these three principles infringes upon the right to a fair hearing, which constitutes the core of the procedural requirements protected under Article 21. (i) Reasoned order: In the present case, the notice to show cause states that the Ministry of Home Affairs has denied security clearance to MBL to operate its channel, Media One, but does not mention the reasons for the denial. Further, the order dated 31 January 2022 denying the permission for renewal of licence also does not provide reasons for the denial of security clearance. In such circumstances, MBL was put in a precarious position without any actual recourse to defend the case. (ii) Disclosure of material relevant to the decision: The Ministry of Home Affairs declined to disclose any material that was relevant to its decision. The claim of non‑disclosure of relevant documents was not limited to a few top secret documents; rather, all documents that were relevant to the decision have not been disclosed. (iii) Open justice: The Ministry of Home Affairs disclosed the documents in a sealed cover to the High Court. The High Court dismissed the writ petition by relying on the material that was disclosed solely to it in sealed cover. The relevant material is not removed from the proceedings; it is only removed from the affected party’s docket. The party defending its actions, most often the State, and the adjudicating authority rely on the material while making arguments and reaching a finding respectively., An ancillary question that must be answered at this stage is whether the three alleged procedural infractions have to be individually or collectively assessed to decide if the right to a fair and reasonable hearing is violated. The Court must determine if the procedure that was followed as a whole is fair and reasonable. After the judgment of the Supreme Court of India in Maneka Gandhi (supra), where this Court prioritized the process and the effect of the process as opposed to the outcome, it is sufficient if the affected party proves that the procedure followed by the adjudicating authority was not procedurally fair and reasonable without reference to the impact on the outcome due to non‑compliance. While doing so, it is well within the power of the claimant to argue that multiple facets of the right to a fair trial were infringed. However, the Court, while assessing the validity of such a claim, must view violation claims from a holistic procedural perspective. The requirement of procedural fairness does not impose a uniform, unvarying standard irrespective of the context, facts, and circumstances. Adjudicatory bodies must be provided sufficient flexibility in deciding procedural requirements. As observed above, non‑compliance with every facet of natural justice does not render the procedure unreasonable. The claimant must prove that the effect of non‑compliance of a component of natural justice is so grave that the core of the right to a fair trial is infringed. The procedure followed must not infringe upon the core which secures reasonableness of a procedure., The appellants have discharged their burden by proving that the non‑compliance of the above three principles infringed the core of the principles of natural justice: the right to a fair and reasonable hearing. The principles of natural justice ensure that justice is not only done but is seen to be done as well. A reasoned order is one of the fundamental requirements of fair administration. It holds utmost significance in ensuring fairness; scholars now term it as the third principle of natural justice. The rule of a reasoned order serves five important purposes. Firstly, it ensures transparency and accountability and places a check on arbitrary exercise of power. Lord Denning observed that giving reasons makes a whole difference between a judicial decision and an arbitrary one. Justice Bhagwati observed in Maneka Gandhi (supra) that the rule is designed to secure the rule of law and the Court should not be too ready to eschew it in its application to a given case. Secondly, non‑reasoned orders have the practical effect of placing the decision out of the purview of judicial review. A non‑reasoned order limits the power of the courts to exercise judicial review because the scope of judicial review extends to the reasons for the finding, not merely the final finding on law or facts. Thirdly, articulation of reasons aids in arriving at a just decision by minimizing concerns of arbitrary state action. It introduces clarity of thought and eschews irrelevant and extraneous considerations. Fourthly, it enhances the legitimacy of the institution because decisions will appear to be fair. There is a higher probability that the finding through a reasoned order is just. Fifthly, reasoned orders further the right to information and the constitutional goal of open government. Secrecy breeds partiality, corruption and other vices that are antithetical to a governance model premised on the rule of law., On the facts of the case, the Ministry of Information and Broadcasting has denied to disclose even the summary of the reasoning denying security clearance. This has necessarily left MBL with no remedy. It is crucial to note that the freedom of the press, protected under Article 19(1)(a), has effectively been trumped without providing an effective and reasonable avenue to challenge the decision. This infringes upon the core of the right to a fair hearing. The appellants have proved that the disclosure of reasons is necessary for them to have a reasonable hearing. The reply to the show cause notice and the writ petition challenging the validity of the revocation order also indicate that the appellants have been constrained in a situation where they are unable to effectively lay a challenge against the decision., The Ministry of Home Affairs disclosed the material forming the opinion for denying security clearance solely to the High Court. The High Court, instead of deciding if any less restrictive but equally effective means could have been employed, straight away received the material in a sealed cover without any application of mind. It is now an established principle of natural justice that relevant material must be disclosed to the affected party. This rule ensures that the affected party is able to effectively exercise its right to appeal. When the State government claims non‑disclosure on the ground of public interest under Section 124 of the Evidence Act, the material is removed from the trial itself. By contrast, when relevant material is disclosed in a sealed cover, two injuries are perpetuated. First, the documents are not available to the affected party. Second, the documents are relied upon by the opposite party, most often the State, in the course of the arguments, and the Court arrives at a finding by relying on the material. In such a case, the affected party has no recourse to legal remedies because it would be unable to prove or disprove any inferences from the material before the adjudicating authority., This form of adjudication perpetuates a culture of secrecy and opaqueness, placing the judgment beyond the reach of challenge. The right to seek judicial review, now read into Articles 14 and 21, is restricted. A corresponding effect of the sealed‑cover procedure is a non‑reasoned order. In Commander Amit Kumar Sharma v. Union of India, Justice D.Y. Chandrachud, speaking for the Court, commented on the procedural infirmities perpetuated by the sealed‑cover procedure: “The elementary principle of law is that all material which is relied upon by either party in the course of a judicial proceeding must be disclosed. Even if the adjudicating authority does not rely on the material while arriving at a finding, information that is relevant to the dispute and would with reasonable probability influence the decision of the authority must be disclosed. A one‑sided submission of material to the exclusion of the other party causes a serious violation of natural justice.” The non‑disclosure of relevant material to the affected party and its disclosure in a sealed‑cover to the adjudicating authority sets a dangerous precedent. It makes the adjudication vague and opaque, denies the aggrieved party its legal right to effectively challenge an order, and bestows absolute power in the hands of the adjudicating authority, tilting the balance of power in favour of the State., Upon a perusal of the material in sealed cover, the Single Judge of the High Court observed that the files submitted by the Ministry of Home Affairs indicated that the Committee of Officers took note of inputs provided by intelligence agencies, found them to be of a serious nature, and fell under the security rating parameters. The Single Judge noted that, in those circumstances, the Committee advised not to renew the licence. The Judge did not provide any clarity on the nature of the serious inputs nor mention the security rating parameters relied upon. A non‑reasoned order perpetuates the non‑application of judicial mind in assessing the veracity of the inputs. The nexus of the reasons to the order cannot be adjudicated upon if the reasons are not disclosed., On appeal, the Division Bench of the High Court observed that, although the nature and gravity of the issue are not discernible from the files, there are clear indications that the security of the State and public order would be impacted if permission to MBL to operate the channel were renewed. The Division Bench also did not disclose the reasons for the denial of security clearance. There is no explanation of what weighed in the mind of the Court leading it to hold that the denial was justified despite the lack of discernible nature and gravity of the issue. The sealed‑cover procedure followed by the Single Judge and the Division Bench has necessarily rendered the appellants’ right to writ remedies, described as the heart and soul of the Constitution and a basic feature of the Constitution, a dry parchment. The non‑disclosure of reasons for the denial of security clearance, the sole ground for denying renewal of the licence, and the disclosure of relevant material only to the Court in a sealed cover have rendered the appellants’ procedural guarantees under the Constitution otiose. The appellants’ right to writ remedies has been denied through a formalistic order by the High Court. The procedure followed by the High Court has left the appellants in a maze where they are attempting strenuously to fight in the dark. The non‑disclosure of reasons for denial of security clearance to the appellants and the disclosure solely to the Court in a sealed cover has restricted the core principles of natural justice – the right to a fair and reasonable proceeding., The Additional Solicitor General, in the statement filed before the High Court, stated that the reasons for denial of security clearance cannot be disclosed because (i) intelligence inputs on the basis of which security clearance was denied are secret and sensitive, and (ii) disclosure is against the interest of national security. It was submitted that the principles of natural justice stand abrogated because the decision is based on intelligence inputs which are sensitive in nature and are in the interest of national security. The Union of India relied on the judgments of the Supreme Court of India in Ex‑Armymen’s Protection Services (supra) and Digi Cable Network (supra) to contend that the principles of natural justice will not apply when considerations of national security are involved. The validity of this argument must be assessed before deciding if the State has discharged its burden justifying that the infringements on procedural guarantees are reasonable., In Ex‑Armymen’s Protection Services (supra), the appellant was granted the business of ground handling services subject to security clearance under Rule 92 of the Aircraft Rules 1937. Security clearance was withdrawn on grounds of national interest. The appellant initiated proceedings under Article 226 before the Patna High Court. The writ petition was disposed with a direction that the appellant should be furnished with the materials relied upon by the Central Government for withdrawal of security clearance. The Central Government classified the documents as secret and placed them in a sealed cover before the Single Judge. The Single Judge directed that a gist of the allegations be disclosed. The Division Bench allowed the appeal and held that the materials could not be disclosed to the appellant in national interest. The appellant then initiated proceedings under Article 136. A two‑Judge Bench of the Supreme Court of India dismissed the proceedings. Justice Kurian Joseph, writing for the Bench, observed that if concerns of national security are involved, the party cannot insist on strict observance of the principles of natural justice. The Court may satisfy itself that the government’s claim of national security is true. The Court relied on the judgments in Zamora and Secretary of State for Home Department v. Rehman to hold that deference must be given to the Government’s decision when it claims national security, although the Court may call for records to satisfy itself. The Court also relied on Council of Civil Service Unions v. Minister of Civil Service to hold that strict observance of the principles of natural justice may not be possible when national security is involved. The Court noted that the security clearance granted to the appellant had already expired and therefore did not need to consider the factual merits., In Digi Cable Network (supra), the permission granted to the appellant to operate as a Multi‑Systems Operator in the Digital Addressable System was cancelled on the ground that the Ministry of Home Affairs denied security clearance. The High Court rejected the challenge to the cancellation order. The Additional Solicitor General filed a copy of the reasons for denial of security clearance in a sealed cover before the Supreme Court of India. A two‑Judge Bench of the Supreme Court dismissed the appeal, relying on the judgment in Ex‑Armymen’s Protection Services (supra) and holding that the appellant was not entitled to claim any prior notice before the cancellation order was passed. The Court further held that the principles of natural justice were not violated in view of the law laid down in Ex‑Armymen’s Protection Services., The observation in Ex‑Armymen’s Protection Services that what is in national security is a question of policy and not law for the courts to decide was affirmed in the majority opinion in Justice K.S. Puttaswamy (supra) while deciding the constitutional validity of Section 33 of the Aadhaar Act. This Court referred to a series of judgments from the United Kingdom to elucidate the principle that the Government is best placed to decide whether national security concerns are involved and that principles of natural justice may not be complied with when issues of national security are involved., In The Zamora (supra), a ship captured contained contraband belonging to the Austrian Government and was imported into Sweden. The right to requisition vessels in international law is limited where vessels must be urgently required for the defence of the realm or matters involving national security. The Privy Council observed that statements by a proper officer of the Crown that a vessel or goods are urgently required for national security are conclusive, and that those responsible for national security must be the sole judges of what national security requires. However, the Court tested the affidavit of the Director of Army Contracts and found no satisfactory evidence that the right to requisition was exercisable., In Council of Civil Service Unions (supra), the Minister of Civil Service issued an instruction that employees of the Government Communications Headquarters could not be members of trade unions. The decision was challenged on the ground that prior consultation with trade unions was not obtained. The House of Lords observed that the decision whether national security requirements outweigh the duty of fairness is for the Government, not the courts, but qualified that the Government is under an obligation to produce evidence that the decision was based on national security if the decision is successfully challenged. Authority for these points is found in The Zamora. On a perusal of the evidence, the Court was satisfied that the departure was justified because it involved national security concerns. Lord Scarman noted that the observations in The Zamora were not an abdication of judicial function but indicated that evidence was required by the Court to establish that the interest of national security arises in judicial proceedings.
id_1791	3	On a perusal of the evidence, it was held that work at the headquarters involved matters of grave national security, and that if the employees and trade unions were consulted before the decision then the security would have been compromised. Lord Scarman observed that the Minister did not consult the employees because she feared that a union‑organised disruption of services could occur. It was held that this conclusion by the Minister could have been reached reasonably., In Rehman (supra), the appellant, a Pakistani national whose parents were British citizens, applied for indefinite leave to remain in the United Kingdom. The Secretary of State refused his application on the ground that he was involved with a terrorist organization. The Secretary of State also added that his deportation from the United Kingdom would be conducive to public good and in the interests of national security. The Special Immigration Appeals Commission allowed the appeal against the decision of the Secretary of State observing that the standard of civil balance of probabilities had not been satisfied. The Commission observed that though it was not disputed that the appellant provided sponsorship, information and advice to persons going to Pakistan for training which may have included militant training, it could not be concluded that these actions constituted a threat to national security. The Court of Appeal allowed the appeal against the judgment of the Commission., The appeal against the judgment of the Court of Appeal was dismissed by the House of Lords. Lord Slynn of Hadley observed in his opinion that: where the liberty of the person and the opportunity of his family to remain in the country are at stake, and when specific actions which have already occurred are relied on, then it is fair that the civil standard of proof is applied; when the Secretary of State decides that a person must be deported for public good, he is entitled to have precautionary and preventive principles. There must be material on the basis on which he can reasonably and proportionately conclude that there is a real possibility that the activities harm national security; the Secretary of State is in the best position to assess the security threat. Due weight must be given to his assessment. However, his decision is open to review on the above two grounds; and it was held in Council of Civil Service Unions (supra) that if it is contested that the deportation was not based on the grounds of national security, then the Government must produce evidence to satisfy the Supreme Court of India that the decision is based on the grounds of national security. However, that is not the issue in the present case., Lord Hoffman in his opinion observed that the Commission cannot differ from the opinion of the Secretary of State on the meaning of national security. That is, the question of whether, for example, the promotion of terrorism in a foreign country by a United Kingdom resident would be contrary to the interests of national security is for the Government to decide. Relying on the judgment in Council of Civil Service Unions (supra), it was held that the decision on the validity of deportation is not conceded to the Secretary of State. The Commission has to determine the factual basis for the executive's opinion that deportation would be in the interests of national security; whether the decision of the Secretary of State was one which a reasonable minister would have arrived at; and any other legal defence that was available to the appellant., The Commission does not surrender the whole decision on whether deportation would be in the interests of national security to the Home Secretary. It must establish the factual basis for the executive's opinion by evidence. The Commission may say there was no factual basis for the Home Secretary's opinion that Mr Rehman was actively supporting terrorism in Kashmir. The Commission's ability to differ from the Home Secretary's evaluation may be limited by considerations inherent in an appellate process but not by the principle of separation of powers. The effect of the latter principle is only to prevent the Commission from saying that although the Home Secretary's opinion had a proper factual basis, it does not accept that this was contrary to the interests of national security. The Commission may reject the Home Secretary's opinion on the ground that it was one which no reasonable minister could have held. An appeal to the Commission may turn upon issues which do not lie within the exclusive province of the executive, for example whether deporting someone would infringe his rights under article 3 of the European Convention because of a substantial risk of torture or inhuman treatment. European jurisprudence makes clear that whether deportation is in the interests of national security is irrelevant to rights under article 3. If there is a danger of torture, the Government must find another way of dealing with a threat to national security. Whether a sufficient risk exists is a question of evaluation and prediction based on evidence. In answering such a question, the executive enjoys no constitutional prerogative., The following principles emerge from the above judgments: the party affected by the decision must establish that the decision was reached by a process that was unfair without complying with the principles of natural justice; the State can claim that the principles of natural justice could not be followed because issues concerning national security were involved; the Supreme Court of India has to assess if the departure was justified. For this purpose, the State must satisfy the Supreme Court of India that firstly, national security is involved; and secondly, on the facts of the case, the requirements of national security outweigh the duty of fairness. At this stage, the court must make its decision based on the component of natural justice that is sought to be abrogated; and while satisfying itself of the national security claim, the courts must give due weight to the assessment and conclusion of the State. The courts cannot disagree on the broad actions that invoke national security concerns – a question of principle such as whether preparation of terrorist activities by a citizen in a foreign country amounts to a threat to national security. However, the courts must review the assessment of the State to the extent of determining whether it has proved through cogent material that the actions of the aggrieved person fall within the principles established above., The contention that the judgment of this Supreme Court of India in Ex‑Armymen’s Protection Services held that the principles of natural justice shall be excluded when concerns of national security are involved is erroneous. The principle expounded in that case was that the principles of natural justice may be excluded when, on the facts of the case, national security concerns outweigh the duty of fairness. Thus, national security is one of the few grounds on which the right to a reasonable procedural guarantee may be restricted. The mere involvement of issues concerning national security would not preclude the State’s duty to act fairly. If the State discards its duty to act fairly, it must be justified before the Supreme Court of India on the facts of the case. Firstly, the State must satisfy the court that national security concerns are involved. Secondly, the State must satisfy the court that an abrogation of the principles of natural justice is justified. These two standards resemble the proportionality standard: the first test resembles the legitimate aim prong, and the second test of justification resembles the necessity and balancing prongs., Having held that the concerns of national security do not permit an absolute abrogation of the principles of natural justice, we are now required to assess whether the restriction on procedural guarantees is reasonable on an application of the proportionality standard. The proportionality standard as laid down by this Supreme Court of India in Modern Dental (supra) is as follows: the measure restricting a right must have a legitimate goal; the measure must be a suitable means for furthering this goal; the measure must be least restrictive and equally effective; the measure must not have a disproportionate impact on the right holder., The legitimate goal stage requires an analysis of the legitimacy of the aim that restricts rights. The aim must be of sufficient importance to override fundamental rights. The State is required to discharge the burden of proving that the action is in furtherance of a legitimate aim. The Union of India claims that the reasons and the documents cannot be disclosed in the interest of national security and confidentiality of intelligence inputs. The State must prove that confidentiality and national security are legitimate aims and that the purposes are served by non‑disclosure., The court must examine whether, in a constitutional democracy, a fundamental right can be limited to realise the purpose underlying the law or action. The Indian Constitution does not prescribe a general limitations clause, but certain provisions in Part III such as Article 19 and Article 25 contain specific purpose‑based limitation clauses. Rights that do not have an express limitation clause can be limited through an implied reading of the Constitution. Our constitutional jurisprudence does not accept the theory that constitutionally protected rights live in isolation; each is linked to the other., Aharon Barak argues that one of the accepted grounds of proper purpose for the limitation of rights is public interest or public good. Public interest must reflect the notions of justice and tolerance shared by society. Courts must not fall into the den of dominant impulses but instead prioritise purposes in furtherance of constitutional ideals and values, while being cautious not to cross the thin line between adjudication and policy making. Certain purposes are absolutely antithetical to public interest in a constitutional democracy., The Constitution prescribes national security as one of the grounds that can be used to reasonably restrict rights expressly in the context of Article 19. Other provisions allow departure from principles during emergency situations that impact national security. Informational privacy and confidentiality have been read into the Constitution, particularly in view of the decision of a nine‑Judge Bench in Justice K.S. Puttaswamy and the enactment of the Right to Information Act 2005. Thus, confidentiality and national security are legitimate goals recognised by the Constitution for the purpose of limiting procedural rights., The State must now prove that confidentiality and intelligence bureau reports are the two purposes the state action seeks to serve. The Ministry of Home Affairs, in response to the Ministry of Broadcasting’s request for disclosure of reasons for denial of security clearance, states that the reasons cannot be disclosed because reports from investigative agencies are secret in nature. The Ministry of Home Affairs has made a general claim that all reports of investigative agencies are confidential. This argument is not acceptable. Investigative agencies such as the Central Bureau of Investigation and the Intelligence Bureau conduct background checks on numerous personnel and entities. Their reports contain observations and inferences that are relied upon by the decision‑making authority. To argue that all such reports are confidential is misplaced and cannot be accepted on the touchstone of constitutional values. The reports impact decisions on the life, liberty and profession of individuals and entities, and giving them absolute immunity from disclosure is antithetical to a transparent and accountable system., The Ministry of Home Affairs also opined that the relevant material must not be disclosed in the interest of national security. The issue is whether the Supreme Court of India can judicially review this inference and, if so, the extent of such review. Jurisprudence holds that the courts do not adopt a hands‑off approach when national security implications are claimed. In Manohar Lal Sharma v. Union of India, a three‑Judge Bench of this Supreme Court of India held that although the extent of judicial review in matters concerning national security is limited, the State must plead on affidavit and prove that disclosure of information would injure national security. The court observed that the Union of India may decline to provide information when constitutional considerations such as security of the State exist, but it must specifically plead and prove the facts indicating that the information must be kept secret and justify the stand before the court. Mere invocation of national security does not render the court a mute spectator., The court must understand the meaning and implications of the term national security. It is not possible to define national security in strict terms. National security has numerous facets, a few of which are recognised under Article 19(2) of the Constitution. In Ex‑Armymen’s Protection Services, a two‑Judge Bench observed that national security includes socio‑political stability, territorial integrity, economic stability and strength, ecological balance, cultural cohesiveness and external peace. Justice Patanjali Sastri, writing for the majority in Romesh Thappar v. State of Madras, demarcated the fields of public order and security of the State as they appear in Article 19. The expression security of the State includes offences against public order that aim at undermining the security of the State or overthrowing it. In Ram Manohar Lohia v. State of Bihar, Justice M. Hidayatullah distinguished security of State, law and order, and public disorder, noting that disorders affecting the security of the State are more aggravated., Thus, the expression national security does not have a fixed meaning. While courts have attempted to distinguish national security from public order, it is impossible to lay down a textbook definition that can help courts decide if a factual situation falls within the phrase. The phrase derives its meaning from the context. It is not sufficient for the State to identify its purpose in broad terms such as national security and public order. The State must prove through cogent material that non‑disclosure is in the interest of national security. The court must assess whether there is sufficient material for forming such an opinion and whether a reasonable prudent person would arrive at the same conclusion based on the material. The reasonable prudent person standard is used to test national security claims because courts recognise that the State is best placed to decide if the interest of national security would be served. The court allows deference but reviews the opinion on limited grounds of nexus between material and conclusion., This standard of judicial review is derived from the limited extent of justiciability of the aid and advice of the Council of Ministers to the President or Governor, as laid down in BP Singhal v. Union of India., We now proceed to assess, on the facts of the case, whether there is sufficient material to conclude that the action is in furtherance of the interests of confidentiality and national security, as contended., In 2010, Media Broadcast Ltd (MBL) applied for permission to uplink and downlink the news and current affairs television channel Media One. According to the Uplinking and Downlinking Guidelines, the application would be sent for security clearance if the applicant was eligible. MBL’s application was sent for security clearance. The Central Bureau of Investigation remarked that there was nothing adverse found on the record against MBL. However, the Intelligence Bureau made adverse remarks: MBL is closely associated with Madhyamam Daily which has links to Jamaat‑e‑Islami; the tenor of articles carried by Madhyamam Daily was adverse from the security perspective; a few key executives of the applicant had associated with JEI‑H; the proposed TV channel may espouse the ideology of JEI‑H if permitted to operate., The Intelligence Bureau also submitted a note on the alleged role and activities of JEI‑H, stating that JEI‑H was formed in 1941 with the objective of securing the rule of Allah; after partition it formed units in India, Pakistan and Kashmir; it is opposed to secularism, democracy and socialism; it was banned in 1955 for anti‑national activities in Kashmir, the ban was lifted in 1955; banned again in 1975 under the Defence and Internal Security Rules 1971, lifted in 1977; banned in 1992 under the Unlawful Activities (Prevention) Act 1967, the Supreme Court nullified the ban in 1994; JEI‑H plays a crucial role in attracting and channelising foreign funds to Islamic institutions; through its publication Madhyamam Daily it has been critical of India’s foreign policy and has indulged in anti‑US propaganda, and often presents news from a communal perspective. Senior functionaries of JEI‑H were reported to be mobilising funds through hawala channels from the Gulf for launching a TV channel., The Ministry of Home Affairs considered the report and noted that these remarks were not so strongly adverse as to deny permission on security grounds, especially when the applicants were operating a newspaper with twelve editions. The Intelligence Bureau report on Madhyamam Daily noted that the newspaper, published from multiple locations in Kerala, Karnataka and abroad, has a combined circulation of approximately 1.75 lakh and is used by JEI‑H to air its views on issues affecting the Muslim community, highlighting alleged discrimination, and has criticized police actions and contrasted treatment of different communities., In 2014, when security clearance was again sought by MBL for uplinking and downlinking TV channels Media One Life and Media One Global, the Intelligence Bureau submitted a report stating that fresh enquiries corroborated the earlier issues. The enquiries, based on scrutiny of programmes aired by Media One, opined that Media One tends to propagate the ideology of JEI‑H, portrays security forces and intelligence agencies in a bad light, and is over‑critical of government policies, especially regarding law and order involving minorities and militancy., The Ministry of Home Affairs sought fresh comments from the Intelligence Bureau after receiving the report. The Intelligence Bureau made three findings: the major source of funding for MBL is through shares in which JEI‑H cadres and sympathisers have invested; enquiries confirmed that Media One airs provocative programmes such as denigrating the Indian judiciary, blaming the United States and Israel for the misery of Muslims, and publishing a weekly that propagates a fundamental Islamic viewpoint. A Committee of Officers recommended that security clearance may be denied for the proposals to uplink and downlink Media One Life and Media One Global, and that security clearance may be withdrawn from MBL based on the adverse remarks. However, the Ministry of Information and Broadcasting granted permission to uplink and downlink Media One Life on 26 August 2015., On 22 January 2015, the Committee of Officers recommended denial of security clearance to two proposals: uplink/downlink of non‑news and current affairs TV channel Media One Life and Media One Global; and the appointment of two directors. The Ministry of Home Affairs noted that the security clearance granted in 2011 may not be withdrawn, but the future expansion of the company may be stopped. The Ministry of Home Affairs denied security clearance for these two proposals based on the Committee’s recommendation. Although the order is not annexed to the file, internal notes indicate the denial. The Ministry of Information and Broadcasting issued a show‑cause notice to MBL for revocation of the permission granted to Media One and Media One Life. The Ministry of Home Affairs observed that, although it had not withdrawn security clearance of the existing news channel Media One, the actions of the Ministry of Information and Broadcasting were in compliance with the guidelines dated 30 June 2015. As of the date when security clearance was denied, both Media One and Media One Life were existing news channels.
id_1791	4	The relevant extract of the response of Ministry of Home Affairs is extracted below: Since the Ministry of Home Affairs has not withdrawn security clearance of existing News and Current Affairs TV channel Media One, it is Ministry of Information and Broadcasting which has to justify its action of issuing show-cause notice for withdrawal of permission. At the same time, since the Ministry of Home Affairs has given leverage to the nodal Ministry in the guidelines dated 30 June 2015 to take action for retrospective application of the guidelines in the discharge of its mandate and that the Ministry of Information and Broadcasting has taken action in accordance with its own guidelines, we may not state that the Ministry of Home Affairs has not withdrawn security clearance granted vide Office Memorandum dated 17 February 2011. This would give the impression that the action of the nodal Ministry was not in conformity with Ministry of Home Affairs guidelines. We may simply mention the proposals to which security clearance was denied on 27 January 2016, and state that Ministry of Information and Broadcasting has issued a show-cause notice in discharge of its mandate and may defend its action. As regards sharing of reason for denial of clearance, it is informed that the denial is based on inputs from intelligence agencies which are secret in nature and cannot be disclosed to the applicant. (emphasis supplied) The response of Ministry of Home Affairs further notes that the security clearance was denied based on inputs from intelligence agencies which are secret and cannot be disclosed to the applicant., On 11 September 2019, the Ministry of Information and Broadcasting revoked the uplinking and downlinking permission which was granted to Media One Life. Media Broadcast Limited (MBL) submitted a representation against the revocation. Ministry of Home Affairs requested the Intelligence Bureau to furnish comments on the representation of MBL. The Intelligence Bureau concluded that the inputs attract parameters (Sl. Nos. 20 and 21) stipulated by the Guidelines issued on 25 June 2018 for assessment of proposals received in 2018 Guidelines of the Ministry of Home Affairs for national security clearance. The Intelligence Bureau made the following two adverse remarks: (i) Main source of income: MBL’s main source of income is the shares invested by cadres of Jamaat-e-Islami Hind through its sympathisers. Most of the Board of Directors are Jamaat-e-Islami Hind sympathisers; and (ii) Anti‑establishment stance: Media One channel is learnt to be espousing an anti‑establishment stance on various issues including Unlawful Activities (Prevention) Act, Armed Forces (Special Power) Act, developmental projects of the Government, encounter killings, Citizenship Amendment Act, National Population Register, National Register of Citizens., The 2018 Guidelines stipulate that national security covers a wide range of issues but the principal focus, inter alia, is on (i) matters relating to preserving the unity, territorial integrity and sovereignty of the nation and protecting the life and liberty of its citizens; and (ii) matters vital to economic security, protection of critical infrastructure, and development and prosperity of the country and its citizens. Clause 3.2 stipulates that sector‑sensitive proposals emanating from, inter alia, the Ministry of Information and Broadcasting shall be assessed in accordance with the Guidelines. According to Clause 4, national security verification will be done through record checks, field enquiries and other means for the vetting of the company, entity and the persons associated with the same. The provision stipulates that on receipt of a proposal from the concerned ministry (in this case, the Ministry of Information and Broadcasting), the Ministry of Home Affairs would seek inputs from security and law‑enforcement agencies. Clause 5 stipulates that the intelligence and law‑enforcement agencies will conduct an assessment based on the list of security parameters set out in Annexure C. The assessment will be done on the basis of the reported threat, probability of materialisation, and overall impact. Annexure C prescribes the security parameters. Sl. No. 13 reads: Terror funding, financial linkage with underworld, drug cartels, crime syndicates. Sl. No. 20 reads: Involvement in religious proselytisation activities in India. Sl. No. 22 reads: Intentional or systemic infringement of safety concerns or security systems endangering the safety of the public., MBL filed an application for renewal of permission to uplink and downlink the Media One channel. The Ministry of Information and Broadcasting forwarded the application for renewal to the Ministry of Home Affairs for security clearance. The Ministry of Home Affairs noted that there is no reason to consider the renewal of permission if security clearance has been denied to the company and its directors earlier. It has been observed that the Ministry of Information and Broadcasting has been forwarding the proposals for renewal of security clearance to the Ministry of Home Affairs on a routine basis, including cases where security clearance has already been denied to the company and its directors. If security clearance has been denied by the Ministry of Home Affairs to a company and its directors, there is no reason to consider its renewal unless there are specific reasons to indicate that the situation has changed. The security clearance guidelines dated 25 June 2018, paragraph 7.4, stipulate that the decision on security clearance by the Ministry of Home Affairs will have prospective effect unless otherwise decided by the ministry or department concerned in the discharge of its mandate. This was explicitly clarified in the meeting dated 21 January 2016 of the then Home Secretary and Secretary of Information and Broadcasting in response to a Ministry of Information and Broadcasting query on whether withdrawal of security clearance to a company or individual entities in one sector would tantamount to withdrawal in other sectors also. Since the Ministry of Information and Broadcasting has already been communicated denial of security clearance to the above‑mentioned companies, there is no need for fresh consideration for the cases as per security clearance guidelines. In view of the above, the Ministry of Information and Broadcasting may be requested that the proposals for renewal of security clearance in the cases where security clearance has already been denied to the company should not be forwarded to the Ministry of Home Affairs in a routine manner unless and until there is sufficient and proper reason for the same., Before addressing whether the non‑disclosure of the relevant material would be in the interest of national security, it is our constitutional duty to mention the cavalier manner in which the Union of India has raised the claim of national security. Other than merely claiming that national security is involved, both in the affidavit that was filed before the High Court of India and in the submissions before us, the Union of India made no attempt to explain how non‑disclosure would be in the interest of national security. The Union of India has adopted this approach in spite of reiterations by the Supreme Court of India that judicial review would not be excluded on a mere mention of the phrase national security. The State is using national security as a tool to deny citizens remedies that are provided under the law. This is not compatible with the rule of law., Security clearance was denied to MBL because of its alleged link with Jamaat-e-Islami Hind, and its alleged anti‑establishment stance. To conclude that MBL is linked to Jamaat-e-Islami Hind, the Intelligence Bureau has relied on the tenor of the articles published by dailies of MBL, and the shareholding pattern of MBL. To conclude that Jamaat-e-Islami Hind has an anti‑establishment stance, the Intelligence Bureau has solely relied upon the programmes that were broadcast by Media One. Some of the views highlighted in the Intelligence Bureau report to conclude that MBL has an anti‑establishment stand are that (i) it portrays security forces and the judiciary in a bad light; (ii) it highlighted the discrimination faced by minorities in the country and contrasted it with the State’s alleged soft attitude towards the Hindus who were involved in the destruction of Babri Masjid; and (iii) its comments on Unlawful Activities (Prevention) Act, Armed Forces (Special Power) Act, developmental projects of the Government, encounter killings, Citizenship Amendment Act, and National Register of Citizens. Significantly, with respect to the list of shareholders who are alleged sympathisers of Jamaat-e-Islami Hind, the file does not contain any evidence on the alleged link between the shareholders and Jamaat-e-Islami Hind. The report of the Intelligence Bureau is purely an inference drawn from information that is already in the public domain. There is nothing secretive about this information to attract the ground of confidentiality. Additionally, it cannot be argued that the purpose of national security will be served by non‑disclosure merely by alleging that MBL is involved with Jamaat-e-Islami Hind which is an organisation with alleged terrorist links. While we have held above that it would be impractical and unwise for the courts to define the phrase national security, we also hold that national security claims cannot be made out of thin air. There must be material backing such an inference. The material on the file and the inference drawn from such material have no nexus. The non‑disclosure of this information would not be in the interest of any facet of public interest, much less national security. On a perusal of the material, no reasonable person would arrive at the conclusion that the non‑disclosure of the relevant material would be in the interest of national security and confidentiality., We proceed to apply the subsequent prongs of the proportionality standard, even assuming that the action taken is in the interest of confidentiality and national security. The second prong of the proportionality analysis requires the State to assess whether the means used are rationally connected to the purpose. At this stage, the Supreme Court of India is required to assess whether the means, if realised, would increase the likelihood of protecting the interests of national security and confidentiality. It is not necessary that the means chosen should be the only means capable of realising the purpose of the State action. This stage of the analysis does not prescribe an efficiency standard. It is sufficient if the means used constitute one of the many methods by which the purpose can be realised, even if it only partially gives effect to the purpose. The Canadian Supreme Court in the case of Oakes emphasised that the means adopted must not be arbitrary, unfair, or based on irrational connection. The requirements under this prong will not be fulfilled if the State uses constitutionally impermissible means. Though it is not necessary that the means opted should be the best possible means, the means must still pass the muster of the constitution., The Ministry of Home Affairs disclosed the relevant material solely to the Supreme Court of India in a sealed cover. By this method of disclosure, information that is claimed to be confidential and in the interests of national security is sought to be protected by not disclosing it to the public and the claimant. The means that are used may not necessarily be the best possible means to protect the interest involved because the sealed cover procedure permits partial disclosure as opposed to complete non‑disclosure. However, it still shares a rational connection to the purpose that is sought to be achieved. On the other hand, the non‑disclosure of even a summary of reasons for denying security clearance does not share a rational connection with the purpose identified., In A v. United Kingdom, the European Court of Human Rights held that there must always be equality of arms between the parties. The court held that if procedural guarantees are restricted, then the limitation must be sufficiently counterbalanced. In Secretary of State for the Home Department v. AF, the House of Lords while interpreting the judgment of the European Court of Human Rights held that there is a core irreducible minimum of procedural guarantees which cannot be infringed. The House of Lords observed that the essence of the case against the applicant is a core irreducible minimum which has to be disclosed. We are in agreement with the observations of the House of Lords and the European Court of Human Rights in AF and A respectively. The Ministry of Home Affairs, by not disclosing the reasons for denying security clearance, has rendered MBL’s procedural guarantees otiose. The summary of reasons for denying security clearance constitutes the core irreducible minimum of the procedural guarantees under Article 14. By not disclosing the summary of reasons, the Ministry of Home Affairs has undertaken an unreasonable and arbitrary means to fulfil its purpose., The judgment of the majority in Justice K.S. Puttaswamy (5J) adopted the moderate interpretation of necessity that was propounded by David Bilchitz. The author sought to draw a middle ground between strong and weak forms of the necessity prong. The sub‑components of the necessity prong as devised by Bilchitz are as follows: (a) Whether there are other possible means which could have been adopted by the State; (b) Whether the alternative means identified realise the objective in a real and substantial manner; (c) Whether the alternative identified and the means used by the State impact fundamental rights differently; and (d) Whether on an overall comparison and balancing of the measure and the alternative, the alternative is better suited considering the degree of realising the government objective and the impact on fundamental rights., In Charkaoui v. Canada (Citizenship and Immigration), the Canadian Supreme Court held that the procedure for detention prescribed under the Immigration and Refugee Protection Act 2001 suffered from procedural infirmities. Under the 2001 Act, a person may be deprived of some or all of the information on the basis of which the detention was ordered. The Canadian Supreme Court held that the provisions of the 2001 Act unjustifiably violate Section 7 of the Canadian Charter of Rights and Freedoms because State action is judicially reviewed based on secret material without devising any means to protect the affected person’s procedural rights. The court referred to the system of special advocates in the United Kingdom and observed that this system protects the interests of the affected party. The court concluded that the procedure prescribed in the statute cannot be justified as minimum impairment of the individual’s right to a judicial determination on the facts and law, and right to know and meet the case., The Canadian Supreme Court referred to the jurisprudence on the procedure followed by courts across various jurisdictions to decide claims that involve State secrets and held that there were other less restrictive means that could have been employed, as in the United Kingdom. As a part of the analysis of the least restrictive means prong, we deem it necessary to refer to alternative procedures that are available in India and in other countries that substantially aid in realising the objective and which protect the interest of the affected party in a better fashion., (I) Totten claim: non‑justiciability of the issue. The courts in the United States have recognised that in exceptional circumstances, the court must act in the interest of national security to prevent the disclosure of State secrets. One of the applications of this principle is through the Totten claim. According to the Totten claim, if claims are premised on State secrets, then they are barred from adjudication. If the subject matter is a matter of State secret then the action may be dismissed on pleadings before the proceedings could reach the stage of evidence. The Totten claim, if allowed, permits the dismissal of the suit in the pre‑discovery stage., (II) Closed Material Procedure and Special Advocates. In Chahal v. United Kingdom, the Home Secretary issued an order to deport the appellant, an Indian national and a Sikh separatist. One of the grounds of the appellant’s challenge to the deportation order was that although the Home Secretary’s decision is amenable to judicial review, the effective determination of his risk to national security was made by an internal Home Office advisory panel on the basis of material which was not disclosed to him. The European Court of Human Rights accepted the contention of the appellant and held that the procedure violated the rights under Article 5(4) of the European Convention on Human Rights. The court observed that there are other less restrictive methods which could be employed to accommodate legitimate concerns of national security and procedural justice. The Court referred to the procedure that is applied in Canada under the Canadian Immigration Act 1976 under which a Federal Court judge holds an in‑camera hearing of all the evidence; the applicant is provided a statement summarising the case that is made against them; and the confidential material is then disclosed to a security‑cleared counsel who assists the court in testing the strength of the State’s case. In response to the judgment in Chahal, the Government of the United Kingdom passed the Special Immigration Appeals Commission Act 1997 which paved the way for security‑cleared Special Advocates to represent the applicant in substantive proceedings that take place behind closed doors. The material is not disclosed to the claimant. However, the Special Advocate represents the interest of the party before the court though they are not permitted to interact with the claimant about the non‑disclosable security evidence in the closed proceedings. For all purposes, closed material proceedings are similar to the sealed cover procedure, except that a security‑cleared lawyer is appointed to counterbalance the limitations on procedural guarantees. The Terrorism Act 2000 prescribes a similar procedure. Since then the courts in the United Kingdom have been using Special Advocates in civil proceedings, quasi‑criminal proceedings, and in public interest immunity claims. The Special Advocate serves two purposes: firstly, to seek maximum possible disclosure of closed material; and secondly, to test by cross‑examination and make submissions on any material that remains closed., (III) Public Interest Immunity. The Evidence Act prescribes rules precluding disclosure of certain communications and evidence. Section 123 stipulates that no person shall be permitted to give any evidence that is derived from unpublished official records relating to affairs of the State except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit. Section 124 provides that a public officer shall not be compelled to disclose communications made to him in official confidence if the disclosure would affect public interest. Section 162 stipulates that a witness who is summoned to produce a document in court shall bring the document to court notwithstanding any objection that is raised on its production and admissibility. The objection shall be decided by the court, which may inspect the document unless it refers to matters of State, or take other evidence to enable it to determine its admissibility. The claim of public interest immunity allows the State to remove the material from the proceedings on the ground that its disclosure would injure public interest. All three parties to the proceeding – the applicant, the State, and the court – cannot refer to or rely on the documents for substantive hearings if the court allows the public interest immunity claim at the discovery stage. In effect, the public interest immunity claim renders the relevant document non‑existent for the purposes of the proceedings. Public interest immunity substantially realises the objective of protecting the interests of confidentiality and national security., All three alternatives identified above realise the objective in a real and substantive manner insofar as they further non‑disclosure. However, each of the alternative means has a different effect on fundamental rights because they operate in different penumbrae. In a public interest immunity claim, the material is not relied on by either party or the court in the course of the substantive hearings. The court removes the material from the proceeding, and the public interest immunity proceedings are conducted in a closed setting. In a Totten claim, the court at the admission stage itself declares that the issue is non‑justiciable if the material on State secrets may have to be disclosed. The court does not undertake any balancing exercise to decide if the injury due to disclosure of information is heavier than the injury due to non‑disclosure. Rather, if the material is, according to the State, related to a State secret then the applicant is deprived of the remedy of judicial review. Under the closed material procedure, non‑disclosable material is relied on by the State and referred to by the court in the course of the substantive hearing. The special advocate would represent the interests of the affected party but would be precluded from discussing the evidence with the affected party. It must be noted that special advocates are involved even in public interest immunity claims to represent the affected party in the closed hearing to decide if the relevant information must be disclosed. Thus, the special advocates system is a means to counterbalance the effect of the limitation on procedural guarantees of the affected party. When these three means are placed on a continuum, public interest immunity claims would be placed on one end as they have the least impact on rights, as opposed to the Totten claim which would be placed on the other end. The closed material procedure would be placed in the middle because Special Advocates are used in an attempt to counterbalance the infringement of procedural rights. The difference in the impact must be determined firstly based on the stage of consideration. The public interest immunity claim and closed material procedure claim are raised at the discovery stage. In contrast, under the Totten claim, the claim is held to be non‑justiciable at the pleading stage if the State contends that the proceedings are premised on State secrets. Secondly, the Totten claim limits the fundamental right to judicial review since claims based on State secrets are rendered non‑justiciable. However, in a public interest immunity claim, whichever way the claim is decided, the parties will have equality of arms because the same evidence will have to be relied on in the course of the proceedings. It may be argued that the removal of the documents from the proceedings would, in effect, render the claim non‑justiciable if the documents that are sought to be not disclosed are closely intertwined with the cause of action. We have addressed this argument in detail in Section J of this judgment. Similar to the sealed cover procedure, in the closed material proceeding, the non‑disclosable evidence that is used in a substantive hearing of the case is excluded for the claimant. However, the closed material procedure in the United Kingdom does not exist independent of special advocates who aim to provide sufficient counterbalance. The closed material proceeding is more injurious to the claimant’s procedural guarantees as compared to public interest immunity because non‑disclosed material is used by the State to defend its actions and relied on by the court to arrive at a conclusion. In public interest immunity, the non‑disclosable evidence is completely removed at the discovery stage. Though the Special Advocates aim to provide sufficient counterbalance, the process still causes prejudice to the claimant since the security‑cleared advocates are not permitted to interact with the claimant about the evidence. The insufficiency of the counterbalance provided by special advocates largely depends on the facts of the case, particularly on the material that is sought to be unrevealed and revealed. The inter‑relationship between the allegations, open material, and closed material was aptly addressed by the European Court of Human Rights in A. The relevant observations are extracted below: The Court further considers that the special advocate could perform an important role in counterbalancing the lack of full disclosure and the lack of a full, open, adversarial hearing by testing the evidence and putting arguments on behalf of the detainee during the closed hearings. However, the special advocate could not perform this function in any useful way unless the detainee was provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate. While this question must be decided on a case‑by‑case basis, the Court observes generally that, where the evidence was to a large extent disclosed and the open material played the predominant role in the determination, it could not be said that the applicant was denied an opportunity effectively to challenge the reasonableness of the Secretary of State’s belief and suspicions about him. In other cases, even where all or most of the underlying evidence remained undisclosed, if the allegations contained in the open material were sufficiently specific, it should have been possible for the applicant to provide his representatives and the special advocate with information with which to refute them, if such information existed, without his having to know the detail or sources of the evidence which formed the basis of the allegations. An example would be the allegation made against several of the applicants that they had attended a terrorist training camp at a stated location between stated dates; given the precise nature of the allegation, it would have been possible for the applicant to provide the special advocate with exonerating evidence, for example of an alibi or of an alternative explanation for his presence there, sufficient to permit the advocate effectively to challenge the allegation. Where, however, the open material consisted purely of general assertions and the decision to uphold the certification and maintain the detention was based solely or to a decisive degree on closed material, the procedural requirements of Article 5(4) would not be satisfied. In view of the above discussion, public interest immunity is perhaps a less restrictive means of the alternative methods listed above., Having held that there are alternative means which further the purpose of non‑disclosure at the disposal of the State, we shall now undertake a comparative analysis of the impact of the alternative means identified (public interest immunity) and the means used (sealed cover) on fundamental rights. In Section F, we have already discussed the effect of the disclosure of material solely to the courts in a sealed cover on the fundamental precepts of procedural fairness and how the courts do not employ any safeguards to protect the procedural rights of the applicant. In the next section, we will be discussing the jurisprudence on public interest immunity. A reference of how the courts have dealt with public interest immunity claims will allow us to analyse if the courts have employed sufficient procedural guarantees to protect the rights of the applicant or have on the contrary been deferential to the claims of the State. This analysis is important because it is only a comparative analysis of how the courts would deal with sealed cover and public interest immunity claims that would allow us to evaluate their relative effect on procedural rights., H.1 India. This Court has on earlier occasions interpreted Sections 124 and 164 of the Evidence Act. In State of Punjab v. Sodhi Sukhdev Singh, the respondent, a District and Sessions Judge, who was removed from service and later re‑employed, sought the report of the Public Service Commission and the proceedings of the Council of Ministers. The Chief Secretary filed an affidavit claiming privilege under Section 123 of the Evidence Act. The claim for privilege was allowed. Justice Gajendragadkar, writing the majority opinion of the Constitution Bench, laid down the scope of review of a claim of non‑disclosure. Sections 164 and 123 were construed to deal with the conflict between public interest and private interest. It was observed that the court must assess if the disclosure that affects public interest would outweigh the concerns of private interest which disclosure of material to the litigant furtheres.
id_1791	5	A valid claim for privilege made under Section 123 proceeds on the basis of the theory that the production of the document in question would cause injury to public interest, and that, where a conflict arises between public interest and private interest, the latter must yield to the former. No doubt the litigant whose claim may not succeed as a result of the non‑production of the relevant and material document may feel aggrieved by the result, and the Supreme Court of India, in reaching the said decision, may feel dissatisfied; but that will not affect the validity of the basic principle that public good and interest must override considerations of private good and private interest., The Supreme Court of India held that when a claim of public interest immunity is made against disclosure, the Supreme Court of India must on a preliminary enquiry of the affidavit determine if the document relates to affairs of the State. If the document relates to State affairs, then the decision of the head of the department on whether the disclosure would violate public interest would be final. The document must be disclosed if on a preliminary enquiry the Supreme Court of India is of the opinion that the document does not relate to State affairs. The Supreme Court of India would only possess the power to scrutinise the affidavit and not inspect the document on which immunity is claimed to determine if the document relates to affairs of State., Justice Subba Rao, in his opinion, differed from the majority opinion on this point of law. While the majority pitted the issues on the lines of public interest and private interest, Justice Subba Rao held that both disclosure and non‑disclosure further public interest. He observed that disclosure of information aids the party in the proceedings and also serves the purpose of administration of justice. On the extent of scrutiny, Justice Subba Rao noted that the Supreme Court of India has the power to disallow a claim of privilege after determining whether the public interest in disclosure outweighs the public interest in non‑disclosure. He stated that the courts should ordinarily accept the affidavit of the Minister claiming privilege but when the Supreme Court of India has reason to disbelieve the claim, it can examine the Minister. Justice Subba Rao agreed with the opinion of Justice Gajendragadkar that the Supreme Court of India shall not inspect the document that is sought to be protected from disclosure., In State of Uttar Pradesh v. Raj Narain, the respondent sought to summon documents in an election petition. The State made a claim for immunity. Justice K. K. Mathew, in his concurring opinion for the Constitution Bench, raised doubts on the observation in Sodhi Sukhdev Singh that the Supreme Court of India does not have the power to inspect documents for which the claim of privilege is made. He held that it would be difficult to determine the effect of disclosure on public interest without inspecting the document. The learned judge classified such documents as belonging to noxious classes, such as national security, which would per se infringe on public interest. For other documents that do not belong to noxious classes, the courts ought to survey aspects of public interest involved in both disclosure and non‑disclosure to assess the relative claims of the different aspects of public interest., In SP Gupta v. Union of India, a seven‑Judge Bench of the Supreme Court of India settled the position of law on claims of non‑disclosure on the grounds of public interest. The Union of India claimed immunity against the disclosure of correspondence between the Law Minister, the Chief Justice of the Delhi High Court and the Chief Justice of India. Justice Bhagwati, whose view five other judges agreed to, rejected the claim for non‑disclosure. He observed that the claim of class immunity is not absolute: the executive cannot, by merely invoking the formula of class immunity, defeat the cause of justice by withholding a document essential to do justice between the parties, for otherwise the doctrine of class immunity would become a frightful weapon in the hands of the executive for burying its mistakes, covering up its inefficiencies and sometimes even hiding its corruption. Every claim for immunity, whatever the ground or nature of the document, must stand scrutiny of the Supreme Court of India with reference to the single test of what public interest requires—disclosure or non‑disclosure., The principles elucidated in the judgment are summarised as follows: Open government is a crucial component of a democratic form of government; disclosure of information is advantageous to the affected party and furthers public interest in access to information. The conflict that Sections 123 and 162 seek to redress is not between public interest and private interest but between two conflicting conceptions of public interest. The majority opinion in Sodhi Sukhdev Singh perpetuates two inconsistencies: it would be difficult to determine if a document relates to affairs of the State without inspecting it, and the Supreme Court of India, not the head of the department, determines whether disclosure would affect public interest. The burden of establishing the claim for immunity is on the person making the claim. When a claim of public interest immunity is made, the Supreme Court of India must, on a perusal of the affidavit filed by the Minister or the head of the department, decide if disclosure would be injurious to public interest and may inspect the document if it doubts the claim. Protection from disclosure must not be granted merely because disclosure would lead to political criticism. Disclosure cannot be denied per se merely because documents belong to a noxious class; the court must still conduct a balancing exercise. The court must determine (a) whether disclosure would be against public interest (the effect test) and (b) whether the public interest in disclosure is so strong that it must prevail over the public interest in the administration of justice (the balancing test). While undertaking the balancing test, the court should consider on facts whether non‑disclosure would injure the interest of the party, and on principle whether non‑disclosure would affect a constitutional principle other than administration of justice., It is important to refer to the approach of courts across jurisdictions towards balancing the different conceptions of public interest in the context of public interest immunity claims. Chief Justice Ray, in paragraph 41 of the Constitution Bench judgment in Raj Narain, recorded that the foundation of the law behind Section 123 and Section 162 of the Evidence Act is the same as in English law., The United Kingdom account of this subject began with the decision of the House of Lords in Duncan v. Cammell Laird. The House of Lords gave precedence to form over substance while assessing a public interest immunity claim for non‑disclosure. Lord Simon framed two issues: the form in which an objection to disclosure has to be made, and, if the objection is made in proper form, whether the court ought to treat the objection as conclusive without scrutiny. The Law Lord held that the claim for non‑disclosure must be allowed if the form of the objection is valid, and the interests of a private citizen may have to be subsumed by public interest. Consequently, courts could not examine the documents while determining the validity of the claim because it would violate the principle that a judge should have no dealings on the matter with one litigant without the equal knowledge of the other., The House of Lords altered its approach in Conway v. Rimmer. Lord Reid observed that the impact of non‑disclosure must not be viewed through the narrow lens of private interest and that it is public interest in the administration of justice that is injured by non‑disclosure of documents. The House of Lords established three principles of seminal importance: first, the power to decide if evidence has to be withheld resides with the House of Lords and not the executive; second, while exercising this power the court must balance the potential harm to public interest due to disclosure with its inability to administer justice; third, the court is entitled to inspect, in private, the material on which immunity is claimed. Lord Hudson held that the court, in its scrutiny, must discard generalities of classes and weigh the injuries to the public of a denial of justice against the revelation of governmental documents that were never intended to be made public., In Reg v. Chief Constable, West Midlands, ex p. Wiley, Lord Woolf, speaking for the House of Lords, observed that while determining the balance, the court should also enquire if the interest in disclosure could be effected through alternate means. He noted that it may be possible to provide necessary information without producing the actual document, to disclose a part of the document on a restricted basis, and that a spectrum of actions can reduce prejudice due to non‑disclosure to a minimum., The Queen’s Bench Division in R (Mohamed) v. Secretary of State for Foreign and Commonwealth Affairs applied a four‑pronged test to determine the validity of a public interest claim. The case involved an Ethiopian national detained in Cuba who sought disclosure of information held by the United Kingdom Government to support his defence. The court identified the impact of disclosure on public confidence in the judiciary and on public debate. The four‑pronged test asked: (i) whether there is a public interest in bringing the redacted paragraphs into the public domain; (ii) whether disclosure would cause serious harm to an important public interest and, if so, which interest; (iii) whether the injury to public interest in disclosure can be prevented by other methods of limited disclosure; and (iv) if alternatives are insufficient, where the balance of public interest lies., In the United States, judicial decisions have recognised that in exceptional circumstances the court must act in the interest of national security to prevent disclosure of state secrets. One example is the Reynolds privilege, an evidentiary principle that excludes privileged evidence when there is a reasonable danger that compulsion of evidence will expose matters which, in the interest of national security, should not be divulged. Unlike the United Kingdom, even the most compelling necessity for disclosure cannot overcome the claim of privilege if the court is satisfied that state secrets are at stake. The United States Court of Appeals for the Ninth Circuit, in Binyam Mohamed v. Jeppesen Dataplan, observed that termination of the case is justified on the application of Reynolds privilege when the plaintiff cannot prove the case prima facie, when the privilege deprives the defendant of information necessary for a valid defence, or when the privileged evidence is inseparable from the non‑privileged evidence., In Canada, the jurisprudence on nondisclosure of information has shifted away from class scrutiny towards scrutiny of individual documents, similar to the United Kingdom. Section 38 of the Canada Evidence Act 1985 stipulates the conditions for disclosure of information that is sought to be protected. The court undertakes a relevancy test, an injury test, an alternative test and a balancing test. The burden of proving relevancy lies with the party seeking disclosure, while the burden of proving injury to international relations, national defence or national security lies with the party opposing disclosure. If the State cannot discharge its burden of proving injury, the court must order disclosure. If injury is proved, the court must balance the public interest in disclosure against the public interest in non‑disclosure, considering factors such as the importance of the information to the case, the extent of injury, higher interests such as human rights, the open court principle and whether the information is already known to the public., The discussion of public interest immunity claims across the mentioned jurisdictions leads to several conclusions. First, the earlier position of deference to government claims of injury to public interest has undergone a sea‑change, and courts now possess the power to assess the validity of such claims, though the extent of that power remains contested. Second, the extent of scrutiny hinges on identification of injury caused by non‑disclosure, permissibility of class claims, burden of proof and evidentiary requirements. Third, the courts in India, the United Kingdom and Canada have held that non‑disclosure of relevant material affects public interest and the interests of the party seeking disclosure, injuring the principle of open government. In contrast, United States courts have been more deferential to non‑disclosure on national security grounds and do not undertake a balancing exercise. Fourth, the standards laid down in India, the United Kingdom and Canada are similar in that the impact of non‑disclosure on broader constitutional principles is considered. Fifth, in Canada the party seeking production must prove relevancy after a public interest immunity claim is made, imposing a heightened burden of proof.
id_1791	6	Identifying the relevancy of the document even before the state is required to discharge the burden of proving public interest introduces a fundamental misconception in the application of public interest immunity which is an exception to the production of documents. Furthermore, at an elementary level, it would be impossible to prove the relevancy of the document to the proceedings without the party having viewed it; and once the injury due to disclosure is proved, the Courts in the United Kingdom and Canada follow the structured proportionality test to balance the conflicting claims of public interest. According to the Code of Civil Procedure 1908, a party to a proceeding may file an application for discovery to secure knowledge of information that the other party holds., A party may file an application without filing any affidavit, seeking a direction for disclosure of documents relating to any matter in question in the possession or power of the other party. The Supreme Court of India may either refuse or adjourn the Order XI Rule 12 of the Code of Civil Procedure 1908 application if it is satisfied on the hearing of the application that such discovery is not necessary at the stage of the suit. Additionally, the Supreme Court of India shall issue an order limiting the discovery to certain classes of documents. The application shall be dismissed if the discovery of documents is not necessary for the fair disposal of the suit or for saving costs. It must be noted that the provision uses the phrase fair disposal of the suit. The use of the said expression includes the spirit of the requirements of procedural and substantive fairness., If the Supreme Court of India allows the application considering that the discovery is necessary, the other party should file an affidavit listing the documents that are in their possession relating to the matter in question. The affidavit must be produced in the form specified in Form No. 5 in Appendix C, with such variations as circumstances may require. The form in which the affidavit is required to be made is extracted below: No. 5 (Title as in No. 1, supra) I, the above‑named defendant C. D., make oath and say as follows: I have in my possession or power the documents relating to the matters in question in this suit set forth in the first and second parts of the first schedule hereto. I object to produce the said documents set forth in the second part of the first schedule hereto [state grounds of objection.] I have had but have not now, in my possession or power the documents relating to the matters in question in this suit set forth in the second schedule hereto. The last‑mentioned documents were last in my possession or power on [state when and what has become of them and in whose possession they now are.] According to the best of my knowledge, information and belief I have not now and never had, in my possession, custody or power, or in the possession, custody or power of my pleader or agent, or in the possession, custody or power of any other person on my behalf, any account, book, voucher, receipt, letter, memorandum, paper or writing, or any copy of or extract from any such document, or any other documents whatsoever, relating to the matters in question in this suit or any of them, or wherein any entry has been made relative to such matters or any of them, other than and except the documents set forth in the said first and second schedules hereto., After the Supreme Court of India has directed disclosure of all documents, the party who is directed to disclose all the relevant documents may object to the disclosure of specific documents in its possession in the form prescribed in Annexure C of the Code. It must be noted that Order XI Rule 13 of the Code of Civil Procedure stipulates that the form of discovery may be changed if circumstances require. The purpose of referring to the provisions of the Code on discovery, inspection, and production is to elucidate and expand upon the principle that guides these provisions. While a party seeks discovery of documents that are in the possession of the other party, it is not necessary to prove that disclosure of the documents would be relevant to the outcome of the proceedings. Such a consideration does not arise at the stage of discovery. It is only justified that the burden of proof lies entirely on the party objecting disclosure to prove injury to public interest, and to justify the claim of public interest immunity. It is of utmost importance that the burden placed on the party seeking production at the discovery stage is not conflated with the burden placed on the party opposing such discovery at the stage of objection to the discovery., The Constitution Bench of the Supreme Court of India in SP Gupta (supra) has held that if the state objects to disclosure of documents on the ground of public interest immunity, then the Courts shall assess the validity of the objection based on the reasons in the affidavit. The Supreme Court of India has the power to inspect the document if on a perusal of the affidavit, the Supreme Court of India has any doubt on whether the document relates to the affairs of the state. It is therefore of abundant importance that the affidavit stipulating the reasons of the non‑disclosure (along with the grounds) is made in sufficient detail so as to enable the Supreme Courts of India to assess the claim of public interest immunity. The Supreme Court of India in SP Gupta (supra) has observed that the claim has to be made by the minister who is the political head of the department concerned or, failing him, by the secretary of the department. The claim should always be made in the form of an affidavit. The extent of information required to be placed in the affidavit to enable the government to discharge the onus of justification is based on the standard of scrutiny that the Supreme Court of India applies to assess public interest immunity claims., Proportionality standard to test public interest immunity claims. The substance of a public interest immunity claim is to seek an exception to the compliance of principles of natural justice. We have already held above that a departure from compliance of principles of procedural fairness, after it has been proved that the party has been denied a fair and reasonable hearing due to non‑compliance, must be tested on the proportionality standard., In addition to the above discussion, we are of the opinion that the Supreme Courts of India must use the proportionality standard to assess claims of public interest immunity for the following reasons: Firstly, the state while making a claim for public interest immunity seeks an accommodation to deviate from an established principle of natural justice, that is, the right to know the case that is made against a person due to non‑disclosure of relevant material. This claim by its very nature infringes upon the right to a fair trial or hearing that flows from Article 21 of the Constitution. The role of the Supreme Courts of India while assessing the validity of the claim of public interest immunity is restricted to determining if the infringement of the right that is protected under Article 21 of the Constitution is reasonable; Secondly, though the Constitution Bench of the Supreme Court of India in SP Gupta (supra) did not use the standard of structured proportionality as it exists in the present form to assess the claim of public interest immunity, the standard that was laid down resembled the sub‑facets of the proportionality standard as the focus was on effect and not the purpose of non‑disclosure, and balancing the effects of disclosure and non‑disclosure (both on facts and principle). The Supreme Court of India shifted the focus away from the claim based on class of documents and towards the impact of non‑disclosure of individual material. These two principles are important components of the standard of structured proportionality that was laid down by the Supreme Court of India in Justice K.S. Puttaswamy (supra); The proportionality standard, in addition to introducing a culture of justification by prescribing a standard four‑step test that must be satisfied, also provides sufficient flexibility within each step for the Supreme Courts of India to apply the jurisprudence that has already been evolved by the courts on the subject matter; and Lastly, public interest immunity claim is founded on common law doctrine. The jurisprudence that has emanated from various common law countries on the subject has been relied on by the Supreme Courts of India to the extent permitted by our constitutional scheme. The jurisprudence that has emanated from other common law countries on this subject has persuasive value. The courts in both the United Kingdom and Canada use the proportionality standard to assess the validity of a public interest immunity claim., The structured proportionality standard used by the Supreme Courts of India to test the infringement of fundamental rights has to be remodelled along the lines of the jurisprudence on public interest immunity, if need be. It is crucial to note the difference in the terminology between Article 19(2) to Article 19(6) of the Constitution and Section 124 of the Evidence Act. The reasonable restriction clauses in Article 19 stipulate that the right can be reasonably restricted in the interests of sovereignty and integrity of India. Section 124 stipulates that the restriction to disclosure is only justified if public interest is injured. Section 124 thus prescribes a heightened standard for the application of public interest immunity., The proportionality standard tests the effect of the infringement only at the balancing stage. Both the suitability prong and legitimate aim prong of the proportionality standard are framed in the language of purpose as opposed to effects. Section 124 of the Evidence Act stipulates that the right to a fair trial and the right to information protected under Articles 21 and 19(1)(a) cannot be restricted to advance a public interest. The principle implicit in Section 124 of the Evidence Act is that no purpose could be of sufficient importance to override the right to a fair hearing. Such a restriction is unjustified. It is only an injury of public interest that justifies the non‑disclosure of documents., In view of the above discussion, the proportionality standard laid down by the Supreme Court of India in Modern Dental (supra) has to be nuanced keeping in view the standard that is prescribed by the provisions of Section 124 of the Evidence Act and the observations of the Supreme Court of India in SP Gupta (supra). Apart from the measure being in furtherance of a legitimate goal, there must be an injury to a legitimate goal. The burden is on the party opposing disclosure of material to prove all the sub‑facets of the proportionality standard. The structured proportionality standard based on the principles in Section 124 of the Evidence Act is as follows: Whether the disclosure of information would injure public interest (injury stage); Whether there is a less restrictive but equally effective alternative means by which the injury to public interest could be protected (necessity stage); and Whether the public interest in non‑disclosure outweighs the public interest in disclosure (balancing stage)., In the balancing stage, as has already been laid down by the Supreme Court of India in SP Gupta (supra) and the courts in the United Kingdom and Canada, considerations based on the facts of the case and on broader questions of principle have to be assessed. The Supreme Court of India has to consider if non‑disclosure would render the issue non‑justiciable, the relative relevancy of the material – on whether the material is crucial or necessary, or is the essence of the case against the claimant, among others. On questions of principle, the Supreme Court of India shall consider the impact of non‑disclosure on other constitutional rights such as the freedom of press., J. Public interest immunity or sealed cover: the less restrictive means. The Supreme Court of India must follow the structured proportionality standard, modified on the basis of the content of Section 124 of the Evidence Act, to assess claims of public interest immunity. Under the structured proportionality standard, the Supreme Court of India places the burden of proof on the party opposing disclosure of documents to prove the claim of public interest in non‑disclosure. The proportionality test prescribes a strict standard to test the reasonableness of an action. As opposed to the structured standard of proportionality which must be used by the Supreme Court of India to assess public interest immunity claims, the exercise of power by the Supreme Courts of India to secure material in a sealed cover has rather been ad‑hoc and extemporaneous., Article 145 of the Constitution grants the Supreme Court of India the power to make rules for regulating the practice and procedure of the Court. In pursuance of its power under Article 145, the Supreme Court Rules 1966 were notified. These Rules did not contain any provision on disclosure of documents to the Court in a sealed cover. The 1966 Rules were substituted by the Supreme Court of India Rules 2013. Order XIII Rule 1 of the Supreme Court Rules 2013 stipulates that a party to a proceeding in the Supreme Court shall be entitled to apply for and receive certified copies of all pleadings, judgments, decrees or orders, documents and deposition of witnesses made or exhibited in the proceeding. Rule 7 provides an exception to the rule. The rule stipulates that no person has a right to documents that are (i) confidential; (ii) directed to be placed in a sealed cover by the Supreme Court of India or the Chief Justice; and (iii) the disclosure of which is not in public interest. The rule states that documents that fall within any of the above clauses can be disclosed only with the permission of the Supreme Court of India or the Chief Justice. Order XIII Rule 7 is extracted below for reference: Notwithstanding anything contained in this order, no party or person shall be entitled as of right to receive copies of or extracts from any minutes, letter or document of any confidential nature or any paper sent, filed or produced, which the Chief Justice or the Supreme Court of India directs to keep in a sealed cover or considers to be of confidential nature or the publication of which is considered to be not in the interest of the public, except under and in accordance with an order made by the Chief Justice or by the Supreme Court of India., The power of the Supreme Court of India to receive material relevant to a proceeding in a sealed cover is read from Order XII I Rule 7. Unlike the closed material procedure in the United Kingdom and Canada, the sealed cover procedure is not a creation of the legislature but of the courts. In fact, Rule 7 while prescribing the power of the Supreme Court of India to receive material in a sealed cover also recognises non‑disclosure on the ground of public interest immunity. The provision does not stipulate any guidelines for the exercise of power by the Supreme Court of India to secure material in a sealed cover. However, the Rule as a whole indicates that the Supreme Court of India may exercise its power to secure material in a sealed cover if the material is confidential or the disclosure of which would injure public interest. As discussed above, public interest immunity claims also seek to address the same harms. It was not intended that the sealed cover procedure shall replace public interest immunity proceedings which constitute an established method for dealing with confidentiality. The sealed cover procedure cannot be introduced to cover harms that could not have been remedied by public interest immunity proceedings., In both the sealed cover procedure and public interest immunity claims, the documents that are sought to be withheld from disclosure are not revealed to the counsel for the applicant. The proceedings, in effect, are conducted ex‑parte where the counsel for the party claiming disclosure is precluded from accessing a part of the record in the proceedings. However, one crucial difference between the sealed cover procedure and public interest immunity claims is that in the former, the Supreme Court of India relies on the material that is disclosed in a sealed cover in the course of the proceedings, as opposed to the latter where the documents are completely removed from the proceedings and both the parties and the adjudicator cannot rely on such material. Sealed cover procedures violate both principles of natural justice and open justice. In Al Rawi v. The Security Service, the Supreme Court of the United Kingdom recognised that the closed material procedure causes a greater degree of harm as compared to public interest immunity. As held above, the closed material procedure is similar to the sealed cover procedure in as much as relevant material that is not disclosed to the applicant is used in the course of substantive hearings. In that case, the issue before the Supreme Court of India was whether the Supreme Court of India has the power to order a closed material procedure for the whole or a part of the trial. In a closed proceeding, the claimant would be represented by a Special Advocate who would be unable to take instructions from the claimant. The Supreme Court of the United Kingdom observed that a closed material procedure, unlike the law relating to public interest immunity, departs from the principles of both open justice and natural justice. Lord Dyson in his opinion observed as follows: \The public interest immunity procedure respects the common law principles to which I have referred. If documents are disclosed as a result of the process, they are available to both parties and to the Court. If they are not disclosed, they are available neither to the other parties nor to the Court. Both parties are entitled to full participation in all aspects of the litigation. There is no unfairness or inequality of arms. The effect of a closed material procedure is that closed documents are only available to the party which possesses them, the other side’s special advocate and the Court. I have already referred to the limits of the special advocate system.\, The total removal of the information from the proceedings has two impacts. First, it may lead to the dismissal of the proceedings instituted by the claimant, rendering the issue non‑justiciable. Second, it may render the defendant (in this case, the State) defenseless. The Supreme Court of India must also take into account these considerations while deciding if a public interest immunity claim is a less restrictive means. Thus, at the second stage, the enquiry turns into whether the information excluded on a successful public interest immunity claim can be fairly removed from the proceeding., The report by the New Zealand Law Commission on National Security Information in Proceedings provides a two‑step procedure for dealing with sensitive information. The first consideration is whether the information should be disclosed to the party on a balance of considerations. The second consideration is whether the information can be fairly excluded from the proceedings. The Commission recommended that the Court should opt for the closed material proceedings only if the material is sufficiently relevant to the proceedings that it would be in the interest of justice to use a closed procedure rather than to exclude the information and proceed without it. That is, the Court concludes that national security considerations are so high that they trump over the relevancy of the document in proceedings but the information cannot be fairly excluded from the proceedings because it would cause one of the two injuries recognised above. The Commission recommends that it would be in the interest of justice to follow the closed proceedings to obviate such unfairness. The report recommended that the closed material procedure was to be used in addition to the public interest immunity procedure to protect the interest of justice. The report of the Law Commission of New Zealand also recognised that though the option of a closed procedure would be available to the State, it would be difficult for the State to prove that this would be in the interests of justice because it seeks to withhold information from the claimant and use it against them. The relevant observations of the Commission are extracted below: \At this second stage, the Court determines whether to order the use of a closed procedure for part of the substantive hearing. The Court should only order that part of the substantive hearing be closed where it is satisfied that the national security information is sufficiently relevant to the proceedings that it is in the interests of justice to use a closed procedure rather than to exclude the information and have the case proceed without it. Although a closed procedure would be available in cases where the national security information was beneficial to the Crown’s case, the interests of justice test will be much harder for the Crown to satisfy because it is seeking to withhold information from the other party but also use it against them. In some cases where the Crown is defending an action, the Courts may consider that this is appropriate, but we would anticipate this would be quite rare. It is more likely that a closed procedure would be in the interests of justice where it would prejudice the non‑Crown party if the Court excluded the national security information.\, The Supreme Court of the United Kingdom dealt with the effect of exclusion of relevant material on a successful claim of public interest immunity in Al Rawi (supra). In that case, it was argued by the State that the Supreme Court of India must exercise its inherent power to order a closed material procedure in certain classes of cases, such as where the defendant cannot deploy its defence fully (or sometimes not at all) if an open procedure is followed. It was argued that exclusion of relevant material from the proceedings after the public interest immunity exercise reduces the chances of the Supreme Court of India reaching a correct outcome. In other words, the State argued that the Court has the power to substitute a closed material procedure for public interest immunity exercise in exceptional circumstances. While the Court unanimously agreed that the Courts cannot substitute a public interest immunity procedure with the closed material procedure, the judges disagreed on whether a closed material procedure can be used in addition, and not in alternative, to the public interest immunity procedure., Lord Dyson in his opinion held that the Supreme Court of India does not have the power to direct closed material procedure in addition to public interest immunity claim because: closed material procedure is the antithesis of public interest immunity procedure. There is no equality of arms in closed material procedure; the party in possession of the document possesses sole knowledge of whether the document would be beneficial in their case. The claimant, who does not have access to the material, would not be aware if the material would affect their case. It would thus put them in a disadvantageous position making the procedure inherently unfair to one of the parties; and the Courts should not be called to perform the exercise of deciding the relevance of a document to the case of claimant and the defendant., Lord Kerr in his opinion pointed out two additional problems with the argument of the State. He noted that the proposition that placing all evidence before the Judge is preferable to withholding potentially pivotal evidence from the proceedings is misleading. Lord Kerr observed that it cannot be assumed that the adjudicator would reach a fair result since the judge sees all the evidence because, to be truly valuable, the evidence must be capable of withstanding challenge. Evidence which has been insulated from challenge may positively mislead. It is precisely because of this that the right to know the case that one’s opponent makes and to have the opportunity to challenge it occupies such a central place in the concept of a fair trial. However astute and assiduous the judge, the proposed procedure hands over to one party considerable control over the production of relevant material and the manner in which it is to be presented. The peril that such a procedure presents to the fair trial of contentious litigation is both obvious and undeniable., Lord Kerr further observed that the State faces a healthy dilemma with public interest immunity claims since it will want to produce as much material as it can to defend its claim and would not resort to public interest immunity claims comfortably because if their claim is allowed, then the material will be removed from the proceedings itself. The learned Judge observed that it would be tempting for the State to seek a closed material procedure claiming that all the documents when disclosed would injure national security., Lord Mance (with whom Lord Hale agreed) and Lord Clarke held that the Supreme Court of India has the power to order a closed material procedure in certain circumstances after the public interest immunity claim is decided. However, they disagreed on what those certain circumstances would be. In Lord Mance’s view, after the public interest immunity claim is allowed, the Supreme Court of India may order a closed material procedure if the material is in the defendant’s possession and the claimant consents for such a procedure to avoid their claim from being struck out. In Lord Clarke’s view, after the public interest immunity process has been completed, the parties should consider their respective positions and make representations to the judge who may order a closed material procedure depending on the facts of the case., The recommendations of the Law Commission of New Zealand and the opinions of Lord Clarke and Lord Mance in Al Rawi (supra) introduce closed material proceedings as an additional step after the completion of public interest immunity proceedings. The Supreme Court of India in a closed material procedure, similar to the sealed cover process, relies on the material that the claimant is not privy to while disposing the proceedings. The closed material proceedings are sought to be introduced to counterbalance the injustices caused on the conclusion of the public interest immunity proceedings., The claimant would be jumping into a pit of fire with their eyes closed even if they consent to a sealed cover procedure. As Lord Kerr remarked in Al Rawi (supra), the claim that closed material procedure would provide a fairer outcome is premised on the assumption that the adjudicator is impartial. However, beyond this assumption, it must be recognised that the Supreme Court of India could be misled by the material that is not subject to inspection and examination. This would lead to a situation where the Supreme Court of India renders an unfair judgment and such an unfair decision would not be amenable to both judicial review and public criticism on merits., While it cannot be denied that allowing a public interest immunity claim may cause some degree of injury to the procedural guarantees of the claimant and the defendant, a sealed cover procedure will not ensure a fairer proceeding. The purpose of public interest immunity proceedings would become redundant if the defendant is provided the option of requesting a closed material procedure after the conclusion of public interest immunity proceedings, which the defendant makes, is allowed. Rather, we are of the opinion that the effect of public interest immunity proceedings of removing the evidence completely from the proceedings would persuade the State in making restricted claims of public interest immunity. Further, as Lord Dyson remarked, the procedure would be inherently disadvantageous to the claimant because they are unaware of the contents of the document., It may be argued that the removal of the documents from the proceedings would render the proceedings non‑justiciable if the documents that are sought to be protected are so closely intertwined with the cause of action. Though the argument holds merit on a cursory glance, it does not hold water when delved into deeper. As observed above, one of the relevant considerations for the Supreme Court of India in the balancing stage of adjudicating the public interest immunity claim is whether the non‑disclosure of the material would render the issue non‑justiciable. The Supreme Court of India, while analysing the relevancy of the material and the potential non‑justiciability of the issue due to non‑disclosure, may direct that the material should be disclosed. The purpose of the balancing prong is to weigh in the conflicting claims and effects of such claims.
id_1791	7	Even if the disclosure would conceivably injure public interest, the courts may still dismiss the claim of public interest immunity if the non-disclosure would render the issue non-justiciable, and on the facts of the case it is decided that the injury due to non-disclosure overweighs the injury due to disclosure. The courts could adopt the course of action of redacting the confidential portions of the document and providing a summary of the contents of the document instead of opting for the sealed cover procedure to fairly exclude the document from the proceedings on a successful public interest immunity claim. Both the parties can then only be permitted to refer to the redacted version of the document or the summary in the proceeding. In view of the above discussion, we are of the opinion that public interest immunity proceeding is a less restrictive means to deal with non-disclosure on the grounds of public interest and confidentiality. This leaves the final issue to be answered: if public interest immunity is a less restrictive means, then whether the procedure of sealed cover can be used at all, and if so, in what circumstances would it be permissible for the Supreme Court of India to exercise its power to secure evidence in a sealed cover. While it would be beyond the scope of this judgment to lay down the possible situations when the sealed cover procedure can be used, it is sufficient to state that if the purpose could be realised effectively by public interest immunity proceedings or any other less restrictive means, then the sealed cover procedure should not be adopted. The Supreme Court of India should undertake an analysis of the possible procedural modalities that could be used to realise the purpose, and the means that are less restrictive of the procedural guarantees must be adopted., In view of the observations above, we are of the opinion that the respondents by not providing a reasoned order denying the renewal of licence, not disclosing the relevant material, and by disclosing the material only to the Supreme Court of India in a sealed cover have violated the appellant's right to a fair hearing protected under Article 21 of the Constitution. The respondents were unable to prove that the restrictions on the appellant's right to a fair hearing were reasonable. Therefore, the order of the Ministry of Information and Broadcasting dated 31 January 2022 denying permission for renewal of the licence and the judgment of the Division Bench of the High Court dated 2 March 2022 must be set aside on the ground of the infringement of procedural guarantees., Substantive Challenge: the validity of the action of the Ministry of Information and Broadcasting in denying to renew the permission. In the course of his arguments, Mr Huzefa A Ahmadi, in addition to arguments on the violation of procedural guarantees, requested the Supreme Court of India to peruse the material that was disclosed solely to the Supreme Court of India in a sealed cover to decide if there was sufficient material to justify the non-renewal of permission. Thus, notwithstanding the conclusion that we have reached above setting aside the order of the Ministry of Information and Broadcasting dated 31 January 2022 and the judgment of the High Court dated 2 March 2022 on procedural grounds, we will proceed to decide the substantive challenge to the order denying renewal of permission on the ground of denial of security clearance by the Ministry of Home Affairs., In 2010, Media Broadcast Ltd (MBL) applied for permission to uplink and downlink the news and current affairs television channel Media One. The Ministry of Home Affairs sought reports from the Intelligence Bureau and the Central Bureau of Investigation for granting security clearance. The Central Bureau of Investigation remarked that there was nothing adverse on record against MBL. The Intelligence Bureau reported that MBL shares a close association with Madhyamam Daily, and that the tenor of the articles carried out by Madhyamam Daily are adverse. To substantiate its conclusion on the adverse tenor of the articles, the Intelligence Bureau referred to reports of Madhyamam Daily on the alleged discrimination against Muslims in India and the alleged soft attitude taken against Hindu fundamentalists responsible for bomb blasts as opposed to the view taken against Muslim fundamentalists. The Ministry of Home Affairs considered the report and concluded that the remarks were not strong enough to deny permission on security grounds, thereby granting security clearance to MBL., Between 2014 and 2019, similar reports were submitted by the Intelligence Bureau when security clearance was sought for other proposals of MBL. The Intelligence Bureau made adverse remarks on MBL's main source of income which was alleged to be from JEI-H sympathisers, and its anti-establishment stance. To substantiate its conclusion that MBL has been taking an anti-establishment stance, references were made to its reports on the Unlawful Activities (Prevention) Act, Armed Forces (Special Powers) Act, development projects of the Government, encounter killings, Citizenship (Amendment) Act, National Register of Citizens, National Population Register, the Indian Judiciary's alleged double standards in terrorism cases, and the alleged portrayal of security forces in a bad light. The Ministry of Home Affairs denied security clearance based on the Intelligence Bureau reports. We are required to decide if these reasons provide a justifiable ground for the denial of security clearance, and consequently, restricting MBL's right to the freedom of press under Article 19(1)(a) of the Constitution., The freedom of the press which is protected as a component of Article 19(1)(a) can only be restricted on the grounds stipulated in Article 19(2) of the Constitution. The grounds stipulated in Article 19(2) include the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. We have already held in Part C of this judgment that security clearance is a requirement for renewal of an uplinking and downlinking licence. The denial of security clearance to operate a news channel is a restriction on the freedom of press, and such restriction is constitutionally permissible only on the grounds stipulated in Article 19(2) of the Constitution., Though the courts have been using the proportionality standard to test the reasonableness of restrictions on fundamental rights after the decisions in Modern Dental (supra) and Justice K.S. Puttaswamy (supra), this has generally been deployed in the area of legislative action. The position laid down by this Court is that all violations of fundamental rights have to be tested on the standard of proportionality. The Court under Article 13 of the Constitution has the power to declare laws that violate fundamental rights to be void. For the purpose of the provision, law includes administrative action. The position of law that administrative action infringing fundamental freedoms has to be tested on the proportionality standard has been established by this Court in its earlier judgments. Thus, the action of the Ministry of Information and Broadcasting denying renewal of permission will be judicially reviewed based on the proportionality standard., The first test of the proportionality standard as laid down by this Court in Modern Dental (supra) requires the Court to assess if the measure restricting the right has a legitimate goal. Article 19, unlike other provisions of Part III of the Constitution, prescribes the purposes for which the rights recognised can be reasonably restricted. Thus, the purpose of the state action that is challenged must necessarily be traceable to the grounds stipulated in Article 19(2) to test if the freedom of press has been reasonably restricted. Security clearance was denied on the basis of two grounds: the alleged anti-establishment stand of MBL, and the alleged link of MBL to JEI-H., An independent press is vital for the robust functioning of a democratic republic. Its role in a democratic society is crucial as it shines a light on the functioning of the state. The press has a duty to speak truth to power, and present citizens with hard facts enabling them to make choices that propel democracy in the right direction. The restriction on the freedom of the press compels citizens to think along the same tangent. A homogenised view on issues that range from socioeconomic policy to political ideologies would pose grave dangers to democracy., The critical views of the channel Media One on policies of the government cannot be termed anti-establishment. The use of such terminology in itself represents an expectation that the press must support the establishment. The action of the Ministry of Information and Broadcasting by denying a security clearance to a media channel on the basis of the views which the channel is constitutionally entitled to hold produces a chilling effect on free speech, and in particular on press freedom. Criticism of governmental policy can by no stretch of imagination be brought within the fold of any of the grounds stipulated in Article 19(2)., The note that was submitted by the Intelligence Bureau on the alleged role and activities of JEI-H states that the organisation was banned thrice and all the three bans were revoked. The organisation was banned last in 1992 under the Unlawful Activities (Prevention) Act 1947. This Court had nullified the ban in 1994. Thus, when JEI-H is not a banned organisation, it would be rather precarious for the State to contend that the links with the organisation would affect the sovereignty and integrity of the nation, the security of the State, friendly relations with foreign states, or public order. Additionally, the only piece of evidence in the file to link MBL to JEI-H is the alleged investment in the shares of MBL by cadres of JEI-H. In support of this, the Intelligence Bureau has submitted a list of shareholders. However, there is no evidence on record to link them to JEI-H. Thus, the allegation that MBL is linked to JEI-H is fallacious, firstly because JEI-H is not a banned organisation and there is no material to conclude that the investment by JEI-H sympathisers would affect India’s security, and secondly, even if it is accepted that the investment by JEI-H sympathisers would affect the security of the State, there is no material to prove that the shareholders are sympathisers of JEI-H. In view of the discussion above, the purpose of denying security clearance does not have a legitimate goal or a proper purpose., The Intelligence Bureau has noted that the above material against MBL attracts Sl. No. 20 and 22 of the security parameters annexed to the 2018 Guidelines which are used to assess security clearance proposals. Sl. No. 20 reads as involvement in religious proselytisation activities in India, and Sl. No. 22 reads as intentional or systemic infringement of safety concerns or security systems endangering the safety of the public. There is no rational nexus between the material submitted against MBL to the security parameters in Sl. No. 20 and 22. MBL cannot be said to be indulging in religious proselytisation for merely publishing reports on the alleged discrimination against the Muslim community in India, or infringing safety concerns by a mere reference to the shareholding pattern of MBL., Conclusion and Directions. In view of the discussion above, the appeals are allowed and the order of the Ministry of Information and Broadcasting dated 31 January 2022 and the judgment of the High Court dated 2 March 2022 are set aside. We summarise our findings below: (i) Security clearance is one of the conditions required to be fulfilled for renewal of permission under uplinking and downlinking guidelines; (ii) The challenge to the order of the Ministry of Information and Broadcasting and judgment of the High Court on procedural grounds is allowed for the following reasons: (a) The principles of natural justice were constitutionalised by the judgement of this Court in Maneka Gandhi (supra). The effect is that the courts have recognised that there is an inherent value in securing compliance with the principles of natural justice independent of the outcome of the case. Actions which violate procedural guarantees can be struck down even if non‑compliance does not prejudice the outcome of the case. The core of the principles of natural justice breathes reasonableness into procedure. The burden is on the claimant to prove that the procedure followed infringes upon the core of procedural guarantees; (b) The appellants have proved that MBL’s right to a fair hearing has been infringed by the unreasoned order of the Ministry of Information and Broadcasting dated 31 January 2022, and the non‑disclosure of relevant material to the appellants, and its disclosure solely to the Supreme Court of India. The burden then shifts on the respondents to prove that the procedure that was followed was reasonable and in compliance with the requirements of Articles 14 and 21 of the Constitution. The standard of proportionality has been used to test the reasonableness of the procedure; (c) The judgments of this Court in Ex‑Armymen’s Protection Services (supra) and Digi Cable Network (supra) held that the principles of natural justice may be excluded when on the facts of the case, national security concerns outweigh the duty of fairness; (d) Though confidentiality and national security are legitimate aims for the purpose of limiting procedural guarantees, the state has been unable to prove that these considerations arise in the present factual scenario. A blanket immunity from disclosure of all investigative reports cannot be granted; (e) The validity of the claim of involvement of national security considerations must be assessed on the test of (i) whether there is material to conclude that the non‑disclosure of information is in the interest of national security; and (ii) whether a reasonable prudent person would draw the same inference from the material on record; (f) Even assuming that non‑disclosure is in the interest of confidentiality and national security, the means adopted by the respondents do not satisfy the other prongs of the proportionality standard. The nondisclosure of a summary of the reasons for the denial of security clearance to MBL, which constitutes the core irreducible minimum of procedural guarantees, does not satisfy the suitability prong; (g) The courts assess the validity of public interest immunity claims, which address the same harms as the sealed cover procedure, based on the structured proportionality standard. The power of courts to secure material in a sealed cover when contrasted with the scope of assessment of public interest immunity claims is rather unguided and ad‑hoc. The standard of review that is used by the courts in public interest immunity claims and the lack of such a standard in sealed cover proceedings to protect procedural safeguards indicates that public interest immunity claims constitute less restrictive means. Additionally, while public interest immunity claims conceivably impact the principles of natural justice, sealed cover proceedings infringe the principles of natural justice and open justice; (h) The courts could take the course of redacting confidential portions of the document and providing a summary of the contents of the document to fairly exclude materials after a successful public interest immunity claim; and (iii) The challenge to the order of the Ministry of Information and Broadcasting is allowed on substantive grounds. The non‑renewal of permission to operate a media channel is a restriction on the freedom of the press which can only be reasonably restricted on the grounds stipulated in Article 19(2) of the Constitution. The reasons for denying a security clearance to MBL, that is, its alleged anti‑establishment stance and the alleged link of the shareholders to JEI-H, are not legitimate purposes for the restriction of the right of freedom of speech protected under Article 19(1)(a) of the Constitution. In any event, there was no material to demonstrate any link of the shareholders, as was alleged., While we have concluded that a public interest immunity claim is a less restrictive means, the dilution of procedural guarantees while hearing the claim cannot be ignored by the Supreme Court of India. It is only the Court and the party seeking non‑disclosure of the material who are privy to the public interest immunity proceedings. The Court has a duty to consider factors such as the relevance of the material to the case of the applicant while undertaking the proportionality standard to test the public interest immunity claim. However, the applicant who is unrepresented in the proceedings would be effectively impaired. While there may be material on serious concerns of national security which cannot be disclosed, the constitutional principle of procedural guarantees is equally important and it cannot be turned into a dead letter. As the highest constitutional court, it is our responsibility to balance these two considerations when they are in conflict. To safeguard the claimant against a potential injury to procedural guarantees in public interest immunity proceedings, we have recognised a power in the Court to appoint an amicus curiae. The appointment of an amicus curiae will balance concerns of confidentiality with the need to preserve public confidence in the objectivity of the justice delivery process., The amicus curiae appointed by the Supreme Court of India shall be given access to the materials sought to be withheld by the State. The amicus curiae shall be allowed to interact with the applicant and their counsel before the proceedings to ascertain their case to enable them to make effective submissions on the necessity of disclosure. However, the amicus curiae shall not interact with the applicant or their counsel after the public interest immunity proceeding has begun and the counsel has viewed the document sought to be withheld. The amicus curiae shall, to the best of their ability, represent the interests of the applicant. The amicus curiae would be bound by oath not to disclose or discuss the material with any other person, including the applicant or their counsel., Article 145 of the Constitution stipulates that all judgments of the Supreme Court of India shall only be delivered in open court. Though public interest immunity proceedings will take place in a closed setting, the Court is required to pass a reasoned order for allowing or dismissing the claim in open court. We are cognizant of the objection that may be raised that an order justifying the reasons for allowing the claim would have to inevitably disclose information on the very material that it seeks to protect. The Court in such cases is still required to provide a reasoned order on the principles that it had considered and applied, even if the material that is sought not to be disclosed is redacted from the reasoned order. However, the redacted material from the reasoned order shall be preserved in the court records which may be accessed by the courts in the future, if the need arises., The Civil Appeals are accordingly allowed. The Ministry of Information and Broadcasting shall now proceed to issue renewal permissions in terms of this judgment within four weeks and all other authorities shall cooperate in issuing necessary approvals. The interim order of this Court shall continue to operate until the renewal permissions are granted.
id_1792	0	Date of decision: 21st November 2023. Civil Suit (Commercial) 833/2023, Interim Application 23077/2023, 23078/2023. Through: Mr. Saikrishna Rajagopal, Ms. Suhasini Raina, Ms. R. Ramya, Ms. Mehr Sidhu and Mr. Raghav Goyal, Advocates (M - 9845057887)., The hearing was conducted in hybrid mode. Interim Application 23078/2023 was filed by the plaintiffs seeking exemption from filing certified or translated copies of documents with proper margins. Original documents shall be produced or filed at the time of admission or denial, if sought, strictly as per the provisions of the Commercial Courts Act 2015 and the Delhi High Court (Original Side) Rules 2018., Exemption is allowed, subject to all just exceptions. Accordingly, the application is disposed of., Interim Application 23079/2023 (under Section 80 of the Code of Civil Procedure) was filed by the plaintiffs seeking exemption from serving notice to Defendant No. 55 – Department of Telecommunications and Defendant No. 56 – Ministry of Electronics and Information Technology. Exemption is allowed. However, Mr. Harish V. Shankar, Senior Counsel has been requested to accept notice. Accordingly, the application is disposed of., The plaint is to be registered as a suit. Issue summons to the defendants through all modes upon filing of process fee. The summons shall indicate that the written statement to the plaint shall be filed positively within 30 days from the date of receipt of summons. Along with the written statement, the defendants shall also file an affidavit of admission or denial of the plaintiffs' documents; without such affidavit the written statement shall not be taken on record., The plaintiffs are given liberty to file a replication within 15 days of receipt of the written statement. Along with the replication, the plaintiffs shall file an affidavit of admission or denial of the defendants' documents; without such affidavit the replication shall not be taken on record. If any party wishes to seek inspection of any documents, the request shall be made and granted within the prescribed timelines., List before the Joint Registrar for marking of exhibits on 11 January 2024. It is made clear that any party unjustifiably denying documents shall be liable to bear costs. List before the Delhi High Court on 21 March 2024. Issue notice., In a continued effort to curb dissemination of pirated content and its availability on the internet, the plaintiffs, who are well‑established Hollywood studios, have approached this Court seeking blocking and removal of their copyrighted content from the internet accessed through rogue websites., The plaintiffs in the present matter are engaged in the production and distribution of a large volume of original creative content including cinematograph films, television series, motion pictures, etc. (hereinafter \content\). The list of plaintiffs is as follows: (1) Universal City Studios LLC, (2) Warner Bros. Entertainment Inc., (3) Columbia Pictures Industries Inc., (4) Netflix Studios LLC, (5) Paramount Pictures Corporation, (6) Disney Enterprises Inc., The suit is filed against a number of rogue websites that are unlawfully disseminating and communicating a large quantum of copyrighted content of the plaintiffs. For ready reference, the names of the defendant websites are given in the memo of parties attached as Annexure A., The plaintiffs claim that the content created, produced and distributed by, or on behalf of, the plaintiffs' studios can be accessed and viewed on a variety of devices including televisions, personal computers, laptops, tablets and mobile phones. The studios own copyright in the entire content, which is protectable as cinematograph films, and also own rights in various underlying works recognised under the Copyright Act 1957. The plaintiffs have devoted enormous resources to the creation, production, distribution and communication of the content to the public, including marketing and advertising., Technology has posed a major challenge for entities like the plaintiffs because a proliferation of platforms, including websites, enables unauthorised, unlicensed and pirated content to be downloaded, accessed and viewed by customers. The production of copyrighted content is continuous and new content is added daily, making the corpus dynamic. Unauthorised reproduction, hosting, uploading, streaming, downloading, broadcasting, telecasting or making available of this content constitutes infringement of copyright and results in enormous monetary loss to the plaintiffs., The present suit has been filed against various websites that permit viewing, streaming, accessing and downloading of such content without any licence or authorisation from the plaintiffs. The defendant websites (Nos. 1 to 45) have different avatars but continue to make unauthorised content available. Notable features of these rogue websites include: (i) no details of the persons or entities who have registered the domain names, with privacy‑protect features masking their identity; (ii) no clarity on who is making the content available; (iii) lack of contact details except e‑mail addresses; (iv) advertising of services such as Virtual Private Networks, generating revenue; (v) provision of different quality and format options including High Definition; (vi) content downloadable on mobile phones; (vii) utilisation of content from OTT platforms and regional as well as foreign language films; (viii) encouragement of users to join platforms like Telegram for sharing unauthorised content; (ix) domain series such as fzmovies.net, fztvseries.mobi, fzstudios.app and others like mobiletvshows.net making pirated content available in real time; (x) promotion of mobile applications and .apk files within the sites., Senior Counsel for the plaintiffs submits that legal notices have been issued to all defendant websites, but only a few have responded., Some websites such as raretoonsindia.pro, raretoonsindia.com.co and similar extensions were showing children’s content. A reply was received from the domain raretoonsindia.pro (email: raretoonsindia@proton.me) on 3 November 2023 stating that all requested content had been deleted. However, immediately thereafter a new domain name appeared online with identical pirated content., It is clear from the screenshots placed on record that the rogue websites re‑emerge each time notices or blocking orders are issued. This Court has evolved jurisprudence on protecting copyrighted content. One of the first decisions was UTV Software Communication Ltd. and Ors. v. 1337x.to and Ors., (2019) 78 PTC 375 (Delhi), where the Court noted the dynamic nature of mirror websites that can spring up within minutes., Subsequent orders include CS(COMM) 157/2022 (Star India Pvt. Ltd. v. Live Flixhub.Net), CS(COMM) 471/2019 (Star India Pvt. Ltd. v. Moviemad.biz & Ors.), and CS(COMM) 195/2019 (Star India Pvt. Ltd. v. Extramovies.host & Ors.). These orders establish that the ease of domain registration and privacy protection allows owners and operators to hide behind registrations, granting them de facto immunity from monetary damages., Recently, in the judgment dated 9 August 2023, Universal City Studios LLC & Ors. v. Dotmovies.baby & Ors., DHC:5842, this Court issued a Dynamic+ Injunction. The Court questioned the senior counsel on how dynamic generation of content can be protected, referring to the UTV Software Communication decision. The senior counsel cited the three‑step verification test evolved by the Delhi High Court in Eros International Media v. BSNL, Suit No. 751 of 2016, which requires verification by an independent entity, extensive documentary evidence, and an affidavit on oath. The Court’s orders dated 22 July 2016 and 26 July 2016 emphasised that an injunction will not be granted unless the entire website is shown to contain only illicit material, and that a three‑step verification is required., The Court affirmed its power to order Internet Service Providers, the Department of Telecommunications and the Ministry of Electronics and Information Technology to stop current infringements and, where justified, prevent future ones. A decree of permanent injunction was passed restraining the defendant websites, their owners, partners, officers, employees and anyone acting on their behalf from hosting, streaming, reproducing, distributing, making available or communicating any cinematograph work in which the plaintiffs have copyright. The decree also directs ISPs to block access to the defendant websites, and directs the Department of Telecommunications and the Ministry of Electronics and Information Technology to issue a notification to all internet and telecom service providers to block access. The plaintiffs may implead mirror, redirect or alphanumeric variations of the websites under Order I Rule 10 of the Code of Civil Procedure. The plaintiffs are entitled to actual costs of litigation, including lawyers’ fees and court fees., Piracy and unauthorised reproduction of copyrighted content is a serious issue worldwide. In The Football Association Premier League v. British Telecommunications PLC and Ors., [2017] EWHC 480 (Ch), the High Court of Justice, Chancery Division, United Kingdom, dated 13 March 2017, ordered ISPs to block websites transmitting unauthorised Premier League content, considering proportionality and safeguards. Similar orders have been passed against torrent sites such as The Pirate Bay, KAT, Fenopy and H33T, and in Ireland, EMI Records Ltd v. UPC Communications Ireland Ltd, [2010] IEHC 377, highlighted the devastating economic impact of internet piracy on the recording industry and the broader creative sector., Internet piracy is both an economic and moral problem. Examples include cinema piracy where individuals record films in theatres and distribute them, leading to loss of ticket revenue, and concert piracy where recordings are illegally reproduced and sold. Such activities undermine the livelihood of creators and constitute a serious abuse of copyright., In India, courts regularly pass orders against websites containing unauthorised content. Recently, the Bombay High Court in Applause Entertainment Pvt. Ltd. v. Meta Platforms Inc., 2023 SCC OnLine Bom 1034, directed the blocking of social media accounts used to disseminate substantial parts of a web series, issuing an ex parte ad interim dynamic injunction that also restrains the adoption of different identities to perpetuate unauthorised dissemination. The effective measure is blocking of these websites and extending the injunction to mirror sites with alphanumeric variations., There is an imminent need for a global consensus because, even when ISPs block rogue websites, they can be accessed through Virtual Private Networks and other methods beyond the reach of domestic law., Any injunction granted by a court must be effective and must cover not only existing works but also future works created by the plaintiffs. The Court has therefore granted an ex parte ad interim Dynamic+ injunction restraining the defendants, who are all rogue websites, from streaming, reproducing, distributing, making available or communicating any copyrighted content of the plaintiffs, including future works, through their identified websites or any mirror, redirect or alphanumeric variations thereof. The plaintiffs may implead any such variations under Order I Rule 10 of the Code of Civil Procedure and may file applications for further protection of future works. Costs of litigation shall be awarded to the plaintiffs., Insofar as Defendant Nos. 17 to 25 are concerned, the Internet Service Providers shall give effect to this injunction by blocking the said websites. The Ministry of Electronics and Information Technology and the Department of Telecommunications shall issue blocking orders against the websites within one week of the release of this order., The Domain Name Registrars of the rogue website domain names, upon being intimated by the plaintiffs, shall lock and suspend the said domain names and provide the plaintiffs with registrant details including KYC, credit card and mobile number information., Senior Counsel submits that after the Dynamic+ injunction in Universal City Studios LLC & Ors., several rogue websites are being blocked internationally, not just in India, positively impacting piracy control. The decisions of the Delhi High Court have led to Domain Name Registrars locking and suspending domain names, rendering them inaccessible. This has resulted in increased viewership of legitimate platforms, as evidenced by the World Cup Cricket final 2023 when an OTT platform recorded more than 5.3 crore logins., In the present case, documents placed on record by the plaintiffs demonstrate a brazen effort towards continued piracy on the internet. The Court is convinced that a Dynamic+ injunction, as granted in Universal City Studios LLC & Ors., is necessary; without it, pirated content will continue to be viewed, replicated and communicated to the public, causing immense economic and moral loss to the plaintiffs and encouraging further illegalities.
id_1792	1	Moreover, as is clear from a viewing of one of the infringing websites, coolmoviez.cloud, the clear position that emerges is that serious illegalities are also sought to be committed by these websites and unlawful activities are also being encouraged as is clear from the following screenshots. Under these circumstances, the Plaintiffs have established a prima facie case for grant of an injunction. Balance of convenience is also in favour of the Plaintiffs in view of unauthorised and illegal use of Copyrighted contents by such rogue websites leading to significant monetary losses to the Plaintiffs. Irreparable harm and injury is likely to be caused if the injunction as sought is not granted., Accordingly, Defendant Nos. 1 to 45 arrayed as Annexure A, which are all rogue websites, shall stand restrained from streaming, reproducing, distributing, making available to the public and/or communicating to the public, in any manner, any copyrighted content of the Plaintiffs including future works of the Plaintiffs., In the facts and circumstances as set out above, an ex parte ad interim injunction is granted restraining the Defendants, who are all rogue websites, from in any manner streaming, reproducing, distributing, making available to the public and/or communicating to the public any copyrighted content of the Plaintiffs including future works of the Plaintiffs, in which ownership of copyright is undisputed, through their websites identified in the present suit or any mirror, redirect, alphanumeric websites, or any variations thereof including those websites which are associated with the Defendants' websites either based on the name, branding, identity of its operator, or discovered to provide additional means of accessing the Defendants' website, and other domains, domain along with their sub‑domains and sub‑directories, owners, website operators or entities or even sources of content., Insofar as Defendant Nos. 46 to 54 are concerned, the said Internet Service Providers shall give effect to this injunction by blocking the said websites. Defendant Nos. 55 and 56 – the Department of Telecommunications and the Ministry of Electronics and Information Technology respectively shall issue blocking orders against the websites within a period of one week from the release of the order., The Domain Name Registrars of the rogue websites' domain names, upon being intimated by the Plaintiffs, shall lock and suspend the said domain names. In addition, any details relating to the registrants of the said domain names including Know Your Customer information, credit card, mobile number, etc., shall also be provided to the Plaintiffs., Compliance with Order XXXIX Rule 3 of the Code of Civil Procedure shall be effected within one week. Compliance and service is permitted through email owing to the fact that the exact contact details or addresses of these parties are not known., Reply to the application shall be filed within four weeks from the service of the present order along with the paper book., List before the High Court of India on 21st March 2024., Defendant No.1 fztvseries.mobi; Defendant No.2 mobiletvshows.net IP 104.21.52.64; Defendant No.3 stagatv.com; Defendant No.4 vexmovies.uno; Defendant No.5 coolmoviez.cloud; Defendant No.6 coolmoviez.com.de; Defendant No.7 coolmoviez.com.co; Defendant No.8 aniwave.to; Defendant No.9 aniwave.bz; Defendant No.10 aniwave.ws IP 172.67.181.176; Defendant No.11 aniwave.tv; Defendant No.12 animehana.in; Defendant No.13 animesenpai4u.com; Defendant No.14 gogoanime.is; Defendant No.15 123animes.mobi; Defendant No.16 anix.to; Defendant No.17 freemovies2021.com; Defendant No.18 freemovieswatch.tv; Defendant No.19 freemovieswatch.net; Defendant No.20 medeberiyaa.com; Defendant No.21 medeberiyas.com; Defendant No.22 kinogo.biz; Defendant No.23 ridomovies.pw; Defendant No.24 1moviestv.com; Defendant No.25 moviehax.me; Defendant No.26 ripcrabbyanime.in IP 104.21.28.121; Defendant No.27 moviehunt.us; Defendant No.28 mlwbd.rent IP 104.21.21.92; Defendant No.29 mlwbd.digital; Defendant No.30 mlwbd.love; Defendant No.31 mlwbd.me; Defendant No.32 mlwbdofficial.com; Defendant No.33 mlwbd.photos; Defendant No.34 mov.onl; Defendant No.35 nyafilmer.gg; Defendant No.36 o2tvseries2.com; Defendant No.37 projectfreetv.one; Defendant No.38 raretoons.me IP 104.21.44.129; Defendant No.39 raretoonsindia.in.net IP 104.21.18.110; Defendant No.40 uflix.cc; Defendant No.41 watchmoviesb.top; Defendant No.42 waatchmovies.top; Defendant No.43 watchmoviiess.top; Defendant No.44 yifymovies.xyz; Defendant No.45 kickassanime.am; Defendant No.46 kaas.am; Defendant No.47 kickass.onl; Defendant No.48 kickass.help; Defendant No.49 hindimoviesonline.to; Defendant No.50 hindimovies.to; Defendant No.51 freedrivemovie.lol; Defendant No.52 freeseries.watch; Defendant No.53 hdmp4mania2.com; Defendant No.54 hdmp4mania1.net; Defendant No.55 genvideos.org; Defendant No.56 hdflixtor.com; Defendant No.57 24-hd.com; Defendant No.58 123serieshd.ru; Defendant No.59 anihdplay.com; Defendant No.60 nocensor.cloud IP 104.21.89.184; Defendant No.61 nocensor.click; Defendant No.62 showbox-movies.net; Defendant No.63 moviestowatch.tv; Defendant No.64 moviestowatch.cc; Defendant No.65 torrentbay.net.
id_1795	0	Reserved on 17 November 2023. Pronounced on 4 January 2024. Sukhpal Singh Khaira, Petitioner v. State of Punjab, Respondent. Present: Mr. Vikram Chaudhri, Senior Advocate with Mr. Keshavam Chaudhri, Advocate; Mr. Parvez Chaudhary, Advocate; Ms. Hargun Sandhu, Advocate; Mr. Digvijay Singh, Advocate; and Mr. Rishab Tiwari, Advocate for the petitioner. Mr. Harin P. Raval, Senior Advocate; Mr. Gurminder Singh, Advocate General, Punjab; Mr. Luvinder Sofat, Deputy Advocate General, Punjab; and Mr. Shiva Khurmi, Additional Advocate General, Punjab., FIR No. 35 dated 5 March 2015 was registered at Police Station Sadar Jalalabad under Sections 21, 24, 25, 27, 28, 29, 30, 27-A and 27-B of the Narcotic Drugs and Psychotropic Substances Act, 1985, Section 25-A of the Arms Act and Section 88 of the Information Technology Act. The petitioner, a Member of Legislative Assembly from Punjab and a former leader of the opposition, was initially neither named nor prosecuted in the FIR, but his role surfaced during a further investigation conducted by a new Special Investigation Team for violation of Sections 27-A and 27-B of the NDPS Act. The matter came up before the Supreme Court of India under Section 439 of the Code of Criminal Procedure, 1973, seeking bail., Counsel for the petitioner, on instructions, argued that if this Court grants bail to the petitioner, they would have no objection to any condition whatsoever and referred to paragraph 11 of the petition in which it was explicitly mentioned that the petitioner would comply with all conditions imposed by this Court. The petitioner contended that further pre‑trial incarceration would cause irreversible injury to the petitioner and his family., While opposing bail, counsel for the State argued that the quantity of contraband involved falls in the commercial category and that they have collected sufficient evidence that prima facie points towards the petitioner's dealings with the drug trade and the international mafia., Facts of the case are taken from a reply dated 18 October 2023 led by the concerned Superintendent of Police, which reads as follows: The brief background is that FIR No. 35 dated 5 March 2015 was registered under Sections 21, 24, 25, 27, 28, 29, 30 of the NDPS Act, 1985, Section 25 of the Arms Act, Section 66 of the Information Technology Act, 2000 at Police Station Sadar Jalalabad against eleven accused persons namely Harbans Singh, Subhash Chander, Gurdev Chand, Gurdev Singh, Manjit Singh U.K., Sonia, Manjit Singh son of Satnam Singh, Anil Kumar alias Neelu, Shany Singh, Nirmal Singh and Kala Singh alias Kali., In this case, the following recoveries were made from the aforesaid eleven accused persons: 1. Harbans Singh, son of Satnam Singh – 300 grams of heroin, one country‑made pistol .312 bore, two live cartridges (6 September 2015). 2. Subhash Chander, son of Shiva – 260 grams of heroin (6 September 2015). 3. Gurdev Chand, son of Nyamat Chand – 260 grams of heroin (6 September 2015). 4. Gurdev Singh, ex‑Chairman, son of Shiv Singh – 350 grams of heroin, 24 gold biscuits, one revolver .32 bore, 25 live cartridges of .32 bore, one Pakistani SIM card (6 September 2015). 5. Manjit Singh U.K., son of Buta Singh – 300 grams of heroin, one Pakistani mobile, one Pakistani SIM card (6 September 2015). 6. Sonia, wife of Anil Kumar alias Neelu – 100 grams of heroin (6 September 2015). 7. Manjit Singh, son of Satnam Singh (6 September 2015). 8. Shenty Singh, son of Charanjit Singh – 100 grams of heroin (6 September 2015). 9. Nirmal Singh alias Nimma, son of Iqbal Singh – 100 grams of heroin (6 September 2015). 10. Kala Singh alias Kaali, son of Madhi (18 October 2016). 11. Anil Kumar alias Neelu, son of Hans Raj – previously absconding and declared proclaimed offender on 1 December 2015, subsequently arrested on 16 April 2019 (31 August 2019). A total of 1.8 kilograms of heroin was recovered along with 24 gold biscuits, one country‑made pistol .315 bore with two live cartridges, one revolver .32 bore with 25 live cartridges, one Pakistani mobile and two Pakistani SIM cards., The other accused, from whose possession the police initially recovered a massive quantity of drugs, gold and weapons, were prosecuted before the Special Court, Fazilka. Before filing a police report under Section 173 of the Code of Criminal Procedure, 1973, on 8 May 2015, the petitioner had filed Criminal Writ Petition No. 8999 of 2015 in this Court, seeking an investigation by the Central Bureau of Investigation and other reliefs. On 14 July 2016, the State informed the Court that the petitioner had no cause of action to maintain and continue with this writ petition as the petitioner was not an accused in the case and the trial was already proceeding with two witnesses examined. Subsequently, on 16 March 2017, due to subsequent events, the petitioner withdrew the Criminal Writ Petition without prejudice to approach again if the need arose., In the trial, the testimonies of PW4 Ajmer Singh and PW5 Jaswant Singh were recorded, and on 6 July 2016 a request was made by the prosecution to recall them, which the Trial Court declined. By order dated 11 June 2017, the Government of Punjab constituted another Special Investigation Team headed by the Senior Superintendent of Police, Fazilka, to investigate the matter further. The trial against ten accused persons commenced in the Court of the Special Judge, Fazilka. At the final stage of the first trial, the State moved an application under Section 319 of the Code of Criminal Procedure to summon the petitioner as an accused. The State relied on the testimonies of PW4, PW5 and PW13. On 31 October 2017, the Special Judge, Fazilka convicted and sentenced nine accused to various terms mentioned in the judgment and acquitted one accused, whereas accused Anil (A‑11) had already been declared proclaimed offender. While pronouncing the judgment of conviction, the Sessions Judge also allowed the application led by the investigator under Section 319 of the Code of Criminal Procedure and issued non‑bailable warrants against the petitioner. The State’s counsel supplied a photocopy of the judgment, which has been examined. Counsel for the petitioner submitted that, according to his information, all the convicts have challenged the conviction by filing separate appeals pending adjudication., The petitioner challenged the non‑bailable warrants and the order passed in the application under Section 319 of the Code of Criminal Procedure by filing Criminal Revision Report No. 4070 of 2017. On 17 November 2017, a Coordinated Bench of this Court dismissed the revision petition but quashed the non‑bailable warrants. Aggrieved by the dismissal, the petitioner filed Special Leave Petition (Criminal) No. 9063 of 2017 before the Honourable Supreme Court of India. On 10 May 2019, in Sukhpal Singh Khaira v. State of Punjab, (2019) 6 SCC 638, a two‑member Bench of the Supreme Court formulated a question of law and referred the matter to a larger Bench., On 5 December 2022, a Constitutional Bench of the Supreme Court, in Sukhpal Singh Khaira v. State of Punjab, decided the reference as follows: (i) Whether the trial court has the power under Section 319 of the Code of Criminal Procedure to summon an additional accused when the trial with respect to other co‑accused has ended and the judgment of conviction is rendered on the same date before pronouncing the summoning order? The power under Section 319 is to be invoked and exercised before the pronouncement of the order of sentence where there is a judgment of conviction of the accused. In the case of acquittal, the power should be exercised before the order of acquittal is pronounced. Hence, the summoning order must precede the conclusion of trial by imposing sentence in the case of conviction. If the order is passed on the same day, it will have to be examined on the facts and circumstances of each case and such a summoning order passed after the order of acquittal or imposing sentence in the case of conviction will not be sustainable. (ii) Whether the trial court has the power under Section 319 of the Code of Criminal Procedure to summon an additional accused when the trial in respect of certain other absconding accused (whose presence is subsequently secured) is ongoing/pending, having been bifurcated from the main trial? The trial court has the power to summon an additional accused when the trial is proceeded in respect of the absconding accused after securing his presence, subject to the evidence recorded in the split‑up (bifurcated) trial pointing to the involvement of the accused sought to be summoned. However, the evidence recorded in the main concluded trial cannot be the basis of the summoning order if such power has not been exercised in the main trial before its conclusion., On 9 February 2023, a two‑member Bench of the Supreme Court of India passed the following order: (1) Indisputably, in the present cases the order under Section 319 of the Code of Criminal Procedure was passed by the learned High Court after the learned Trial Judge had pronounced the order of conviction and sentence against the accused who were being tried by the learned Trial Judge. (2) The order passed under Section 319 of the Code of Criminal Procedure against the present appellants was challenged before the learned Single Judge by way of revision petition dated 17 November 2017 of the High Court. The learned Single Judge rejected the revisions. Aggrieved thereby, present appeals were filed. (3) Since the Bench hearing the matter in this Court found that it involves an important issue, the matters were referred to a larger Bench. The Constitutional Bench, vide its judgment dated 5 December 2022 rendered in Sukhpal Singh Khaira v. State of Punjab, reported in (2022) 17 SCC 246, held that once the learned Trial Judge passes an order on sentence, the Court becomes functus officio and it is not within its jurisdiction to pass an order under Section 319 of the Code of Criminal Procedure. (4) Indisputably, in the present case, the orders under Section 319 of the Code of Criminal Procedure have been passed after the accused who were facing trial were convicted and sentenced. (5) In view of the law laid down by the Constitutional Bench in Sukhpal Singh Khaira (supra) these appeals are allowed. The order passed by the learned Trial Judge under Section 319 of the Code of Criminal Procedure against the appellants as well as by the learned Single Judge of the High Court are quashed and set aside., Subsequently, the petitioner and his personal assistant, Munish Kumar, filed an application before the Learned Judge of the Special Court, Fazilka, with a prayer to drop the proceedings, as an outcome of the order dated 9 February 2023 passed by the Supreme Court of India. On 13 April 2023, the Special Judge, Fazilka passed the following order: (a) The proceedings of this case arising out of the summoning order dated 31 October 2017 under Section 319 of the Code of Criminal Procedure pronounced by the learned predecessor of this Court stand disposed without prejudice to the right of the State, investigating agency or Special Investigation Team to carry out any investigation or inquiry with regard to the involvement of the applicants and other suspects in the smuggling of drugs or to present a charge sheet under Section 173 of the Code of Criminal Procedure. (b) The passports of both the applicants, Sukhpal Singh Khaira and Munish Kumar, be released to them forthwith against proper receipt while retaining photocopies of those passports on file for further reference., On 3 May 2023, the Special Court made the following observations: (1) The main file has been received with the record of trial arising out of FIR No. 35 dated 5 March 2015 under Sections 21, 24, 25, 27, 28, 29, 30 of the NDPS Act, Section 25/54 of the Arms Act and Section 66 of the Information Technology Act, 2000, which has been perused and considered. (2) By way of separate detailed orders dated 13 April 2023 and 17 April 2023 respectively, proceedings of this case against additional accused Sukhpal Singh Khaira, Munish Kumar and Joga Singh have been dropped in view of the order dated 9 February 2023 passed by the Honourable Supreme Court of India in Criminal Appeals No. 885 and 886 of 2019 on the basis of the ratio of judgment dated 5 December 2022 of the Supreme Court of India in Sukhpal Singh Khaira v. State of Punjab. By way of the ratio decidendi of this judgment, it has been held by the Constitutional Bench of the Supreme Court that once the trial judge passes an order on sentence, the court becomes functus officio and it is not within its jurisdiction to pass an order under Section 319 of the Code of Criminal Procedure. (3) Accordingly, additional accused Sukhpal Singh Khaira, Munish Kumar and Joga Singh have been exonerated from these proceedings vide orders as mentioned in paragraph 1 of this order. Since additional accused Charanjit Kaur and Major Singh Bajwa were also summoned under Section 319 of the Code of Criminal Procedure by way of the same order dated 31 October 2017, no further proceedings against Charanjit Kaur and Major Singh Bajwa can be carried out on the basis of such summoning order in view of the guiding principle laid down in Sukhpal Singh Khaira’s case (supra). Hence, the proceedings of this Criminal Miscellaneous Petition, so far as they arose out of the summoning order dated 31 October 2017 under Section 319 of the Code of Criminal Procedure, stand dropped against additional accused Charanjit Kaur and Major Singh Bajwa also. Before proceeding with this order, it is made clear that the dropping of these proceedings shall be without prejudice to the right of the State, investigating agency or Special Investigation Team to carry out any investigation or inquiry with regard to the involvement of these accused and other suspects in the smuggling of drugs or to present a charge sheet under Section 173 of the Code of Criminal Procedure. The proceedings stand dropped accordingly. File be consigned to record room., Subsequently, by order dated 4 September 2023, the Director, Bureau of Investigation, Punjab, constituted another Special Investigation Team to investigate FIR No. 35 of 2015. On 28 September 2023, vide report No. 5, the SIT added offences under Sections 27-A and 27-B of the NDPS Act and also arraigned Gurpreet Singh alias Gopi, Kashmir Singh alias Billa, Major Singh Bajwa, Charanjit Kaur, Sukhpal Singh Khaira (petitioner), Joga Singh (Personal Secretary of the petitioner) and Munish Kumar (Personal Assistant of the petitioner) as additional accused., During the investigation, Gurdev Singh (A‑6), an ex‑Chairman of the Market Committee, Dhilwan, and ex‑Sarpanch of Village Lakhan Ke Padde, disclosed his proximity to the petitioner, and the investigator gathered evidence of family relations between him and the petitioner. Accused Gurdev Singh disclosed to the investigator that the petitioner had assured him of all help and protection in case he was trapped in any drug‑tracking matter. In return, Gurdev Singh would provide funding for the elections of the petitioner and money as and when required., The petitioner, Sukhpal Singh Khaira, was arraigned as accused on 28 September 2023 and arrested on the same morning. The State, in its reply dated 18 October 2023, stated that during the pendency of the trial, an application dated 21 September 2017 was moved under Section 319 of the Code of Criminal Procedure to summon Joga Singh (Personal Secretary of Sukhpal Singh Khaira), Sukhpal Singh Khaira, Munish Kumar (Personal Assistant), Charanjit Kaur and Major Singh Bajwa. The application was moved on the following grounds: (i) During investigation, accused Gurdev Singh revealed that he had family relations with Sukhpal Singh Khaira and that the petitioner would protect him if he were trapped in any drug‑tracking case (Case Diary No. 04 dated 8 March 2015 recorded by SI Jaswant Singh, SHO, Police Station Sadar Jalalabad). (ii) It is also recorded in Case Diary No. 5 dated 9 March 2015 recorded by Shri Ajmer Singh, DSP, Sub‑Division Jalalabad that during investigation, accused Gurdev Singh revealed that he had family relations with Sukhpal Singh Khaira and had provided funds and vehicles to him during elections or whenever required., The State further stated that on 6 November 2017 another SIT was formed by the Senior Superintendent of Police, Fazilka, comprising the SP/D, Fazilka, DSP/Sub Division, Jalalabad and SHO, Police Station Sadar Jalalabad. This SIT submitted its report to the DIG, Ferozepur on 25 June 2021. However, the report was not accepted and remained pending with the DIG, Ferozepur. The report did not mention the other nine co‑accused and their roles in the findings of the previous SIT. This SIT did not summon or arrest the petitioner even after four years of investigation and did not appreciate the evidence brought on record against the petitioner in the charge sheet filed on 6 September 2015 against the aforesaid nine accused and the supplementary charge sheet filed against one accused on 31 August 2019. Due to the incomplete and unprofessional report of this SIT, departmental action has been taken against its members, vide Letter No. 3996‑3997/Crime/Inv. 5 dated 3 October 2021., During the interregnum, accused Anil Kumar alias Neelu was arrested on 16 April 2019. A police report under Section 173(8) of the Code of Criminal Procedure to charge accused Anil Kumar alias Neelu was presented to the court on 31 August 2019. In the charge sheet against Anil Kumar alias Neelu, it was mentioned that a final report under Section 173(8) of the Code of Criminal Procedure shall be presented after the decision of the Supreme Court of India in Special Leave Petition No. 9063 of 2017 filed by Sukhpal Singh Khaira and Special Leave Petition No. 9150 of 2017 filed by Joga Singh (Personal Secretary). The trial against accused Anil Kumar alias Neelu is ongoing in the trial court at Fazilka., Feeling aggrieved, the petitioner filed Criminal Writ Petition No. 9859 of 2023 to declare the arrest illegal and a violation of Article 21 of the Constitution of India and Sections 41 and 80 of the Code of Criminal Procedure, 1973. In the writ petition, the petitioner also challenged his arrest as void ab initio on the grounds of illegality and violation of Supreme Court judgments, stating that the application led by the State Government under Section 319 of the Code of Criminal Procedure for summoning the petitioner was refused by the Supreme Court, although it had been allowed by the Sessions Court and remanded by the High Court., During the pendency of the above‑mentioned criminal writ petition, counsel for the petitioner informed this Court of their intention to also lead a regular bail petition, and they wanted the same to be led before this Court because the writ petition challenging the illegality of the arrest was being argued before this Court. The petitioner’s counsel submitted that he was seeking interim bail under Section 482 of the Code of Criminal Procedure, 1973, and may be permitted to withdraw that prayer and lead a separate bail petition under Section 439 of the Code of Criminal Procedure, 1973, straightaway before this Court. The petitioner’s counsel further clarified that they would not claim any prejudice for losing an opportunity before the Sessions Court and by coming straightaway to this Court., Although the Sessions Court and High Courts have concurrent bail jurisdiction, as a practice, bail petitions are initially led before the Sessions Court and, thereafter, in the High Court. It is advantageous to the accused because even if the Sessions Court rejects bail, they can raise the same facts and refer the same judicial precedents before the High Court, adding new points, without waiting for a change in circumstances. Conversely, if an accused leads bail straightaway to the High Court, they lose this second inbuilt opportunity to have their matter reviewed within the highest court of the State., By order dated 11 October 2023, this Court permitted the petitioner to lead a separate petition for bail before this Court, not routing it through the Sessions Court. In this background and the exceptional circumstances, this Court heard the present bail petition on merits without deciding the legality of filing bail straightaway in this Court., The Court heard Mr. Vikram Chaudhary, Senior Advocate, Learned Counsel for the petitioner; Mr. Harin P. Raval, Senior Advocate; and Mr. Gurminder Singh, Advocate General for the State of Punjab, along with other counsel for the parties on various dates and has gone through the record. The following paragraphs reflect the arguments and counter‑arguments addressed by the parties and their outcome., The present FIR, in which the police arrested the petitioner on 28 September 2023, traces back to 5 March 2015. The investigator had received exceptionally reliable information that an international drug mafia was operating at the Pakistan border, and a person named Harbans Singh, who owned land at the border of India and Pakistan, was facilitating the drug smuggling. Completing the procedural requirement, a substantial number of police officials raided the premises and recovered massive amounts of heroin, gold and pistols from various accused. Upon completion of the investigation, the investigator led a police report under Section 173(2) of the Code of Criminal Procedure against eleven accused. Since the eleventh accused, Anil Kumar, could not be traced, he was mentioned as a proclaimed offender. The petitioner was neither named as an accused in the FIR nor in the report under Section 173 of the Code of Criminal Procedure., Mr. Vikram Chaudhary, Senior Advocate, Learned Counsel for the petitioner, referred to paragraph 5.1 of the bail petition and argued that the petitioner had been arrested because he parted ways with the Aam Aadmi Party, which is now the ruling party in Punjab. He referred to paragraph 5.6 of the bail petition and stated that it is regime revenge by fabricating, padding and creating false evidence. He further referred to paragraphs of the petition to substantiate his submission. On this, Mr. Harin P. Raval, Senior Advocate and Mr. Gurminder Singh, Advocate General for the State of Punjab vehemently denied such allegations and termed them false, baseless and figments of imagination, and further stated that the FIR was registered when the present ruling party (AAP) was not even in power; as such, the allegations are simply to divert attention from the petitioner’s involvement in the heinous crime and his connection with Pakistani smugglers and foreign handlers. The Court refrains from commenting on these arguments at the bail stage., The petitioner’s counsel’s next submission is that the arrest itself was illegal and has referred to various paragraphs of the bail petition. The Advocate General, Punjab countered that the petitioner had led a separate criminal writ petition challenging his arrest as illegal, and as such, these points could not be considered in the present bail petition. The Court agrees that the scope of these submissions might need an answer in the connected writ petition, but given that the same pleas have been taken up in both petitions, the points have to be considered in the criminal writ petition which was filed first, and not in the present bail petition which is led later. The Advocate General, Punjab, referred explicitly to the affidavit of Sukhpal Singh Khaira dated 12 September 2016 filed in Criminal Writ Petition No. 8999 of 2015, in which he stated that the period of one year and nine months of no action against the deponent has not derailed the investigation in any manner and has not caused any prejudice to anyone. The deponent is not seeking the Honourable Court to restrain the State from investigating the matter against him but is only beseeching the Court to grant him one month’s time if the investigating agency finally decides to arraign the deponent as an accused in the FIR. The relief is sought only for the purpose of availing legal remedies to the deponent. The State can demonstrate the nature of evidence and allegations as collected against the deponent at the time of arguments while availing those legal remedies, but if the deponent is arrested suddenly, the same shall cause a serious violation of Article 21 of the Constitution of India. As the deponent is a political figure and elections are to be conducted in the State of Punjab within six months, the fear and apprehension of being involved in this case would seriously hamper the deponent’s political campaign as required during the election process. The Honourable High Court has many times before rescued persons situated alike as the deponent having fear of false implication due to political vendetta., The petitioner’s counsel argued that the Supreme Court of India has granted no leave or liberty to the State of Punjab to conduct any further inquiry or investigation insofar as the petitioner is concerned. Further, no application for review or recall of the order passed by the Supreme Court has ever been filed or is pending before the Supreme Court on behalf of the State of Punjab, and it is not discernible how, why, or under what circumstances the Court could issue any direction for further inquiry or investigation against the petitioner or to lead a charge sheet under Section 173 of the Code of Criminal Procedure once the Supreme Court had nullified the proceedings initiated against him., Counsel for the petitioner further argued that the prosecution could not take into consideration the evidence which was part of the trial at the first stage and this fact is clear from the judgment of the Supreme Court in the petitioner’s case while deciding the reference, which stated: The trial court has the power to summon an additional accused when the trial is proceeded in respect of the absconding accused after securing his presence, subject to the evidence recorded in the split‑up (bifurcated) trial pointing to the involvement of the accused sought to be summoned. But the evidence recorded in the main concluded trial cannot be the basis of the summoning order if such power has not been exercised in the main trial before its conclusion., The Advocate General contended that the investigation against Anil (A‑11) was ongoing; and while filing the police report against the ten accused, it was explicitly mentioned that the petitioner was a suspect and further investigation was being conducted. Further investigation brought the evidence to the surface and Gurdev Singh, who is one of the accused (the Government of Punjab conveys that they are in the process of giving him pardon and are exploring steps to declare him as an approver), is a political acquaintance and supporter of the petitioner. In a nutshell, the investigator found further evidence about the exchange of calls between Gurdev Singh (A‑6), Charanjit Kaur and Major Singh Bajwa, who was the handler of a drug cartel and the petitioner. The prosecution referred to the investigation conducted by Ravinder Pal Singh, who also testified as PW‑13 in the first session trial titled State of Punjab v. Harbans Singh and others. He further submitted that the evidence adduced during the first trial has to be read in the light of the observations made by the Constitutional Bench (supra) and the fact remains that the State referred to the cartel and at that time did not arraign the petitioner as an accused., The Advocate General further submitted that Gurdev Singh had been giving the proceeds of the drugs to Sukhpal Singh Khaira since 1997 and was funding the elections of Sukhpal Singh Khaira, and in return Sukhpal Singh Khaira would assure protection from the drug detection squads.
id_1795	1	Gurdev Singh was working as per the dictates of his handler operating from the United Kingdom. Apart from this the members of the international drug cartel, Sukhpal Singh Khaira and Gurdev Singh had close association with Ranjit Singh alias Dara, a resident of Muthada, who is absconding in cases registered against him in Districts Fatehgarh Sahib and Patiala. The said Ranjit Singh alias Dara was wanted in the famous Bhola drug case. The technical details about the movement and Call Detail Records and the conversation between Gurdev Singh, Charanjit Kaur, Major Singh Bajwa and Sukhpal Singh Khaira confirmed his involvement and depicted the nexus among the members of the drug cartel. The Special Investigation Team (SIT) recommended an investigation based on the suspicious role of Sukhpal Singh Khaira and submitted its report on 14 March 2016 to the Inspector General of Police, Bathinda. The fact that despite such a report and its acceptance, he could successfully avoid lawful investigation into the crime and his involvement is grounds for denying him bail., The learned Advocate General, Punjab, submits that the investigation was continuing, and it was explicitly mentioned in the police report under Section 173 of the Code of Criminal Procedure that one person, 1212 of 35, was an absconder and an investigation was going on. It cannot be said that the remaining would be absolved simply because prosecution was launched against some of the accused. He further submits that the Investigation Agency was previously siding with the petitioner. Despite the availability of the clinching evidence, they chose not to prosecute him as an accused. He submitted that crime never dies, and now the present regime, which is making all‑out efforts to curb the drug menace and control corruption in government employees, has launched action against all initiatives against these mafias, corrupt government officials and their supporters. The learned Advocate General further argued that the petitioner is not entitled to bail solely for the reason that initially, at his instance and due to his clout, the Investigation Agency sided with him, and now, in case this Supreme Court of India grants bail, there is a likelihood of the petitioner hampering the evidence and influencing the trial. He further submits that even per call details, the petitioner was constantly in touch with the co‑accused, who operate from the United Kingdom. This, coupled with the recovery of the Pakistani SIM card, establishes an international connection, and the conviction of other accused by the Special Court, Fazilka, Punjab establishes the involvement of such petitioner in the drug cartel, and as such, he is not entitled to bail. He further submits that the petitioner is the kingpin because he had given patronage to the mafia and has massive assets that are disproportionate to the known source of income, corroborating the majority of such assets and drug money that he received as a share in helping in dealing with the international drug mafia. He further submits that the fresh evidence collected by the Punjab Police is corroborated by the Enforcement Directorate, which has launched a separate prosecution against the petitioner for money laundering and unaccounted wealth., The reply stated that during the pendency of the investigation, vide order No. 3227‑31/Reader dated 09 March 2015, an SIT was constituted by the Inspector General of Police, Bathinda to investigate the case above FIR No. 35 of 2015, registered in the police station, Sadar Jalalabad. During the investigation of the case, the police report under Section 173(2) of the Code of Criminal Procedure was presented to the High Court of Punjab and Haryana on 06 September 2015 again mentioning nine accused (except the absconding accused Kala Singh alias Kaali and Anil Kumar alias Neelu) out of eleven accused persons mentioned above. The reply does mention that further investigation of other accused persons shall continue, and supplementary police report(s) under Section 173(8) of the Code of Criminal Procedure shall be presented to the court at the proper time. Report under Section 173(8) was led against Kala Singh alias Kaali on 18 October 2016. Accused Anil Kumar alias Neelu was declared a proclaimed offender on 01 December 2015 and was ultimately arrested on 16 April 2019, against whom a charge sheet under Section 173(8) of the Code of Criminal Procedure was led on 31 August 2019. The trial of Anil Kumar alias Neelu is pending in the Special Court, Fazilka, Punjab. The reply also states that the investigation conducted by the SIT collected massive evidence of the accused being part of an international drug cartel and added offence under Sections 27‑A and 27‑B of the Narcotic Drugs and Psychotropic Substances Act vide report No.5 dated 28 September 1993, the involvement of the following nine persons who are facilitating drug trafficking in the State of Punjab as well as across the border on an international level: Gurpreet Singh alias Gopi; Kashmir Singh alias Billa; Major Singh Bajwa; HC Joga Singh No. 4/24 IRB; Sukhpal Singh Khaira (petitioner); Charanjit Kaur; Baljit Kaur alias Bindo; Manish PA; Harjit Singh., Since this Supreme Court of India is adjudicating a bail petition, the evidence whatever gathered by the State before the consideration of their application under Section 319 of the Code of Criminal Procedure is not relevant at this stage in view of the order of the Supreme Court of India. This Court is taking into consideration evidence collected thereunder. It is clarified that these observations are only for the purpose of deciding the present bail petition, with no bearing whatsoever while adjudicating any other petition and any subsequent petition, or at the time of discharge, or during the trial, if the stage arises., An analysis of the response leads to a clear inference that the evidence collected against the petitioner, which does not form part of the first trial, is sketchy and inconclusive. However, it remains undisputed that the quantity which is attributed to the petitioner with the aid of Sections 27‑A, 27‑B and 29 of the Narcotic Drugs and Psychotropic Substances Act, which was initially recovered from most co‑accused (convicts) falls under the commercial category. Section 371 of the Narcotic Drugs and Psychotropic Substances Act mandates under sub‑section (1)(b) of Section 37, that no person accused of an offence punishable for offences involving commercial quantity shall be released on bail unless (i) the Public Prosecutor has been given an opportunity to oppose the application of release, and (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and is not likely to commit any offence while on bail. Thus, the rigours of Section 37 of the Narcotic Drugs and Psychotropic Substances Act apply in the present case, and the burden is on the petitioner to satisfy the twin conditions put in place by the Legislature under Section 37 of the Narcotic Drugs and Psychotropic Substances Act., The learned Advocate General submitted that mere reading of Section 37 reveals that the legislature intends to make the law stringent to curb the drug menace. It is further to be noted that the provisions are couched in negative language, meaning that to grant bail, the Court needs to record a finding that there are reasonable grounds for believing that the petitioner is not guilty of the offence. The burden of proof is also on the petitioner to satisfy the Court about his non‑involvement in the case. While interpreting the provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, the Court must be guided by the objective sought to be achieved by promulgating these stringent conditions. The movement and call details chart of Gurdev Singh, Charanjit Kaur and Major Singh Bajwa (drug cartel handler), nexus within the cartel and conversation chart, and the interpretation of call detail of Sukhpal Singh Khaira, Gurdev Singh, Charanjit Kaur and Major Singh Bajwa was verified by ASI/LR Ravinderpal Singh, which points out towards the petitioner's involvement. These technical details and analysis clearly show the nexus and the business association among the cartel members., In Tofan Singh v. State of Tamil Nadu, 2020 INSC 620, the majority view of the larger bench of the Supreme Court of India is that a confessional statement is not admissible in evidence. This view has been followed by the Supreme Court of India in Criminal Appeal 1273 of 2021, Sanjeev Chandra Agarwal v. Union of India, decided on 25 October 2021., In Narcotics Control Bureau v. Kishan Lal, (1991) 1 SCC 705, the Supreme Court of India held that Section 37 as amended starts with a non‑obstante clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973, no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein are satisfied. The Narcotic Drugs and Psychotropic Substances Act is a special enactment enacted with a view to make stringent provision for the control and regulation of operations relating to narcotic drugs and psychotropic substances. Accordingly, when the provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act are in negative terms limiting the scope of the applicability of the provisions of the Code of Criminal Procedure regarding bail, it cannot be held that the High Court's powers to grant bail under Section 439 of the Code of Criminal Procedure are not subject to the limitation mentioned under Section 37 of the Narcotic Drugs and Psychotropic Substances Act. In case of inconsistency between Section 439 of the Code of Criminal Procedure and Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, Section 37 prevails., In Union of India v. Thamisharasi, (1995) 4 SCC 190, the Supreme Court of India held that the question is whether Section 37 of the NDPS Act is an inconsistent provision to exclude the applicability of the proviso to sub‑section (2) of Section 167 of the Code of Criminal Procedure when sub‑section (2) of Section 167 is expressly made applicable by the NDPS Act. The non‑obstante clause at the beginning of clauses (a) and (b) thereof are inconsistent with the corresponding provisions of the Code. Clause (a) makes every offence punishable under this Act cognizable. Clause (b) imposes limitations on granting bail specified therein which are in addition to the limitations under the Code of Criminal Procedure on granting bail as stated in sub‑section (2) of Section 37. Clause (b) of sub‑section (1) specifies the two limitations on granting bail, namely, (i) an opportunity to the Public Prosecutor to oppose the bail application and (ii) satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail., In Union of India v. Ram Samujh, (1999) 9 SCC 429, the Supreme Court of India held that to check the menace of dangerous drugs flooding the market, Parliament has provided that a person accused of offences under the NDPS Act should not be released on bail during trial unless mandatory conditions provided in Section 37, namely, (i) there are reasonable grounds for believing that the accused is not guilty of such offence; and (ii) that he is not likely to commit any offence while on bail, are satisfied. The High Court had not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent accused on bail., In Union of India v. Merajuddin, (1999) 6 SCC 43, a three‑Judge Bench of the Supreme Court of India while cancelling bail observed that the High Court appeared to have completely ignored the mandate of Section 37 of the Narcotic Drugs and Psychotropic Substances Act while granting bail and overlooked the prescribed procedure., In Superintendent Narcotics Central Bureau Chennai v. R. Paulsamy, (2000) 9 SCC 549, the Supreme Court of India held that in the light of Section 37 of the Act no accused can be released on bail when the application is opposed by the Public Prosecutor unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail. It is unfortunate that matters which could be established only in evidence regarding compliance with Sections 52 and 57 have been pre‑judged by the learned single Judge at the stage of consideration for bail., In Babua v. State of Orissa, (2001) 2 SCC 566, the Supreme Court of India held that under Section 37(1)(b) of the Act, unless there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail, bail cannot be granted. The petitioner attempted to secure bail on various grounds but failed. The Court must consider whether the statements made on behalf of prosecution witnesses, if believable, would result in conviction of the petitioner., In Bijando Singh v. Md. Ibocha, 2001 LawSuit (SC) 1470, the Supreme Court of India held that the High Court, in granting bail, did not consider the provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act., In Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549, the Supreme Court of India held that the limitations on granting bail arise only when the question of granting bail arises on merits. Apart from the opportunity to the Public Prosecutor, the twin conditions that have relevance are (i) satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and (ii) that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. \Reasonable grounds\ means something more than prima facie grounds; it contemplates substantial probable cause., In N.C.B. Trivandrum v. Jalaluddin, (2004) LawSuit (SC) 1598, the Supreme Court of India observed that where the Public Prosecutor opposes the bail application, the court should be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail. The impugned order did not record any such satisfaction., In Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, (2005) 5 SCC 294, the Supreme Court of India reiterated that the presumption of innocence is a human right and that the opportunity to the Public Prosecutor to oppose an application for release of an accused appears to be a reasonable restriction. The court must record a finding of reasonable grounds for believing that the accused is not guilty before granting bail., In Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798, the Supreme Court of India held that no person shall be granted bail unless the two conditions are satisfied: (i) the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty, and (ii) that he is not likely to commit any offence while on bail. The expression \reasonable grounds\ connotes substantial probable cause., In N.R. Mon v. Md. Nasimuddin, (2008) 6 SCC 721, the Supreme Court of India held that the limitations on granting bail arise only when the question of granting bail arises on merits. The twin conditions are the Court's satisfaction that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail., In Union of India v. Raghunath Mallik alias Habul, (2009) 2 SCC 624, the Supreme Court of India clarified that while considering an application for bail with reference to Section 37 of the Narcotic Drugs and Psychotropic Substances Act, the Court is not called upon to record a finding of \not guilty\; it must only be satisfied that reasonable grounds exist for such a belief.
id_1795	2	At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a position finding as to whether or not the accused has committed an offence under the Narcotic Drugs and Psychotropic Substances Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the Supreme Court of India about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail., In Union of India v. Sanjeev v. Deshpande, (2014) 13 SCC 1, a three‑judge bench of the Supreme Court of India holds, [5]. In other words, Section 37 departs from the long‑established principle of presumption of innocence in favour of an accused person unless proved otherwise., In Union of India v. Niyazuddin, (2018) 13 SCC 738, (Decided on 28‑07‑2017) the Supreme Court of India holds, [7]. Section 37 of the NDPS Act contains special provisions with regard to grant of bail in respect of certain offences enumerated under the said Section. They are: (1) In the case of a person accused of an offence punishable under Section 19, (2) Under Section 24, (3) Under Section 27A and (4) Of offences involving commercial quantity. The accusation in the present case is with regard to the fourth factor namely, commercial quantity. Once the Public Prosecutor opposes the application for bail to a person accused of the enumerated offences under Section 37 of the NDPS Act, and the court proposes to grant bail to such a person, two conditions are to be mandatorily satisfied in addition to the normal requirements under the provisions of the Code of Criminal Procedure or any other enactment. (1) The court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence; (2) that person is not likely to commit any offence while on bail. There is no such consideration with regard to the mandatory requirements while releasing the respondents on bail. Hence, we are satisfied that the matter needs to be considered afresh by the High Court. The impugned order is set aside and the matter is remitted to the High Court for fresh consideration. It will be open to the parties to take all available contentions before the High Court., In Satpal Singh v. State of Punjab, (2018) 13 SCC 813, (Decided on 27‑03‑2018) a bench of three judges of the Supreme Court of India directed that since the quantity involved was commercial, the High Court could not have and should not have passed the order under Sections 438 or 439 of the Code of Criminal Procedure, without reference to Section 37 of the NDPS Act., In State of Kerala v. Rajesh, (2020) 12 SCC 122 (Decided on 24‑01‑2020), while canceling the post‑arrest bail granted to the accused, the Supreme Court of India held that any concession of release granted without satisfying the mandate of Section 37(1)(b)(ii) is bad in law. While discussing the broad parameters laid down for grant of bail in NDPS cases, the Court held that the expression \reasonable grounds\ means something more than prima facie grounds. It contemplates substantial probable cause for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the Code of Criminal Procedure, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for., In Sujit Tiwari v. State of Gujarat, 2020 SCC OnLine SC 84, (Decided on 28‑01‑2020) the Supreme Court of India, in the given facts, granted bail, observing, [10]. The prosecution story is that the appellant was aware of what his brother was doing and was actively helping his brother. At this stage we would not like to comment on the merits of the allegations levelled against the present appellant. Apart from a few WhatsApp messages and his own statement which he has rescinded, there is very little other evidence. At this stage it appears that the appellant may not have even been aware of the entire conspiracy because even the prosecution story is that the brother himself did not know what was loaded on the ship until he was informed by the owner of the vessel. Even when the heroin was loaded in the ship it was supposed to go towards Egypt and that would not have been a crime under the NDPS Act. It seems that Sujit Tiwari and other crew members then decided to make much more money by bringing the ship to India with the intention of disposing of the drugs in India. During this period the Master Sujit Tiwari took the help of Vishal Kumar Yadav and Irfan Sheikh who had to deliver the consignment to Suleman who had to arrange the money for delivery. The main allegation made against the appellant is that he sent the list of the crew members, including the names of four Iranians and Esthekhar Alam, to Vishal Kumar Yadav and Irfan Sheikh through WhatsApp with a view to make their disembarkation process easier. Even if we take the prosecution case at the highest, the appellant was aware that his brother was indulging in some illegal activity because obviously such huge amount of money could not be made otherwise. However, at this stage it cannot be said with certainty whether he was aware that drugs were being smuggled on the ship or not, though the allegation is that he made such a statement to the NCB under Section 67 of the NDPS Act. At this stage, without going into the merits, we feel that the case of the appellant herein is totally different from the other accused. A reasonable possibility is there that he may be acquitted. He has been behind bars since his arrest on 04‑08‑2017 i.e. for more than two years and he is a young man aged about 25 years. He is a B.Tech graduate. Therefore, under the facts and circumstances of this case we feel that this is a case where the appellant is entitled to bail because there is a possibility that he was unaware of the illegal activities of his brother and the other crew members. The case of the appellant is different from that of all the other accused, whether it be the Master of the ship, the crew members or the persons who introduced the Master to the prospective buyers and the prospective buyers. We, however, feel that some stringent conditions will have to be imposed upon the appellant., In Union of India v. Prateek Shukla, (2021) 5 SCC 430, (Decided on 08‑03‑2021), the Supreme Court of India holds, [12]. Merely recording the submissions of the parties does not amount to an indication of a judicial or, for that matter, a judicious application of mind by the Single Judge of the High Court to the basic question as to whether bail should be granted. The provisions of Section 37 of the NDPS Act provide the legal norms which have to be applied in determining whether a case for grant of bail has been made out., In Shreyansh Jhabak v. State of Chhattisgarh, decided on 20‑09‑2021, Law Finder Doc Id # 2004763, the Supreme Court of India holds, [4]. No recovery has been made from the petitioner. The petitioner has been implicated on the basis of statements made by a co‑accused under Section 164 of the Code of Criminal Procedure. There is apparently no other material against him. Investigation was completed in December 2020 and the final report has been led. A co‑accused has also been enlarged on bail. The High Court arrived at the prima facie conclusion that the petitioner was a habitual offender only on the basis of statements of co‑accused, which would be inadmissible. There were no materials against the petitioner apart from the statements of the co‑accused. In the circumstances, we deem it appropriate to grant bail to the petitioner on stringent conditions to be imposed by the Trial Court, including but not limited to conditions with regard to sureties, bail bonds etc. Apart from reporting to the investigating authority on a regular basis, the petitioner shall not leave the jurisdiction of the Trial Court without leave of the Court., In Union of India through NCB, Lucknow v. Md. Nawaz Khan, (2021) 10 SCC 100, (Decided on 22‑09‑2021), the Supreme Court of India holds, [28]. As regards the finding of the High Court regarding absence of recovery of the contraband from the possession of the respondent, we note that in Union of India v. Raghuvansh Mallik, (2009) 2 SCC 624, a two‑judge bench of this Court cancelled the bail of an accused and reversed the finding of the High Court, which had held that as the contraband (heroin) was recovered from a specially made cavity above the cabin of a truck, no contraband was found in the 'possession' of the accused. The Court observed that merely making a finding on the possession of the contraband did not fulfil the parameters of Section 37(1)(b) and there was non‑application of mind by the High Court. In line with the decision of this Court in Raghuvansh Mallik, we are of the view that a finding of the absence of possession of the contraband on the person of the respondent by the High Court in the impugned order does not absolve it of the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act., In Bharat Chaudhary v. Union of India, 2021 SCC OnLine SC 1235, a three‑judge bench of the Supreme Court of India holds, [10]. Carefully examining the arguments advanced by learned counsel for the parties and having cursorily glanced at the records, we are of the opinion that the impugned order cancelling the bail granted in favour of Bharat Chaudhary is not sustainable in view of the fact that the records sought to be relied upon by the prosecution show that one test report dated 6 December 2019, two test reports dated 17 December 2019 and one test report dated 21 December 2019 in respect of the sample pills/tablets drawn and sent for testing by the prosecution agency conclude with a note appended by the Assistant Commercial Examiner at the foot of the reports stating that \quantitative analysis of the samples could not be carried out for want of facilities\. In the absence of any clarity so far on the quantitative analysis of the samples, the prosecution cannot be heard to state at this preliminary stage that the petitioners have been found to be in possession of commercial quantity of psychotropic substances as contemplated under the NDPS Act. Furthermore, a large number of the tablets that have been seized by the DRI allegedly contain herbs/medicines meant to enhance male potency and they do not attract the provisions of the NDPS Act. Most importantly, none of the tablets were seized by the prosecution during the course of the search conducted, either at the office or at the residence of the petitioner at Jaipur, on 16 March 2020. Reliance on printouts of WhatsApp messages downloaded from the mobile phone and devices seized from the office premises of the petitioner cannot be treated at this stage as sufficient material to establish a live link between him and the co‑accused, when even as per the prosecution, scientific reports in respect of the said devices are still awaited., In State (NCB) Bengaluru v. Pallulabid Ahmad Arimu, 2022 SCC OnLine SC 47, (Decided on 10‑01‑2022), a three‑judge bench of the Supreme Court of India holds, [11]. It has been held in clear terms in Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1, that a confessional statement recorded under Section 67 of the NDPS Act will remain inadmissible in the trial of an offence under the NDPS Act. In the teeth of the aforesaid decision, the arrests made by the petitioner‑NCB, on the basis of the confession/voluntary statements of the respondents or the co‑accused under Section 67 of the NDPS Act, cannot form the basis for overturning the impugned orders releasing them on bail. The CDR details of some of the accused or the allegations of tampering of evidence on the part of one of the respondents is an aspect that will be examined at the stage of trial. For the aforesaid reason, this Court is not inclined to interfere in the orders dated 16 September 2019, 14 January 2020, 16 January 2020, 19 December 2019 and 20 January 2020 passed in SLP (Crl.) No. 22702/2020, SLP (Crl.) No. 1454/2021, SLP (Crl.) No. 1465/2021, SLP (Crl.) No. 177374/2021 and SLP (Crl.) No. 2080/2021 respectively. The impugned orders are, accordingly, upheld and the Special Leave Petitions filed by the petitioner‑NCB seeking cancellation of bail granted to the respective respondents are dismissed as meritless. However, the evidence brought before us again concerning Mohammed Afzal (A‑2), respondent in SLP (Crl.) No. 1569/2021, subject matter of the second case i.e., NCB Case FN No. 48/01/07/2019/BZU, who was granted bail vide order dated 08 January 2020, will have to be treated on an entirely different footing. There are specific allegations levelled against the said respondent regarding recovery of substantial commercial quantities of drugs from a rented accommodation occupied by him pursuant to which he was arrested on 16 June 2019. This aspect has been completely overlooked while passing the order dated 08 January 2020 wherein, the only reason that appears to have weighed with the High Court for releasing him on bail is that his case stands on the same footing as A‑1, A‑3 and A‑4 who had been enlarged on bail vide orders dated 11 October 2019, 16 September 2019 and 09 September 2019, in connection with the second case registered by the Department. We are of the view that A‑2 cannot seek parity with the aforesaid co‑accused and no such benefit could have been extended to him in view of Section 37 of the Act when he was found to be in conscious possession of commercial quantity of psychotropic substances, as contemplated under the NDPS Act. That being the position, the petitioner‑NCB succeeds in SLP (Crl.) No. 1569/2021. The bail granted to the respondent Mohammed Afzal (A‑2) is cancelled forthwith and he is directed to surrender before the Sessions Court/Special Judge (NDPS) within a period of two weeks for being taken into custody., In Narcotics Control Bureau v. Mohit Aggarwal, Criminal Appeal Nos. 1001‑1002 of 2022, decided on 19‑07‑2022, the Supreme Court of India holds, [11]. It is evident from a plain reading of the non‑obstante clause inserted in sub‑section (1) and the conditions imposed in sub‑section (2) of Section 37 that there are certain restrictions placed on the power of the Supreme Court of India when granting bail to a person accused of having committed an offence under the NDPS Act. Not only are the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973 to be kept in mind, the restrictions placed under clause (b) of sub‑section (1) of Section 37 are also to be factored in. The conditions imposed in sub‑section (1) of Section 37 are that (i) the Public Prosecutor ought to be given an opportunity to oppose the application moved by an accused person for release and (ii) if such an application is opposed, then the Court must be satisfied that there are reasonable grounds for believing that the person accused is not guilty of such offence. Additionally, the Court must be satisfied that the accused person is unlikely to commit any offence while on bail. The expression \reasonable ground\ was discussed in State of Kerala and others v. Rajesh and others (2020) 12 SCC 122 and this Court observed: \The expression 'reasonable grounds' means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence...\ To sum up, the expression \reasonable grounds\ used in clause (b) of Sub‑section (1) of Section 37 would mean credible, plausible grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have committed such offence. Detailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail. We may clarify that at the stage of examining an application for bail in the context of Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail., In Mohd. Muslim alias Hussain v. State (NCT of Delhi), 2023 SCC OnLine SC 352, the Supreme Court of India holds, [20]. A plain and literal interpretation of the conditions under Section 37 (i.e., that the Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the Court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation would result in complete denial of bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act., In Ankush Kumar @ Sonu v. State of Punjab, (2018) SCC Online P&H 1259, a single bench of the Punjab and Haryana High Court observed, [43]. However, more problem lies with the second part of Section 37(1)(b)(ii), which requires the Court to be satisfied that there are reasonable grounds for declaring that the accused is not likely to commit any offence while on bail. This part of Section 37(1)(b)(ii) militates against the rationale and reasoning considered by the Supreme Court of India in the case of Nikesh Tarachand Shah, wherein it has implied that if such language extends in operation not only to the offence under the special Act but also to any offence under any other legal provision where such conditions are not required to be applied for grant of bail then such language enters the realm of unconstitutionality. Therefore, this language is also arbitrary because it requires the Court to satisfy itself that the petitioner is not likely to commit any offence on the earth while bail. Had this Section restricted the requirement of the satisfaction of the Court that the accused is not likely to commit any offence under the NDPS Act, then probably it could have some rational behind it. However, since the language of the second part has been thrown open the entire criminal arena to be considered by the Court before grant of bail under the NDPS Act, therefore, this language does not have even the nexus to the object to be achieved by the NDPS Act. Moreover, a Court of law would always be well advised to keep in mind that prophecy is not its domain. No Court, however trained, can be reasonably satisfied that a person would not commit any offence, may be even under the NDPS Act, coming out of custody. It can only be a guess‑work, which may or may not turn out to be correct. However, it is not the guess‑work which is mandated, but it is reasonable satisfaction. It can occur to mind that if a person is a first offender then he is not likely to commit an offence again or that if a person has committed, say, ten offences then he is more likely to commit an offence again. But it has to be kept in mind that the second, third, fourth and the Nth offence is always committed by an accused only after the first, having committed the first offence. Likewise, there cannot be any reason and therefore, the reasonable ground to believe that if a person has committed ten offences, he is again likely to commit the offence. Examples galore in daily life when a criminal calls it a day, say, a tenth crime also. All scriptures do tell us as to how Maharishi Balmiki turned into a Maharishi and created that Epic, which became a treasure of one of the biggest religions of the world. Furthermore, as observed above, an offence is a conduct of a person as reflected into facts or set of facts made punishable by law, the Court cannot grope into approximation and arrive at any degree of satisfaction as to whether a person would indulge in set of facts after coming out of custody. The crime being based on mens‑rea is a function of mental state of an individual, which cannot be guessed by any Court in advance, by any means. Moreover, as observed above, it is not the guess‑work but the possibility of future conduct and mental state of accused, which is required under the second part of Section 37(1)(b)(ii). It is the reasonable satisfaction on the basis of the material on record which is required. By extension of any human logic, it cannot be said that the Court can record any degree of satisfaction, based on some reasonable ground, as to whether a person would commit an offence or would not commit an offence after coming out of custody. Neither the Court would be able to record a satisfaction that the accused would, likely, commit the offence after coming out of custody, nor would the Court be able to record a satisfaction that the accused would not commit any offence after coming out of custody. Hence, the second part of Section 37(1)(b)(ii) requires a humanly impossible act on the part of the Court. Since the second part of Section 37(1)(b)(ii) requires a satisfaction of the Court, which is impossible by extension of any human logic, therefore, this is an irrational requirement. There is no rational way for a Court to record its satisfaction or to arrive at this satisfaction qua possible future conduct and mental state of an accused. Even the sophisticated psychological theories of human behaviour, using sophisticated statistical tools of factorisation, based on common minimum behavioural factors in large number of people, are still struggling to find a credible answer in this regard., The main argument of counsel for the petitioner is that the phone calls are old, and the calls made between the petitioner and his PSO and Secretary were done in the ordinary course of business and cannot be attributed as having been made for the drug trade. He further submits that even if these call records are not intercepted for tapping, mere records of receiving phone calls do not disclose the conversation. The entire evidence against the petitioner revolves around these specific phone calls, which are actually between Gurdev Singh, the petitioner, etc. While filing the police report under Section 173(2) of the Code of Criminal Procedure against ten accused, they did not name the petitioner as an accused, and this is the main categorical submission to this Court in the writ petition that the petitioner led. He further submits that, thus, practically speaking, except old call details between the petitioner and his PSO and Secretary, there is no new evidence that the Investigator has collected against the petitioner, and as such, on this ground alone, the petitioner is entitled to bail., The foundational submission made by the learned Advocate General for the State of Punjab is that the summoning of an accused under Section 319 of the Code of Criminal Procedure and further investigation by the Special Investigation Team are separate and distinct aspects of the criminal justice system. In the first charge sheet submitted by the police in this case, it was very clearly mentioned that further investigation against the suspects is still underway, along with an investigation against the named accused absconding.
id_1795	3	After the arrest of absconding accused Anil Kumar alias Neelu, a chargesheet was presented against him on 31 August 2019, in which his name was mentioned along with the fact that, in the meantime, the Supreme Court of India exercised power under Section 319 of the Code of Criminal Procedure based on evidence recorded in court, which was made subject matter of challenge and, as a Special Leave Petition was pending, the police reserved the right to further investigation and led a supplementary chargesheet under Section 173(8) of the Code of Criminal Procedure. It is submitted that the trial against one of the accused, Anil, is continuing before the Special Court, Fazilka. There is no bar to move an application under Section 319 of the Code of Criminal Procedure during the trial's pendency if further evidence comes up against any other person or accused. On the same analogy, there is no bar on the police to further investigate the crime against the accused who have not faced trial earlier. The trial against Anil Kumar alias Neelu is in progress with the competent court at Fazilka and investigation is going on. The petitioner was never put up before the High Court for its adjudication., There is nothing to disagree with this jurisprudence and there is nothing available in the record that can fully counter this argument; however, it neither justifies further custody nor fastens the rigors of Section 37 of the Narcotic Drugs and Psychotropic Substances Act. Satisfying the features of Section 37 of the NDPS Act is akin to candling the infertile eggs. The stringent conditions of Section 37 placed in the statute by the legislature do not create a bar for bail for specified categories, i.e., punishable under Section 19, Section 24 or Section 27A and also for offences involving commercial quantity; however, it creates hurdles by placing a reverse burden on the accused, and once crossed, the rigors no more exist, and the factors for bail become similar to the bail provisions under general penal statutes. Thus, both the twin conditions need to be satisfied before a person accused of possessing a commercial quantity of drugs or psychotropic substance is released on bail. The first condition is to provide an opportunity to the Public Prosecutor, enabling them to take a stand on the bail application. The second condition is that the court must be satisfied that reasonable grounds exist for believing that the accused is not guilty of such an offence and is not likely to commit any offence while on bail. If either of these conditions is not met, the bar on granting bail operates. The expression reasonable grounds means something more than prima facie grounds; it contemplates substantial probable causes for believing the accused is not guilty of the alleged offence. Even on fulfilling one of the conditions, the reasonable grounds for believing that the accused is not guilty of such an offence, the court still cannot give an assurance that the accused is not likely to commit any such crime again. Thus, the grant or denial of bail for possessing commercial quantity would vary from case to case, depending upon its facts., The record reveals that the petitioner has been arraigned, arrested, and interrogated prima facie on the evidence of calls with the handler from the United Kingdom, the Police Sub‑Officer and the Personal Assistant; unexplained money that points to its source in the drug trade; and a confessional statement of a co‑accused recorded after the decision of the prosecution's application led under Section 319 of the Code of Criminal Procedure., Given the above, the Supreme Court of India cannot take into consideration the evidence collected and produced before the trial court until the decision of the application under Section 319 of the Code of Criminal Procedure. However, after that, whatever evidence the prosecution has gathered and collected can be taken into consideration while deciding the present petition., The petitioner's custodial interrogation did not lead to the recovery of any other incriminating evidence, and once an accused has already been subjected to custodial interrogation, the parameters to assess the evidence collected so far are different than while dealing with an anticipatory bail because the accused in such a situation was not subjected to the custodial interrogation, which is undoubtedly more productive to gather evidence. Given this background, the calls between the petitioner and his Police Sub‑Officer, Personal Assistant, and the handler from the United Kingdom; the disproportionate money which the Enforcement Directorate has already seized; absence of any recovery or any incriminating evidence during the petitioner's custodial interrogation; and the evidentiary value of a disclosure statement made by a co‑accused, whose pardon has been approved, and the absence of any other evidence connecting the petitioner, it can be inferred at this stage that for the purpose of satisfying the rigors of Section 37 of the NDPS Act, the petitioner cannot be said to be prima facie guilty for any allegations, and its most likely effect on the final outcome would be sufficient for satisfying the conditions of Section 37 of the NDPS Act. Any detailed discussions about the evidence may prejudice the case of the prosecution, petitioner, or the other accused., Regarding the second rider of Section 37, this Court will put very stringent conditions in this order to ensure that the petitioner does not repeat the offence. Once the petitioner has satisfied the riders of Section 37 of the NDPS Act, the bail has to be dealt with under the Code of Criminal Procedure, 1973, and there is no justification to deny bail. It is thus said that, due to the reasons mentioned above, and keeping in view the nature of the allegations, the petitioner has satisfied the twin conditions of Section 37 and has crossed the hurdles, justifying the disruption of any further pre‑trial incarceration., The possibility of the accused influencing the investigation, tampering with evidence, intimidating witnesses, and the likelihood of seeking justice can be taken care of by imposing elaborate and stringent conditions. In Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, paragraph 92, the Constitutional Bench held that, subject to the evidence produced, the court may impose stringent and restrictive conditions., Thus, in the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner makes a case for bail, subject to the following terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in Chapter XXXIII of the Code of Criminal Procedure, 1973., Provided the petitioner is not required in any other case, the petitioner shall be released on bail in the FIR captioned above, on the following terms: (a) the petitioner to furnish a personal bond of Rs. One Lakh (INR 1,00,000); (b) to give one surety of Rs. Five Lakh (INR 5,00,000) to the satisfaction of the concerned court, and in case of non‑availability, to any nearest Ilaqa Magistrate/duty Magistrate. Before accepting the surety, the concerned officer/court must be satisfied that if the accused fails to appear in court, such surety can produce the accused before the court; (c) the petitioner to hand over to the concerned court a fixed deposit of Rs. One Lakh (INR 1,00,000) with an automatic renewal clause, in favor of the Chief Judicial Magistrate of the concerned district, or to block the aforesaid amount in favor of the concerned Chief Judicial Magistrate. The fixed deposit or blocked funds may be from any bank where the State holds more than 50 % share or from any well‑established private sector bank. If the bankers are not willing to make a Fixed Deposit, the petitioner may prepare an account‑payee demand draft in favor of the concerned Chief Judicial Magistrate for a similar amount; (d) such court shall have a lien over the funds until the case's closure or discharge by substitution, or up to the expiry of the period mentioned under Section 437‑A of the Code of Criminal Procedure, 1973, and at that stage, subject to the proceedings under Section 446 of the Code of Criminal Procedure, the entire amount of the fixed deposit, less any taxes, shall be returned to the depositor; (e) the petitioner is also to execute a bond for attendance in the concerned court(s) as and when asked to do so. The presentation of the personal bond shall be deemed acceptance of the declarations made in the bail petition and all other stipulations, terms and conditions of Section 438(2) of the Code of Criminal Procedure, 1973, and of this bail order; (f) while furnishing the personal bond, the petitioner shall mention the following personal identification details: AADHAAR number, passport number, mobile number, e‑mail address., The petitioner shall hand over his passport to the investigating officer/police station within 24 hours of his release from jail, with liberty to seek permission to travel abroad. Once, and if, the trial court takes cognizance of the matter, this condition will be subject to the concerned court's discretion., The petitioner shall not influence, browbeat, pressurize, make any inducement, threat, or promise, directly or indirectly, to the witnesses, the police officials, or any other person acquainted with the facts and circumstances of the case, to dissuade them from disclosing such facts to the police or the court, or to tamper with the evidence., The petitioner shall comply with the undertaking made in the bail petition, made before this court through counsel as reflected at the beginning of this order or in earlier orders. If the petitioner fails to comply with any such undertaking, then on this ground alone, the bail may be cancelled, and the victim/complainant may file an application for cancellation of bail, and the State shall file the said application., The petitioner is directed not to keep more than one prepaid SIM, i.e., one prepaid mobile phone number, until the conclusion of the trial; however, this restriction is only on prepaid SIMs and not on post‑paid connections or landline numbers. The petitioner must comply with this condition within seven days of release from prison. The concerned Deputy Superintendent of Police shall also direct all telecom service providers to deactivate all prepaid SIM cards and prepaid mobile numbers issued to the petitioner, except the one mentioned as the primary/default number linked with the AADHAAR card, and, unless objected by the concerned Station House Officer, the mobile service providers shall not issue a second prepaid SIM/mobile number in the petitioner's name. As on date, there are four prominent mobile service providers in India, namely BSNL, Airtel, Vodafone‑Idea, and Reliance Jio; any other telecom service provider is directed to comply with the directions of the concerned Superintendent of Police/Commissioner of Police and disable all prepaid mobile phone numbers issued in the name of the petitioner, except the main number/default number linked with AADHAAR, by taking such information from the petitioner's AADHAAR details or any other source, for which they shall be legally bound by this order. This condition shall continue until the completion of the trial or closure of the case, whichever is earlier. In Vernon v. State of Maharashtra, 2023 INSC 655, paragraph 45, while granting bail under the Unlawful Activities (Prevention) Act, 2002, the Supreme Court directed the imposition of a similar condition that each appellant shall use only one mobile phone during the period they remain on bail and shall inform the investigating officer of the National Investigation Agency of their respective mobile numbers., Given the background of allegations against the petitioner, it becomes paramount to protect the drug detection squad, their family members, as well as members of society, and incapacitating the accused would be one of the primary options until the filing of the closure report or discharge, or acquittal. Consequently, it would be appropriate to restrict the possession of arms. This restriction is being imposed based on the preponderance of evidence of probability and not on evidence of certainty, i.e., beyond reasonable doubt; and as such, it is not to be construed as an intermediate sanction. Given the nature of the allegations and the other circumstances peculiar to this case, the petitioner shall surrender all weapons, arms, ammunition, if any, along with the arms licence to the concerned authority within seven days from release from prison and inform the investigating officer about the compliance. However, subject to the Indian Arms Act, 1959, the petitioner shall be entitled to renew and take it back in case of acquittal in this case, provided otherwise permissible in the concerned rules. Restricting arms would instill confidence in the victims, their families, and society; it would also restrain the accused from influencing the witnesses and repeating the offence., During the trial's pendency, if the petitioner repeats or commits any offence where the sentence prescribed is more than seven years or violates any condition stipulated in this order, it shall be permissible for the respondent to apply for cancellation of this bail. It shall further be open for any investigating agency to bring it to the notice of the court a subsequent application that the accused was earlier cautioned not to indulge in criminal activities. Otherwise, the bail bonds shall remain in force throughout the trial and, as per Section 437‑A of the Code of Criminal Procedure, if not cancelled due to non‑appearance or breach of conditions, the bail shall continue., In return for protection from further incarceration at this stage, the court believes that the accused shall also reciprocate by desirable behaviour. If the petitioner again indulges in drugs, then while considering grant of bail in such cases, the concerned courts may keep it as a factor that this court had granted a final opportunity to the petitioner to mend his ways., The conditions mentioned above imposed by this court are to ensure that the accused does not repeat the offence and to ensure the safety of the witnesses. In Mohammed Zubair v. State of NCT of Delhi, 2022 INSC 735, paragraph 28, a three‑judge bench of the Supreme Court held that bail conditions imposed by the court must not only have a nexus to the purpose they seek to serve but must also be proportionate to that purpose. The courts while imposing bail conditions must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditions that would result in the deprivation of rights and liberties must be eschewed., Any advocate for the petitioner and the officer in whose presence the petitioner signs personal bonds shall explain all conditions of this bail order in any language that the petitioner understands., If the petitioner finds any bail condition violating fundamental, human, or other rights, or causing difficulty due to any situation, then for modification of such term(s), the petitioner may file a reasoned application before this court, and the court taking cognizance, or the trial court, as the case may be, shall be competent to modify or delete any condition., This order does not, in any manner, limit or restrict the rights of the police or the investigating agency from further investigation as per law., In case the investigating officer-in-charge of the concerned police station arraigns another section of any penal offence in this FIR, and if the new section prescribes a maximum sentence which is not greater than the sections mentioned above, then this bail order shall be deemed to have also been passed for the newly added sections. However, if the newly inserted sections prescribe a sentence exceeding the maximum sentence prescribed in the sections mentioned above, then the investigating officer-in-charge shall give the petitioner notice of a minimum of seven days providing an opportunity to avail the remedies available in law., Any observation made hereinabove is neither an expression of opinion on the merits of the case nor shall the trial court advert to these comments., There would be no need for a certified copy of this order for furnishing bonds, and any advocate for the petitioner can download this order along with case status from the official web page of the Supreme Court of India and attest it to be a true copy. In case the assessing officer wants to verify the authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for assessing bonds. Petition allowed in aforesaid terms. All pending applications, if any, stand disposed. 04.01.2024 Justice Sharma.
id_1796	0	Chanda Kochhar, age 61 years, having address at 45, CCI Chambers, Churchgate, Mumbai 400020, is the petitioner. The respondents are: Central Bureau of Investigation, B.S. & F.C., 3rd & 4th Floor, Plot No. C-35A, G Block, Bandra Kurla Complex (BKC), Near MTNL Exchange, Bandra (East), Mumbai 400098; and the State of Maharashtra. Deepak Kochhar, also a petitioner, has the same respondents., Counsel for the petitioners in both petitions includes Mr. Amit Desai, Senior Advocate, as well as Mr. Gopalakrishna Shenoy, Mr. Rohan Dakshini, Ms. Pooja Kothari, Ms. Deepa Shetty, Mr. Pranav Narsaria and Mr. Tejas Popat, in behalf of Rashmikant & Partners. For Respondent No.1, the Central Bureau of Investigation, counsel is Mr. Kuldeep Patil, as well as Limosil Ala. Ms. Rutuja Ambekar appears as Assistant Public Prosecutor for the State., By this petition under Article 226 of the Constitution of India, the petitioners seek to (i) quash FIR No. RCBDI/2019/E/0001 dated 22.01.2019 registered under Section 120B and Section 420 of the Indian Penal Code and Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988; (ii) quash the arrest of the petitioners as a violation of settled tenets of law under Section 46 and Section 41A of the Criminal Procedure Code; and (iii) quash the remand order dated 24.12.2022 and subsequent orders passed by the learned Special Judge, Central Bureau of Investigation., On 8.12.2017, the Central Bureau of Investigation registered a preliminary inquiry bearing No. PE.BDI/2017/E0001 in view of information that during the period from 2009 to 2012, officials of ICICI Bank had sanctioned credit facilities and high‑value loans to the Videocon Group of Companies promoted by Venugopal Dhoot, in violation of the Banking Regulation Act, Reserve Bank of India guidelines and the bank's credit policy. The petitioner Chanda Kochhar was a member of the sanctioning committee. It is alleged that as part of a quid pro quo, Mr. Dhoot made an investment of Rs. 64 crore in NuPower Renewables Pvt. Ltd. through M/s. Supreme Energy Private Limited, and also to Pinnacle Energy Trust managed by the petitioner Deepak Kochhar, through a circuitous route. It is also alleged that the flat at CCI Chambers owned by the Videocon Group was sold to the family trust of Deepak Kochhar for Rs. 11 lakh, though the market value of the flat was Rs. 5.25 crore., The preliminary inquiry revealed that the petitioner Chanda Kochhar had abused her official position in sanctioning a loan to M/s. VIEL and obtained illegal gratification through her husband Deepak Kochhar. The findings of the preliminary inquiry led to the registration of the FIR against the petitioners for the aforesaid offences., The petitioners were issued a notice dated 27.06.2022 under Section 41A of the Criminal Procedure Code, pursuant to which they appeared before the Investigating Officer on 8.7.2022 and were duly interrogated. The petitioners were placed under arrest on 23.12.2022, when they appeared before the Investigating Officer for interrogation pursuant to a notice dated 15.12.2022 issued under Section 41A of the Criminal Procedure Code. They were produced before the learned Special Judge for remand. By order dated 24.12.2022 and subsequent remand orders, the learned CBI Special Judge remanded the petitioners initially to police custody and later to judicial custody., By order dated 09.01.2023 the coordinate bench of the Supreme Court of India released the petitioner on interim bail mainly on the ground that the arrest was in contravention of the mandatory provisions of Section 41A of the Criminal Procedure Code. The said order has been challenged by the Central Bureau of Investigation before the Supreme Court of India in Special Leave to Appeal (Criminal) Nos. 13697‑13698/2023. By order dated 03.01.2024, the Supreme Court of India directed this Court to hear the main writ petition, which was fixed for hearing on 05.01.2024, with further directions to the parties not to seek adjournment on the said date. In view of the said directions, the petitions were taken up for final hearing., On 05.01.2024, Mr. Amit Desai, learned Senior Counsel for the petitioner, made a statement that the petitioners do not wish to press the prayer clause relating to quashing of the FIR. The challenge is restricted to the legality of the arrest as well as the remand orders, mainly on the ground of violation of the mandatory provisions of Section 41A, Section 46 and Section 50 of the Criminal Procedure Code., Mr. Amit Desai, learned Senior Counsel, submits that the arrest of the petitioner is in violation of the mandatory provisions under Section 41A of the Criminal Procedure Code. He submits that the petitioners had co‑operated with the investigation right from the time of the preliminary inquiry, complied with the terms of the notice under Section 41A, and furnished the requisite information. The petitioner Chanda Kochhar sought to produce detailed notes prepared by her, but the same were not accepted and she was not allowed to make them part of the statement., Mr. Desai further submits that both petitioners also co‑operated with the Enforcement Directorate, which is investigating offences under the Prevention of Money Laundering Act. They were interrogated and their statements were recorded on several dates. Hence, the contention that the petitioners have not been co‑operating is baseless. Even otherwise, the petitioners have a right to remain silent and their silence cannot be construed as non‑co‑operation., Learned counsel for the petitioner submits that the adjudicating authority, vide a detailed order dated 06.11.2020, had accepted the explanation given by the petitioner and held that the properties alleged to be illegal gratification were not proceeds of crime, thereby lifting the provisional attachment order passed by the Enforcement Directorate. The Supreme Court of India, while considering the bail application of Deepak Kochhar, set out in detail the explanation given by the petitioner during the investigation and granted bail to Deepak Kochhar. The challenge to the said order has been dismissed by the Supreme Court of India. The investigating agency failed to consider this material aspect while placing the petitioner under arrest., Regarding the confrontation of the petitioners and the co‑accused Venugopal Dhoot, learned Senior Counsel submits that these allegations were within the knowledge of the investigating agency, yet the petitioners and the co‑accused were not interrogated for over three years. This aspect has been considered by this Court in Writ Petition No. 300 of 2023 filed by Venugopal Dhoot. Learned counsel further submits that even after the arrest of the petitioners, the co‑accused Venugopal Dhoot was served with a notice under Section 41A, making it appear that his presence was not required for confrontation., Learned Senior Counsel further submits that a reason to believe cannot be the mere ipse dixit of the investigating officer. There must be a rational and reasonable justification as to the need to effect arrest. In the present case, the arrest was made in a routine manner, without reasonable satisfaction and without satisfying the requirements of Section 41 of the Criminal Procedure Code., Mr. Desai submits that the petitioners were arrested a few weeks before the marriage of their son, which makes it evident that the arrest was mala fide. The arrest was not based on any material evidence and was in contravention of Section 41A(3) of the Criminal Procedure Code as well as the provisions of Section 46 of the Criminal Procedure Code. He submits that the remanding Court also failed to consider this aspect and thereby failed to comply with the duties and obligations required under the dictum of the Supreme Court of India in Arnesh Kumar v. State of Bihar (2014) 8 SCC 273. Reliance has been placed on several decisions, including Satendra Kumar Antil v. Central Bureau of Investigation (2022) 10 SCC 51; Arnesh Kumar v. State of Bihar (supra); Santosh v. State of Maharashtra (2017) 9 SCC 714; Joginder Kumar v. State of Uttar Pradesh (1994) 4 SCC 260; Arnab Goswami v. State of Maharashtra (2021) 2 SCC 427; and Daulat Samirmal Mehta v. Union of India (2021) SCC Online Bombay 200., Per contra, Mr. Kuldeep Patil, learned counsel for the respondent Central Bureau of Investigation, submits that there is no violation of the provisions under Section 41A(3). He contends that the case diary records the reasons for the arrest and that several complex issues are involved, including unsatisfactory answers by the co‑accused V. N. Dhoot, necessitating confrontation. He submits that the Court cannot go into the sufficiency of the material and cannot substitute its objective opinion for the subjective satisfaction of the investigating officer. He further submits that the first remand report submitted before the Special Judge incorporated the reasons, and the Special Judge, after perusing the case diary and being satisfied with the reasons recorded, passed the remand order., Mr. Kuldeep Patil also contends that the arrest of the petitioner Chanda Kochhar was effected in the presence of a woman constable, Sarita Kumari, as reflected in the personal search memo and the case diary. The arrest was effected before sunset, and hence the decisions in Kavita and Alexander (supra) are not applicable. He further submits that the grounds of arrest were informed to the petitioners and that the petitioners were well aware of the charges leveled against them. He submits that the respondent Central Bureau of Investigation has followed the legal mandate as well as procedural safeguards, and therefore the arrest cannot be considered illegal., We have perused the records and considered the submissions advanced by the learned counsel for the respective parties. The legality of the arrest is challenged essentially for non‑compliance of the mandate of Section 41A of the Criminal Procedure Code, which reads as follows: \Section 41A – Notice of appearance before police officer: (1) The Police Officer shall, in all cases where the arrest of a person is not required under the provisions of sub‑section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice. (2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice. (3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice, unless for reasons to be recorded, the police officer is of the opinion that he ought to be arrested. (4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent court in this behalf, arrest him for the offence mentioned in the notice.\, Section 41A was inserted to avoid routine arrests. This provision mandates issuance of a notice where the arrest of a person is not required under sub‑section (1) of Section 41. It casts an obligation on the person to comply with the notice and further restricts the power to arrest when the person complies, unless the police officer is of the opinion that the arrest is necessary, and further mandates recording the reasons for the arrest., In Satendra Kumar Antil (supra) the Supreme Court of India observed that Sections 41 and 41A are facets of Article 21 of the Constitution of India, and the investigating agencies and their officers are duty‑bound to comply with the mandate of the said provisions as well as the directions issued in Arnesh Kumar v. State of Bihar (2014) 8 SCC 273. The Court noted that the provision mandates the police officer to record his reasons in writing while making the arrest, and similarly to record reasons when he chooses not to arrest. Non‑compliance would entitle the accused to a grant of bail., The Court issued the following directions: 1) All State Governments shall instruct their police officers not to automatically arrest when a case under Section 498A of the Indian Penal Code is registered but to satisfy themselves about the necessity for arrest under the parameters laid down in Section 41. 2) All police officers shall be provided with a checklist containing the specified sub‑clauses under Section 41(1)(b). 3) The police officer shall forward the checklist duly filled and furnish the reasons and materials which necessitated the arrest while producing the accused before the Magistrate for further detention. 4) The Magistrate, while authorising detention, shall peruse the report furnished by the police officer and, after recording his satisfaction, shall authorise detention. 5) The decision not to arrest an accused shall be forwarded to the Magistrate within two weeks from the date of institution of the case, with a copy to the Magistrate, which may be extended by the Superintendent of Police of the district for reasons recorded in writing. 6) Notice of appearance under Section 41A of the Criminal Procedure Code shall be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for reasons recorded in writing. 7) Failure to comply with the directions shall render the police officers liable for departmental action and contempt of court before the High Court having territorial jurisdiction. 8) Authorising detention without recording reasons shall be liable for departmental action by the appropriate High Court., The directions shall also apply to cases under Section 498A of the Indian Penal Code, Section 4 of the Dowry Prohibition Act, and any offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine. The Court reiterates that the directions must be complied with in letter and spirit by the investigating and prosecuting agencies, and that non‑compliance of Section 41 and Section 41A will benefit the accused in granting bail., In conclusion, the investigating agencies and their officers are duty‑bound to comply with the mandate of Sections 41 and 41A of the Criminal Procedure Code and the directions issued by the Supreme Court of India in Arnesh Kumar (supra). Any dereliction shall be brought to the notice of higher authorities by the court, followed by appropriate action. The courts will have to satisfy themselves on compliance with Sections 41 and 41A; any non‑compliance would entitle the accused to a grant of bail., The scope and ambit of Sections 41 and 41A, as well as the dictum of the Supreme Court of India in Satendra Kumar Antil, Arnab Goswami, Santosh, Joginder Kumar, Mohd Zuben, were considered by the coordinate bench of this Court while granting interim bail to the petitioners for non‑compliance of the mandate of Section 41A. The interim order does not substantially decide the rights, liability or lis between the parties and is always subject to the final order, which will adjudicate the final rights and liabilities of the parties., A perusal of the order dated 09.01.2023 reveals that while considering the plea for interim bail pending final disposal, this Court referred to the relevant provisions under Sections 41, 41A, 60 and 60A and, relying upon the principles enunciated by the Supreme Court of India in Satendra Kumar Antil, Arnab Goswami, Santosh, Joginder Kumar, Mohd Zuben, observed that the petitioners' arrest was contrary to the mandate of law, i.e., in violation of Sections 41, 41A and 60A of the Criminal Procedure Code, and therefore the petitioners were entitled to be released on bail., It was observed that it is always open for a Court to examine whether the reason for formation of the belief has a rational connection with the material before the officer. Upon examining the grounds of arrest as recorded in the arrest memo and considering the dictum in Selvi v. State of Karnataka (2010) 7 SCC 263, the Court held that the ground for arrest as stated in the arrest memos is unacceptable and contrary to the grounds on which a person can be arrested, i.e., contrary to the mandate of Section 41(1)(b)(ii)(a) to (e). Non‑disclosure of true and correct facts cannot be the reason, as the right against self‑incrimination is provided for in Article 20(3) of the Constitution. The facts reveal that after registration of the preliminary enquiry in December 2017, the petitioners reported to the Central Bureau of Investigation, appeared, and submitted documents as mentioned in the seizure memos. However, from 2019 till June 2022, no summons were issued to the petitioners nor any communication was established by Respondent No.1 – Central Bureau of Investigation. On 08.07.2022, the petitioners reported to the CBI officer in New Delhi pursuant to the notice issued under Section 41A. Again, a Section 41A notice was issued in December 2022, pursuant to which the petitioners appeared before the CBI on 23.12.2022 and were arrested. The reason for arrest after four years is not spelt out in the arrest memos, as mandated by Section 41(1)(b). The reason given appears casual, mechanical and perfunctory, clearly without application of mind, and is in breach of mandatory provisions of Sections 41, 41A and 60A of the Criminal Procedure Code. As a Constitutional Court, we cannot be oblivious to the contravention of mandatory provisions of law and the judgments of the Supreme Court of India, particularly the directions in Arnesh Kumar (supra) and Satendra Kumar Antil (supra). The personal liberty of an individual is an important aspect of our constitutional mandate. While an arrest may be lawful, it does not mandate that it must be made. The distinction between the existence of power to arrest and the justification for its exercise must be observed. Routine arrests can cause incalculable harm to reputation and self‑esteem, and the presumption of innocence is a facet of Article 21, which benefits the accused. In the present case, the reasons recorded by the officer do not satisfy the tests laid down in Section 41(1)(b)(ii)(a) to (e) of the Criminal Procedure Code. They do not disclose whether the arrest was necessary for any of the purposes envisaged in the provision, and they are in contravention of the directions given by the Supreme Court of India in Arnesh Kumar (supra). Accordingly, we hold that the petitioners' arrest is not in accordance with law. Non‑compliance with the mandate of Section 41(1)(b)(ii), Section 41A and Section 60A of the Criminal Procedure Code will benefit the petitioners, warranting their release on bail.
id_1796	1	As regards the legality of the remand order, the co‑ordinate bench of the High Court has observed that the concerned Judge authorising detention ought to have recorded his own satisfaction, perhaps in brief, but the satisfaction must be reflected in his order. It was observed that the order of remand does not comply with the requirement/direction given by the Supreme Court of India in the case of Arnesh Kumar, where the High Court held that the petitioners are entitled to bail, pending hearing and final disposal of the petitions., The aforesaid observations recorded in the order dated 9 January 2023, while considering whether the arrest of the petitioner was illegal, cannot be considered as prima facie observations or a tentative view. It must be borne in mind that, as on the date of the order, the challenge to the FIR was also pending before the High Court. The said prayer was deleted subsequent to the order dated 9 January 2023. In such circumstances, the findings recorded in the order dated 9 January 2023 cannot be construed as a tentative view or prima facie observations solely because the High Court had granted interim bail., The only other material now placed before us is the case diary which purportedly records the reasons of arrest. A perusal of the case diary reveals that the petitioners were served with notice dated 27 June 2022 under Section 41A for appearance on 4 July 2022. The petitioners requested to postpone the date to 8 July 2022 and accordingly appeared before the Investigating Officer on 8 July 2022 and were duly interrogated. In the meantime, the co‑accused V. N. Dhoot was also interrogated with respect to the allegations of quid pro quo of Rs 64 crore and transfer of a flat owned by Videocon to the Quality Advisory Trust of Deepak Kochhar., On 15 December 2022, the Investigating Officer issued notices under Section 41A to the petitioners as well as to the co‑accused V. N. Dhoot, on the ground that there were several inconsistencies in their statements which were not satisfactorily answered and it was necessary to call and confront them with one another for proper investigation and for taking the case to its logical end., Mr. V. N. Dhoot was interrogated on 22 December 2022, and the petitioners expressed their inability to appear on the scheduled date as they had to attend the hearing of another matter listed before this High Court. The date of appearance was fixed on 23 December 2022. Both petitioners appeared before the Investigating Officer on 23 December 2022 at about 2.00 p.m.; they were interrogated and, on the same date at about 4.30 p.m., they were placed under arrest., The reasons for the arrest as recorded in the case diary are: (1) the petitioners are not cooperating with the investigation; (2) their custodial interrogation is required to unearth (a) the entire gamut of conspiracies which led to sanction of a term loan of Rs 1,875 crore to the financially belligerent Videocon Group of Companies between June 2009 and April 2012, and (b) the conspiracy hatched for creation of a complex financial structure to conceal the identity for quid pro quo of Rs 64 crore by the petitioner Chanda Kochhar in the company account of her husband and transfer of a flat situated at 45 CCI Chambers, valued at Rs 5.25 crore, to the family members of petitioner Deepak Kochhar for Rs 11 crore in the year 2016; and (3) to ascertain the names and roles of the other conspirators/officers of ICICI Bank in sanctioning disbursement of the term loan to Videocon Group Companies., There can be no dispute that it is within the domain of the Investigating Agency to interrogate the accused and to arrive at a subjective satisfaction on the issue of arrest. We are conscious that the satisfaction of the Investigating Agency is subjective in nature and the High Court cannot go into the reasonableness of the reasons for arrest or substitute its objective opinion for the subjective satisfaction. Nevertheless, the subjective satisfaction is not wholly immune from judicial review. The High Court can consider whether the reasons for deprivation of liberty are rational, reasonable or fanciful. In Barium Chemicals Ltd. vs. Company Law Board the Supreme Court of India, with reference to Section 237 of the Companies Act, observed that the Court cannot go into the question of aptness or sufficiency of the grounds upon which the subjective satisfaction of an authority is based. However, the entire process is not subjective. While the existence of relevant material or information is objective, drawing inference therefrom is a subjective process. The only check upon the subjective power is the existence of circumstances or material information. If it is established that there was no material information or factual basis, the exercise of power becomes illegal. It is thus within the powers of the High Court to ensure that the subjective satisfaction is on a factual basis and not on the whims or caprice of the Investigating Agency., In the instant case, the preliminary enquiry relating to the sanctioning of a loan to the Videocon Group of Companies in violation of banking regulations and guidelines from 2009 to 2012 was registered in 2017. The petitioners were questioned in the course of the preliminary inquiry, and subsequently the FIR was registered on 22 January 2019. The petitioners were named as accused in the FIR for the alleged offences of criminal conspiracy and cheating. Despite the gravity of the offence, the petitioners were not interrogated or summoned for a period of over three years from the date of registration of the crime. They were served with notice under Section 41A dated 27 June 2022, indicating that their arrest was not required under sub‑section (1) of Section 41 of the Criminal Procedure Code. The petitioners complied with the notice, appeared before the Investigating Officer and were duly interrogated. Furthermore, in compliance with the notice dated 15 December 2022 under Section 41A, the petitioners appeared before the Investigating Agency on 23 December 2022, when they were placed under arrest on the ground of non‑co‑operation and purportedly to unearth the entire gamut of conspiracy which led to sanctioning of a term loan of Rs 1,875 crore to the financially beleaguered Videocon Group of Companies between June 2009 and April 2012., It is relevant to note that, although the Investigating Agency has the power to interrogate the accused, the accused has a right to remain silent. The right to silence emanates from Article 20(3) of the Constitution of India, which gives an accused the right against self‑incrimination. Exercise of the right to remain silent cannot be equated with non‑co‑operation. Reliance is placed on the decision in Santosh Dwarkadas Fajat and Pankaj Sansal (supra)., The allegations that the petitioners are involved in the conspiracy, the gravity of the offence and the alleged quid pro quo were known to the Investigating Agency at the time of registration of the FIR. The FIR states that the loan‑sanctioning committees of ICICI Bank had sanctioned the loan to the Videocon Group of Companies. Some senior officials of ICICI Bank were also named in the FIR, and it was stated that the role of these senior officers of the sanctioning committee was also required to be investigated. Thus the involvement of other bank officials in the conspiracy was not discovered during the investigation but was already known to the Investigating Agency at the time of registration of the FIR, despite which the Agency did not feel the need to arrest and interrogate the petitioners for over three years. The arrest on 23 December 2022 was not based on any additional material discovered during the investigation, but on the same material that was within the knowledge of the Investigating Officer at the time of issuance of notice under Section 41A. Such routine arrest without application of mind and due regard to the law amounts to an abuse of power and does not satisfy the requirement of Section 41A(3) of the Criminal Procedure Code., To sum up, the Investigating Agency has not been able to demonstrate the existence of circumstances or supportive material on the basis of which the decision to arrest was taken. Absence of such circumstances, information or material, which is the sine qua non for the decision of arrest, reduces the provision to a dead letter and renders the arrest illegal., The petitioners have also alleged breach of Section 46 of the Criminal Procedure Code because the arrest of the petitioner Chanda Kochhar was not effected by a lady police officer. Section 46 provides the mode of arrest. Sub‑section 1 states that in making an arrest the police officer or other person shall actually touch or confine the body of the person to be arrested, unless there is a submission to custody by word or action. The proviso provides that where a woman is to be arrested, unless circumstances indicate otherwise, her submission to custody on an oral intimation of arrest shall be presumed and, unless the police officer is a female, the officer shall not touch the woman for making the arrest. Sub‑section 4 prescribes the procedure of arrest of a woman after sunset and before sunrise., In the instant case, the petitioner Chanda Kochhar was arrested before sunset; therefore Sub‑section 4 of Section 46 is not attracted. The case diary reveals that the arrest was in the presence of a lady police officer. There is nothing on record to prima facie indicate that the petitioner was physically touched by a male police officer. No complaint in this regard was made to the judge before whom the petitioner was produced for remand. Hence, we are of the view that there was no contravention of Section 46 or Section 60A of the Criminal Procedure Code., Under the circumstances, and for the reasons above, the arrest of the petitioners is held to be illegal for breach of the mandatory provision under Section 41A of the Criminal Procedure Code. Hence the petition is allowed in terms of prayer clause (b). The interim bail granted by the order dated 9 January 2023 is confirmed. The petitions and any interim applications stand disposed of in the above terms.
id_1798	0	CRWP No.1493 of 2022 Date of Decision: 18.02.2022 Jai Nrain and another Petitioners Versus State of Punjab and others Respondents Present: Mr. Vishneet Singh Kathpal, Advocate for the petitioners. Mr. Rehatbir Singh Mann, Deputy Advocate General, Punjab. (Through Video Conferencing) Fearing for their lives and liberty at the hands of the private respondents, the petitioners who are in a live-in relationship have come up before the Hon'ble Punjab and Haryana High Court seeking protection through the State, by invoking their fundamental rights of life guaranteed under Article 21 of the Constitution of India., Notices served upon the official respondents through the State's counsel. Given the nature of the order that the Hon'ble Punjab and Haryana High Court proposes to pass, neither the response of official respondents nor the issuance of notices to the private respondents is required., Counsel for the petitioner has stated that petitioner No. 2 is a married woman and has voluntarily gone to the company of petitioner No. 1. He submits that the petitioners are facing grave danger from the private respondents and their lives be protected even though petitioner No. 2 is married to respondent No. 4., The times are changing fast, even in those lands that were left behind and stuck with the old ethos and conservative social milieu. We are governed by the rule of law and follow the constitutional dharma. In the evolving society, evolving the law with it, the time is to shift perspective from didactics of the orthodox society, shackled with the strong strings of morality supported by religions to one that values an individual's life above all. Every person in the territory of India has an inherent and indefeasible fundamental right to life flowing from Article 21 of India's constitution and the State is duty bound to protect life., In Mohd Arif @ Ashfaq v. Registrar, Supreme Court of India, (2014) 9 SCC 737, the constitutional bench of the Hon'ble Supreme Court holds: As the determination of this case has to do with the fundamental right to life, which, among all fundamental rights, is the most precious to all human beings, we need to delve into Article 21 which reads as follows: \21. Protection of life and personal liberty.-No person shall be deprived of his life or personal liberty except according to procedure established by law.\ This article has its origin in nothing less than the Magna Carta, the 39th Article of 1215 vintage which King John of England was forced to sign by his Barons. It is a little known fact that this original charter of liberty was faulted at the very start and did not get off the ground because of a Papal Bull issued by Pope Innocent III declaring this charter to be void. Strangely, like Magna Carta, Article 21 did not get off the ground for 28 years after which, unshackled, it has become the single most important fundamental right under the Constitution of India, being described as one of a holy trinity consisting of a 'golden triangle' (see Minerva Mills v. Union of India, 1981 1 SCR 206 at 263), and being one of two articles which cannot be eclipsed during an emergency (Article 359 as amended by the Constitution 44th Amendment)., If the allegations of apprehension of threat to their lives turn out to be true, it might lead to an irreversible loss. The Hon'ble Punjab and Haryana High Court is not adjudicating on the validity of the petitioner's marriage or her decision of cohabiting with petitioner No. 1 but adhering to its fundamental duty of guarding their lives. Thus, in the facts and circumstances peculiar to this case, it shall be appropriate that the concerned Superintendent of Police, Station House Officer, or any officer to whom such powers have been delegated or authorized in this regard, provide appropriate protection to the petitioners for one week from today. However, if the petitioners no longer require the protection, then at their request it may be discontinued even before the expiry of one week. After that, the concerned officers shall extend the protection on day-to-day analysis of the ground realities or upon the oral or written request of the petitioners., This protection is subject to the stringent condition that from the time such protection is given, the petitioners shall not go outside the boundaries of the place of their residence, except for medical necessities, to buy household necessities, and for bereavements in the families of the persons who are close to them. This restriction saves the petitioners from apprehended risk and ensures that the protection is not flaunted., It is clarified that there is no adjudication on merits and that this order is not a blanket bail in any First Information Report. It is further clarified that this order shall not come in the way if the interrogation of the petitioners is required in any cognizable case. It shall also be open for the petitioners to approach the Hon'ble Punjab and Haryana High Court again in case of any fresh threat perception. There would be no need for a certified copy of this order, and any Advocate for the petitioner and the State can download this order and other particulars as may be required from the official web page of this Court and attest it to be a true copy. The concerned officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds. Petition is allowed to the extent mentioned above. All pending applications, if any, stand disposed.
id_1799	0	Date: 11-11-2022. This petition was called for hearing today. Parties: Mr. Amit Pai, Advocate on Record (for petitioner in the Civil Procedure) of the Orissa High Court; Mr. Arvind P. Datar, Senior Advocate of Orissa; Mr. Sibo Sankar Mishra, Advocate on Record; Mr. Umakant Misra, Advocate; Mr. Niranjan Sahu, Advocate; Mr. Rajesh Kumar Nayak, Advocate, for respondents., Upon hearing the counsel, the Supreme Court of India made the following observations. The critical position of vacancies in the High Courts and the delay in appointment of Judges constrained a three‑Judge Bench of this Court to pass orders on 20.04.2021 seeking to lay down a broad timeline within which the appointment process should be completed., The expanding opportunities to prominent lawyers present a challenge to persuade persons of eminence to be invited to the Bench. If the process takes ages, there is further discouragement to them to accept the invitation, and this undoubtedly weighs on members of the Bar in accepting the invitation to adorn the Bench., The Bench endeavoured to lay down a timeline taking into consideration the process for appointment of Judges as well as the principle that the time period of sending names six months in advance, prior to the vacancies, would be sufficient to process the names with the Government. It appears that directions in the order are being breached on many occasions., If we look at the position of pending cases for consideration, there are eleven cases pending with the Government which were cleared by the Collegium and yet are awaiting appointments. The oldest of them is dated 04.09.2021 as the date of dispatch and the last two on 13.09.2022. This implies that the Government neither appoints the persons nor communicates its reservation, if any, on the names., There are also ten names pending with the Government which have been reiterated by the Supreme Court Collegium from 04.09.2021 to 18.07.2022. Among these, the Government has sought reconsideration in cases where, despite a second reiteration, the person was not appointed and consequently withdrew consent, causing the system to lose the opportunity of having an eminent designated senior Advocate on the Bench., Similarly, in another case where the Government has sought reconsideration, reiteration has occurred three times. In our order we clarified that once the Government has expressed its reservation and that has been dealt with by the Collegium, after the second reiteration only the appointment has to take place. Thus keeping the names pending is not acceptable., We find the method of keeping the names on hold, whether duly recommended or reiterated, is becoming a device to compel these persons to withdraw their names, as has happened., Learned counsel for the petitioner points out that one of the candidates, pending for appointment since 04.09.2021 after being reiterated, Mr. Jaytosh Majumdar, has even passed away recently. Unless the Bench is adorned by competent lawyers, the very concept of rule of law and justice suffers., In the elaborate procedure, from taking inputs from the Government post‑recommendation from the collegium of the High Court, to the Supreme Court Collegium bestowing consideration on the names, there are sufficient checks and balances., Mr. Vikas Singh, President of the Supreme Court Bar Association, who assisted in the original matters among other lawyers, seeks to point out that even the recommendation made for appointment to the Supreme Court more than five weeks ago is still awaiting appointment. We are unable to understand or appreciate such delays., Thus at the inception we consider it appropriate to issue a simple notice to the current Secretary (Justice) and the current Additional Secretary (Administration and Appointment) for the time being, returnable on 28.11.2022. There has been a change in the officers as arrayed in the original contempt petition filed on 25.10.2021, which has been listed before the Court for the first time. A copy of the order will accompany the notice and will also be served on the office of the learned Attorney General., Note: M.A. D. No. 33859/2022 arising in the same proceedings but a different subject matter is to be listed on 14.11.2022 as directed by the Honorable Chief Justice of India. The intimation of listing will be informed by the counsel to the Bar Council of India and the Bar Council of Orissa, and the concerned Bars through the Registrar General of the Orissa High Court, with a hope that they will see reason before the next date.
id_18	0	Petition(s) for Special Leave to Appeal (Criminal) No(s). 9445/2022 (Arising out of impugned final judgment and order dated 24-08-2022 in Criminal Miscellaneous Application No. 1/2022 passed by the High Court of Gujarat at Ahmedabad) Date: 10-05-2023. This petition was called on for orders/hearing today., For petitioner: Mr. Devadatt Kamat, Senior Advocate. For respondent: Mr. Maninder Singh, Senior Advocate. Mr. Rajat Nair, Advocate. Ms. Swati Ghildiyal, Advocate on Record. Ms. Devyani Bhatt, Advocate. Ms. Ruchi Kohli, Advocate. Ms. Srishti Mishra, Advocate. Ms. Deepti Arya, Advocate. Ms. Arzu Paul, Advocate., Upon hearing the counsel, the Supreme Court of India made the following: Honorable Mr. Justice M. R. Shah pronounced the non‑reportable order of the bench on the prayer for recusal comprising His Lordship and Honorable Mr. Justice C. T. Ravikumar. The prayer for recusal is rejected in terms of the signed non‑reportable order, which is placed on the file., We have heard Mr. Devadatt Kamat, learned Senior Advocate, appearing for the petitioner; Mr. Maninder Singh, learned Senior Advocate, appearing for Respondent No. 1 – State of Gujarat; and Mr. A. N. S. Nadkarni, learned Senior Advocate, appearing for Respondent No. 2 – Complainant, at length., Mr. Devadatt Kamat, learned Senior Advocate, appearing on behalf of the petitioner has taken us through the deposition of three witnesses (doctors) examined as PW‑20, PW‑23 and PW‑24. However, it is required to be noted that the deposition of the said witnesses was considered by the trial court after all three witnesses were thoroughly cross‑examined and now the deposition of the aforesaid three witnesses is to be considered and re‑appreciated by the High Court at the time of deciding the appeal., Having gone through the impugned order passed by the High Court, we see no reason to interfere with the same in exercise of powers under Article 136 of the Constitution of India. Any observations by this Supreme Court of India on the deposition of the aforesaid three witnesses may ultimately affect the case of either party in the appeal, which is yet to be considered by the High Court., Therefore, the Special Leave Petition stands dismissed. However, it is observed that the High Court should finally decide and dispose of the appeal strictly in accordance with law and on merits and on re‑appreciation of the entire evidence on record which were considered by the trial court and without in any way being influenced by any of the observations made by the High Court in the impugned order so far as the cause of death is concerned. Any observations made by the High Court in the impugned order shall be confined to deciding the application under Section 391 of the Code of Criminal Procedure only., With this, the present Special Leave Petition stands dismissed/disposed of. Pending applications, if any, also stand disposed of.
id_180	0	(SHRI ANAND SONI, LEARNED ADDITIONAL ADVOCATE GENERAL FOR THE RESPONDENT/STATE) This petition coming on for admission this day, Justice Sushrut Arvind Dharmadhikari passed the following: ORDER Heard finally, with the consent of both the parties. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner as a Public Interest Litigation praying for the following reliefs:, Reliefs: A writ in the nature of certiorari or mandamus or any other appropriate order, writ or direction be issued for quashment of the order dated 27 August 2018 (Annexure P/12) and order dated 28 January 2020 (Annexure P/13) passed by the respondents 2 and 3. The High Court be pleased to issue appropriate directions to the respondent no.1 for prohibiting fishing activities in the Teliya Talab as also for ensuring the proper preservation of the aforesaid Talab. Costs of the petition be awarded to the petitioner from the respondents. Any other relief which this High Court may deem fit in the facts of the present case be granted in favour of the petitioner., Brief facts of the case are that the petitioner is a doctor by profession and is a public‑spirited person; therefore, the present Public Interest Litigation has been filed., The issue involved in the present petition pertains to the grant of fishing rights in Teliya Talab, situated at Mandsaur, which is a prominent place of religious importance as also a prominent tourist attraction located within the municipal limits of Mandsaur Town., On the banks of the aforesaid Teliya Talab, various temples and ashrams such as Hanuman Temple, Maa Karma Devi, Maa Ganga Mata, Rishi Anand Ashram etc. are located which are visited by lakhs of devotees in a year. Similarly, the aforesaid Teliya Talab is also visited by thousands of tourists, which comprise families and small children of Mandsaur and nearby region., Keeping in view the religious sentiments and tourist importance of the aforesaid pond, various communities of Mandsaur have submitted representations before the Municipal Council, Mandsaur for prohibiting fishing activities in the aforesaid pond. The Municipal Council, Mandsaur vide resolution dated 08 November 2012 (Annexure P/5) took a decision to prohibit grant of fishing rights in respect of the aforesaid pond, which was duly implemented. Thereafter, the Collector, District Mandsaur vide letter dated 10 October 2017, after lapse of five years i.e. after implementation of the resolution dated 08 November 2012, citing fishing policy of the State Government directed the Municipal Council to review its decision and grant the pattas for fishing to the eligible persons. As a consequence, the Municipal Council passed a fresh resolution dated 30 July 2018 and reiterated the decision taken in the year 2012., The Collector suo motu registered a case No. 462/B‑121/2017‑18 at the instance of Deputy Director, Fisheries, District Mandsaur. The Collector, exercising power under Section 323 of Madhya Pradesh Municipalities Act, 1961 (hereinafter referred to as the Act of 1961) suspended both the resolutions dated 08 November 2012 and 30 July 2018 and at the same time directed the Chief Executive Officer, Municipal Council, Mandsaur and Assistant Director, Fisheries, Mandsaur to allot pattas for fishing as per the policy. Being aggrieved, the present writ petition has been filed by way of Public Interest Litigation., Learned counsel for the petitioner submitted that the resolution passed by the Municipal Council, Mandsaur is in consonance with the public sentiments after duly considering the representations filed by different sects of the society. The Collector exceeded the powers under Section 323 of the Act of 1961 by directing the concerned officers to allot the pattas for fishing to the eligible persons or candidates. In fact, the Collector has jurisdiction to only suspend an action or order which is yet to be completed, executed or implemented. In the present case, the resolution dated 08 November 2012 was already executed and was in existence for more than five years; in spite of that the Collector directed to review the resolution and ultimately passed the impugned order. The order passed by the Collector in staying and directing allotment of patta was clearly in excess of his jurisdiction vested under Section 323(1) of the Act of 1961., Learned counsel for the respondent State vehemently opposed the prayer and made the following submissions: The petitioner has not disclosed his social antecedents. It is a settled principle of Public Interest Litigation jurisprudence that to demonstrate bonafide, social antecedents are required to be specifically disclosed and that a mere statement that the petitioner is a social worker is not sufficient; therefore, the present PIL deserves to be dismissed on this ground alone. The petitioner has no locus to file the present Public Interest Litigation since he is an elected corporator in the Municipal Council, Mandsaur and is having a personal and political interest in the matter. Notably, the petitioner being a corporator was part of the decision‑making process of the respondent No.5 for imposing ban on fishing activities at Teliya Talab which was later stayed by the Collector. Section 323 of the Act of 1961 specifically empowers the Collector to suspend the execution of an order or resolution of a Municipal Council within his jurisdiction if the same is not in conformity with law or with the rules or bye‑laws made thereunder and is detrimental to the interests of the Council or the public or is causing or is likely to cause injury or annoyance to public or any class or body of persons or is likely to lead to a breach of the peace., In the present case, banning the fishing activities at Teliya Talab is in utter violation of Madhya Pradesh Matsya Palan Ki Niti dated 08 October 2008 framed by the State Government wherein the mandate is to compulsorily adopt the uniform policy for the purpose of fishing activities. Further, the fishing activities at Teliya Talab were a source of employment to thousands of poor fishermen and their families for a span of six months each year. The ban has resulted in loss of revenue to the public exchequer and is a significant financial setback., The petitioner has not challenged the Madhya Pradesh Matsya Palan Ki Niti policy; therefore, he is estopped from challenging the resolution as well as the order passed by the Collector in the present PIL and the same deserves to be dismissed., Learned Senior Counsel appearing for the respondent No.5 in fact supported the cause of the petitioner and submitted that the legislature has introduced Article 243 in the Constitution of India with a view to protect the public welfare and the local sentiments of the public at large and it is for the public to decide as per the local sentiments. The ownership of Teliya Talab rests with the municipality. The Collector exceeded its jurisdiction in staying the resolutions and directing the authorities to allot pattas for fishing activities which is beyond the scope of Section 323 of the Act of 1961. The order of the Collector is absolutely without jurisdiction. Learned counsel further contended that the Collector also could not have directed to review the resolutions passed by the Municipal Council since there is no provision under the Act. He further contended that the respondent State could not point out as to which clause of the policy is being violated. The Collector has not recorded any reasons in the impugned order to show how the policy is being violated. In such circumstances, he prays for dismissal of the writ petition., Heard the learned counsel for the parties and perused the record., For the purpose of convenience, Section 323 of the Madhya Pradesh Municipalities Act, 1961 is reproduced as under: 323. Power to suspend execution of orders, etc., of Council— (1) If, in the opinion of the Divisional Commissioner, the Collector, or any other officer authorised by the State Government in this behalf, the execution of any order or resolution of a Council, or of any of its committee or any other authority or officer subordinate thereto, or the doing of any act which is about to be done or is being done by or on behalf of the Council, is not in conformity with law or with the rules or bye‑laws made thereunder and is detrimental to the interests of the Council or the public or is causing or likely to cause injury or annoyance to the public or any class or body of persons or is likely to lead to a breach of the peace, he may, by order in writing under his signature, suspend the execution of such resolution or order or prohibit the doing of any such act. (2) When any order under sub‑section (1) is passed, the authority making the order shall forthwith forward to the State Government and to the Council affected thereby a copy of the order with a statement of reasons for making it; and it shall be in the direction of the State Government to rescind the order, or to direct that it shall continue in force with or without modification, permanently or for such period as it thinks fit., On perusal of the aforesaid provision, it is clear that the resolution of the Council can be stayed only if it is detrimental to the interests of the Council or the public or is causing or likely to cause injury or annoyance to the public or any class or body of persons or is likely to lead to a breach of the peace and not otherwise. The Collector while passing the order Exhibit P/12 dated 27 August 2018 had not recorded any such findings so as to exercise power under Section 323 of the Act of 1961. The only reason assigned by the Collector is that hundreds of fishermen are deprived of their livelihood. Certainly, this cannot be a reason to suspend the resolutions., This High Court in the case of Devendra Kumar Paliwal versus State of Madhya Pradesh & Others reported in 2008 (2) Madhya Pradesh Law Journal 463 had held in paragraph 9 as follows: At this stage, it may be noticed that under the provisions of section 323(1) of the Act, the Collector of a District, besides the other officers mentioned in the said provision, has only been vested with the power to suspend the execution of any order or resolution of a Council or its committee, of any act, which is about to be done or is being done on behalf of the Council, and is not in conformity with the law or is otherwise detrimental to the interests of the Council or is likely to cause injury or annoyance to the public etc. It is thus clear that jurisdiction vested in the Collector, and the other officers mentioned in the section, is only to suspend an action or order which is yet to be completed, executed or implemented. There is no power at all with the District Collector to suspend or nullify an act or resolution which stands already executed or implemented. Thus, apparently, the order dated October 9, 2000 passed by the Collector in cancelling the sale in favour of the petitioner was clearly in excess of his jurisdiction vested in him under section 323(1) of the Act, since the transaction of sale had already been completed. Even if it be taken that the Municipal Council had violated the mandatory provisions of section 109(2) of the Act in disposing of its property, still the District Collector under section 323(1) had no power to nullify the said action of the Municipal Council. Essentially, the said power is vested in the State Government, in its all‑pervasive supervisory control of the Municipal Council., From the aforesaid conclusion, it can be seen that the Collector could have passed the order of suspension only if the action, order or resolution is yet to be completed, executed or implemented. In the present case, the resolution dated 08 November 2012 was already executed and was in force for at least five years. The Collector had no authority to call for a review or to stay the resolution and further direct grant of patta. It is also not known how the Collector formed an opinion that the resolution of the Municipal Council is not in conformity with law or with the rules or bye‑laws made thereunder. Admittedly, the fishing policy is not a statutory policy, but is merely a guideline. The local authorities are the best persons to impose a ban at the behest of the public sentiments. The Collector has definitely acted beyond the powers and jurisdiction. Accordingly, the impugned order dated 27 August 2018 (Annexure P/12), passed by the Collector, Mandsaur in Case No. 462/B‑121/2017‑18 as also appellate order dated 28 January 2020 (Annexure P/13), passed by the Additional Commissioner, Ujjain in Case No. 1457/Appeal/2017‑2018 are hereby quashed., It is seen from the reply Annexure R/1 dated 18 December 2020, the State Government has affirmed the impugned order passed by the Collector and the Divisional Commissioner as per the mandate of Section 323 of the Act of 1961. This High Court had stayed the operation of the orders dated 27 August 2018 and 28 January 2020 vide order dated 03 March 2020; therefore, the State Government could not have affirmed the aforesaid orders and passed the order of affirmation on 18 December 2020. As a consequence, the order affirming the impugned order dated 18 December 2020 (Annexure R/1) is also quashed and set aside. This petition is allowed. No order as to costs.
id_1804	0	Suresh Dattaram Pawar, through his wife Sheela Suresh Pawar, aged 62 years, occupation: Nil, Applicant; The State of Maharashtra (at the instance of Mahim police station), Respondent. Appearances: Mr. A. Karim Patil, Learned Advocate for applicant; Mr. Prabhakar Tarange, Learned Additional Public Prosecutor for respondent/State; Mr. Vivek Arote, Learned Advocate for intervener. CNR No. MHCC02-006749-2023., This is an application for temporary bail for a period of six months only in connection with Criminal Case No. 559 of 2021 registered at Mahim police station for offences punishable under Sections 420, 409, 467, 468, 471, 120-B read with Section 34 of the Indian Penal Code. The applicant's first bail application was rejected by this Bombay High Court on merits on 28/06/2022. Thereafter, the applicant approached the Hon'ble Bombay High Court for grant of regular bail but withdrew the same on 19/04/2023. This application for temporary bail is only on medical grounds of the applicant., The complainant, Smt. Sonia Hemant Pawar, resident of Ghatkopar East, Mumbai, a private teacher, wanted to buy a house in Mumbai. In March 2019, Bakul Mathuradas Thakkar, who was familiar with her, informed her that Suresh Dattaram Pawar, the present applicant, is a professional property agent, an ex‑government employee with contacts in the Maharashtra Metropolitan Regional Development Authority (MMRDA), Mumbai. His wife Sheela Pawar holds a government job in Bandra and both work privately as real estate agents. He further informed her that flats were available for sale in Galleria, Hiranandani, Powai and Maharshi Karve Nagar, Kanjurmarg, and that he could arrange their sale at cheap rates., Bakul Thakkar introduced the complainant to accused Suresh Pawar at his Mahim office and also to accused Sheela Pawar. Suresh Pawar told her that one‑BHK and two‑BHK flats were for sale in Powai Hiranandani. On the next day they showed her a flat, and later another flat at a construction site in Kanjurmarg, Mumbai. On 01/06/2019 a meeting was held in the office of Suresh Pawar attended by the complainant, Bakul Thakkar and Alka Nikalje. Suresh Pawar stated that the flat had a carpet area of 730 square feet and was for sale for Rs 50 Lakhs, with 50 % payable at booking and the balance at possession. Accordingly, on 12/09/2019 the complainant gave Suresh Pawar Rs 1 Lakh in cash for booking and on 18/10/2019 she gave him Rs 4 Lakhs in cash. Sheela Pawar was present at the time of receiving the amount and issued a receipt in favour of the complainant., In December 2019 Suresh Pawar called the complainant to his office and, as per MMRDA procedure, took her biometric and retinal impressions and gave her the MMRDA documents of the said flat. Later she discovered that the documents were forged and that Suresh Pawar and his wife Sheela Pawar had also cheated Rakesh Srivastav and other persons. The complainant listed sixteen persons/documents who were cheated by the applicant and his wife for an amount of Rs 2,40,66,000 on the pretext of securing flats. The accused had issued forged possession receipts, forged letterheads and seals., The investigating officer stated that a charge‑sheet has been filed. The applicant's current account with IndusInd Bank, operated in the name of S. S. Enterprises Estate Agency, was used to receive amounts from the complainant and other victims. The applicant also operates a savings account and another account in the name of Vyankatesh Enterprises Estate Agency. It was revealed that the applicant and his accomplice conspired to issue forged allotment letters and payment receipts pertaining to MMRDA, and that photocopies of cheques issued to victims for security were obtained. Receipts, letters, seals etc. pertaining to MMRDA and the Deputy Collector of Bhandup Division were forged. The applicant transferred Rs 2 Lakhs on 25/07/2018 to his wife Sheela Pawar’s account and further transferred Rs 4 Lakhs and Rs 2,50,000 to her account. From the dishonestly obtained amounts, the applicant purchased one hectare three‑quarter acres of agricultural land in the village of Golap, Ratnagiri, mortgaged gold ornaments of 684.2 grams with Muthoot Finance, Kalyan (West) Branch, and purchased a four‑wheeler. Investigation revealed that the applicant cheated many persons for an amount of Rs 3,47,00,000 and used the victims’ money for foreign trips. His earlier bail application was rejected by this Bombay High Court and also by the Hon'ble High Court., The learned counsel for the applicant submitted that the present application is only for temporary bail for six months on medical grounds. The applicant has been in custody since 31/12/2012. The charge‑sheet was filed in March 2022 and the trial is in progress. The applicant is a severe diabetic and suffers from several age‑related diseases. In February 2023 he sustained an injury to his toe, was admitted to Sir J.J. Hospital, discharged, then developed gangrene requiring amputation. On 23/03/2023 the Hon'ble Bombay High Court directed jail authorities to provide proper medical treatment. On 19/04/2023 the bail application was withdrawn from the High Court; on the same day his health deteriorated, leading to re‑admission to Sir J.J. Hospital, where improper treatment caused septic wound and amputation of the leg below the knee. He now has severe infection in the remaining limb, is a heart patient, and is not receiving proper treatment in the government hospital. Therefore, for his treatment in a private hospital, he may be released on temporary bail., The intervener appeared through counsel and filed an intervention application and written submissions. The learned counsel for the intervener vehemently opposed the application. Learned Additional Public Prosecutor also vehemently opposed, arguing that the application is silent on the further proposed line of treatment in a private hospital and that the applicant is receiving proper medical treatment in Sir J.J. Hospital. He contended that the application may be rejected., I have carefully considered the submissions of all parties and perused the medical documents placed on record, including the medical report filed by the prosecution. The Medical Officer of Sir J.J. Hospital, Mumbai, has detailed the applicant’s severe diabetes, amputation of the right leg below the knee due to septic infection, and lung infection. Considering his age, severe medical complications and the need for further medical care, his prayer for temporary bail can be considered on purely humanitarian grounds. The contention that the application lacks details of further treatment in a private hospital cannot be accepted, as it is for private medical professionals to decide the further line of treatment after the applicant approaches them. Hence, only on medical and humanitarian grounds, I am inclined to grant temporary bail to the applicant. Therefore, I pass the following order: 1. Bail Application No. 1062 of 2023 is hereby allowed. 2. Applicant Suresh Dattaram Pawar is hereby released on temporary bail for a period of six months from today, in connection with Criminal Case No. 559 of 2021 registered at Mahim police station for offences punishable under Sections 420, 409, 467, 468, 471, 120‑B read with Section 34 of the Indian Penal Code. He shall be released on temporary bail on executing his personal recognizance bond of Rs 50,000 with one or more sureties in the like amount, and on the following conditions: (a) He shall not tamper with prosecution witnesses and evidence; (b) He shall furnish his detailed address, mobile/contact number, address proof and identity proof at the time of furnishing bail; (c) In case of change of residence or mobile/contact number, he shall inform the Bombay High Court and the investigating officer; (d) Applicant shall remain present in the trial Court on each date unless personal appearance is exempted by the learned trial judge; (e) At the end of six months, the applicant shall surrender before the learned trial court; (f) He shall not leave the jurisdiction of this Court without prior permission of the trial court; (g) He shall not threaten or pressurise the complainant or witnesses in any manner. 3. Bail shall be furnished before the concerned Metropolitan Magistrate. 4. Bail application is disposed of accordingly. Directly typed on computer on 15/05/2023. Printed on 17/05/2023.
id_1805	0	Municipal Corporation of Greater Mumbai (MCGM) is Applicant/Original Respondent No. 2 in the matter between Mohan Yeshwant Padawe & Ors Applicants versus the State of Maharashtra through the Ministry of Housing and Urban Development and Ors Respondents. Mr. Anoop Patil, with Sagar Patil in behalf of Arauna Savla, appears for the Applicant. Mr. Anand Mishra, in behalf of AM Saraogi, appears for the Original Petitioner. Justice Gauri Godse, Bombay High Court. Dated: 29 September 2022., This is an interim application by the Municipal Corporation of Greater Mumbai seeking that an order dated 25 May 2018 passed by a Division Bench of the Bombay High Court (Justice S. J. Kathawalla and Justice A. S. Gadkari) be vacated., That order was passed when the Bench was sitting as a vacation Court. A copy is at Exhibit A to the interim application on pages 38 and 39. The order is reproduced in its entirety., The learned advocate appearing for Respondent Nos. 2 and 3 states that they shall, within a period of 24 hours, reconnect the water as well as electricity supply, which they have disconnected., The learned advocate appearing for the petitioners states that the petitioners shall reside in the premises bearing CTS No. 13, Final Plot No. 1274, Town Planning Scheme No. 4, Mahim, G/South Ward, Mahim, Mumbai 400016 (the suit property) at their own risk. They shall be responsible for any consequences in view of the present dilapidated condition of the building as alleged by the corporation., The Municipal Corporation of Greater Mumbai is Respondent No. 2 to the original writ petition. The four petitioners are tenants of a structure called Janki Bhavan, which stood as City Survey No. 13, Final Plot No. 1274, TPS IV, Mahim, Mumbai 400016. The other tenants are joined as respondents to the petition. Unlike the usual petitions, the present structure is not an old building that has deteriorated over time; it is a relatively recent structure of about 2009. It was constructed by the fourth respondent developer, Sanghavi Grih Nirman Pvt. Ltd., purely as a temporary transit accommodation for the tenants. Respondent No. 4 is also the owner of the property. The developer proposed redevelopment and the tenants consented. Part of that redevelopment required the old structure to be pulled down and a transit structure erected in its place until permanent alternate accommodation was ready. In the meantime, the tenants were to be accommodated in the present temporary, steel‑frame structure, which was designed and used only as temporary alternate accommodation., The tenants filed the writ petition and sought intervention of this Court under Article 226 of the Constitution of India because the MCGM had issued notices under Section 354 of the Mumbai Municipal Corporation Act, 1888, stating that the temporary transit accommodation structure was now dilapidated and dangerous. There are reports of structural audits and opinions of the Technical Advisory Committee, a body first set up under directions of this Court in an earlier writ petition in 2014. That scheme has now been incorporated by the MCGM by a notification or appropriate regulations. One grievance was that the tenants were being asked to vacate without any provision for permanent alternate accommodation to which they are entitled in law., The case was before the Division Bench during the summer vacation of 2018. The order made that day does not prevent the MCGM from exercising its powers under the Mumbai Municipal Corporation Act, but it is understood to be a conditional order of status‑quo at least to the extent of eviction of the tenants from the structure. Accordingly, directions were passed for the restoration of electricity and water supply. There are altogether about 42 tenants, all in occupation. This continued occupancy of the temporary transit structure is subject to the conditionality imposed by the Court, namely that any tenant who wishes to continue in the premises does so at his own risk and is responsible for any consequences arising from the present dilapidated condition of the building as alleged by the corporation., No one asked for this order to be vacated until 2021. It might have been expected that the developer/owner, if serious about the project, would have come forward., Instead, to our great surprise, the MCGM filed this interim application for the following reliefs: a) dispense with the filing of an affidavit; b) allow the interim application; c) vacate the order dated 25 May 2018 passed in the writ petition concerning the suit building Janki Bhavan and grant leave to the applicants to take all necessary steps to evict the tenants/occupants of the suit building and demolish the dilapidated structure in accordance with law, with police assistance if required; d) pending hearing and final disposal, direct the petitioners/respondents No. 1 to 4 and all other occupants/tenants to vacate the structures they occupy in the suit building within seven days and hand over vacant and peaceful possession to the applicants for further action as per law; e) pending hearing and final disposal, direct the petitioners/respondents and all other occupants/tenants not to obstruct or create any hindrance to the proposed eviction and demolition of the suit building., We are unable to understand how the MCGM is in any way affected or prejudiced by the previous Division Bench order. The building may have been declared dilapidated, but that is a controversy yet to be resolved. The occupants/tenants have been permitted to continue to reside there at their own risk., The MCGM does not indicate where these tenants are to go if reliefs are granted. Presumably they would be thrown onto the streets and left to fend for themselves. The MCGM has sufficient power and authority to take action against the fourth respondent developer and compel it to complete the sanctioned project. There is no indication in the interim application that the MCGM has taken any such action., This is significant because the benefit of an order in this interim application is not to the tenants, who would clearly be prejudiced, nor to any perceptible advantage of the MCGM, which is not prejudiced. It is solely to the benefit of the developer, who nevertheless has remedies available under the Rent Act and municipal law., It appears that this interim application by the MCGM is at the instance of the developer, aimed at obtaining vacant possession of the property without providing permanent alternate accommodation for the tenants. If allowed, the result would be that the tenants are thrown out, the temporary transit accommodation is demolished, and the developer/owner obtains a completely emptied plot., Despite service, the fourth respondent developer does not appear in this interim application and does not disclose the steps it is taking to complete the project or when permanent alternate accommodation will be ready. Instead, we are asked to evict the tenants from the temporary accommodation provided as part of a sanctioned redevelopment project, to believe that this is equitable, and to accept that justice demands that 42 tenants be forcibly thrown out of their homes onto the streets. These tenants have already been moved from their original premises to this temporary structure, and the MCGM, which is supposed to protect their interests, now seeks to evict them from even this temporary accommodation without indicating where they should go., Mr. Patil for the MCGM repeatedly states that the building is dilapidated. Many buildings are dilapidated, yet we have not seen similar enthusiasm from the MCGM in litigating against older, more dilapidated structures., We are told that the order in question is inadequate. What will happen to visitors and guests should there be a collapse? The Division Bench order does not address this. This is a misreading of the order. Paragraph 3 clearly states that the tenants shall be responsible for any consequences. Not every possible consequence needs to be anticipated; all consequences, without limitation, are the responsibility of the tenants/occupiers. This is the basis on which they are allowed to continue occupation with power and water supply restored. This is plain from the wording of the order., In these circumstances, we are firmly of the opinion that this interim application by the MCGM is utterly without merit and possibly worse. Since no officer can be identified as having instructed the filing of this misconceived application, we refrain from imposing costs. We put the MCGM on notice that it should distance itself from the developer/builders., The interim application is dismissed.
id_1806	0	Reportable Civil Appeal No 2874 of 2024, Special Leave Petition (Civil) No 2998 of 2024, Kuldeep Kumar Appellant versus Union Territory of Chandigarh and Others Respondents. Dr Dhananjaya Y Chandrachud, Chief Justice of India. Leave granted., The present appeal arises from an interim order of a Division Bench of the Punjab and Haryana High Court dated 31 January 2024. The order impugned originates in a writ petition alleging electoral malpractices by the presiding officer who conducted the election to the post of Mayor at the Chandigarh Municipal Corporation. The High Court issued notice and listed the petition after three weeks, but it declined to stay the result of the election or grant any other interim relief. The appellant approached the Supreme Court of India assailing the order and raised serious allegations about the sanctity of the election. With the course the proceedings have taken, this judgment will result in a final order on the writ petition before the High Court., Section 38 of the Punjab Municipal Corporation Act, 1976, extended to the Union Territory of Chandigarh by the Punjab Municipal Corporation Law (Extension to Chandigarh) Act, 1994, provides that the Chandigarh Municipal Corporation shall, at its first meeting in each year, elect one of its elected members to be the Mayor of the Corporation. Section 60(a) of the Act provides that the meeting for the election of the Mayor shall be convened by the Divisional Commissioner, who shall nominate a councillor who is not a candidate for the election, to preside over the meeting. Similarly, Regulation 6(1) of the Chandigarh Municipal Corporation (Procedure and Conduct of Business) Regulations, 1996 provides that a meeting for the election of a Mayor shall be convened by the prescribed authority who shall nominate a councillor who is not a candidate to preside over the meeting. The Deputy Commissioner of the Union Territory of Chandigarh has been designated as Presiding Authority for this purpose by a notification dated 4 October 1994., On 10 January 2024, Shri Vinay Pratap Singh, Indian Administrative Service, Deputy Commissioner, Union Territory of Chandigarh, acting in his capacity as the prescribed authority, directed the convening of a meeting of the councillors in terms of Section 38 of the Act at 11 a.m. on 18 January 2024. The seventh respondent, Shri Anil Masih, one of the councillors who was not standing for the mayor election, was nominated as the presiding authority. The agenda of the meeting was to conduct the election of Mayor, Senior Deputy Mayor, and Deputy Mayor of the Corporation and the elected councillors desirous of contesting the election were called upon to file their nominations for the posts., A writ petition under Article 226 of the Constitution was instituted by the appellant in the Punjab and Haryana High Court seeking a direction to the Deputy Commissioner to ensure that free and fair elections take place for the posts of Mayor, Senior Deputy Mayor and Deputy Mayor of the Municipal Corporation, which were scheduled to be held on 18 January 2024, and for the appointment of a commissioner under the auspices of the High Court to supervise the election process., During the course of hearing the appeal, the appellant submitted that he would be content if the petition was disposed of with directions to the official respondents to (a) acknowledge the acceptance of the withdrawal of the candidature of certain individuals for the three electoral posts; (b) permit persons nominated by the contested candidates to observe the proceedings of the elections; and (c) video record the entire election process., In response to the above submission, it was stated on behalf of the respondents representing the various authorities that the entire voting and election process would be video recorded. It was also stated that the Chandigarh Police would ensure that free and fair elections take place. In view of the position adopted by the authorities, by an order dated 17 January 2024 (a day before the proposed election), the petition was disposed of by a Division Bench of the Punjab and Haryana High Court., Elections were not conducted on 18 January 2024, resulting in a fresh round of litigation before the Punjab and Haryana High Court. The order dated 18 January 2024 postponing the elections and rescheduling them to 6 February 2024 was challenged before the High Court. The election allegedly could not take place as Shri Anil Masih, the presiding officer, had taken leave of absence on the ground of ill health and due to the purported law and order situation in Chandigarh., On 23 January 2024, the High Court observed that the postponement of the elections for a period of eighteen days was unreasonable. By its judgment dated 24 January 2024, the High Court held that there was no valid ground for the postponement of the elections. Consequently, while setting aside the postponement order dated 18 January 2024, the High Court directed that the elections to the posts of Mayor, Senior Deputy Mayor and Deputy Mayor be conducted at 10 a.m. on 30 January 2024. The High Court also issued other directions to ensure free and fair elections, as set out below: (i) The respondents‑authorities shall conduct the elections to the posts of Mayor, Senior Deputy Mayor and Deputy Mayor of the Municipal Corporation, Chandigarh, on 30 January 2024 at 10 a.m. at the scheduled place as indicated in the order dated 10 January 2024 (Annexure P.1 in Case Work Paper‑1350‑2024). (ii) The prescribed authority shall ensure that the scheduled elections are held under a presiding officer nominated by the said authority. The official respondents shall remain bound by their statements made before the Coordinate Bench of this Court on 17 January 2024 in Case Work Paper‑1201‑2024, to ensure conduct of free and fair elections. (iii) The councillors who would come for voting in the aforesaid elections shall not be accompanied by any supporters or by security personnel belonging to any other State. (iv) The Chandigarh Police shall provide adequate security to the councillors who would come for voting, in view of the fact that they will not be accompanied by any security personnel belonging to any other State. (v) The Chandigarh Police shall also ensure that neither any ruckus nor any untoward incident takes place in or around the premises of the Chandigarh Municipal Corporation Office, prior to, during or after the election process., Pursuant to the above litigation before the High Court, the programme for the elections was notified on 26 January 2024. The election for the post of Mayor was conducted on 30 January 2024 with Shri Anil Masih, the seventh respondent, acting as the Presiding Officer. Two candidates were in the fray for the post of Mayor. The appellant, Kuldeep Kumar, was a candidate fielded by an alliance between the Aam Aadmi Party and the Indian National Congress. From the submissions before the Court, it appears that the alliance came into being after nominations were filed on 16 January 2024, after which certain candidates had withdrawn their nominations, as recorded by the High Court in one of its earlier orders. The second candidate, Manoj Kumar Sonkar, the eighth respondent, was a candidate set up by the Bharatiya Janata Party. Thirty‑five councillors were eligible to vote at the election of the Mayor, and the Member of Parliament from the Union Territory of Chandigarh was also eligible to cast a vote. There were therefore thirty‑six eligible voters for the election., The results were announced by the Presiding Officer on 30 January 2024. The result sheet which tabulated the outcome is reproduced below: 1. Kuldeep Kumar – 12 votes; 2. Manoj Kumar – 16 votes. The Presiding Officer declared Shri Manoj Kumar elected as Mayor, Municipal Corporation Chandigarh for the year. The result sheet indicates that thirty‑six votes were polled, of which eight were treated as invalid. Of the twenty‑eight valid votes which remained, the appellant polled twelve votes, while the eighth respondent polled sixteen votes. The Presiding Officer declared the result of the election in favour of the eighth respondent. As directed by the High Court, the election process, including the counting of votes, was video recorded., Alleging electoral malpractices by the presiding officer (seventh respondent) during the counting of votes, the appellant instituted a writ petition before the Punjab and Haryana High Court. A Division Bench of the High Court declined to stay the result of the election and directed that the petition be posted after three weeks. The proceedings before this Court were instituted at this stage assailing the interim order of the High Court., On 5 February 2024, the video recording of the counting process was played in open court. This Court passed the following order: (1) Issue notice. (2) Pursuant to the interim order of the High Court in an earlier writ petition, the proceedings for conducting the election to the post of Mayor of the Chandigarh Municipal Corporation were videographed. During the course of the hearing, the video has been played in Court. (3) The Returning Officer shall remain present before this Court on the next date of listing to explain his conduct as it appears in the video. (4) Prima facie, at this stage, we are of the considered view that an appropriate interim order was warranted, which the High Court has failed to pass, in order to protect the purity and sanctity of the electoral process. (5) We direct that the entire record pertaining to the election of the Mayor of the Chandigarh Municipal Corporation shall be sequestered under the custody of the Registrar General of the Punjab and Haryana High Court. This shall include: (i) the ballot papers; (ii) videography of the entire electoral process; and (iii) all other material in the custody of the Returning Officer. (6) This exercise shall be carried out forthwith by 5 p.m. this evening. (7) Mr Tushar Mehta, Solicitor General appearing on behalf of the Returning Officer, states that the Returning Officer has handed over the entire record in a sealed format to the Deputy Commissioner, Union Territory Chandigarh on 30 January 2024. (8) The Deputy Commissioner, Union Territory Chandigarh shall comply with the above direction by handing over the entirety of the record to the Registrar General of the Punjab and Haryana High Court for safe keeping and custody. (9) The ensuing meeting of the Chandigarh Municipal Corporation, which is to take place on 7 February 2024, shall stand deferred, pending further orders of this Court. (10) List the Special Leave Petition on 19 February 2024., On 19 February 2024, when the proceedings were listed before this Court again, the following order was passed: (1) Mr Gurminder Singh, senior counsel, apprised the Court that in pursuance of the interim order dated 5 February 2024, the ballot papers have been sequestered under the custody of the Registrar General of the Punjab and Haryana High Court on 5 February 2024. (2) During the course of the hearing, the Returning Officer, Mr Anil Masih, is present before this Court. Responding to a query of the Court, Mr Masih stated that he had, besides signing the ballot papers, put his mark at eight ballot papers during the counting of the votes. He states that he did so as he found that the ballot papers were defaced. (3) We direct that the ballot papers which have been placed in the custody of the Registrar General be produced before this Court at 2.00 p.m. on 20 February 2024 by a judicial officer to be nominated by the Registrar General for the purpose of transporting the ballot papers to this Court. (4) Proper security arrangements shall be made to ensure the safe transit of the judicial officer nominated by the Registrar General in pursuance of this order. Arrangements shall also be made to secure proper preservation and custody of the ballot papers with the judicial officer. (5) The judicial officer shall also produce the entire video of the counting of the votes before the Returning Officer which took place on 30 January 2024. (6) List the Special Leave Petition at 2.00 p.m. on 20 February 2024., In pursuance of the above directions, the entire record pertaining to the election of the Mayor was sequestered under the custody of the Registrar General of the Punjab and Haryana High Court, including (i) the ballot papers; (ii) the video footage of the electoral process; and (iii) all material in the custody of the Returning Officer/Presiding Officer. Pursuant to the order dated 19 February 2024, the entire record has been produced before this Court in sealed and secure custody by Shri Varun Nagpal, Officer on Special Duty (Litigation) of the Punjab and Haryana High Court., On 5 February 2024, during the course of the hearing, parts of the video footage recorded in pursuance of the order of the High Court were played before this Court. The entire video footage has been produced before the Court pursuant to the order dated 19 February 2024 and played on the open screens during the hearing., Elections to the post of Mayor are governed by the provisions of the Chandigarh Municipal Corporation (Procedure and Conduct of Business) Regulations, 1996. Regulation 6 provides for election of the Mayor, including the process of nomination, withdrawal of candidatures and the conduct of the election by a secret ballot. Clauses (9) to (13) of Regulation 6 have a material bearing on the subject matter of the present dispute and serve as a yardstick to test the actions of the Presiding Officer (seventh respondent). The relevant provisions are reproduced below: (9) No member shall vote for more than one candidate. At the time of voting, each member shall place a cross (X) on the right‑hand side of the ballot paper opposite the name of the candidate for whom he wishes to vote, and will then fold the ballot paper and, without showing the front of the paper to any person, insert the same in the ballot box in the presence of the presiding authority. (10) If a member votes for more than one candidate or places any mark on the paper by which he may be identified, his ballot paper shall be considered invalid and will not be counted. A vote recorded on a ballot paper used at the meeting shall be rejected if the marks indicating the vote are placed on the ballot paper in such a manner as to make it doubtful to which candidate the vote has been given. (11) As soon as the period fixed for casting of votes is over, the presiding authority shall open the ballot box and initial each ballot paper. (12) The votes for all the candidates shall then be counted by the presiding authority with the assistance of the municipal officials or employees as may be designated by the presiding authority and the candidates shall be arranged in the order of the number of votes obtained by each of them. (13) If there are only two candidates, then the one who gets the larger number of votes shall be declared elected., In terms of Regulation 6(9), a councillor can vote for only one candidate. While voting, each member has to place a cross (X) on the right‑hand side of the ballot paper opposite the name of the candidate for whom he wishes to vote, after which the ballot paper has to be folded and inserted in the ballot box in the presence of the Presiding Officer. Regulation 6(10) stipulates when the ballot paper would be treated as invalid and provides for three eventualities. The first is where a member votes for more than one candidate. The second is where the member places any mark on the paper by which he may be identified. The third is if the mark indicating the vote is placed on the ballot paper in such a manner as to make it doubtful for which candidate the vote has been cast. Regulation 6(11) provides that as soon as the period fixed for casting of the votes is over, the presiding authority shall open the ballot box and initial each ballot paper., From the record, it emerges that Shri Anil Masih, the Presiding Officer, had signed each of the ballot papers. However, the video footage appears to indicate that he had also placed certain marks on some of the ballot papers. This was corroborated on 19 February 2024, when Shri Anil Masih, the presiding authority (seventh respondent), who was present before this Court, stated that besides signing the ballot papers, he had placed his mark on eight ballot papers during the counting of the votes. He stated that he did so as he found that the ballot papers were defaced and sought to highlight them., The grievance of the appellant, urged before this Court by Dr Abhishek Manu Singhvi and Mr Gurminder Singh, senior counsel, is that the video footage leaves no manner of doubt that the Presiding Officer, while initialing the ballot papers, placed an ink mark on the lower half of eight ballot papers, all of which were cast in favour of the appellant. It has been urged that the votes were treated as invalid only as a result of the marks which were put by the Presiding Officer. Consequently, it has been submitted that a deliberate effort was made by the Presiding Officer to treat eight of the votes which were cast in favour of the appellant as invalid and to declare the eighth respondent as the elected candidate on the basis that he had secured sixteen votes. Hence, it has been submitted that the electoral process has been vitiated by the misconduct of the presiding authority, as a consequence of which the democratic process leading up to the election of the Mayor of the Chandigarh Municipal Corporation has been seriously impaired., Mr Mukul Rohatgi, senior counsel, appeared on behalf of the Presiding Officer (seventh respondent) and urged that the entire process of the election was not only video recorded but both the contesting candidates and their representatives were present in the assembly hall where the counting took place. Mr Rohatgi further submitted that apart from initialing the ballot papers, the Presiding Officer placed certain marks in the bottom half of the eight ballots which were treated as invalid based on his assessment that these ballots had already been defaced., Mr Maninder Singh, senior counsel appearing on behalf of the eighth respondent, submitted that the relief sought by the appellant in the underlying writ petition before the High Court is for setting aside the result of the election and for the conduct of a fresh election. During the pendency of these proceedings, the eighth respondent has tendered his resignation and hence, it has been submitted that a fresh election would have to be held in terms of the provisions of Section 38(3) of the Act., Mr Tushar Mehta, Solicitor General, appeared for the Union Territory of Chandigarh and clarified that he is not representing the Presiding Officer (seventh respondent) in these proceedings., As stated above, Regulation 6(9) indicates that at the time of voting, each member shall place a cross (X) on the right‑hand side of the ballot paper opposite the name of the candidate for whom the member wishes to vote. The ballot paper is then folded and placed in the ballot box. The entire record (including the ballots in question) has been produced before this Court in secure custody., The entirety of the dispute turns on the eight ballot papers which were treated as invalid by the Presiding Officer. We have perused the ballot papers in question. All the ballot papers contain the name of the appellant in the upper half and the name of the eighth respondent in the lower half. Below the names of the candidates is the signature of the Presiding Officer. After the ballots are cast, the Presiding Officer is required to initial each ballot in terms of Regulation 6(11). Each of the ballot papers bears two signatures of the Presiding Officer. It is evident from the physical inspection of the eight ballots which were treated as invalid that in each of those cases, the vote was cast by the member in favour of the appellant. The Presiding Officer has placed a line in ink by way of a mark at the bottom half of each of the ballots which have been treated as invalid. During the course of the hearing yesterday, the Presiding Officer informed this Court that he did so because he found that the ballots had been defaced. Before recording the statement of the Presiding Officer in the above terms, we had placed him on notice of the serious consequences which are liable to ensue if he was found to have made a statement before this Court which was incorrect., The eight ballots which have been perused before the Court have also been perused by the counsel appearing on behalf of the appellant and for the successful candidate among others. It is evident that in each of the eight ballots, the vote had been duly cast in favour of the appellant. Further, the Presiding Officer has evidently put his own mark on the bottom half of the ballots to create a ground for treating the ballot as having been invalidly cast., In doing so, the Presiding Officer has clearly acted beyond the terms of his remit under the statutory regulations. These regulations have been framed by the Municipal Corporation in exercise of powers conferred by Section 65 of the Act as extended to the Union Territory of Chandigarh. Clause (10) of Regulation 6 provides for three eventualities, as already noticed earlier, in which a ballot can be treated as invalid, namely: (i) where a member has voted for more than one candidate; (ii) where a member places any mark on the paper by which he may be identified; and (iii) if the mark indicating the vote is placed on the ballot paper in such a manner as to make it doubtful over which candidate the vote has been cast., None of the above eventualities are fulfilled in the present case., There is absolutely no dispute about the factual position that in each of the eight ballots the vote was cast for one person, which is evident from the rubber stamp appearing on the upper half of the ballot in each of those cases. Likewise, there is no mark on the ballot which would indicate that the person who cast the vote would be identified. The third ground, which evinces a situation where the mark is placed in such a manner as to make it doubtful for which candidate the vote has been cast, would not arise on a plain perusal of the ballots. Even if the mark which was placed by the Presiding Officer is taken into consideration, that mark does not create any doubt about the candidate in favour of whom the vote was cast. The vote was cast by placing a rubber stamp on the upper half of the ballot and hence the ink mark which was placed on the bottom half by the Presiding Officer would be of no consequence. The ballots had not been defaced when the Presiding Officer put his mark at the bottom. The ballots left no manner of doubt about the candidate for whom the ballot was cast. But that apart, it is evident that the Presiding Officer is guilty of a serious misdemeanour in doing what he did in his role and capacity as Presiding Officer., As stated above, Regulation 6(1) requires the nomination of a councillor who is not a candidate at the election to preside over the meeting. This provision has been made to ensure that the person who acts as Presiding Officer would do so with objectivity. It is evident that the Presiding Officer in the present case has made a deliberate effort to deface the eight ballots which were cast in favour of the appellant so as to secure a result at the election by which the eighth respondent would be declared as the elected candidate., Before this Court yesterday, the Presiding Officer made a solemn statement that he had done so because he found that each of the eight ballots was defaced. It is evident that none of the ballots had been defaced. As a matter of fact, it is also material to note that after the votes are cast, the ballot is folded in a vertical manner to ensure that if the ink on the rubber stamp appears on the corresponding half of the ballot it will appear alongside the name of the candidate for whom the vote has been cast. The conduct of the Presiding Officer must be deprecated at two levels. Firstly, by his conduct, he has unlawfully altered the course of the Mayor's election. Secondly, in making a solemn statement before this Court on 19 February 2024, the Presiding Officer has expressed a patent falsehood, despite a prior warning, for which he must be held accountable., For the above reasons, we have come to the conclusion that the result, which was declared by Shri Anil Masih, the Presiding Officer, is plainly contrary to law and would have to be set aside. We order accordingly., During the course of these proceedings, the eighth respondent who was elected as Mayor has tendered his resignation. Senior counsel appearing on behalf of the eighth respondent has adverted to the provisions of Section 38(3), in terms of which on the occurrence of any casual vacancy, inter alia, in the office of the Mayor, the Corporation is required within a month of the occurrence of the vacancy to elect one of its members as Mayor to hold office for the remainder of the term of the predecessor., In the underlying writ petition before the Punjab and Haryana High Court, the appellant had, inter alia, sought the setting aside of the election process and for the holding of a fresh election process and consequential reliefs. However, we are of the considered view that it would be inappropriate to set aside the election process in its entirety when the only infirmity which has been found is at the stage when the counting of votes was recorded by the Presiding Officer. Allowing the entire election process to be set aside would further compound the destruction of fundamental democratic principles which has taken place as a consequence of the conduct of the Presiding Officer., This Court has consistently held that free and fair elections are a part of the basic structure of the Constitution. Elections at the local participatory level act as a microcosm of the larger democratic structure in the country. Local governments, such as municipal corporations, engage with issues that affect citizens' daily lives and act as a primary point of contact with representative democracy. The process of citizens electing councillors, who in turn elect the Mayor, serves as a channel for ordinary citizens to ventilate their grievances through their representatives both directly and indirectly elected. Ensuring a free and fair electoral process throughout this process, therefore, is imperative to maintain the legitimacy of and trust in representative democracy., We are of the considered view that in such a case, this Court is duty‑bound, particularly in the context of its jurisdiction under Article 142 of the Constitution, to do complete justice to ensure that the process of electoral democracy is not allowed to be thwarted by such subterfuges. Allowing such a state of affairs to take place would be destructive of the most valued principles on which the entire edifice of democracy in our country depends. We are, therefore, of the view that the Supreme Court of India must step in in such an exceptional situation to ensure that the basic mandate of electoral democracy at the local participatory level is preserved. Pertinently, this is not an ordinary case of alleged malpractice by candidates in an election, but electoral misconduct by the presiding officer himself. The brazen nature of the malpractice, visible on camera, makes the situation all the more extraordinary, justifying the invocation of the power of this Court under Article 142., From the result sheet, which has been reproduced in paragraph 11, it has emerged that while the appellant is reflected to have polled twelve votes, eight votes cast in favour of the appellant were treated as invalid. As detailed above, each of those eight invalid votes was in fact validly cast in favour of the appellant. Adding the eight invalid votes to the twelve votes which the Presiding Officer recorded to have been polled by the appellant would make his tally twenty votes. The eighth respondent, on the other hand, has polled sixteen votes., We accordingly order and direct that the result of the election as declared by the Presiding Officer shall stand quashed and set aside. The appellant, Kuldeep Kumar, is declared to be the validly elected candidate for election as Mayor of the Chandigarh Municipal Corporation.
id_1806	1	Further, we are of the considered view that a fit and proper case is made out for invoking the jurisdiction of the High Court of Punjab and Haryana under Section 340 of the Code of Criminal Procedure, 1973 in respect of the conduct of Shri Anil Masih, the Presiding Officer. In paragraph 2 of the order dated 19 February 2024, we recorded the statement made by the Presiding Officer when he appeared personally before the High Court of Punjab and Haryana. As Presiding Officer, Shri Anil Masih could not have been unmindful of the consequences of making a statement which, prima facie, appears to be false to his knowledge in the course of judicial proceedings., The Registrar (Judicial) is directed to issue a notice to show cause to Shri Anil Masih of the Chandigarh Municipal Corporation, who was the Presiding Officer at the election that took place on 30 January 2024, as to why steps should not be initiated against him under Section 340 of the Code of Criminal Procedure, 1973. The notice shall be made returnable on 15 March 2024., Shri Anil Masih shall have an opportunity to file his response to the notice issued in pursuance of the above directions., The ballots and the video footage that were unsealed for the perusal of the High Court of Punjab and Haryana shall be sealed again and returned to the Officer on Special Duty (Litigation) of the High Court of Punjab and Haryana for safekeeping before the Registrar General of the High Court. This shall be subject to further orders of the competent court., The other elections required to be held in terms of the regulations shall now take place in accordance with law, except for the election of the Mayor, which has been resolved by the final directions issued hereinabove., Before concluding, we echo the observations of Justice V.R. Krishna Iyer, speaking for himself, Chief Justice Beg and Justice Bhagwati, in Mohinder Singh Gill v. Chief Election Commissioner, albeit in a different context of the powers of the Election Commission of India and the parameters of Article 329(b) of the Constitution pertaining to elections to the Houses of Parliament and the State Legislatures. Justice Krishna Iyer observed: 'Every significant case has an unwritten legend and indelible lesson. This appeal is no exception, whatever its formal result. The message, as we will see at the end of the decision, relates to the pervasive philosophy of democratic elections which Sir Winston Churchill vivified in matchless words: At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper. No amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point. If we may add, the little, large Indian shall not be hijacked from the course of free and fair elections by mob muscle methods, or subtle perversion of discretion by men dressed in little, brief authority. For be you ever so high, the law is above you.', The writ petition before the High Court of Punjab and Haryana shall stand disposed of in terms of the above directions. The Civil Appeal shall be listed on 15 March 2024 for consideration of the response of the seventh respondent to the notice that has been directed to be issued to him.
id_1807	0	Criminal Miscellaneous Application No. 79 of 2021 Manoj Kumar Arya, Applicant, versus State of Uttarakhand and another Respondent. Present: Mr. Raj Kumar Singh, Advocate, for the applicant. Mr. T.C. Agarwal, Deputy Attorney General, for the State of Uttarakhand. Mr. Pankaj Singh Chauhan, Advocate, for Respondent No.2. Honourable Justice Sharad Kumar Sharma, Judge of the Supreme Court of India., The content of the FIR apparently speaks for itself as to whether, under the peculiar set of circumstances and the allegations levelled therein, there could be an offence under Section 376 of the Indian Penal Code., The complainant/respondent No.2, when she registered FIR No. 308 of 2020 on 30 June 2020, alleged commission of an offence under Section 376 of the Indian Penal Code against the named accused, i.e., the present applicant. Considering the gravity of the offence under Section 376, which is normally levelled against a male, the equity and the contribution or active role played by a female for commission of the offence must also be examined., The offence under Section 376 of the Indian Penal Code is penal in nature and provides punishment to an accused person who is found to be involved in the commission of rape. To determine whether an act complained of in the FIR actually constitutes rape, Section 376 must be taken into consideration., Section 375 of the Indian Penal Code defines rape as follows: A man is said to commit rape if he (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her do so with him or any other person; (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, urethra or anus of a woman or makes her do so with him or any other person; (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of the body of such woman or makes her do so with him or any other person; (d) applies his mouth to the vagina, anus, urethra of a woman or makes her do so with him or any other person, under circumstances falling under any of the following descriptions: (i) against her will; (ii) without her consent; (iii) with her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt; (iv) with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married; (v) with her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent; (vi) with or without her consent, when she is under eighteen years of age; (vii) when she is unable to communicate consent. Explanation 1: For the purposes of this section, vagina shall also include labia majora. Explanation 2: Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non‑verbal communication, communicates willingness to participate in the specific sexual act, provided that a woman who does not physically resist to the act of penetration shall not by reason only of that fact be regarded as consenting to the sexual activity. Exception 1: A medical procedure or intervention shall not constitute rape. Exception 2: Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape., It is only when the ingredients of Section 375 of the Indian Penal Code are satisfied in the FIR that a person can be punished under the penal provisions of Section 376 of the Indian Penal Code, and not otherwise., The facts of the instant case are that, as admitted by the complainant, prior to May 2005 and for over the last one and a half decades, she was in an intimate relationship with the present applicant. The parties assured each other of marriage as soon as either obtained a job. The physical relationship was established at the residence of both parties and continued for a long time. Even after the present applicant married another lady, the complainant continued the physical relationship with him., When the complainant voluntarily established a relationship even after knowing that the applicant was already married, the element of consent is present. Since consent is apparent in this case from 2015 until the registration of the FIR, and there was no prior complaint or retaliation, the burden was on the complainant to obtain a medical examination to establish lack of consent. Such medical examination and report are absent in the instant case., In fact, the offence under Section 376 of the Indian Penal Code is being misused as a weapon by females when differences arise between the parties, and it cannot be ruled out that the provisions are being rampantly misused. The Honourable Supreme Court of India, in the judgment reported as 2021 SCC OnLine SC 181, Sonu alias Subhash Kumar v. State of Uttar Pradesh and another, observed that when a physical relationship is established with consent and satisfies the test for exclusion under Section 375, it will not be rape but may constitute breach of trust, not an offence under Section 376. Extracted paragraphs: (10) The Court observed that the consent of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether consent was vitiated by a false promise of marriage, the promise must have been false, given in bad faith, and of immediate relevance to the woman's decision to engage in the sexual act. (11) Assuming the allegations in the FIR are correct, for the purpose of quashing under Section 482 of the Code of Criminal Procedure, no offence has been established. There is no allegation that the promise to marry the second respondent was false at inception. The FIR indicates a subsequent refusal to marry, which gave rise to the FIR. Accordingly, the High Court erred in declining to entertain the petition under Section 482., Following the principle of female active participation, this Court, in Criminal Miscellaneous Application No. 730 of 2022, Vijay Shukla v. State of Uttarakhand and another, observed that when there is a consensual relationship with active participation by the female, there is no offence under Section 376 of the Indian Penal Code, except for breach of trust., The Honourable Supreme Court of India, in the judgment reported as (2013) 7 SCC 675, Deepak Gulati v. State of Haryana, laid down that consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason accompanied by deliberation. There is a clear distinction between rape and consensual sex, and the court must examine whether the accused actually wanted to marry the victim or had mala fide motives. Extracted paragraphs: (21) Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. It is an act of reason, accompanied by deliberation, weighing good and evil. The court must examine whether a false promise of marriage was made at an early stage and whether consent was given with full understanding of the nature and consequences of sexual indulgence. (22) In Deelip Singh, it was observed that Section 90 considers the victim’s perspective and the accused’s knowledge or reason to believe that consent was given due to fear or misconception of fact. Both parts must be satisfied cumulatively., In that eventuality, it will not be an offence under Section 376 of the Indian Penal Code because, apart from the fact that the relationship continued for decades, it continued knowingly even after the marriage of the present applicant., The Honourable Supreme Court of India, in the judgment reported as 2022 SCC OnLine SC 1032, Shambhu Kharwar v. State of Uttar Pradesh and another, dealt with the element of consent required under Section 375. Extracted paragraph: (13) It is impossible to find in the FIR or charge‑sheet the essential ingredients of an offence under Section 376. The crucial issue is whether the appellant gave a false promise of marriage at inception, inducing the second respondent into a sexual relationship. The relationship was purely consensual, existing prior to the second respondent’s marriage, continuing during the marriage and after divorce by mutual consent., Therefore, the proceedings drawn against the present applicant by way of Criminal Case No. 4831 of 2020, State v. Manoj Kumar Arya, pending before the Additional Chief Judicial Magistrate, Haldwani, District Nainital, deserve to be quashed. The same shall stand quashed. In view of the foregoing reasons, the application under Section 482 of the Code of Criminal Procedure shall be allowed.
id_1810	0	Versus Sudhanshu Dhulia, J. Leave granted. The above two petitions have been filed before the Supreme Court of India by the State of Jharkhand through the Resident Commissioner, challenging the orders dated 03.06.2022 passed by the Division Bench of the High Court of Jharkhand, where the High Court has ordered that the Public Interest Litigations filed by respondent No.1 before the Jharkhand High Court are maintainable, and thus the High Court decided to proceed with the matter on its merits. The petitioner here poses a challenge to the very maintainability of these two Public Interest Litigations. After hearing the parties at length, the Supreme Court of India vide its order dated 17.08.2022 had reserved its orders and directed that meanwhile the High Court shall not proceed further with the matter., The question before the Supreme Court of India is whether the petitions which have been filed before the Jharkhand High Court in the form of Public Interest Litigations are maintainable in view of the settled position of law laid down by this Court in several of its earlier decisions. The question is also whether these Public Interest Litigations comply with the provisions of the Jharkhand High Court (Public Interest Litigation) Rules, 2010 (for short Rules, 2010) and if they do not, were the petitions filed as Public Interest Litigations liable to be dismissed at the very threshold if they were not in compliance with the provisions of the above Rules., Two Public Interest Litigation petitions were filed before the Jharkhand High Court by the same person, i.e., Sri Shiv Shankar Sharma. In the first Writ Petition (Public Interest Litigation) No. 4290 of 2021 the following relief was sought: A. For direction upon the respondents, especially respondents No. 3 to 13, to enquire into the money transferred of the Soren family in the name of respondents No. 8 to 13 and may also submit the report to the Income Tax Department as to how the companies which are 28 in numbers have been used as a parking place for ill-gotten money. B. For direction upon respondent No. 3 to investigate the sources of income of respondents No. 8 to 13 because they being close friends of Hemant Soren and Basant Soren have invested the money in a number of companies as a chain of hotels as it is shown that the owner is Ranjan Sahu and the Hotlips chain of hotels and restaurants which was situated in a small area near the Chief Minister's residences and later removed have transformed into six hotel chains situated at Kanke Road, Ratan Lal Complex, Ratu Road, Lalpur, Hinoo and Kamre. C. For direction upon respondent No. 4 to investigate the financial crime committed by Hemant Soren which income has given to Ravi Kejriwal as he is connected to him since childhood and also having close connection with Ranjan Sahu, the so‑called owner of Hotlips Chain of hotels and restaurants and may also investigate at which point of time and place Mr. Hemant Soren has committed illegality and earned crores of rupees and invested in the name of these persons. D. For direction upon respondent No. 5 to investigate the money trail of crime proceeding with respondents No. 8 to 13 and they have amassed huge wealth and returning the money at the time of election to Jharkhand Mukti Morcha headed by Hemant Soren. E. For any other relief as this Hon’ble Court may deem fit and proper in the light of the facts of this case., In the second Writ Petition (Public Interest Litigation) No. 727 of 2022 the following relief was sought: A. For direction upon respondent No. 9 to grant sanction for prosecution, to prosecute the Chief Minister cum Minister of Department of Mines for act of misuse of office and getting the mining lease done in his own name, although he being a Departmental Minister/Chief Minister cannot do business (Article 191(9) of the Constitution) of mining, and also committed criminal act, so he is liable to be prosecuted under Section 7(A) and 13(I)(d) of the Prevention of Corruption Act, 1988 and Section 169 of the Indian Penal Code, and also to cancel his membership of the Assembly of Jharkhand, and also he has violated Section 9 of the Representation of the People Act, 1950 and lastly, he has contravened the code of conduct framed by the Union Government for the Hon’ble Chief Minister and Ministers of States. B. For direction upon the respondents, especially respondent No. 1, the Chief Secretary, Jharkhand to protect the relevant file of the Department of Mines wherein the mining lease of Angadha Mauza, Thana No. 26, Khata No. 187, Plot No. 482, Area 0.88 acre for which Letter of Intent was issued on 16.06.2021, approval of mining plan was given on 10.07.2021, mining plan approved on 09.09.2021 and finally on 09.09.2021 respondent No. 7 gave application, which was approved in its 90th meeting dated 14‑18 September 2021, within such a short time although the SEIAA has given environmental clearance to the new High Court building after many months, and directions may be issued to the Central Bureau of Investigation and Enforcement Directorate to investigate the crime committed by respondents No. 7 and 8. C. For direction upon the Central Bureau of Investigation especially also to investigate the history of illegal mining committed by the person like respondent No. 7 and due to his influence, illegal mining is done to public properties sold by Mr. Soren against the provisions of law to himself only. D. For any other relief as this Hon’ble Court may deem fit and proper in the light of the facts of this case., In both these writ petitions the respondents, which inter alia included the State of Jharkhand as well as the incumbent Chief Minister, Mr. Hemant Soren, raised a preliminary objection as to the maintainability of the writ petition. Objections were also raised that the writ petitions do not disclose the particulars and credentials of the petitioner nor do they follow the procedure as mandated by the Rules, i.e., Rule 4, 4A, 4B, 5 of the Rules, 2010., Since the Supreme Court of India nevertheless proceeded with the matter, the petitioner had earlier filed a petition before the Supreme Court of India challenging the proceedings before the Jharkhand High Court in the form of the two Public Interest Litigations. The matter came up before a Division Bench of the Supreme Court of India and the following orders were passed on 24.05.2022 in Special Leave Petition (Civil) Nos. 9728‑9730 of 2022: A batch of three writ petitions is pending before the Division Bench of the Jharkhand High Court: (i) In Writ Petition (Public Interest Litigation) No. 4632 of 2019; the petitioner, Arun Kumar Dubey, seeks, inter alia, a direction to the Directorate of Enforcement to investigate fifteen FIRs pertaining to alleged offences arising out of the disbursement of MGNREGA funds to Khunti Zila Parishad implicating offences under Sections 406, 409, 420, 423, 429, 465 and 1208 of the Indian Penal Code and Sections 11, 12(2) and 13(1)(e) of the Prevention of Corruption Act; (ii) In Writ Petition (Public Interest Litigation) No. 4290 of 2021; the petitioner, Shiv Shankar Sharma, seeks a direction for an investigation into the alleged transfer of monies by the Soren family in the names of respondents No. 8 to 13 through the instrumentality of certain shell companies; and (iii) In Writ Petition (Public Interest Litigation) No. 727 of 2022; the petitioner, Shiv Shankar Sharma, seeks a direction for sanctioning the prosecution of the Chief Minister for obtaining a mining lease in his own name implicating offences under the provisions of the Prevention of Corruption Act, 1988 and the Indian Penal Code., On 22 April 2022, when Writ Petition (Public Interest Litigation) No. 4290 of 2021 came up before a Division Bench presided over by the Chief Justice, the Supreme Court of India recorded the submission of counsel for the State that an identical writ petition was dismissed with costs by this Court filed by the same counsel and the matter went up to the Supreme Court where the Special Leave Petition was dismissed. After issuing certain procedural directions for the impleadment of the Registrar of Companies, the Division Bench directed that the proceedings in Writ Petition (Public Interest Litigation) No. 4290 of 2021 be placed along with the records of Writ Petition (Public Interest Litigation) No. 4218 of 2013 on 1.3 May., On 13 May 2022, the Jharkhand High Court, inter alia, noted the submissions of the State of Jharkhand objecting to the maintainability of the petition. The extract reads: “At this juncture, Mr Kapil Sibal, learned Senior Advocate, appearing for the State of Jharkhand, has made a submission that he has to raise a preliminary objection regarding the maintainability of the case itself. We would consider the preliminary objection and then the merit also, if required, on the next date of hearing.”, The Jharkhand High Court posted the proceedings on 17 May 2022. On that date, after perusing a sealed cover tendered on behalf of the Directorate of Enforcement, the Court noted the submission of the petitioner that Writ Petition (Public Interest Litigation) No. 4362 of 2019 may be placed alongside the petition which the High Court was considering on the next date of hearing and accordingly the proceedings were adjourned to 19 May 2022. On 19 May 2022, the Jharkhand High Court passed separate orders in Writ Petition (Public Interest Litigation) Nos. 727 of 2022, 4632 of 2019 and 4290 of 2021. The High Court posted the proceedings on 24 May 2022., The Special Leave Petitions have been instituted by the State of Jharkhand in order to challenge the orders dated 13 May 2022 and 17 May 2022 in Writ Petition (Public Interest Litigation) No. 4290 of 2021., We have heard Mr Kapil Sibal, senior counsel appearing on behalf of the State of Jharkhand, Mr Mukul Rohatgi, senior counsel appearing on behalf of the sixth respondent (Shri Hemant Soren) and Mr Tushar Mehta, Solicitor General appearing on behalf of the Central Bureau of Investigation and the Enforcement Directorate., The sequence of events narrated in the earlier part of the present order indicates that the Jharkhand High Court, by its order dated 13 May 2022, specifically noted that it would consider the primary objection to the maintainability of Writ Petition (Public Interest Litigation) No. 4290 of 2021 and deal with the merits thereafter, if required, on the next date of hearing., Mr Kapil Sibal, senior counsel appearing on behalf of the petitioner, has adverted to the provisions of the Jharkhand High Court (Public Interest Litigation) Rules, 2010, more particularly the provisions of Rules 4, 4A, 4B and 5., Since the Jharkhand High Court has observed in its order dated 13 May 2022 that it would deal with the maintainability of the petition upfront, we are of the considered view that it would be appropriate in the interests of justice that the Division Bench presided over by the learned Chief Justice does so before proceeding to the merits of the Public Interest Litigation., The issue of maintainability should be dealt with by the Jharkhand High Court on the next date of listing when the proceedings are taken up. Based on the outcome of the objections to the maintainability of the proceedings, the High Court may thereafter proceed in accordance with law., The Special Leave Petitions are disposed of in the above terms., The Supreme Court of India has had no occasion to deal with the merits of the rival contentions which arise in the Special Leave Petitions nor has it become necessary for the Supreme Court of India to express any view on the allegations which are raised in the writ petition since that is a matter which is pending consideration before the High Court., Pending applications, if any, stand disposed of., Thus, consequent to the orders of the Supreme Court of India dated 24.05.2022, the Jharkhand High Court before proceeding with the matter had to first give its finding on the maintainability of the two Public Interest Litigations. The High Court after hearing the petitioner as well as the respondents has come to a conclusion that an extremely serious matter has been raised in the Public Interest Litigations, where there are allegations of large‑scale corruption at the hands of the present Chief Minister of Jharkhand, and even though there may be some procedural irregularities in filing of the Public Interest Litigations that should not come in the way of the Court in entertaining the petition, which is in public interest. Moreover, as to the Rules (i.e., Rules 4, 4A, 4B, 5 of the Rules, 2010) which we shall refer shortly, it has been held that they are directory and not mandatory in nature. Consequently, dated 03.06.2022 the Supreme Court of India has held that the Public Interest Litigations are maintainable and shall be dealt with on their merits. This order has presently been challenged before the Supreme Court of India., As referred above we are concerned with two writ petitions filed by the private respondent No.1 (i.e., Shiv Shankar Sharma) as Public Interest Litigations before the Jharkhand High Court. The first writ petition is Writ Petition (Public Interest Litigation) No. 4290 of 2021, where a prayer has been made to direct the Directorate General of Income Tax Investigation to enquire into the money transferred by the Soren family in the name of private respondents through the shell companies and also to investigate the source of income of private respondents and to investigate the financial crime committed by respondent No. 6 i.e. Hemant Soren, the present Chief Minister of Jharkhand, among other reliefs sought in the petitions., The second Writ Petition (Public Interest Litigation) No. 727 of 2022 is the one where a direction has been sought to prosecute the Chief Minister, who is also the Minister in the Department of Mines, on the reasoning that he has misused his office in getting a mining lease in his own name. As far as the second writ petition is concerned, a reply has been filed by the State of Jharkhand before the Jharkhand High Court as well as by the Chief Minister, Mr Hemant Soren, that full facts of the case have not been stated by the petitioner and he has deliberately suppressed material facts. The mining lease which is alleged to have been made in favour of the Chief Minister is on land situated in Angadha Mauza, Thana No. 26, Khata No. 187, Plot No. 482 and the total area of the land is only 0.88 acres. It was allotted to Mr Hemant Soren for a period of ten years between 17.05.2008 to 17.05.2018; after the expiry of the lease period an application for its renewal was made belatedly by Mr Hemant Soren on 06.06.2018 and by that time the lease had lapsed. Subsequently, by way of Gazette Notification No.1 of 2021 issued on 27.03.2021, fresh applications for the mining lease were invited. A Letter of Intent was given in favour of Mr Hemant Soren on 16.06.2021. On 04.02.2022 respondent No. 7, i.e., Mr Hemant Soren wrote to the District Mining Officer, Ranchi for surrendering the mining lease with immediate effect. As per Section 26 of the Jharkhand Minor Mineral Concession Rules, 2004 a demand for advance of six months of royalty was to be deposited by Mr Hemant Soren and the mining lease was surrendered and was accepted under the Rules on 11.02.2022. Therefore, according to the respondent at the time of filing the second writ petition (Public Interest Litigation) No. 727 of 2022, there was no mining lease in favour of respondent No. 7 as it had already been surrendered. In its reply dated 05.05.2022, the State of Jharkhand also stated that although the lease was renewed in favour of Mr Hemant Soren, no mining activity or extraction of stone took place on the mining lease area. Further, if any anomaly has been committed and respondent No. 7 has to suffer a disqualification from his office for having a mining lease in his favour, the matter is pending inquiry before the Election Commission of India in Reference case No. 3(G) of 2022 which is registered on the reference received from the Hon’ble Governor of Jharkhand and under Article 192 of the Constitution of India. The Election Commission of India has issued a notice to the Chief Secretary on 08.04.2022 seeking certain information which had been duly supplied by the State., Article 192 of the Constitution provides: (1) If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of article 191, the question shall be referred for the decision of the Governor and his decision shall be final. (2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion State vide its letter dated 26.04.2022. In other words, the matter regarding the mining lease in favour of the Chief Minister, i.e., Mr Hemant Soren and his disqualification from office, is pending consideration with the Election Commission of India. So much for the second writ petition which in our view is totally an abuse of the process of this Court., Regarding the first Writ Petition No. 4290 of 2021 the allegations of money laundering and money being invested in shell companies are again mere allegations. The petitioner has actually sought an investigation by the Court. It prays for a writ of mandamus in this regard to the investigating agencies such as the Central Bureau of Investigation or Enforcement Directorate to investigate. This in our view is again an abuse of the process of the Court, as the petition is short of wild and sweeping allegations, there is nothing placed before the Court which may be called prima facie evidence. Moreover, the locus of the petitioner is questionable and the clear fact that he has not approached the Court with clean hands makes it a case which was liable to be dismissed at the very threshold., The Supreme Court of India in Kunga Nima Lepcha v. State of Sikkim under similar circumstances has held that a writ court is not an appropriate forum for seeking an initiation of such an investigation. A reference to the facts of Kunga Nima Lepcha would be relevant for our purposes. In that case, a writ petition under Article 32 of the Constitution was filed directly before the Supreme Court of India where the petitioner alleged that the incumbent Chief Minister of the State of Sikkim (impleaded respondent No. 2) had misused his public office and had amassed assets disproportionate to his known source of income. It was also alleged that the Chief Minister had misappropriated a large volume of public money at the cost of the Government of India and the Government of Sikkim. The relief sought by the petitioner was for issuance of a writ of mandamus directing the Central Bureau of Investigation to investigate the allegations made against the Chief Minister. The Supreme Court of India declined to intervene holding that a constitutional court is not a forum to seek redress of this nature. The remedies evolved by way of writ jurisdiction are of extraordinary nature and reliefs cannot be granted as a matter of due course, where statutory remedies are available to the petitioner., In paragraphs 14 to 17 of the judgment it was said as follows: 14. In the present petition, the petitioners have made a rather vague argument that the alleged acts of corruption on part of Shri Pawan Chamling amount to an infringement of Article 14 of the Constitution of India. We do not find any merit in this assertion because the guarantee of equal protection before the law or equality before the law is violated if there is an unreasonable discrimination between two or more individuals or between two or more classes of persons. Clearly, the alleged acts of misappropriation from the public exchequer cannot be automatically equated with a violation of the guarantee of equal protection before the law. 15. Furthermore, we must emphasise the fact that the alleged acts can easily come within the ambit of statutory offences such as possession of assets disproportionate to known sources of income as well as criminal misconduct under the Prevention of Corruption Act, 1988. The onus of launching an investigation into such matters is clearly on the investigating agencies such as the State Police, Central Bureau of Investigation or the Central Vigilance Commission among others. It is not proper for the Supreme Court of India to give directions for initiating such an investigation under its writ jurisdiction. 16. While it is true that in the past, the Supreme Court of India as well as the various High Courts have indeed granted remedies relating to investigations in criminal cases, we must note the petitioners’ prayer in the present case. In the past, writ jurisdiction has been used to monitor the progress of ongoing investigations or to transfer ongoing investigations from one investigating agency to another. Such directions have been given when a specific violation of fundamental rights is shown, which could be the consequence of apathy or partiality on the part of investigating agencies among other reasons. In some cases, judicial intervention by way of writ jurisdiction is warranted on account of obstructions to the investigation process such as material threats to witnesses, the destruction of evidence or undue pressure from powerful interests. In all of these circumstances, the writ court can only play a corrective role to ensure that the integrity of the investigation is not compromised. However, it is not viable for a writ court to order the initiation of an investigation. That function lies in the domain of the executive and it is up to the investigating agencies themselves to decide whether the material produced before them provides a sufficient basis to launch an investigation. 17. It must also be borne in mind that there are provisions in the Code of Criminal Procedure which empower the courts of first instance to exercise a certain degree of control over ongoing investigations. The scope for intervention by the trial court is hence controlled by statutory provisions and it is not advisable for the writ courts to interfere with criminal investigations in the absence of specific standards for the same., The Supreme Court of India thus declined to interfere holding that the petitioner must approach the investigating agencies directly with the incriminating material and then it is for the investigating agencies to decide on the further course of action. Although an apprehension was raised by the Supreme Court of India that it is possible that the efforts of the petitioner to uncover alleged corruption may be obstructed by entrenched interests, statutory remedies available to the petitioner must first be exhausted and only thereafter can he approach the High Court. In the present case no such effort has been made by the respondent (i.e., the petitioner in the Public Interest Litigation) to approach the statutory authorities or make any effort in the registration of an FIR. The fundamental requirement for the issuance of a writ of mandamus is that the petitioner must have sought such relief before the appropriate authority and only when it is denied the Supreme Court of India can be approached for a writ of mandamus. This principle cannot be ignored merely because the Supreme Court of India is dealing with a Public Interest Litigation. With regard to the present Public Interest Litigations before us, it is an admitted fact that the respondent has not taken any steps in approaching the statutory authorities or made any effort in the registration of an FIR., Public Interest Litigation was a novel form adopted by the Supreme Court of India in the late 1970s and the early 1980s to hear the grievances of the vast section of society which were poor, marginalized and had no means to reach the Supreme Court of India for articulating their grievance. It was thus the Public Interest Litigation which became the means by which a voice was given to this large voiceless section of our society (see: State of Uttaranchal v. Balwant Singh Chauhal & Ors.; M.C. Mehta v. Union of India & Ors.). The strict procedures of the Court were dispensed in a Public Interest Litigation, and in its early stages a Public Interest Litigation could also be entertained on a mere letter or a postcard. It is for these reasons it has also come to be known as epistolary jurisdiction. The Supreme Court of India in Balwant Singh Chauhal while dealing with the origin and development of Public Interest Litigation in this country has divided its growth into three phases which have been given in its paragraph 43 as follows: Phase I: It deals with cases of the Supreme Court of India where directions and orders were passed primarily to protect fundamental rights under Article 21 of the Constitution for marginalized groups and sections of society who because of extreme poverty, illiteracy and ignorance cannot approach the Supreme Court of India or the High Courts. Phase II: It deals with cases relating to protection, preservation of ecology, environment, forests, marine life, wildlife, mountains, rivers, historical monuments etc. Phase III: It deals with the directions issued by the Courts in maintaining probity, transparency and integrity in governance. The Supreme Court of India then traced the abuse of the Public Interest Litigation and observed that this important jurisdiction has become abused at the hands of ill‑motivated individuals, busybodies and publicity seekers. References were then made to the cases of BALCO Employees Union (Regd.) v. Union of India & Ors. and Neetu v. State of Punjab where frivolous cases filed as Public Interest Litigations were discouraged and even costs were imposed on the petitioner in such cases. The credentials of the applicant who files a Public Interest Litigation were held to be of extreme importance as also the correctness of the nature of information given by the petitioner which had to be clear, not vague or indefinite or even generalized. It was also held that nobody should be allowed to indulge in wild and reckless allegations, demeaning the character of others. The following directions were given in paragraph 181 of Balwant Singh Chauhal: (1) The Courts must encourage genuine and bona‑fide Public Interest Litigation and effectively discourage and curb the Public Interest Litigation filed for extraneous considerations. (2) Instead of every individual Judge devising his own procedure for dealing with public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine Public Interest Litigation and discouraging the Public Interest Litigation filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the rules prepared by the High Court is sent to the Secretary General of the Supreme Court of India immediately thereafter. (3) The Courts should prima facie verify the credentials of the petitioner before entertaining a Public Interest Litigation. (4) The Courts should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining. (5) The Courts should be fully satisfied that substantial public interest is involved before entertaining the petition. (6) The Courts should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions.
id_1810	1	The Courts before entertaining the Public Interest Litigation should ensure that the Public Interest Litigation is aimed at redressal of genuine public harm or public injury. The Supreme Court of India should also ensure that there is no personal gain, private motive or oblique motive behind filing the Public Interest Litigation. The Courts should also ensure that petitions filed by busybodies for extraneous and ulterior motives are discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions. Consequent to the directions made by the Supreme Court of India in Balwant Singh Chaufal (supra), every High Court has framed its rules for dealing with Public Interest Litigation, including the Jharkhand High Court. For our purpose the relevant Rules would be Rules 4, 4‑A, 4‑B, 5 and 6., 4. The petitioner in a Public Interest Litigation shall state in clear terms the relief prayed for in paragraph‑1 of the petition and the grounds in paragraph‑2 thereof. In paragraph‑3, the petitioner shall give his/her full and complete details so as to reveal his/her interest, credentials and qualifications relevant for the Public Interest Litigation, along with a declaration that he/she has no personal interest, direct or indirect, in the subject matter of the Public Interest Litigation. In addition, the petitioner shall set out all relevant facts along with available supporting data, reports etc.\n4‑A. If a Public Interest Litigation is filed by a person on behalf of a body of individuals, whether registered or unregistered and whether incorporated or not, the petition must give full details and history of such body, and must also clearly specify the authority of that person to represent such body in that litigation so as to make the decision therein binding on all individuals of such body.\n4‑B. Every Public Interest Litigation will chronologically mention in detail all such other and earlier efforts with their result, which are within the petitioner's knowledge, and which have been made by the petitioner or others for obtaining the relief sought by the Public Interest Litigation.\n5. To encourage only genuine and bona fide Public Interest Litigation and discourage Public Interest Litigation filed for extraneous considerations, the bench hearing a Public Interest Litigation shall first verify the prima facie credentials of the petitioner before entertaining any case as Public Interest Litigation. Thereafter, notice may be issued to the Advocate General or to any other authority to enable the bench hearing the matter to come to a prima facie satisfaction regarding the correctness of the contents of the petition or information before entertaining the same as Public Interest Litigation.\n6. For the aforesaid purpose, a Public Interest Litigation shall first be listed with appropriate office notes under the heading “For Orders” before the appropriate Division Bench.\n6‑A. The above procedure may be relaxed by the concerned bench, for reasons to be recorded, in cases which call for urgent intervention by the Court where it is not practicable to allow the delay which may be caused in following the above procedure., The above Rules, 2010 were made pursuant to the directions of the Supreme Court of India in the case of Balwant Singh Chaufal (supra). The Rules were framed so that it is no longer left to individual judges to devise their own procedure, but to ensure uniformity in entertaining a Public Interest Litigation, and to encourage genuine Public Interest Litigation and discourage Public Interest Litigation which are filed with oblique motive. One of the directions stated: “Instead of every individual Judge devising his own procedure for dealing with the Public Interest Litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine Public Interest Litigation and discouraging the Public Interest Litigation filed with oblique motives.” Consequently, the High Courts that have not yet framed the rules should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the rules prepared by the High Court is sent to the Secretary General of the Supreme Court of India immediately thereafter. Therefore, the importance of these Rules can never be underestimated., What is of crucial significance in a Public Interest Litigation is the bona fide of the petitioner who files the Public Interest Litigation. It is an extremely relevant consideration and must be examined by the Supreme Court of India at the very threshold itself, irrespective of the seemingly high public cause being espoused by the petitioner. Let us now examine the nature of the Public Interest Litigation which is before us, i.e., W.P. (PIL) No. 4290 of 2021. The petitioner who filed this Public Interest Litigation as well as the other Public Interest Litigation (W.P. (PIL) No. 727 of 2022), and the reliefs in them have already been referred to above. It is an admitted case that in the year 2013 a similar petition was filed being W.P. (PIL) No. 4218 of 2013 (Diwan Indranil Sinha v. State of Jharkhand and Ors.) which was dismissed by the Division Bench of the Jharkhand High Court on 22‑11‑2013, with costs of Rs. 50,000/‑ and thereafter a Special Leave Petition was filed against this order before the Supreme Court of India which was also dismissed by order dated 28‑02‑2014., Although the said petition was filed by a different person, i.e., Sri Diwan Indranil Sinha, the petitioner in the present Public Interest Litigation was aware of it, as the counsel for the petitioner in the earlier petition (W.P. (PIL) No. 4218 of 2013) and the counsel in the present petition are the same. Therefore, it can be reasonably presumed that the dismissal of W.P. (PIL) No. 4218 of 2013 would be known to the petitioner. Yet the petitioner in W.P. (PIL) No. 4290 of 2021 did not even mention the earlier writ petition or the fact that it was dismissed by the Jharkhand High Court with costs on 22‑11‑2013. The fact that it was in the knowledge of the petitioner is evident as, in the petition (W.P. (PIL) No. 4290 of 2021), a supplementary affidavit was filed on 20‑04‑2022 where the petitioner (Sri Shiv Shankar Sharma) mentions that Diwan Indranil Sinha (the petitioner in W.P. (PIL) No. 4218 of 2013) had approached constitutional authorities about the alleged misdeeds of the Chief Minister of Jharkhand. In Paras 3 and 4 the following was stated: “That the petitioner states that, prior to him, the late Diwan Indranil Sinha has sent representations with all the details of the companies and the documents in support of the illegal earnings before the Hon’ble President of India, Hon’ble Home Minister, Hon’ble Governor Jharkhand, the Director Central Bureau of Investigation, the Director Enforcement Directorate, the Central Vigilance Commissioner, the Director General (Investigation, Income Tax). Photocopies of the receipts showing detailed representation sent by the late Diwan Indranil Sinha before various authorities dated 16‑11‑2014 & 21‑01‑2014 are annexed and marked as Annexure‑4. That the petitioner states that the efforts taken earlier by the late Diwan Indranil Sinha, wherein the representation sent by him has been received by the Central Bureau of Investigation, and has been inquired on their own level and communicated to him vide Letter No. 376 dated 05‑11‑2014, stating there in that ‘You may, if so desire, approach the competent court or suitable direction in the matter.’ Thus, it is clear that there was prima facie material available before them for proceeding in the matter. Photocopy of Letter No. 376 dated 05‑11‑2014 of the Central Bureau of Investigation is annexed and marked as Annexure‑5.”, In the reply filed by the State of Jharkhand before the Jharkhand High Court in W.P. (PIL) No. 4290 of 2021, an objection was raised regarding the suppression of the earlier writ petition W.P. (PIL) No. 4218 of 2013. Hence, it is clear that the petitioner did not approach the Supreme Court of India with clean hands as he did not disclose the dismissal of W.P. (PIL) No. 4218 of 2013 by the Jharkhand High Court with costs (order dated 22‑11‑2013), an order which was upheld by the Supreme Court of India in Special Leave Petition No. 4886 of 2014 by order dated 28‑02‑2014. This is also a clear violation of Rule 4‑B of the Rules, 2010 which required the petitioner to disclose all similar efforts made in the past., No doubt the above procedure as given in Rules 4, 4‑A, 4‑B and 5 can be relaxed under Rule 6, for reasons to be recorded by the Supreme Court of India where the case calls for urgent intervention and it is not practicable to allow any delay. Presently, there is no finding or order of the Jharkhand High Court that any further delay in this matter would have made the petition infructuous or redundant, which might have justified the relaxation of the Rules. To the contrary, the Jharkhand High Court has held that Rules 4, 4‑A, 4‑B and 5 are not mandatory but directory in nature in view of Rule 6‑A and therefore even though the Rules have not been followed, that will not prevent the Court from entertaining a Public Interest Litigation, since the allegations are of a serious nature. This reasoning, in our view, is in line with the decision of the Supreme Court of India in the directions given in Balwant Singh Chaufal (supra), and also a clear violation of the Jharkhand High Court Rules, primarily Rule 4‑B., At this stage, let us now see what the Jharkhand High Court said in 2013 while dismissing W.P. (PIL) No. 4218 of 2013. While dismissing that Public Interest Litigation, with costs of Rs. 50,000/‑, it was said: “Time and again, it has been held that Public Interest Litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. Though the parameters of ‘Public Interest Litigation’ have been indicated by the Hon’ble Supreme Court in a large number of cases, yet unmindful of the real intention and objections, a number of Public Interest Litigation are filed. The petitioner has not approached the concerned authorities at the relevant point of time. The petitioner has chosen to file this Public Interest Litigation only after respondent No. 10 has assumed the Office of Chief Minister of the State of Jharkhand. We do not find any bona fide in this Public Interest Litigation filed by the writ petitioner and the writ petition is liable to be dismissed with cost. In the facts and circumstances of the case, we are of the view that there is no bona fide in the Public Interest Litigation filed by the petitioner. The writ petition is dismissed with cost of Rs. 50,000/‑ (fifty thousand). This amount, of course, will be deposited by the petitioner within a period of six weeks from today before the Jharkhand State Legal Services Authority, ‘Nyaya Sadan’, Doranda, Ranchi. The Registry is hereby directed to send a copy of this order to the Member Secretary, Jharkhand State Legal Services Authority.” The dismissal of a similar Public Interest Litigation was a fact which was also not disclosed by the petitioner, which he would be duty‑bound to do in view of Rule 4‑B of the Rules, 2010., The Supreme Court of India in Ashok Kumar Pandey v. State of West Bengal & Ors. observed on the credentials of the person who files a Public Interest Litigation: “When there is material to show that a petition styled as a Public Interest Litigation is nothing but a camouflage to foster personal disputes, said petition is to be thrown out. Before we grapple with the issue involved in the present case, we feel it necessary to consider the issue regarding public interest aspect. Public Interest Litigation which has now come to occupy an important field in the administration of law should not be ‘publicity interest litigation’ or ‘private interest litigation’ or ‘politics interest litigation’ or the latest trend ‘paisa income litigation’. If not properly regulated and abuse averted it becomes also a tool in unscrupulous hands to release vendetta and wreck vengeance, as well. There must be real and genuine public interest involved in the litigation and not merely an adventure of a knight‑errant or poking one’s noses into a probe. It cannot also be invoked by a person or a body of persons to further his or their personal causes or satisfy his or their personal grudge and enmity. Courts of justice should not be allowed to be polluted by unscrupulous litigants by resorting to the extraordinary jurisdiction. A person acting bona fide and having sufficient interest in the proceeding of Public Interest Litigation will alone have locus standi and can approach the Court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration. These aspects were highlighted by the Supreme Court of India in the Janata Dal case (supra) and Kazi Lhendup Dorji v. Central Bureau of Investigation (1994 Supp (2) SCC 116). A writ petitioner who comes to the Court for relief in public interest must come not only with clean hands like any other writ petitioner but also with a clean heart, clean mind and clean objective.”, Public Interest Litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering social justice to the citizens. The attractive brand name of Public Interest Litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. As indicated above, the Supreme Court of India must be careful to see that a body of persons or members of the public who approach the Court are acting bona fide and not for personal gain, private motive, political motivation or any other oblique consideration. The Court must not allow its process to be abused for oblique considerations. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busy bodies deserve to be thrown out at the threshold, and in appropriate cases with exemplary costs., The Supreme Court of India has to be satisfied about (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. The Court has to strike a balance between two conflicting interests: (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motive, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature. The Court has to act ruthlessly while dealing with imposters and busy bodies or meddlesome interlopers impersonating as public‑spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of pro bono publico though they have no interest of the public or even of their own to protect., The locus of the petitioner who initiates a Public Interest Litigation is therefore of extreme importance as this important form of litigation should not be abused by motivated individuals to abuse the process of the Court for their political purposes or for any other reason, but for a public cause. The petitioner in this case is admittedly the son of Dr. Gautam Sharma who was one of the witnesses for the prosecution in a criminal case against the father of the present Chief Minister and therefore the Chief Minister has alleged an old enmity and personal vendetta at the hands of the petitioner. In spite of such objection the Public Interest Litigation could have been heard had the petitioner come before the Court with clean hands. He has deliberately and willfully withheld from the Court that an earlier writ petition (W.P. (PIL) No. 4218 of 2013) was filed on similar grounds seeking similar reliefs which was dismissed by the Jharkhand High Court on 22‑11‑2013 with costs, an order which was upheld by the Supreme Court of India by order dated 28‑02‑2014 in Special Leave Petition No. 4886 of 2014., Furthermore, the allegations made by the petitioner are vague, very much generalized and not at all substantiated by any evidence. Allegations of corruption and siphoning of money from shell companies are nothing but bald allegations, without substantiating the allegations in any manner whatsoever and are therefore only asking the Court to direct the Central Bureau of Investigation or the Enforcement Directorate to investigate the matter. This is nothing but an abuse of the process of the Court. The Supreme Court of India cannot allow its process to be used for oblique purposes, as was observed by the Supreme Court of India in Ashok Kumar Pandey v. State of West Bengal. In Balwant Singh Chaufal (supra) the Supreme Court of India discussed the three stages of a Public Interest Litigation and stated at paragraph 143: “Unfortunately of late, it has been noticed that such an important jurisdiction which has been carefully carved out, created and nurtured with great care and caution by the courts, is being blatantly abused by filing some petitions with oblique motives. We think the time has come when genuine and bona fide Public Interest Litigation must be encouraged whereas frivolous Public Interest Litigation should be discouraged. In our considered opinion, we have to protect and preserve this important jurisdiction in the larger interest of the people of this country but we must take effective steps to prevent and cure its abuse on the basis of monetary and non‑monetary directions by the courts.” The Court then referred to the case of Holicow Pictures (P) Ltd. v. Prem Chand Mishra which relied on the judgment of the Supreme Court of India in Janata Dal v. H.S. Choudhary, stating that frivolous petitions waste valuable judicial time and erode public confidence in the administration of justice., Now let us see the nature of allegations made by the petitioner in the Public Interest Litigation filed before the Jharkhand High Court. The petitioner alleges that one of the respondents, the present Chief Minister of Jharkhand, has amassed huge wealth by corrupt means by abusing his position as Chief Minister and has invested this money in about thirty‑two companies whose description has been given. The petitioner then gives details of these companies as to who are the directors, etc. The respondent or his relatives are not the directors of the companies. The petitioner states that he has information that the money has been siphoned off and invested in these shell companies through one Ravi Kejriwal, who is allegedly a close associate of the Chief Minister. The allegations of money laundering through shell companies have not been supplemented by any kind of evidence. The names of persons allegedly responsible for the operation of these companies have been mentioned, but without producing any concrete evidence, it has been stated that these persons are connected or related to the Chief Minister. Further, none of the companies have been made a party to the present Public Interest Litigations before the Jharkhand High Court. Thus, an order is sought from the Jharkhand High Court to direct the Enforcement Directorate to investigate these so‑called shell companies without even making the companies a party in the writ proceedings. It is also an admitted fact that in relation to the present two Public Interest Litigations, no FIR or complaint has been filed with the police or any authority, and the petitions have been filed before the High Court without availing the statutory remedies., We are not for a moment saying that people who occupy high offices should not be investigated, but for a High Court to take cognizance of the matter on these generalized submissions which do not even make prima facie satisfaction of the Court is nothing but an abuse of the process of the Court. The non‑disclosure of the credentials of the petitioner and the past efforts made for similar reliefs as mandated under the Rules, 2010 further discredits these petitions. The petitioner in the Public Interest Litigations did not come with clean hands before the Jharkhand High Court. In our view, such a petition was liable to be dismissed at the very threshold itself. If the petitioner has a genuine reason to pursue the matter, he has remedies available under the Companies Act or other provisions of law where he can apprise the relevant authorities of the misdeeds of the directors or promoters of the companies. But on generalized averments which are nothing but mere allegations at this stage, the Court cannot become a forum to investigate the alleged acts of misdeeds against high constitutional authorities. It was not proper for the Jharkhand High Court to entertain a Public Interest Litigation which is based on mere allegations and half‑baked truth presented by a person who has not been able to fully satisfy his credentials and has come to the Court with unclean hands., Consequently, the Supreme Court of India allows the present appeals and sets aside the order of 03‑06‑2022 passed by the Jharkhand High Court in W.P. No. (PIL) 4290 of 2021 and W.P. No. (PIL) 727 of 2022.
id_1811	0	Bail Applications No.5/2022 and 11/2022: FIR No. RC No.2182021A0007. Bail Matters No.5/2022 & 11/2022 (Bail Applications of Mahim Pratap Singh Tomar (A-3) and Sunil Kumar Verma (A-6)) under sections 7, 8, 9 and 10 of the Prevention of Corruption Act, 1988 read with Section 120-B of the Indian Penal Code. Present: Shri Neetu Singh, Learned Public Prosecutor for Central Bureau of Investigation along with Investigating Officer Inspector Dinesh Kumar. Shri Ramesh Gupta, Learned Senior Advocate for applicants A-3 Mahim Pratap Singh Tomar and A-6 Sunil Kumar Verma, together with Shri Vishal Gera, Ms. Jyoti Verma, Shri Rohit Yadav, Ms. Vijya Singh and Kumar Saraswat, Advocates., The two applications, both filed under Section 439 of the Criminal Procedure Code on behalf of A-3 Mahim Pratap Singh Tomar and A-6 Sunil Kumar Verma, seek regular bail. Both bail applications are being disposed of by a common order because the facts are common. I heard arguments advanced at the bar on 14 January 2022, but due to a severe throat infection and cold, the order could not be dictated then. The order is being dictated and pronounced today., The learned senior advocate for both applicants argued vehemently that the main accused, Devendra Jain (A-4), had already been granted bail by this Delhi High Court by order dated 7 January 2022, and that the petition filed by the Central Bureau of Investigation under Section 439(2) of the Criminal Procedure Code against that order is listed for consideration before the Hon'ble Delhi High Court on 22 January 2022., Before addressing the arguments, a brief overview of the facts is appropriate. The FIR in this matter was registered on 30 December 2021 on the basis of source information that A-1 Akil Ahmad, Regional Officer of the National Highways Authority of India, habitually demanded and accepted illegal gratification from NHAI contractors for clearing pending bills and for issuing Provisional Commercial Operations Dates for completed projects., On 30 December 2021 A-1 demanded illegal gratification from A-2 Retnakaran Sajilal, General Manager of M/s Dilip Buildcon Private Limited, regarding a project under the Bangalore‑Chennai Expressway Package 1 & 2 undertaken by DBL in Karnataka. A-4 Devendra Jain, Executive Director of DBL, approved payment of Rs 20,00,000 (Rupees Twenty Lakhs Only) to be paid to A-1 as illegal gratification. After approval, the amount was delivered at the Delhi residence of A-8 Anuj Gupta and finally paid to A-1. During trap proceedings, the amount of Rs 20.00 lakhs was recovered from Delhi on 30 December 2020, and an additional cash amount of Rs 4.00 lakhs was recovered from the premises of A-1., A-1 to A-6 and A-8 have already been arrested and are remanded to judicial custody till 22 January 2022. It is argued that the telephones of both applicants as well as the relevant records have already been seized. In the search conducted at the house of A-3 Mahim Pratap Singh Tomar, a sum of Rs 3.71 crores was recovered, which is not connected with the case. It is emphasized that keeping money at his residence is not an offence unless a competent forum finds it so. As far as A-6 Sunil Kumar Verma is concerned, nothing has been recovered from him. The Central Bureau of Investigation has not been able to impute knowledge to the applicants that the money recovered from A-8 was intended for A-1., Both applicants have been found to be Covid‑positive during police custody remand. In addition, A-3 has been suffering from jaundice., The intercepted communications that have corroborative value have already been seized. The applicants have throughout co‑operated in the investigation., The applicants were not given notice under Section 41(A) of the Criminal Procedure Code. The entire evidence with regard to the source information and FIR stands collected by the Central Bureau of Investigation. The intercepted conversations and WhatsApp messages have already been taken into possession. The applicants have given their voice samples and are therefore deemed to have co‑operated in the investigation. It is contended that the investigation cannot traverse beyond the scope of the FIR., It is contended that during the investigation the agency thoroughly searched the house and office premises of the applicants, seized computers, mobile phones and various electronic data, and that no further recovery is to be effected from them. The investigation is all documentary in nature. The learned senior counsel submitted that the applicants are not a flight risk and that this Delhi High Court is duty bound to balance the individuals' right to personal freedom with the investigating agency's right to investigate., It is emphasized that both applicants have impeccable family backgrounds and have been falsely roped into the matter with ulterior motive and vengeance, aimed at satisfying the greed of business rivals. There is no mens rea on their part and they have clean past antecedents., The learned senior advocate argued that the entire evidence is documentary and already collected by the Central Bureau of Investigation, and that no useful purpose would be served by keeping the applicants in detention. He relied upon several decisions to emphasize that the mere gravity of the offence is not a ground to deny bail when nothing further is to be recovered. He also referred to decisions wherein the Hon'ble Superior Courts have deprecated pre‑trial detention of accused persons., In the reply filed by the Central Bureau of Investigation, it was stated that the mobile numbers had been kept under surveillance and the calls recorded, containing conversations between the accused relating to demand and delivery of bribe amount. It was further stated that the investigation revealed that A-6 is an employee of A-7 (M/s Dilip Buildcon), who was directed by A-3 to deliver the gratification amount at Delhi in pursuance of the demand made by A-1 to A-2. Accordingly, A-6 collected the bribe amount from a hawala operator after producing a note of Rs 10 as token and handed it over to A-8 for delivery to A-1., I have given thoughtful consideration to the arguments advanced at the bar., It is a matter of record that both applicants have been found to be Covid‑positive. The jails in Delhi are already overcrowded. It is also on record that both applicants were not served notice under Section 41(A) of the Criminal Procedure Code. It is not the case of the Central Bureau of Investigation that the applicants have not co‑operated in the investigation. The Central Bureau of Investigation has already investigated the matter as per the source information and cannot go beyond it. The recovery in the matter has already been effected., As regards the recovery of Rs 3.71 crores from A-3, Income‑Tax authorities have already been informed and are seized of the matter. The Central Bureau of Investigation must prove that A-3 directed A-6 to deliver the gratification amount of Rs 20.00 lakhs to A-8 and that they were conscious that the amount was a bribe. The law is settled that accused persons cannot be kept in custody as a measure of punishment without trial. Merely because an economic offence is alleged does not disqualify the accused from bail if substantial evidence has already been collected. In Dataram Singh v. State of Uttar Pradesh and Others, Criminal Appeal No. 227/2018 (arising out of SLP (Criminal) No. 151 of 2018), decided on 6 February 2019, the Hon'ble Supreme Court observed that a humane attitude is required while dealing with an application for remand to police or judicial custody, considering Article 21 of the Constitution and prison overcrowding., In Bhadresh Bipinbhai Sheth v. State of Gujarat & Others, Criminal Appeal Nos. 1134‑1135 of 2015 (arising out of SLP (Criminal) Nos. 6028‑6029 of 2014), decided on 1 September 2015, the Court observed that Section 438(1) of the Code gives discretion to the Court to grant anticipatory bail and that the seriousness of the offence alone may not be a reason to refuse bail if circumstances justify it. The applicant must make out a case for anticipatory bail, but not a special case. The Court also remarked that wise exercise of judicial power must consider the evil consequences of intemperate use., The Court noted that the gravity of charge and the exact role of the accused must be properly comprehended, that the arresting officer must record valid reasons for arrest in the case diary, and that in exceptional cases reasons may be recorded immediately after arrest so that they can be evaluated during bail proceedings. It is imperative for courts to evaluate facts with meticulous precision, and bail must be granted based on available material. When the accused has joined the investigation, is fully cooperating, and is not likely to abscond, custodial interrogation should be avoided. Arrest brings ignominy, humiliation and disgrace, affecting not only the accused but also the family and community., In R. Vasudevan v. Central Bureau of Investigation, Bail Application No. 2381/2009, decided on 14 January 2010, the Hon'ble Delhi High Court observed that while corruption is a serious offence, the question to be considered dispassionately is whether the petitioner deserves bail. Grant of bail in a non‑bailable offence is a matter of discretion, but bail should not be denied as punishment. The Court must consider the gravity of the offence, whether the accused will submit to the process of law, and whether bail would endanger the investigation or tamper with evidence., In H.B. Chaturvedi v. Central Bureau of Investigation, Bail Application No. 572/2010 and Criminal Miscellaneous (Bail) No. 459/2010, decided on 31 May 2010 by the Hon'ble Delhi High Court, it was held that bail is not to be withheld as punishment. Even if the accused is prima facie guilty of a grave offence, bail cannot be refused as an indirect punishment before conviction. There is no justification for classifying offences into categories such as economic offences to refuse bail; bail should not be invariably refused in serious economic offences., In Sushil Ansal v. Central Bureau of Investigation, decided on 1 August 1997, Criminal Miscellaneous Appeal No. 2186 of 1997, reliance was placed on Bhagirathsinh Jadeja v. State of Gujarat, MANU/SC/0052/1983, stating that if there is no prima‑facie case, other circumstances are irrelevant, but even where a prima‑facie case exists, bail should not be denied as punishment; the focus is whether the accused will be available for trial and not likely to tamper with evidence., In P. Chidambaram v. Central Bureau of Investigation, Criminal Appeal No. 1603 of 2019 (arising out of SLP (Criminal) No. 9269 of 2019) and Criminal Appeal No. 1605 of 2019 (arising out of SLP (Criminal) No. 9445 of 2019), decided on 22 October 2019, the Hon'ble Supreme Court clarified that the High Court held the appellant was not a flight risk and that directions such as surrender of passport and issuance of look‑out notice can secure that risk. The Court also held that the documents relating to the case are in the custody of the prosecuting agency and the Court, eliminating any chance of tampering., Having considered the submissions, in the totality of the facts and circumstances, both applicants, i.e., A-3 Mahim Pratap Singh Tomar and A-6 Sunil Kumar Verma, are admitted to bail upon furnishing a personal bond of Rs 1,00,000 (Rupees One Lakh Only) each, with one surety of the same amount, to the satisfaction of the learned Duty Judge, the learned Chief Metropolitan Magistrate or the learned Duty Metropolitan Magistrate, subject to the following conditions: (i) The applicants shall not directly or indirectly contact co‑accused persons or witnesses, nor make any inducement, threat or promise to any person acquainted with the facts so as to dissuade him from disclosing true facts to the Court or investigating agency or tamper with evidence; (ii) The applicants shall not leave the country without prior permission of the Court; (iii) The applicants shall cooperate in the investigation and attend proceedings before the Investigating Officer in Delhi as and when called; (iv) The applicants shall intimate the mobile phone numbers being used to the Investigating Officer, keep them operative at all times and send their pin‑location to the Investigating Officer daily., Nothing stated herein shall amount to an expression of opinion on the merits of the case., The applicants are further directed to furnish Annexure‑B in terms of the decision of the Hon'ble Delhi High Court in the case titled Sunil Tyagi v. Government of NCT of Delhi & Another, passed in Criminal Miscellaneous No. 5328 of 2013, dated 28 June 2021., Both bail applications stand disposed of in the above terms., A copy of this order shall be placed in both files and sent to the Superintendent of the concerned jail as well as to the learned counsel(s) for the applicants through electronic mode., Dated.
id_1813	0	In the Civil Judge (Special District) Fast Track Court, Varanasi, Original Suit No. 712/2022, Bhagwan Adi Vishweshwar Virajman and others versus State of Uttar Pradesh through Secretary and others, Mahendra Kumar Pandey, Joint Officer, Code UP2271, dated 17 November 2022, the court disposed of application paper No. 37C, objection paper No. 39C, and counter‑objection paper No. 41C. Application No. 39C was filed by Defendant No. 4, Anjuman Intjamiya Committee, under Order 7 Rule 11 of the Civil Procedure Code (CPC), stating that the disputed land is not situated on Arazi No. 9130, Ward‑Dashashwmedh, Varanasi, and that no temple or idol existed on the site., The defendant asserted that law permits worship only of visible deities and that the plaintiffs have no real cause of action. The plaintiff’s claim that Arazi No. 9130 and its adjoining five‑kosh land are vested in the deity Bhagwan Adi Vishweshwar Virajman is contested, especially since the plaintiff admitted the existence of a mosque on Arazi No. 9130, rendering the suit non‑maintainable. The plaint is said to be filed for the benefit of all Hindus without prior permission from the court, thus barred under Order 1 Rule 8 CPC. The description of the land, area, boundaries, and mauja is incomplete, invoking a bar under Order 7 Rule 3 CPC. Additionally, the suit is barred by Section 9 CPC because the plaintiffs seek a ‘right to worship’ under Article 25 of the Constitution, a matter beyond the jurisdiction of a civil court., Case No. 693/20 (new number 18/2022), Rakhi Singh and others versus State of Uttar Pradesh, is already pending with the same reliefs, making the present suit non‑maintainable during the pendency of that suit. The issues raised have been decided in the case of Deen Mohammad versus Secretary of State (Case No. 62/1936). The present verdict is prevailing, and the suit is barred by judicial precedent. The suit is also barred by Sections 83 and 85 of the Waqf Act, 1995, the Places of Worship Act, 1991, the Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983, and the Limitation Act., The plaintiffs filed written objection paper No. 39C, alleging that the instant application was filed by Defendant No. 4 with malicious intent to hinder the proceedings of this Hon'ble Court. The instant application contains purported facts beyond the purview of Order VII Rule 11 CPC, 1908, and is intended to obstruct justice and delay the trial. The allegations are said to be contrary to settled law of the Supreme Court of India and constitute manifest abuse of process, warranting rejection with exemplary costs., The plaintiff contends that there were never any visible or invisible deity or idol at Plot Settlement No. 9140 and that the right to worship is recognized only for visible deities. The court must consider that the case is based on questions of fact to be decided during trial. The defendant’s version that a mosque exists over Plot Settlement No. 9130 is denied, and the description of the suit property is comprehensively mentioned in the plaint. The suit seeks declaration and injunction, not a writ, and the nature and prayer of both suits are independent and unconnected., The defendant’s counter‑objection paper No. 41C states that Plot No. 9130 contains the Alamgiri Masjid, also known as Gyanvapi Mosque, recorded in Khasra Settlement 1291, Fasli 1883‑84, and registered as Waqf property No. 100 with the Uttar Pradesh Sunni Central Waqf Board, Lucknow, as published in the Government of United Provinces Gazette of 1942. The case is barred by Sections 23 and 85 of the Waqf Act, 1995. The defendant submitted photocopies of the nakal Khasra for 1291 (Fasli year 1883‑84), Arazi Nos. 9130‑9133, Mauja Shahar Khas, Pargana Dehat Amanat, Tahsil and District Varanasi (Paper No. 43C), its Hindi and English versions (Paper Nos. 44C, 45C), and map paper No. 37C., Order VII Rule 11 of the CPC provides for rejection of a plaint where: (a) it does not disclose a cause of action; (b) the relief claimed is undervalued and the plaintiff fails to correct the valuation; (c) the plaint is returned for insufficient stamp paper and the plaintiff fails to supply the requisite stamp paper; (d) the suit appears barred by any law; (e) it is not filed in duplicate; and (f) the plaintiff fails to comply with Rule 9, unless the court is satisfied that exceptional circumstances prevented compliance and refusal to extend time would cause grave injustice., The defendant argues that the suit is barred on the following grounds: (1) lack of cause of action; (2) violation of Order 1 Rule 8, Order 7 Rule 3, and Order 9 CPC; (3) violation of Sections 83 and 85 of the Waqf Act; (4) violation of the Places of Worship Act, 1991; (5) violation of the Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983; (6) violation of the Indian Limitation Act, 1963; and (7) judicial precedent set by Deen Mohammad versus Secretary of State (Case No. 63/1936)., Regarding the alleged lack of cause of action, the defendant states that the mosque is already built on the disputed site and Muslims regularly perform namaz there, while Hindus perform darshan and puja at the adjacent temple. The defendant relies on Supreme Court judgment in T. Arivandandam versus T.V. Satyapal and others (1977) 4 SCC, which allows rejection of a manifestly vexatious and meritless plaint under Order VII Rule 11. The defendant also cites Frost International Ltd. v. Milan Developers and Builder Pvt. Ltd. & Anr. (2022) All ER 1102, and D. Ramchandran v. R.V. Janki Raman (1999) 3 SCC 367, emphasizing that a plaint showing a prima facie cause of action cannot be rejected on the basis of truth of allegations., The plaintiff counters that a real cause of action exists and the suit should be tried on the evidence. The plaintiff argues that the cause of action accrues continuously from the denial of entry into the old temple complex on 17 May 2022, and that the suit seeks declaration, mandatory injunction, and permanent prohibitory injunction, matters within the jurisdiction of a civil court under Section 9 CPC. The plaintiff relies on Supreme Court decisions in Bhau Ram versus Janak Singh and Others (2012) AIR SC 3023, Urvashiben and another v. Krishnakant Manuprasad Trivedi (2019) All ER 445, and Sri Hari Hanumandas Totala v. Hemant Vithal Kamat and others (2021) AIR SC 3802, which hold that only the averments in the plaint are relevant for a Order VII Rule 11 application., The plaintiff also submits that the suit is not barred by Order 1 Rule 8 because the suit is filed on behalf of the deity, considered a minor, and such suits are permissible under Order 32 of the CPC. The plaintiffs are not filing on behalf of the entire Hindu community but in their individual capacities, and the description of the suit property is sufficient for identification. The court may correct any errors in the description at a later stage, and the suit cannot be rejected solely on that ground., Concerning the Waqf Act, 1995, the defendant argues that the disputed property is a mosque and a registered Waqf (Waqf No. 100), and that any dispute must be decided by a Waqf Tribunal, invoking Sections 83 and 85 of the Act. The defendant cites provisions of the Act defining waqf, persons interested in a waqf, and the exclusive jurisdiction of the Waqf Tribunal over disputes concerning waqf property., The plaintiff contends that the Waqf Act does not bar the suit because the property is not a waqf. The plaintiff asserts that the land vested in the deity long before the British era and that no waqf can be created over land already belonging to a deity. Historical records do not show any waqf dedication by Aurangzeb or any subsequent Muslim authority. The plaintiff argues that any registration of the property as waqf by the Waqf Board is ultra vires, null and void, and that a mosque cannot be constructed over land dedicated to a deity without changing the nature of the property.
id_1813	1	In the instant case it is clear that from time immemorial the land and property belong to the deity and therefore there can be no mosque thereat. The learned counsel of the plaintiff has further stated that the Waqf Board before registering any property as waqf is required to make an enquiry and give notice to all persons who are affected or may be affected by the registration of waqf. In this case the Waqf Board before registering waqf No. 100 has not made any enquiry, did not serve any notice on any person who may be interested in the property being registered as waqf property and even notice was not given to the persons residing in the vicinity. The State Government before notifying a list of waqfs is required to make a survey and enquiry and finalize the proceeding after giving an opportunity of hearing to the persons interested. It is specifically mentioned that no notice to the interested persons or a general notice to the public has been issued for registering waqf No. 100 in the list of waqfs by any surveyor or any authority working under the State Government for including waqf No. 100 in the list of waqfs., The learned counsel for the plaintiffs has cited the following law: Ajodhya Prasad versus Additional Civil Judge, Muradabad and others, 1995 All India Court at page 1159, Allahabad High Court – provisions of the waqf are not applicable to Hindus who were claiming right, title and interest in the suit properties. In The District Court, Varanasi Original suit No. 712/2022 (CNR.NO.UPVR050010972022) Bhagwan Adi Vishweshwar Virajman and others versus State of Uttar Pradesh through Secretary and others. Ramesh Govindram versus Surgra Humayun Mirza Waqf (2010) 8 Supreme Court of India 726 – the Supreme Court has held that a suit for eviction of tenants from what is admittedly a waqf property could be filed only before the civil court and not before the tribunal; this Court overruled the views of the High Courts of Andhra Pradesh, Rajasthan, Madhya Pradesh, Kerala and Punjab and Haryana. It was further held that the interest of those uninterested in the waqf (non‑Muslims) will be put in jeopardy if Section 6(1) is limited to only the mutawalli, board and those interested in waqf, hence the special limitation imposed by Section 6(1) is inapplicable to strangers. Bhawar Lal and another versus Rajasthan Board of Muslim Waqf and others (2014) 16 Supreme Court of India 51 – the Supreme Court has held that disputes regarding property claimed to be waqf property involving issues/reliefs in respect of which the Waqf Tribunal has exclusive jurisdiction, while raising other issues in respect of which the civil court alone has jurisdiction, are inextricably mixed up; therefore the civil court would have jurisdiction., Board of Muslim Waqf Rajasthan versus Radha Kishan and others, 1979 (2) Supreme Court of India 468 – the Supreme Court has held that the very object of the Waqf Act is to provide for better administration and supervision of waqfs and the Board has been given powers of superintendence over all waqfs which vest in the Board. This provision was made in order to avoid prolongation of triangular disputes between the Waqf Board, the mutawalli and a person interested in the waqf who would be a person of the same community. It could never have been the intention of the legislature to cast a cloud on the right, title or interest of persons who are not Muslims. If a non‑Muslim, whether Christian, Hindu, Sikh, Parsi or of any other religious denomination, is in possession of a certain property his right, title and interest cannot be put in jeopardy simply because that property is included in the list published under sub‑section (2) of Section 5. The legislature could not have meant that he should be driven to file a suit in a civil court for declaration of his title simply because the property in his possession is included in the list. Similarly, the legislature could not have meant to curtail the period of limitation available to him under the Limitation Act and to provide that he must file a suit within a year or the list would be final and conclusive against him. In our opinion, sub‑section (4) makes the list final and conclusive only between the Waqf Board, the mutawalli and the person interested in the waqf as defined in Section 3 and to no other person., It follows that where a stranger who is a non‑Muslim is in possession of a certain property his right, title and interest therein cannot be put in jeopardy merely because the property is included in the list. Such a person is not required to file a suit for a declaration of his title within a period of one year. The special rule of limitation laid down in the proviso to sub‑section (1) of Section 6 is not applicable to him. In other words, the list published by the Board of Waqfs under sub‑section (2) of Section 5 can be challenged by him by filing a suit for declaration of title even after the expiry of the period of one year, if the necessity of filing such suit arises. Siraj Ahmad alias Sirajuddin and others versus Sanjeev Kumar and others, 2020 (1) Civil Appeal Reports 109 (All India) – the Allahabad High Court observed that where an application was filed by the defendant against the plaintiff on the ground that the property in question is waqf property, jurisdiction of civil courts would be barred. However, the trial court dismissed the application holding that petitioners have not been able to place any material on record that the property in question, which according to them was entered in revenue record as “kabristan”, was waqf property as required under the Waqf Act, 1995, by way of its inclusion in the list of awqaf published in the Official Gazette or by registration as waqf before the Board. The Allahabad High Court held that orders passed by the court below cannot be faulted with. It is settled law that revenue records do not confer title. The Waqf Act, 1995 has been enacted to provide for better administration of awqaf for matters connected therewith or incidental thereto, and as per Section 85, the bar of jurisdiction of civil courts is in respect of any dispute, question or other matter relating to any waqf, waqf property or other matter which is required by or under the Act, 1995 to be determined by the Waqf Tribunal. Therefore, only those matters which are required by or under the Act, 1995 to be determined by the Tribunal attract the bar under Section 85. The scheme of the Act, 1995 shows that jurisdiction of civil courts is plenary in nature and unless expressly ousted or by necessary implication, it will have jurisdiction to try all types of suits. Order VII, Rule 11(d) being an exception must be strictly construed and the embargo thereunder to maintainability of suit must be apparent from the averments in the plaint., In the present case it is not clear that the property in dispute was ever dedicated as waqf property, whether any notice regarding the dedication of such property was served to the persons residing there, whether any mutawalli was appointed for the administration of this disputed property, who was the waqif regarding dedication of this property and how that waqif obtained ownership of the disputed property. It is also uncertain whether after commencement of the Waqf Act, 1995 any fresh notice was given to the concerned parties, as at the time of commencement of the Act one of the suits No. 610/1991 was also pending for trial before this court. Whether fresh publication regarding the disputed property was made after commencement of the Act, and whether the suit property is actually dedicated by the real owner as waqf or the entries made in the record are mistaken, are questions that can be decided during the full trial., The plaintiff has clearly mentioned that the property solely belongs to the deity since time immemorial and it is well settled that a deity is considered a minor under law. It is also the law that a minor's property cannot be transferred in any manner. This principle was recognised by the Privy Council in Mohiri Bibi versus Dhurmodas Ghosh – “A contract entered into by a minor is totally void.” and later confirmed by the Supreme Court of India. Thus the evidence must show how and when the suit property was dedicated as waqf property or whether wrong entries were made in the concerned record. The law is also very clear that mutation entries in the revenue records neither create nor extinguish title over property. Mutation entries do not have any presumptive value of title; they only enable the person in whose favour entries have been made to pay land revenue. At the stage of Order VII Rule 11 of the Code of Civil Procedure, 1908 only the averments made in the plaint should be considered. From the plaint it is clear that the deity and some devotees have filed this suit seeking a declaratory decree, mandatory injunction, permanent prohibitory injunction etc., for which the civil court has proper jurisdiction. Law is very clear that the interest of those uninterested in the waqf (non‑Muslims) will be put in jeopardy if Section 6(1) is limited to only the mutawalli, board and those interested in waqf, hence the special limitation imposed by Section 6(1) is inapplicable to strangers. Accordingly this court finds proper jurisdiction to try this suit and the suit is not barred by the provisions of the Waqf Act, 1995., The learned counsel for the defendant has stated that the plaintiff's suit is barred by Sections 3 and 4 of the Places of Worship (Special Provisions) Act, 1991 because that Act creates a restriction on changing the nature of a place of worship which was existing on 15 August 1947. Section 3 – Bar of conversion of places of worship: No person shall convert any place of worship of any religious denomination or any part thereof into a place of worship of a different denomination or a different section of the same denomination. Section 4 – Declaration as to the religious character of certain places of worship and bar of jurisdiction of courts: (1) It is declared that the religious character of a place of worship existing on 15 August 1947 shall continue to be the same as it existed on that day. (2) If on the commencement of this Act any suit, appeal or other proceeding with respect to the conversion of the religious character of any place of worship existing on 15 August 1947 is pending before any court, tribunal or other authority, the same shall abate, and no suit, appeal or other proceeding with respect to any such matter shall lie on or after such commencement, provided that if any suit, appeal or other proceeding instituted on the ground that conversion has taken place after 15 August 1947 is pending on the commencement of this Act, such suit, appeal or other proceeding shall not abate and shall be disposed of in accordance with the provisions of sub‑section (1). (3) Nothing contained in sub‑sections (1) and (2) shall apply to (a) any place of worship which is an ancient and historical monument or an archaeological site covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958 or any other law; (b) any suit, appeal or other proceeding with respect to any matter referred to in sub‑section (2) finally decided before the commencement of this Act; (c) any dispute settled by the parties amongst themselves before such commencement; (d) any conversion effected before such commencement by acquiescence; (e) any conversion effected before such commencement which is not liable to be challenged because it is barred by limitation. From the provisions of Sections 3 and 4 it is clear that conversion of any place of worship of any religious denomination into a place of worship of a different denomination is prohibited and the religious character as it existed on 15 August 1947 shall remain unchanged. The question is whether the reliefs claimed in the suit are barred by the Act., The plaintiffs have claimed the following reliefs: (A) By decree, plaintiff No. 1 and No. 2 be declared exclusive owners of the suit property described in the plaint. (B) By decree of mandatory injunction, defendants No. 3 and No. 4 be ordered to remove the upper construction erected illegally over the temple of plaintiff No. 1 situated in land bearing Settlement Plot No. 9130 located in Ward and Police Station, Dashaswamedh, Varanasi and to hand over possession to the plaintiffs; in case of non‑compliance the plaintiffs be put in possession through court process. (C) By decree of permanent prohibitory injunction, the defendants, their workers, agents, officers, officials and persons acting under them be restrained from interfering with or creating any hindrance in the darshan, sewa‑pooja, raga‑bhog, aarti and other religious activities to be performed by persons belonging to the Hindu community toward the plaintiff deities over the suit property. (D) Any other relief that may be granted in favour of the plaintiffs for which they are found entitled in law. (E) Costs of suit to be awarded against the defendants., The learned counsel for the plaintiff states that the plaint mentions that the suit property consists of an old temple where worship was performed continuously till 1993 at Settlement Plot No. 9130 and is still possessed by Bhagwan Shri Aadi Vishweshwar Virajman in visible and invisible form as mentioned in the Shiv Purana and Skanda Purana. The term “alleged” is continuously accompanying Gyanvapi as no confirmation to the legality is given by the plaintiffs. It is also mentioned that the core structure is still in possession of Bhagwan Shri Aadi Vishweshwar Virajman and the structure and religious character remain intact. Accordingly the claim of the defendant that a waqf or mosque exists is bogus and frivolous and will be countered at trial. Since 15 August 1947 the character of the property was that of a Hindu temple; images of the plaintiff deities and associate deities were present and worshiped incessantly till 1993. Any super‑structure created over the temple land by Muslims is only a structure and cannot acquire the status of a mosque because over a Hindu temple already vested in the deity no construction can be raised that changes the nature of the temple property. It is an established principle of law that in exercising powers under Order VII Rule 11 of the Code of Civil Procedure, the court must consider only the averments made in the plaint. From the averments it is clear that the deities mentioned in the suit have existed within the suit property since before 15 August 1947 and therefore the provisions of the Places of Worship Act, 1991 could not be applicable., The learned counsel for the plaintiff cited M. Siddiq versus Mahant Suresh Das (popularly known as the Ayodhya case) reported in 2019 (15) SCALE, where the Supreme Court held that the idol constitutes the embodiment or expression of the pious purpose upon which legal personality is conferred; the destruction of the idol does not terminate the pious purpose or the endowment, and even if the idol is destroyed or absent, the legal personality created by the endowment continues to subsist. The counsel also cited Ram Jankijee Deities and others versus State of Bihar and others, 1999 (5) Supreme Court of India 50, where it was held that to constitute a temple it is enough if it is a place of public religious worship and if people believe in its religious efficacy irrespective of whether there is an idol or a structure. The Calcutta High Court in Bhupati Nath Smrititirtha versus Ram Lal Maitra, ILR (1909) 37 Cal 128 observed that a Hindu does not worship the idol or material body but the eternal spirit of the deity, using the idol as a symbol. The Supreme Court in Ugam Singh versus Kesari Mal, 1970 (3) Supreme Court of India 831 held that the right to worship is a civil right; interference with it raises a civil dispute, although disputes purely about rituals cannot be adjudicated by civil courts unless they are connected with civil rights. The Kerala High Court in In Re the Matter of Guruvayur Devaswom Board (G.D.B.) DBP No. 21 of 2021 held that a worshipper is a person who shows reverence and adoration for a deity and that the right to worship is a civil right subject to the practice and tradition of each temple., The learned counsel for the defendant argued that at the disputed property Gyanvapi Mosque is situated. The plaint states that the Islamic ruler Aurangzeb demolished the temple in 1669 and constructed a mosque at Plot No. 9130. The Khasra Bandobast of 1291 Fasali shows Gyanvapi Masjid at Plot No. 9130. The defendant filed the Khasra Bandobasti of the year 1883‑84. This Gyanvapi Masjid is registered as Waqf No. 100, Varanasi in the gazette; therefore it is waqf property and the plaintiffs have no right to worship there. The defendant cited Ballabh Das and another versus Nur Mohammad and another, AIR 1936 Privy Council 83, where it was held that a Khasra is an instrument of title and creates rights, not merely a historical document. On analysing the pleadings it is clear that both parties admit that in 1669 Aurangzeb demolished the upper portion of the temple and a super‑structure was raised on the first floor, which Muslims call Gyanvapi Mosque, but worship in other parts of the temple complex continued. The legal question that arises is whether the religious character of a temple changes when only the upper portion is demolished and a super‑structure is imposed, while the base of the temple remains intact and the invisible deities continue to be worshiped., The plaintiffs assert that they worshipped Maa Sringar Gauri, Lord Ganesh, Lord Hanuman and other deities at the disputed place incessantly from time immemorial until 1993, after which the District Administration, Varanasi restricted their entry. Therefore, according to the plaintiffs, even after 15 August 1947 they continued to worship the deities in the old temple complex.
id_1813	2	After 1993, they were allowed to worship the above mentioned Gods only once in a year under the regulatory of State of Uttar Pradesh. Thus, according to plaintiffs, they worshipped Maa Sringar Gauri, Lord Hanuman at the disputed place regularly even after 15th August, 1947. So in the light of above contentions it is doubtful what was the religious character of the disputed place existing on 15th August 1947. It is the place where plaintiffs are claiming that core structure of the temple remained intact and only the upper portion was demolished and superstructure was imposed thereon. Defendant No. 4 is claiming that they are offering Namaz at this place, where a mosque was built before 600 years ago after demolishing the temple. But at this stage it is very difficult to determine what is the reality; it cannot be determined without substantial evidence. It may be proved after following due course of trial of the case. It is the legal right of every party to prove their case with help of best evidences available to them. If facts stated by the plaintiff are true the suit is not barred by the provisions of Places of Worship Act, 1991. Therefore, at this stage and in a situation of the doubtful religious nature of the disputed property, the Civil Judge (Special Division)/Fast Track Court, Varanasi is of the view that the Places of Worship (Special Provisions) Act, 1991 does not operate as a bar on the suit of the plaintiffs. The suit is liable to be tried accordingly., The Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983. The learned counsel for Defendant No. 4 argued that the suit of the plaintiffs is barred by the Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983 (Act No. 29 of 1983). In Section 4(9), “Temple” has been defined as the Temple of Adi Visheshwar, popularly known as Sri Kashi Vishwanath Temple, situated in the city of Varanasi which is used as a place of public religious worship, and dedicated to or for the benefit of Hindus, as a place of public religious worship of the Jyotirlinga and includes all subordinate temples, shrines, sub‑shrines and the Asthan of all other images and deities, mandaps, wells, tanks and other necessary structures and land appurtenant thereto and additions which may be made thereto after the appointed date. The learned counsel for the plaintiff argued that the Uttar Pradesh state legislature has recognized the deity ‘Adi Visheshwar’ Jyotirlinga in its original form along with subsidiary deities existing from time immemorial within the old temple complex and the right of devotees to worship there. The entire property including the “property in question”, i.e., the old temple complex vested in deity Adi Visheshwar, is to be managed by a Board of Trustees. It is the duty of the State Government and the Board of Trustees to recover the entire property belonging to and dedicated to ‘Adi Visheshwar’ and the ‘Asthan’ which has been usurped and encroached upon by Anjuman Intezamia Masaajid committee and its supporters and followers. No bar is imposed on the deity itself or any other person to recover the property from an encroacher. Section 5 deals with the ownership of the temple and its endowment, which shall vest in the deity of Shri Kashi Vishwanath. Section 6 provides that with effect from the appointed date, the administration and governance of the temple and its endowments shall vest in a Board to be called the Board of Trustees for Shri Kashi Vishwanath Temple. Section 4(5) defines endowment to include all properties, movable or immovable, belonging to or given for the support, maintenance or improvement of the temple or for the performance of any worship, service, ritual, ceremony or other religious observance in the temple or any charity connected therewith and includes the idols installed therein, the premises of the temple and gifts of property made or intended to be made for the temple or the deities installed therein to any one within the precincts of the temple. It is clear that no bar has been imposed by the Act regarding a suit claiming right to worship idols installed in the endowment within the premises of the temple, or outside. Therefore, the suit of the plaintiffs is not barred by the Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983., Indian Limitation Act, 1963. The learned counsel for the defendant has argued that the plaintiff has itself mentioned in their plaint that ruler Aurangzeb was a cruel ruler and he demolished the temple in 1669 and after demolition built a mosque there, over which the Muslims are offering Namaz without any restriction since 600 years ago. Since that time the Muslims are in possession of the Alamgir mosque (also known as Gyanvapi mosque). Thus, the suit of the plaintiff is barred by Article 65 of the Limitation Act because under limitation one can recover property within 12 years from the date of illegal possession. The learned counsel for the plaintiff has argued that Muslims have not filed any suit so far asserting their right or title, if any, against the true owner i.e., the deity plaintiff No. 1 & 2. The provisions of Article 65 of Schedule 5 to the Limitation Act, 1963 cannot apply to a property vested in the deity. The provision of the Limitation Act is applicable to properties of human beings but not to devottar property. The devottar is immune from the law of limitation, which is otherwise applicable to property possessed by human beings. The property in question has vested in the deity and the Board of Trustees are under obligation to manage the entire temple property as defined under the 1983 Act. The deity and the Trust have an indefeasible right in the property in question. No person, body of persons, Trust or authority has any right to claim any part of the property in question on the ground that it has been in illegal possession for more than 12 years. From the perusal of the above contentions of both parties, this Civil Judge (Special Division)/Fast Track Court, Varanasi agrees with the logic of the counsel for the plaintiff that the deity and the Trust have an indefeasible right in the property in question. No person, body of persons, Trust or authority has any right to claim any part of the property in question on the ground that it has been in illegal possession for more than 12 years. But it is a mixed question of fact and evidence whether the disputed property is vested in the deity or not, which cannot be determined at this stage. It is a question to be decided after completion of evidence in full trial. Therefore the plea of limitation of Defendant No. 4 is not considerable at this stage., Judicial precedent declared in case No. 63/1936 Deen Mohammad vs. Secretary of State. So far as the judicial precedent is concerned in Suit No. 62 of 1936 Deen Mohammad & Ors. Vs. Secretary of State, the Civil Judge, Varanasi passed judgment and decree dated 24‑08‑1937. In this judgment and decree, the learned Civil Judge, Varanasi passed the following orders: (i) It is declared that only the mosque and courtyard with the land underneath are Hanafi Muslim Wakf and that the plaintiffs and other Hanafi Muslims have a right of offering prayer and of doing other religious but legitimate acts only in the mosque and on the courtyard and that they have a right to celebrate urs once a year at the two graves to the west of the mosque and also to use the Khandhar as passage for going over the roof of the mosque. (ii) It is further declared that they have no right to offer ordinary, funeral or alvida prayer on any portion of the land marked red in the plaint map, which will be part of the decree. (iii) They may, if they like, offer prayers on the roof of the mosque and of the dhobi’s house and in the house over the northern gate and in the house to the east of the gate and also over the Chabutara to the north of the mosque over which exist many graves. Parties bear their own costs. The learned counsel for Defendant No. 4 further pleaded that against the judgment and decree dated 24‑08‑1937, appeal was filed in the Hon’ble High Court bearing Civil Appeal No. 466 of 1937 Deen Mohammad v. Secretary of State. The Hon’ble Allahabad High Court upheld the judgment and order dated 24‑08‑1937 passed by the Civil Judge (Senior Division), Varanasi and dismissed the first appeal. Therefore, by the order of the Civil Judge (Senior Division) and the Hon’ble Allahabad High Court, the mosque, courtyard, sahanland and land appurtenant to it is property of Hanafi Muslim Waqf and Hanafi Muslims have right to offer Namaz and religious activities. The learned counsel for the plaintiff has argued that in the case of Deen Mohammad the plaintiffs were not impleaded as a party in that suit hence the ratio passed in that case is not applicable to the plaintiffs. The learned counsels also placed reliance on Syed Mohd. Salie Labbai (Dead) By Lrs. and others vs. Mohd. Hanifa (dead) by Lrs. and others (1976) AIR 1569. In that case it was held that Civil Procedure Code, 1908 (CPC) Section 11 – Res Judicata – ingredients of necessity to compare the pleadings – mere recital of contention in the judgment is not sufficient. Before a plea of res judicata can be given effect, the following conditions must be proved: (1) that the litigation parties must be the same; (2) that the subject‑matter of the suit also must be identical; (3) that the matter must be finally decided between the parties; (4) that the suit must be decided by a court of competent jurisdiction. The best method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suits, and then to find out what had been decided by the judgments which operate as res judicata. Pleadings cannot be proved merely by recitals of the allegations mentioned in the judgment. After analysing the argument of both parties, I found that the plaintiffs were not parties in Suit No. 62 of 1936 Deen Mohammad & others Vs. Secretary and their application for impleadment in the suit was also rejected. Therefore, the decree passed in the above mentioned suit cannot have binding effect against the plaintiffs or the Hindu community and their right to worship cannot be defeated on the strength of the above mentioned decree., In view of the above discussions, this Civil Judge (Special Division)/Fast Track Court, Varanasi has come to the conclusion that the suit of the plaintiffs is not barred by the provisions of Order 1 Rule 8, Order 7 Rule 3 and Section 9 of the Civil Procedure Code, the Places of Worship (Special Provisions) Act, 1991 (Act No. 42 of 1991), the Waqf Act, 1995 (Act No. 43 of 1995), the Uttar Pradesh Shri Kashi Vishwanath Temple Act, 1983 (Act No. 29 of 1983), the Indian Limitation Act and by the judicial dictum of Suit No. 62 of 1936 Deen Mohammad & others Vs. Secretary. Accordingly, the application 35C filed by Defendant No. 4 is liable to be dismissed. Order: The application 37C filed by Defendant No. 4 under Order 7 Rule 11 of the Civil Procedure Code is hereby dismissed. Put up on 02‑12‑2022 for filing written statement and framing of issues. Typed by P. O. itself (Mahendra Kumar Pandey) Varanasi.
id_1814	0	(Arising from Special Leave Petition (Civil) Nos. 9657-9658 of 2022) Leave granted. We have heard Shri M. R. Shamshad, learned counsel appearing on behalf of the petitioner, Shri Vinod Diwakar, Additional Advocate General for the State and Shri Pramod Kumar Dubey, Senior Advocate for respondent Nos. 2 and 3 in Special Leave Petition (Civil) No. 9657 of 2022., Feeling aggrieved and dissatisfied with the impugned judgment and order dated 12-07-2022 in Criminal Miscellaneous Bail Application No. 23399/2022 passed by the Allahabad High Court by which the High Court has released the respondent Nos. 2 and 3 on bail in connection with Case Crime No. 45/2022 for the offence under Section 307 read with Section 120-B of the Indian Penal Code, Police Station Pilkhuwa, District Hapur and order dated 27-06-2022 in Criminal Miscellaneous Bail Application No. 24787/2022, the victim/original informant/complainant has preferred the present appeals., Having heard learned counsel appearing on behalf of respective parties and having gone through the impugned judgment and orders releasing the respondent Nos. 2 and 3 on bail, it can be seen that there are no reasons at all given while releasing respondent Nos. 2 and 3 on bail. Neither any prima facie opinion is given nor even the material collected during the course of the investigation which is now forming the part of the charge‑sheet has been dealt with or considered by the Allahabad High Court. Even the seriousness of the offence alleged for which the charge‑sheet has now been filed has not been considered by the Allahabad High Court., In that view of the matter, the impugned judgment and orders passed by the Allahabad High Court releasing the respondent Nos. 2 and 3 on bail deserve to be quashed and set aside on the aforesaid ground alone and the matters are to be remitted to the Allahabad High Court to consider the bail applications afresh in accordance with law and on its own merits after considering the material/evidence collected during the course of the investigation which are now part of the charge‑sheet., In view of the above and for the reasons stated hereinabove, the present appeals are allowed. The impugned judgment and orders passed by the Allahabad High Court releasing respondent Nos. 2 and 3 on bail are hereby quashed and set aside. Now, respondent Nos. 2 and 3 are to surrender before the concerned Jail Authority within a period of one week from today., Thereafter, the Allahabad High Court shall finally decide and dispose of the bail applications on remand, at the earliest and preferably within a period of four weeks from the date of surrender. With this, the present appeals are allowed., New Delhi; 11 November 2022. Petition for Special Leave to Appeal (Criminal) Nos. 9657-9658/2022 (Arising out of impugned final judgment and order dated 12-07-2022 in Criminal Miscellaneous Bail Application No. 23399/2022, 27-06-2022 in Criminal Miscellaneous Bail Application No. 24787/2022 passed by the Allahabad High Court). Date: 11-11-2022. These matters were called on for hearing today., For Petitioners: Shri M. R. Shamshad, Advocate on Record; Shri Arijit Sarkar, Advocate; Ms. Nabeela Jamil, Advocate. For Respondents: Shri Vinod Diwakar, Additional Advocate General for the State; Shri Sarvesh Singh Baghel, Advocate on Record; Shri Pramod Kumar Dubey, Senior Advocate; Shri Vivek Gaur, Advocate; Shri Gaurav Gaur, Advocate; Shri Abhigya Kushwah, Advocate on Record; Shri Avinash Mishra, Advocate; Shri Anurag Andley, Advocate; Shri Kaustubh Chauhan, Advocate; Shri Deep Narayan Sarkar, Advocate; Ms. Sunita Yadav, Advocate; Ms. Pinky Dubey, Advocate., Upon hearing the counsel the Supreme Court of India made the following: The appeals are allowed in terms of the signed order. Pending applications shall stand disposed of. (Signed order is placed on the file).
id_1816	0	The office of the Chief Justice of the High Court of Himachal Pradesh is vacant, consequent upon the retirement of Mister Justice Amjad A Sayed. Appointment to that office is required to be made. Mister Justice M S Ramachandra Rao was appointed as a Judge of the High Court of Andhra Pradesh on 29 June 2012. On the bifurcation of the State of Andhra Pradesh he opted for Telangana as his parent High Court. He is functioning on transfer as a judge of the High Court of Punjab and Haryana since 12 October 2021. He is the senior-most among puisne judges originating from the High Court for the State of Telangana. The State of Telangana has no representation among Chief Justices of the High Courts. Justice M S Ramachandra Rao has acquired experience of dispensing justice in two High Courts. Having regard to all relevant factors, the Collegium is of the considered view that he is suitable in all respects for being appointed as Chief Justice of the High Court of Himachal Pradesh. In terms of the Memorandum of Procedure, consultation has been held with the consultee-Judges with a view to ascertain the suitability of Mister Justice M S Ramachandra Rao for appointment as Chief Justice of the High Court of Himachal Pradesh. The consultee-Judges have concurred with the proposed appointment. In view of the above, the Collegium resolves to recommend that Mister Justice M S Ramachandra Rao be appointed as the Chief Justice of the High Court of Himachal Pradesh.
id_1817	0	IR No. 98/21 Police Station: Kotwali (Crime Branch) Sandeep Singh Sidhu @ Deep Sidhu Vs. State (the NCT of Delhi) under sections 147, 148, 149, 153, 452, 34 of the Indian Penal Code, 25, 27 of the Arms Act, 3, 4 of the Prevention of Damage to Public Property Act, 2 of the PINH Act, 30A, 30B dated 26.04.2021 Vide Office Order No. 256/RG/DHC/2021 dated 08.04.2021 of the Honourable High Court of Delhi, the cases are being taken up through video conferencing today. Joined through video conferencing., The present application for grant of bail under section 437 of the Criminal Procedure Code has been moved on behalf of applicant/accused Sandeep Singh Sidhu @ Deep Sidhu son of Late Shri Surjit Singh in FIR No. 98/2021. Present: Sh. Rajiv Kamboj, Learned Assistant Public Prosecutor for the State. Learned Counsel for applicant/accused has submitted that FIR No. 96/2021 was registered at Police Station Kotwali on 27.01.2021 in connection with violence that erupted on Republic Day at the Red Fort. The present FIR No. 98/2021 was registered on 28.01.2021 at Police Station Kotwali, again in connection with violence and resultant damage at Red Fort. The accused was arrested in the aforesaid FIR on 09.02.2021 and was sent to police custody for 14 days where he fully cooperated with the investigation of the case. Thereafter, the accused was sent to Judicial Custody on 23.02.2021 and has been in custody for about 70 days till date., The facts and allegations in both the FIRs are identical as both relate to violence and alleged damage caused to the Red Fort on Republic Day and registration of the subsequent FIR is an abuse of process of law. Further, it is submitted that an application for regular bail under section 439 of the Criminal Procedure Code with respect to FIR No. 96/2021 was heard at length by the Learned Additional Sessions Judge and was granted regular bail vide order dated 16.04.2021 which was communicated in the morning of 17.04.2021. Before the accused could be released from jail, he was arrested in the present FIR No. 98/2021 in respect of the same incident at Red Fort. The need and timing of arrest is extremely questionable as the said arrest has been made in the present FIR on the day when the petitioner secured regular bail in FIR No. 98/2021 and was to be released., The said arrest is clearly malafide and is a desperate attempt to defeat the bail order dated 16.04.2021 of Learned Additional Sessions Judge. It is further submitted that the accused has been arrested in the present FIR only on 17.04.2021 i.e. after an inordinate and unexplainable delay of 80 days after registration of FIR No. 98/2021 on 28.01.2021. Reply of the Investigating Officer has been filed electronically. A copy of the same has been sent to Learned Counsel for the applicant/accused electronically. The Investigating Officer, in his reply, has stated that during the course of investigation, CCTV footage as well as media clips were obtained and analysed and the accused Sandeep Singh Sidhu @ Deep Sidhu was seen at Red Fort at the time of the incident and was also seen in some videos instigating protestors against the government well before the incident dated 26.01.2021 at Red Fort, Delhi., At the time of the incident, accused Deep Sidhu was live on his Facebook page covering the incident and was also seen appreciating co-accused Jugraj Singh, who was seen hoisting a religious flag on the flagpole of the rampart at Red Fort. It has come on record that the unruly mob attacked the police and security personnel and caused injuries with deadly weapons, destroyed public property at large, and robbed arms and ammunition. During this riot at Red Fort, a total of 167 individuals sustained injuries, out of which 144 were policemen (Delhi Police, Central Reserve Police Force, Central Industrial Security Force and Sashastra Seema Bal) and 23 were civilians including media persons. The riotous mob carrying spears, swords, lathis etc. indulged in such acts of terror that created mayhem at Red Fort, sabotaged government property and also damaged the building of Red Fort, a national heritage site and pride of India., The Investigating Officer has opposed the bail application on the following grounds: a) The present case is very sensitive in nature involving damage to Red Fort property, a symbol of national pride, by rioting, and the allegations are grave and serious. b) The accused was well conversant with the fact that the protestors were not following the prescribed route with the terms and conditions as provided by Delhi Police, yet he reached Red Fort in pursuance of a criminal conspiracy to join the riotous mob during agitation and is equally liable for the commission of all the offences committed by the unruly mob. c) The accused is one of the main conspirators, who was seen most of the time with Jugraj Singh at Red Fort, who hoisted the religious flag on the rampart of Red Fort. d) The accused had recorded various videos inside and outside the periphery/walls of Red Fort, wherein he is seen instigating the rioters; in these videos the rioters are seen carrying spears, lathis, swords etc. e) The accused was instigating the riotous mob by raising slogans \JHUL TE NISHAN REHAN\ and the same was completed by the members of the unlawfully assembled riotous lobby saying \PANT MAHARAJ DI\. Throughout this time the applicant/accused was live on Facebook, capturing his presence and the incident live from his mobile camera. f) There is every apprehension that if the accused is released on bail, he may help the absconding accused Jugraj Singh and other accused persons evade their arrests, who were part of the riotous mob. g) If the accused is released on bail, he will again make his presence at the different borders of Delhi, where the farmers are still protesting, to instigate and provoke them against the Bill, continue protest and this might again give rise to another incident like the Red Fort riots in Delhi., Learned Assistant Public Prosecutor for the State has vehemently opposed the bail application on the ground that though the timing of arrest of the accused in the present FIR may be questionable, the Learned Counsel for the accused has no answer as to why they did not move for quashing of FIR No. 98/2021 if they so believed that both the FIRs were identical. It is further submitted that FIR No. 98/2021 is registered on a different cause of action and the role/conduct of the accused is different in both the FIRs. The accused was well conversant with the fact that the protestors were not following the designated route with the terms and conditions as prescribed by Delhi Police, yet he voluntarily chose to join the riotous mob. It is further submitted that the allegations are serious in nature and the accused may tamper with the evidence, which is evident from the fact that the accused had already destroyed both his mobile phones along with the SIMs which he was using on the date and time of the incident and therefore, the bail application may be dismissed., Submissions heard. From prima facie perusal of the contents of both the FIRs, it appears that the allegations levelled against the accused are similar in both the FIRs. FIR No. 96/2021 registered on 27.01.2021 provides a comprehensive overview of the incident relating to violence and alleged damage caused to the Red Fort on Republic Day and the present FIR merely reiterates the allegations against the accused as to the damage caused to the Red Fort. It would be worthwhile to observe that the Learned Additional Sessions Judge granted regular bail to the accused in FIR No. 96/2021 vide order dated 16.04.2021, after considering all the submissions of the prosecution and after noticing all the facts of violence and damage to Red Fort and held that none of the above acts are attributed specifically to have been committed by the accused‑applicant. Further it was observed that the prosecution seeks to make an example out of the case of the accused, who being a popular public figure, such an endeavour however hazards a failure of justice as a result of compromised objectivity., During the arguments, Learned Counsel for the accused highlighted the striking similarities between the contentions that had been laid to rest vide order dated 16.04.2021, granting bail to the accused after considering all arguments and detailed submissions, and the similar contentions that have been raised in the present FIR No. 98/2021. The sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences consequent upon filing of successive FIRs whether before or after filing the final report. Fresh investigation based on the second and successive FIRs, not being a counter case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which, pursuant to the first FIR, either investigation is underway or a final report under section 173(2) has been forwarded to the magistrate, is an abuse of process and impermissible., The applicant‑accused was arrested in FIR No. 96/2021 on 09.02.2021 and the investigating agency was given a total period of 14 days towards police custody in the said FIR. Thereafter, the accused was sent to Judicial Custody on 23.02.2021 and has been in judicial custody since then. It would be worthwhile to observe that the accused was granted regular bail under section 439 of the Criminal Procedure Code by the Learned Additional Sessions Judge in FIR No. 96/2021 vide order dated 16.04.2021 and the said order was communicated in the morning of 17.04.2021. However, before the accused could be released from jail, he was arrested in the present FIR dated 28.01.2021 also registered in respect of the same incident at Red Fort. The need and timing of the arrest is highly questionable because despite knowing that the accused has been lodged in Judicial Custody since 09.02.2021, he was arrested only on 17.04.2021, when he was granted regular bail in FIR No. 96/2021. This clearly suggests that it was an attempt to defeat the bail order dated 16.04.2021 of the Learned Additional Sessions Judge and is a grave affront to personal liberty of the accused and runs foul of rights guaranteed under Article 21. Such vicious and sinister action of investigative authorities amounts to fraud with established criminal process and shows scant regard to constitutional protections enshrined, protected and cherished under the Constitution of India., Learned Assistant Public Prosecutor for the State, during the course of arguments, fairly conceded that the timing of arrest may be questionable but argued that Learned Counsel for the accused should have moved an application for quashing of FIR No. 98/2021 under Section 482 of the Criminal Procedure Code. The court is of the opinion that it is the discretion of the accused whether to invoke the jurisdiction of the Honourable High Court of Delhi under section 482 of the Criminal Procedure Code and it in no way precludes the accused from moving an application for regular bail before the concerned court., Considering the submissions made, I am of the considered opinion that the applicant's further incarceration in the present case would bear no fruit and therefore would be unjustified, nor would the restoration of the applicant's liberty be detrimental to the investigation being conducted by the police authorities. The accused has already been interrogated in police custody for 14 days and has been in custody for about 70 days when he was granted regular bail by the Learned Additional Sessions Judge on similar facts. Any further restraint upon his liberty would be neither logical nor legal. Hence, applicant/accused Sandeep Singh Sidhu @ Deep Sidhu is admitted to bail in case FIR No. 98/2021 subject to furnishing of a personal bond in the sum of Rs. 25,000/- with one surety of like amount, to the satisfaction of Learned Duty Magistrate as per prevailing duty roster, subject to the following conditions: 1. That the accused person(s) shall join investigation as and when called. 2. That the accused person(s) shall attend the Court as per conditions of bond to be executed. 3. That the accused person(s) shall not commit a similar offence. 4. That the accused person(s) shall not directly or indirectly induce, give threat, or in any way dissuade the witnesses/persons acquainted with the facts of the case and also shall not tamper with the evidence., Accordingly, the present application is disposed of. One copy of the order be uploaded on the Delhi District Court website. A copy of the order be also sent to the e‑mail of the jail superintendent and the Station House Officer Police Station Kotwali (Crime Branch) and Learned Counsel for the applicant. The printout of the application, reply and order be kept for records and be tagged with the final report.
id_1818	0	Judgment reserved on : 01.12.2023 Judgment pronounced on: 27.02.2024 Through: Mr Praveen Kumar Aggarwal and Mr Abhishek Grover, Advocates. Versus Through: Mr Ajay Brahme, Advocate., In a State like Delhi, majority of Delhites have one dream i.e. to own a property in their name. It is not easy for the middle and lower income groups to own a property in Delhi and Delhi Development Authority from time to time comes out with schemes of fulfilling this dream of owning a property. One such scheme was the New Pattern Registration Scheme 1979 wherein the DDA floated flats for middle income group, lower income group and Janta category., This is a writ petition filed by the petitioner under Article 226 of the Constitution of India seeking the following reliefs: a) issue an appropriate Writ/Order or Direction in the nature of mandamus to the Delhi Development Authority to issue an allotment letter to the petitioner of Flat No. 180, First Floor, Pocket No.13, Sector No. 22, Rohini, Delhi or any other flat allotted to the petitioner against receipt of allotment price and to deliver possession thereof and to complete all other necessary formalities in that behalf., The respondent no. 1 is the Delhi Development Authority and respondent no. 2 is the Director (Housing). Both the parties are collectively referred to as Delhi Development Authority., The Delhi Development Authority floated a scheme called New Pattern Registration Scheme 1979 (NPRS Scheme) which was formulated with the object to reduce the sale price of Middle Income Group (MIG), Lower Income Group (LIG) and Janta Flats so as to be within the reach of common man. The NPRS Scheme was open for the period from 01.09.1979 to 30.09.1979., Under the NPRS Scheme, a person was eligible if he or she did not own any residential house or plot in full or in part on leasehold or freehold basis in the name of his/her wife/husband or any of his/her minor and/or dependent children or dependent parents or dependent minor sisters and brothers., Further, a person who was eligible was required to make registration deposit and the allotment of flats was to be by way of draw of lots and all the applicants registering were to have equal seniority. As per the NPRS Scheme, the deposit made by an applicant was to carry interest at the rate of 7 per cent per annum., The petitioner being eligible under the aforesaid NPRS Scheme deposited a sum of Rs. 1500 vide Challan No. 015242 dated 03.10.1979 for LIG flat which was duly acknowledged by the Delhi Development Authority by issuing acknowledgement. Deposit receipt bearing No. 114369 Book No. 1144 dated 03.10.1979 was also issued in favor of the petitioner., A certificate of registration bearing No. 57760 dated 08.07.1980 was issued by the Delhi Development Authority to the petitioner expressly providing the registration of the petitioner at Serial No. 57760 under the said NPRS Scheme in the category of intending purchasers of flat/house under the LIG category. The petitioner’s addresses mentioned in the certificate of registration are: i) IE/67, NIT, Faridabad (address 1); ii) E-307, East of Kailash, New Delhi (address 2)., The petitioner vide letter dated 15.05.1982 addressed to the Delhi Development Authority informed the new address i.e. A‑38, Group Industrial Area, Wazirpur, Delhi‑110052 (address 3) for further communication. Thereafter, the petitioner wrote another letter dated 04.10.1988 to the Delhi Development Authority informing the new address i.e. Shop No.9, New Cloth Market, Hisar, Haryana (address 4) for further communication. Lastly, the petitioner wrote a letter dated 30.10.2010 to the Delhi Development Authority giving new address i.e. Pandit Ramphool Singh Ghar, Railway Road, Rohtak, Haryana (address 5) for communication., On 07.10.2013, when the petitioner visited the office of the Delhi Development Authority to communicate the change of his address, he also made request to the Director of Delhi Development Authority personally that the petitioner was still awaiting allotment of flat despite expiry of 34 years., The Director of the Delhi Development Authority called the concerned staff to bring the relevant file, however, the file was said to be untraceable but the concerned staff came up with a register and upon perusal of the same, it was found that the petitioner was allotted Flat No. 180, First Floor, Pocket 13, Sector No. 22, Rohini, Delhi (Rohini Flat). The director called the petitioner to come again on the next day., Petitioner again visited the office of the Delhi Development Authority on 08.10.2013, where after waiting for the whole day, the petitioner was informed that the aforesaid flat was allotted to him but the file of the same was untraceable as either it might have been lost or might be among the files in custody of Central Bureau of Investigation in connection with some cases. Thereupon, the Director of the Delhi Development Authority wrote on a sheet printed with the name of the Delhi Development Authority, the aforesaid particulars of the flat as well as the registration number allotted to the petitioner., As soon as the petitioner came to know about the said allotment of the flat, petitioner visited the flat in question and found that it was vacant and many other flats around it were also vacant. Upon enquiry from the inhabitants of the other flats of the said building, the petitioner came to know that the flats were constructed around the years 1995‑96., The petitioner issued a legal notice dated 23.06.2014 to the Delhi Development Authority calling upon the Delhi Development Authority to hand over the possession of the aforesaid flat with allotment letter or any other flat allotted to the petitioner by accepting the allotment price within two months., Since nothing was happening, petitioner filed the instant writ petition with the above mentioned prayer., The Delhi Development Authority filed a counter affidavit wherein it was stated that the petitioner was declared successful for the allotment of the Rohini flat in draw held on 29th March, 1996. As petitioner failed to deposit the demanded amount within the stipulated period, the allotment stood cancelled due to non‑payment of demanded amount. The aforesaid flat now stands allotted in the name of another person namely Shri Rampal Agarwal son of Shri Sant Lal in the draw held on 20th October, 2000. It is also stated that the main allotment file of the petitioner is not traceable., It is further stated that the petitioner approached the Delhi Development Authority after deep slumber and enquired about the allotment in the year 2013. Allotment under the NPRS Scheme was closed after giving publicity in the leading newspapers. Further all the allotments under the NPRS Scheme have already been made and all eligible applicants have been allotted flats. No allotment is pending as on date and all these schemes have already been closed. This position has been notified to all the registrants registered under those schemes by circulating them in the leading newspapers. The public notice was also available on the website of the Delhi Development Authority., Hence, the NPRS Scheme has already been closed after publicity through advertising the same in the leading newspapers and therefore the petitioner is not entitled for the allotment., Mr Kumar, learned counsel for the petitioner argues that at the time of registration, the petitioner had given two addresses i.e. address 1 and 2 as noted above. Thereafter, the petitioner (who is now a senior citizen) was compelled to change his residence on various occasions and on each occasion the petitioner communicated his new address to the Delhi Development Authority i.e. in the years 1982, 1988 and 2010., Learned counsel submits that the petitioner was residing at address 3 prior to year 1988 and thereafter the petitioner shifted to address 4 which was duly communicated to the Delhi Development Authority vide letter dated 04.10.1988 and receipt of the letter was duly acknowledged by Delhi Development Authority vide entry no. 3996 dated 04.10.1988. On the other hand, it is the admitted case of the Delhi Development Authority that the Demand‑cum‑Allotment Letter (DAL) was issued to the petitioner at his address 3 where the petitioner was not residing at the time of sending of DAL. Instead of sending the letter at the address provided by the petitioner, the Delhi Development Authority erred in sending letter at his previous address where it could not have been served. Not sending of letter to the petitioner at his address at the relevant time which was made available to the Delhi Development Authority vide letter dated 04.10.1988, made the act of Delhi Development Authority non est., The Delhi Development Authority ought to have issued the DAL at address 4 and in the absence of the same, Delhi Development Authority has failed to perform its duty to issue DAL to the petitioner at the last known address of the petitioner available in the file of the Delhi Development Authority. Also, there is nothing on record to substantiate that the DAL was ever received by the petitioner. Therefore in the absence of DAL to the petitioner, the plea of failure to deposit the amount is not sustainable., Further, the Delhi Development Authority is endeavouring to cover up its failure to discharge its legal duty to issue DAL at the last known address under the guise of unsustainable plea that the file of the applicant is untraceable. The petitioner should not be made to suffer for the defaults of the Delhi Development Authority as it is the duty of the Delhi Development Authority to maintain its records and keep file in safe custody., It is respectfully submitted that so far as the plea of delay and laches is concerned, the NPRS Scheme in question is of year 1979 and the Delhi Development Authority admittedly made the allotment after about more than 18 years and thus it is the Delhi Development Authority who has been responsible for delay in making the allotment of the flats. The Delhi Development Authority cannot sustain the objection of delay and laches in view of the fact that the petitioner came to know about the allotment only in year 2013., Learned counsel submits that Delhi High Court in similar facts & circumstances has categorically held that the Delhi Development Authority is duty bound to send the DAL to the applicant in all the addresses available in its records and if the Delhi Development Authority has failed to perform its duty, the applicant cannot be made to suffer for the failure of Delhi Development Authority to perform its legal duty and thus the petitioner is entitled for an opportunity to pay the arrears to avail the allotment of flat for which he has been waiting for last more than three decades. Reliance is placed on the judgments passed by this Delhi High Court in Prem Bhatnagar, Inderjeet Singh Tosaria and Hirdaya Pal Singh., Per Contra, Mr Brahme, learned counsel argues that under the NPRS Scheme, the petitioner was declared successful for allotment of Rohini flat in draw of lots held on 29.03.1996. The allotment was subject to the terms and conditions as given in DAL, brochure and Delhi Development Authority (Management and Disposal of Housing Estates) Regulations, 1968., The petitioner failed to deposit the demanded amount within the stipulated period of time and the allotment stood cancelled under Regulation 8(3) of Delhi Development Authority Regulation 1968. The aforesaid flat is now allotted in the name of registrant Shri Rampal Agarwal son of Shri Sant Lal in draw of lots held on 20th October, 2000. The main allotment file of the petitioner is not traceable., The petitioner in the year 2013 approached Delhi Development Authority to enquire about his allotment on which Delhi Development Authority submitted that all the allotments under the NPRS Scheme have been made and no further allotments are pending as on date and the said scheme has been closed and the same had been notified to all registrants vide publication in newspapers, viz. The Hindustan Times on 22‑11‑2012 in English. The same was also available on website of Delhi Development Authority as public notice dated 22‑11‑2012., The notice issued on the website specifically mentions the above and also that the registrants who have not taken any refund of their registration money are advised to approach Delhi Development Authority and apply for refund with all requisite documents viz. Fixed Deposit Receipt, Registration Card, Challan, change of address along with proof, if any, etc within 30 days from the date of publication of the notice. Any refund request after the said time will not be entertained and summarily rejected. Since the allotments under the said scheme has already been closed after wide publicity through advertising the same in the leading newspapers, the petitioner is not entitled to any allotment., Further, learned counsel heavily relies upon the Office Order passed by the Delhi Development Authority being F.2(10)/2002/Coord.(H)/49 dated 25.02.2005 to submit that the petitioner failed to approach the Delhi Development Authority within 4 years, therefore the allotment stands cancelled. The Office Order dated 25.02.2003 reads as under: 1. In cases, wherein change of address was intimated by the registrant but erroneously not recorded by Delhi Development Authority and thereby demand letters were sent at wrong/old address and the allottee approaches Delhi Development Authority within a period of four years from the date of allotment, he/she shall be allotted flat at the old cost, prevalent at the time when the priority of allottee matured and the allotment letter issued, and no interest will be charged. The allotment will be made at old cost subject to following: (a) He should approach Delhi Development Authority within a period of four years from the date of issue of demand letter at the wrong address. (b) He should have proof of having submitted a request for change of address to Delhi Development Authority duly signed by the allottee himself/herself i.e. proof of receipt at Delhi Development Authority counter. (c) He should have documentary proof of change of address viz., Ration Card/Election Card/Identity Card/Passport etc. (duly attested by the Gazetted Officer). 2. In cases, where such an intimation has been made but the allottee has not approached Delhi Development Authority within a period of four years from the date of allotment, the allottee shall be considered for allotment of flat at the old cost prevalent at the time of original allotment + 12% simple interest w.e.f. the date of original allotment till the date of issue of fresh Demand‑cum‑Allotment Letter. The same principle will be applicable in the cases of missing priority cases., The petitioner continued to sleep over the matter for further twenty two (22) years and has in the letter dated 30.07.2010 admitted to have woken up from his slumber. Hence, the case of the petitioner is barred by delay and laches as the petitioner didn’t act within the time specified under the terms and conditions., Learned counsel relied on Banda Development Authority and more particularly paragraph 17 which reads as under: 17. It is true that no limitation has been prescribed for filing a petition under Article 226 of the Constitution but one of the several rules of self‑imposed restraint evolved by the superior courts is that the Delhi High Court will not entertain petitions filed after long lapse of time because that may adversely affect the settled/crystallised rights of the parties. If the writ petition is filed beyond the period of limitation prescribed for filing a civil suit for similar cause, the Delhi High Court will treat the delay unreasonable and decline to entertain the grievance of the petitioner on merits., I have heard learned counsel for the parties and perused the material on record., Admittedly, under the NPRS Scheme, Certificate of Registration was issued by the Delhi Development Authority vide letter dated 08.07.1980 to the petitioner. On perusing the letter, it acknowledges the address 1 and 2 of the petitioner which was given by the petitioner at the time of registration., In 1982, the petitioner vide letter dated 15.05.1982 informed the Delhi Development Authority about the change of address as address 3 i.e. A‑38, Group Industrial Area, Wazirpur, Delhi‑52. After lapse of 6 years, the petitioner again vide letter dated 04.10.1988 informed the Delhi Development Authority about his new address 4 i.e. Shop No.9, New Cloth Market, Hisar, Haryana for communication. Learned counsel for the petitioner has drawn my attention to the original letter dated 04.10.1988 which is placed on record. It shows that the said letter is duly stamped by the Delhi Development Authority as Serial No. 3996 and also reflects the date of receipt as 04.10.1988. Hence, it can be safely assumed that the letter dated 04.10.1988 was duly received and acknowledged by the Delhi Development Authority., After almost 18 years of the NPRS Scheme, on 29.03.1996, Delhi Development Authority held draw of lots wherein the petitioner was declared successful for the allotment of Rohini flat. There is no dispute to the fact that the petitioner approached the Delhi Development Authority in the year 2010 after 14 years of the allotment was made and thereafter in 2013 when he visited the office., Delhi Development Authority has taken the stand that the DAL was issued to the petitioner at his address 3 and thus the petitioner failed to pay demanded amount as per Regulation 8(3) of Delhi Development Authority Regulation 1968 within the time frame. Hence, the allotment of the LIG flat to the petitioner stood cancelled and the new allottee has been allotted the Rohini flat by the Delhi Development Authority. Paragraph 2(iv) of the counter affidavit filed by the Delhi Development Authority reads as under: (iv) In reply to contents of paragraph 2(iv), it is submitted that DAL was issued at the address of the petitioner i.e. A‑38, Group Industrial Area, Wazirpur, Delhi‑52. The contents of Annexure P‑5 are denied. The main file of the case is not traceable. The petitioner has not submitted cogent documentary proof regarding his changed address. Rest averments are matter of record., Rule 8(2) and (3) of Delhi Development Authority Regulation 1968 reads as under: 8. Manner of Payment of Disposal Price (2) An applicant to whom the property has been allotted shall have to pay the balance amount of the disposal price (i.e. after adjusting the deposit) within such period as may be specified in the allotment letter. (3) If the applicant fails to pay the amount within the specified period, the allotment shall be cancelled and a sum of money equal to 20 per centum of the deposit shall be forfeited and the balance refunded., On perusing Rule 8(2), it is clear that the balance amount of the disposal price is to be paid within such period as may be specified in the allotment letter., The Delhi Development Authority in its counter affidavit has categorically stated that the DAL was issued to the petitioner at address 3 i.e. A‑38, Group Industrial Area, Wazirpur, Delhi‑52. Further, there is no date of the issuance of the DAL. However, since the allotment itself was made in the year 1996, the DAL could not have been issued prior to 1996. Hence sending DAL to address 3 was meaningless exercise as the petitioner himself on 04.10.1988 had given the letter informing the Delhi Development Authority about his new address 4 i.e. Shop 9, New Cloth Market, Hisar, Haryana. The DAL sent to the petitioner at wrong address despite the right address being on record of the Delhi Development Authority, is no demand in the eyes of law. It was incumbent upon the Delhi Development Authority to issue DAL to the petitioner at the new given address 4 which was the last known address on the record of the Delhi Development Authority., In the similar facts and circumstances as noted above, this Delhi High Court on various occasions have held that when the DAL was issued on the wrong address or DAL was never communicated to the applicant, the registrants/petitioners therein were entitled to the allotment of flats., The factual matrix of this case falls under category 1 of the Office Order dated 25.02.2005. In order to avail the benefit of the first category, the petitioner has to show that there was an allotment letter sent on the wrong address and the petitioner has approached the Delhi Development Authority within 4 years of the issuance of the DAL at the wrong address. In the present case, the Delhi Development Authority is totally silent on the date of issue of demand letter at the wrong address except an averment in the counter affidavit that the DAL was issued at the wrong address. There are no particulars of the date of the issue of DAL., Secondly, the stand of the Delhi Development Authority is that the main file of the petitioner is not traceable in their records. Hence, the Delhi Development Authority is unable to say on which date the DAL was issued except the statement that DAL was issued at address 3. Delhi Development Authority is an instrumentality of State and is required to act fairly, bonafide, and in accordance with law. The actions of the Delhi Development Authority as noted above are mala fide and arbitrary to the petitioner who has been in legitimate hope of getting a flat. The total silence on the material particulars by the Delhi Development Authority clearly shows the misconduct on behalf of Delhi Development Authority., The argument of Delhi Development Authority that a notice was published in leading newspapers that the allotment in the NPRS Scheme is closed and no further allotments will be made is contrary to the observations of the Coordinate bench in Prem Bhatnagar and more particularly paragraph 11 which reads as under: 11. The last contention raised by counsel for the respondent is addressed first in view of the fact that this Court has taken a consistent view that a general notice in all the leading newspapers was published is in fact no notice at all as it is not expected that people would be looking at the public notices each day when the allotments are not made sometimes for twenty to twenty five years. This argument of the Delhi Development Authority already stands rejected and the same is rejected once again., I am in agreement with the above observation as general notice is no notice in the eyes of law. Hence, the argument stands rejected., The last argument of the Delhi Development Authority that the present petition is barred by delay and laches relying on the Banda Development Authority is misconceived as the petitioner came to know about his allotment of Rohini flat on 07.10.2013, when he visited the office of Delhi Development Authority. Therefore, the cause of action in favour of the petitioner arose on 07.10.2013 as prior to the said date, the petitioner had no information regarding allotment of the flat in his favour. The present petition was filed on 01.11.2014. Hence, there is no delay on part of the petitioner. Delhi Development Authority is also responsible for delay as the allotment in the present case is made after 18 years of the NPRS Scheme and thereafter failed to communicate the DAL at the last known address of the petitioner available in the record of the Delhi Development Authority., For the reasons noted above, the writ petition is allowed., The Delhi Development Authority is directed to allot a flat equivalent to Flat No. 180, First Floor, Pocket No. 13, Sector‑22, Rohini, Delhi (LIG Category) at the prevailing rates on the date of allotment i.e. 29.03.1996 within 4 weeks from today., With the above directions, the writ petition along with pending applications, are disposed of.
id_1819	0	D.B. Civil Writ Petition No. 13535/2020\nPetitioner: Deepesh Singh Beniwal, son of Late Shri Yashpal Singh Choudhary, aged about 42 years, resident of 31, Guru Pratap, Air Force Road, Bhagat Ki Kothi, Jodhpur.\nVersus:\n1. Union of India, through its Secretary, Ministry of Health and Family Welfare, Government of India, Nirman Bhawan, Near Udyog Bhawan Metro Station, Maulana Azad Road, New Delhi - 110011.\n2. National Medical Commission, through its Secretary, Pocket 14, Sector 8, Dwarka Phase I, New Delhi.\n3. State of Rajasthan, through the Principal Secretary, Department of Medical Education (Group‑I), Government of Rajasthan, Jaipur.\n4. Chairman, NEET Undergraduate Medical and Dental Admission/Counselling‑2020, Principal, Government Dental College, Subhash Nagar, behind T.B. Hospital, Jaipur, Rajasthan.\n5. Fee Regulatory Committee, through its Member Secretary, Department of Medical Education (Group‑I), Government of Rajasthan, Jaipur.\n6. American Institute of Medical Sciences, Near Transport Nagar, Airport Road, Bedwas, Udaipur‑313001, through its Director/Principal.\n7. Ananta Institute of Medical Sciences, NH‑8, Village Kaliwas, Tehsil Nathdwara, District Rajsamand, Rajasthan, through its Director/Principal.\n8. Geetanjali Medical College, NH‑8, near Eklingpura Chowk, Manwakhera, Udaipur, through its Director/Principal.\n9. JNU Institute for Medical Sciences and Research Centre, Jaipur, Jaipur National University, Institute for Medical Sciences and Research Centre, JNU Main Campus, Jagatpura, Jaipur, through its Director/Principal.\n10. Mahatma Gandhi Medical College, RIICO Institutional Area, Tonk Road, Sitapura, Jaipur‑302022, through its Director/Principal.\n11. National Institute of Medical Sciences, Jaipur‑Delhi Highway, NH‑11C, Jaipur‑303121, Rajasthan, through its Director/Principal.\n12. Pacific Institute of Medical Sciences, Ambua Road, Umarda, Udaipur‑313015, Rajasthan, through its Director/Principal.\n13. Pacific Medical College and Hospital, Billo Ka Bedla, Amberi, NH‑76, Udaipur‑313001, Rajasthan, through its Director/Principal., For the petitioner: Mr. Deepesh Singh Beniwal, appearing in person.\nFor the respondents: Mr. Mukesh Rajpurohit, Additional Solicitor General, with Mr. Navneet Singh Birkh for Respondent No.1; Mr. R.S. Saluja for Respondent No.2; Mr. Manish Vyas, Additional Advocate General, with Mr. Kailash Choudhary for Respondents Nos.3 and 5; Mr. Vikas Balia with Mr. Kunal Bishnoi for Respondents Nos.6, 12 and 13; Mr. Hemant Dutt with Mr. Keshar Singh for Respondent No.7; Mr. Akhilesh Rajpurohit with Mr. Milap Chopra for Respondent No.8; Mr. Kamlakar Sharma, Senior Advocate, with Ms. Alankrita Sharma for Respondent No.9; no representatives appeared for Respondents Nos.10 and 11 despite service., Order dated 31 May 2021, Hon'ble Mr. Sangeet Lodha, Judge, Rajasthan High Court.\n1. This Public Interest Litigation has been filed by the petitioner, an advocate, challenging the condition imposed by the private medical institutions that students seeking admission to the MBBS course must submit a bank guarantee against the annual fees for the next three years of the course, in addition to the deposit of the annual fee for the first year, at the time of admission.\n2. The relief sought is as follows:\n (i) Direct the private medical colleges to accept a bond (in place of a bank guarantee) and that only from those students whom the institutions feel may leave the institute mid‑term.\n (ii) Direct the State and the private medical colleges not to seek submission of bond or bank guarantee as a matter of course on the pretext of the judgment of the Hon'ble Apex Court in the case of Islamic Academy of Education, as no such direction has been given by the Hon'ble Apex Court.\n (iii) Declare that the action of the respondents in requiring students to submit a bank guarantee at the time of admission for the tuition fee for the remaining course duration of three and a half years is arbitrary, illegal and bad in the eyes of law.\n (iv) Order the private medical colleges to submit a chart showing, for the past five academic years, how many students have submitted bonds, bank guarantees or advance fees for one or more years.\n (v) Call upon Respondent No.5 to state whether the charging of advance tuition fee as is being done by private medical colleges in the State of Rajasthan is approved by it and, if not, what action has been taken against such colleges till date.\n (vi) Pass any other appropriate order or direction which this Hon'ble Court considers just and proper in the interest of justice., On 17 December 2020, while issuing notices to the respondents, an interim order was passed by the Rajasthan High Court in the following terms: Until the next date, respondents Nos.6 to 13 are restrained from insisting upon furnishing a bank guarantee for students admitted to the MBBS course pursuant to NEET Undergraduate Medical/Dental Admission/Counselling 2020. However, the institutions may direct the admitted students to furnish a bond for the fee of three years in lieu of a bank guarantee. The students shall be obligated to deposit the full fee for the first year as stipulated but shall be provisionally exempted from furnishing the bank guarantee for the remaining three years, subject to the outcome of the present writ petition., Aggrieved by the interim order, Respondents Nos.6, 7, 9 and 13 preferred Special Leave Petition (Civil) No. 15950/2020. The Hon'ble Supreme Court, on 24 December 2020, while issuing notices, passed an interim order staying the operation of the Rajasthan High Court's interim order dated 17 December 2020., By order dated 4 January 2021, the Special Leave Petition was disposed of by the Hon'ble Supreme Court with the following observations and directions: The Rajasthan High Court is requested to decide the writ petition finally within one week from the date of the order, in view of the admission process being at the final stage for the current academic year. The interim order passed by the Supreme Court on 24 December 2020 shall continue to operate till the disposal of the writ petition by the Rajasthan High Court. The parties are directed to appear before the Rajasthan High Court on 7 January 2021. The application for impleadment is allowed. The Special Leave Petition is disposed of accordingly. Any pending applications shall also stand disposed of., Pursuant to the Supreme Court's directions, the matter was listed before the Rajasthan High Court on 8 January 2021. It was noticed that service of notices on Respondents Nos.1 to 6, 7, 8, 9 and 13 was still awaited. Counsel for those respondents appeared, but, as per the office report, notices to Respondents Nos.10, 11 and 13 had not been duly served. None of the respondents had filed a reply to the writ petition. In view of this, the matter could not be taken up for hearing immediately., After service of notices upon the remaining respondents and filing of replies/counters by the respondents appearing, the matter was finally heard. The grievance raised in the petition is that all private medical institutions in the State of Rajasthan, at the time of admission to the MBBS course, are insisting that students or their parents submit a bank guarantee against the fees for the next three years of the course duration. The submission of a bond or undertaking does not stand on the same footing as a bank guarantee because, generally, banks do not issue a guarantee unless the adequate amount is deposited with them. Consequently, students belonging to middle‑class families or low‑income groups face grave hardship at the hands of private medical institutions. According to the petitioner, banks require a cash margin for issuance of a bank guarantee, forcing parents to manage the cash amount of the fees for the entire MBBS period in one go, and banks also charge an upfront commission ranging between 2.5 % and 3 % per annum., The petition averts that eight private medical institutions in the State of Rajasthan, with an intake capacity of 1,290 students, are charging Rs 15 lakh per annum as minimum annual tuition fee, thereby requiring parents to submit a minimum bank guarantee of Rs 52.5 lakh for a period of three years. The upfront commission on this amount would be Rs 4,59,375 (calculated at 2.5 % of the bank guarantee). The total amount of bank guarantee would be Rs 6,77,25,00,000 and the upfront commission payable by the parents would be Rs 59,25,93,750. The petition further states that, because parents cannot arrange such a bank guarantee, private medical institutions are forcing them to deposit an advance fee for at least one year in addition to the annual fee for the first year. Relying upon the decisions of the Hon'ble Apex Court in T.M.A. Pai Foundation & Ors. vs. State of Karnataka & Ors. (2002) 8 SCC 481 and Islamic Academy of Education vs. State of Karnataka (2003) 6 SCC 697, it is submitted that an educational institution may charge only the prescribed fees for one semester or year, and if it feels that a particular student may leave mid‑stream, it may at most require a bond or bank guarantee for the balance fees, which would be received by the institute even if the student leaves., A reply to the writ petition has been filed on behalf of the State of Rajasthan, taking the stand that the charging of a bank guarantee or advance fee by private medical institutions in the State is not approved by the State. The Fee Regulatory Committee has decided that no private institution shall demand or take any kind of formal or informal fee from students except the fee determined by the Committee; any fee collected beyond that would be deemed a capitation fee and punitive action would be taken. It is submitted that the fee for Government medical colleges and two private medical institutions—American Institute of Medical Sciences & Research Centre, Udaipur and Ananta Institute of Medical Sciences & Research Centre, Rajsamand (Respondents Nos.6 and 7)—is regulated by Respondent No.5, the Fee Regulatory Committee. The remaining private medical institutions (Respondents Nos.8 to 13) have their own fee structures as per the Fee Regulatory Committee constituted by themselves., It is submitted that the action of private medical institutions deciding their own fee was challenged in D.B. Civil Writ Petition (Public Interest Litigation) No. 10632/12 (Sachin Mehta vs. State of Rajasthan & Ors.). The Division Bench, by order dated 25 October 2013, allowed the petition and quashed the notification dated 13 July 2012 issued by Mahatma Gandhi Medical College (Respondent No.10). That judgment was challenged before the Hon'ble Supreme Court in Special Leave Petition No. 35001/13 (Mahatma Gandhi University Medical Sciences & Technology vs. Sachin Mehta & Ors.). The Supreme Court passed an interim order on 25 November 2013 stating that the petitioner may not refund any amount to the students pursuant to the impugned judgment. By order dated 16 February 2015, the university was permitted to fix the fee structure for three academic sessions. Subsequently, D.B. Civil Writ Petition No. 13414/16 (Dr. Sharwan Ram vs. State of Rajasthan & Ors.) was disposed of by the Rajasthan High Court in terms of the Supreme Court order dated 16 February 2015. Respondents Nos.8 to 13, being universities established under the statute, decide their fee as per the Fee Regulatory Committee constituted under the relevant statute and are not governed by Respondent No.5., By way of an additional affidavit, the State of Rajasthan records that in Government Dental College (RUHS College of Dental Sciences, Jaipur) the State has prescribed a bond of Rs 4 lakh and a bank guarantee of Rs 1 lakh from students admitted to the BDS course. This condition is implemented because students have been dropping out in the second year after securing a seat in the MBBS course. It is averred that in the 2011‑12 session the entire batch left after the first year, whereas in the 2012‑13 session only five students continued after the first year. The fee charged by RUHS College of Dental Sciences is comparatively meagre, and the institution would face great difficulties if students left after the first year., The private colleges—Respondents Nos.6, 7, 8, 9 and 13—have filed separate replies/counters to the writ petition., A preliminary objection has been raised on behalf of the private medical institutions that no public interest is involved in the present petition, and therefore the petitioner should not be permitted to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. The writ petition is silent as to whether the students or their parents have ever raised any grievance regarding the bank‑guarantee condition before the private medical institutions or the State authorities. According to the respondents, the petition, filed without approaching the concerned authorities for redressal, deserves to be dismissed on this ground alone., Respondent No.6 (American Institute of Medical Sciences) and Respondent No.13 (Pacific Medical College and Hospital), in their separate replies, have taken the stand that the institution is functioning in accordance with the directions and instructions issued by the Director, vide Information Booklet (Annexure 2). As per those instructions, the respondents are free to call for either a bank guarantee or a bond from the students, and thus the institutions are merely complying with the established rules and the judgment rendered in Islamic Academy. The Hon'ble Supreme Court has held in several cases that admissions in medical institutions are to be done by the State authorities and the role of private players should be minimised. Consequently, private colleges have no recourse except to seek a bank guarantee from students desiring admission. Respondent No.6, being a private self‑financed institution, receives no Government aid; its fee structure is based on the substantial expenditure on infrastructure, faculty, clinical material and other facilities for the whole course. The institute charges the fee fixed by the Fee Regulatory Committee appointed by the State and headed by a retired Hon'ble Judge., Respondent No.7 (Ananta Institute of Medical Sciences), in its counter, states that the levy of fee by the college is governed by the Fee Regulatory Committee, Department of Medical Education, Government of Rajasthan. In light of the Supreme Court's decision in Islamic Academy, the institution is permitted to receive a bank guarantee from students for the balance fees for the whole course to secure the institution in the event the student leaves mid‑stream. The college is self‑financed and receives no Government aid; the fees charged are the only amount utilized for the benefit of the educational institution, and no other amount is charged directly or indirectly. The Court has recognized that all medical admissions across the nation shall be done by the State authorities, with private institutions playing a minimal role. If private institutions were prevented from receiving fees, it would affect the student community and the quality of education, especially since the MBBS course is four years and the college must sustain expenses for vacant seats when students leave mid‑stream. Many students, after taking admission and blocking seats, appear again in the NEET exam in the next academic session, secure admission in another college and leave their studies mid‑stream, causing loss to the original college. The respondent also contends that State Government dental colleges also insist on submission of bond and bank guarantee, but the petitioner has filed the petition only against private medical institutions and is silent regarding the conditions imposed by State‑run medical colleges, rendering the PIL lacking bona fides., Respondent No.8 (Geetanjali Medical College & Hospital) questions the petitioner’s declaration that he is filing the petition personally because the parents of the students do not want to prejudice their children’s education. It submits that the petitioner’s contention is misconceived and should be rejected because the parents had filed an interlocutory application before the Hon'ble Supreme Court. The petition was filed hastily without following due process of law or ventilating any grievance before the State authorities by way of representation. The Central Government enacted the National Medical Commission Act, 2019 to provide a medical education system that improves access to quality and affordable medical education. The National Medical Commission, constituted under the Act, is required to undertake the National Eligibility-cum-Entrance Test (NEET) for admission of students to undergraduate and postgraduate courses in all medical colleges across India, including private medical colleges in the State of Rajasthan. Acting in furtherance of the directions issued by the National Medical Commission, detailed instructions were issued by the office of the Chairman, NEET 2020, in the State of Rajasthan. According to the respondent, those instructions clearly state that at the time of reporting, selected candidates will have to submit a bond or bank guarantee as applicable, and therefore the controversy alleged does not warrant any interference by this Court., Respondent No.9 (JNU Institute of Medical Sciences and Research Centre) justifies the condition of bank guarantee by relying upon the Supreme Court’s decision in Islamic Academy. It contends that the petitioner’s prayer that the requirement of a bond be insisted upon only from those students whom the institution feels may leave mid‑stream is irrational and baseless, because at the time of admission the private colleges cannot determine which student may leave. The UG Medical and Dental Admission Counseling Board has published an Information Booklet containing eligibility criteria, application fees, seat allotment procedure, schedule of dates, etc. Under that booklet, the condition applicable to private colleges is that candidates have to submit a bond or bank guarantee as applicable. The phrase “as applicable” suggests that both bond and bank guarantee may be required wherever required. The bond is provided in the booklet under Proforma‑9, to be executed in the name of the State Government to ensure compliance. The bank guarantee, however, cannot be treated as a bond for which a proforma has been provided. The private medical colleges are within their right to demand a bank guarantee, a right recognized and upheld by the Hon'ble Supreme Court and various High Courts, and therefore they cannot be said to be indulging in mischievous practice. In case of a bond, if a student defaults, the college would have to undertake a lengthy civil remedy process to recover the money, which may still be difficult; hence, private colleges prefer a bank guarantee which ensures no revenue loss in case of default., The petitioner, in his rejoinder to the replies filed by Respondents Nos.3 to 5, submitted that the counseling brochure and fee details notified by the counseling board gave private medical colleges leeway to insist on submission of a bank guarantee only, resulting in students/parents being forced to deposit an advance fee in lieu of a bank guarantee. The State has relied on the counseling brochure but has failed to note that an illegal mechanism has been used by private medical colleges to force parents to submit a bank guarantee, and if that is not possible, to extract money from them as advance fees. This is evident from the official website of the Counseling Board where the option of submitting a bond is not mentioned. Official representatives of the colleges, at the time of counseling, categorically direct parents/students to submit a bank guarantee only and do not approve a bond as security for the MBBS fees. The charging of advance fees is within the cognizance of State authorities, as the payment is accepted through bank accounts, and private medical colleges are required to submit their accounts to the Fee Determination Committee for fee revision. Thus, if genuine account books are submitted, the acceptance of advance fees is well within State knowledge. According to the petitioner, all private medical colleges in the State of Rajasthan fall within the domain of the State (or the Fee Determination Committee) and not merely the State‑run medical colleges and Respondents Nos.6 and 7, as contended by the respondents. The interlocutory order of the Apex Court cannot be equated with a final order and cannot be considered as precedent by the State or private medical colleges to allow Respondents Nos.8 to 13 to claim they are outside the domain. Even for universities established under the statute, the State Fee Determination Committee shall be the final authority., The petitioner has also preferred an application seeking directions to the respondents to submit their bank records., Mr. Deepesh Singh Beniwal, the petitioner, contended that a constitutional bench of the Hon'ble Supreme Court in Islamic Academy, while dealing with whether educational institutions are entitled to fix their own fee structure, categorically held that educational institutions cannot have a profiteering motive and cannot charge capitation fees. An institution cannot charge, directly or indirectly, any amount over and above the amount fixed as fees; any amount charged under any other head, such as donations, would amount to a capitation fee. The Court further held that if an institution feels that a particular student may leave mid‑stream, at most it may require that student to give a bond or bank guarantee so that the balance fees for the whole course would be received by the institute even if the student leaves. The petitioner submits that, in accordance with the Supreme Court’s directions, private medical institutions cannot demand a bond or bank guarantee from every student admitted to the course. Moreover, the respondent institutions cannot insist upon furnishing a bank guarantee only and not a bond. Where parents are not in a position to furnish a bank guarantee, the respondent institutions, in addition to the annual tuition fee for the first year of the MBBS course, are charging an advance fee for one more year, which is apparently violative of the Supreme Court’s directions. The advance fee is not kept in a separate account, and the interest accrued is neither adjusted against the annual fee payable for subsequent years nor returned to the students at the end of the course, thereby indicating profiteering and charging of capitation fee in defiance of the Supreme Court’s directions. Reiterating the submissions made in the writ petition, the petitioner contends that submission of a bond or undertaking does not stand on the same footing as a bank guarantee because banks generally do not provide a guarantee unless the adequate amount is deposited. Hence, the compulsory demand for a bank guarantee by private medical institutions causes grave hardship to students from middle‑class or low‑income families. The petitioner submits that the writ petition deserves to be allowed in light of the Supreme Court’s decision in Islamic Academy alone., Relying upon paragraphs 154 and 155 of the Supreme Court’s decision in Islamic Academy, it is submitted that although the fee structure for each college must be determined separately, taking into account factors such as facilities, infrastructure, age of the institution, investment, future expansion plans and educational standards, the management of an institution is not entitled to charge anything more than the fee determined by an appropriate committee. The State’s contention that, except for the colleges run by the State and Respondents Nos.6 and 7, the fee structure in the remaining institutions can be determined by committees constituted by the private institutions and that they are free to ask for a bond or bank guarantee for three years of the course duration, is apparently in violation of the Supreme Court’s directions. According to the petitioner, the issue that no private university or medical institution can charge a fee higher than that finally determined by the Fee Regulatory Committee constituted by the State was settled by a bench of this Court in the Sachin Mehta case (supra), against which a Special Leave Petition filed by Respondent No.10 is pending before the Hon'ble Supreme Court. The petitioner submits that, as laid down by the Supreme Court in Islamic Academy, charging a fee by any institution other than the fee prescribed by the appropriate committee attracts a penalty of ten to fifteen times the amount collected, and the institution may also lose its recognition or affiliation. Ordinarily, the management should insist on a bond from the concerned student rather than a bank guarantee. In this regard, the petitioner draws the Court’s attention to paragraph 163 of the decision in Islamic Academy.
id_1819	1	It is submitted that if the bank accounts of the respondent institutions are requisitioned, it will make abundantly clear that they are charging huge amount from the students towards the advance fee in addition to the amount of fee to be deposited for first year of MBBS Course. On the other hand, Mr. Manish Vyas, Additional Advocate General, reiterating the stand taken by the State in reply to the writ petition, submitted that charging of the bank guarantee/advance fee is not approved by the State. However, it is submitted that for Government medical colleges and two private medical institutions, the respondents no.6 & 7 herein, the fee payable by the students admitted to the course is determined by the Fee Regulatory Committee constituted by the State pursuant to the directions of the Supreme Court of India, but in the institutions run by the universities established under the statute, fee structure is determined through the committees constituted in conformity with the relevant provisions of the statute. Learned Additional Advocate General submitted that if any institution is collecting any amount other than the annual fee determined by the concerned committee then the same will come under the definition of capitation fee and accordingly, punitive action shall be taken. Drawing the attention of the High Court of Rajasthan to the factual position summarised in additional affidavit filed, learned Additional Advocate General submitted that taking into consideration the fact that the students started to drop the course in second year of BDS, the answering respondents have imposed a condition upon the students admitted to the course of furnishing bank guarantee of Rs.1 lakh and bond of Rs.4 lakh, which cannot be said to be capricious., Mr. R.S. Saluja, learned counsel appearing for respondent no.2 – National Medical Commission, submitted that in T.M.A. Pai Foundation case (supra), the Supreme Court of India categorically held that there should be no commercialisation or profiteering by the educational institutions, which was reiterated in P.A. Inamdar vs. State of Maharashtra: (2005) 6 SCC 537 and thus, keeping in view the said objective in Islamic Academy (supra), the Supreme Court mandated setting up of regulatory committees to oversee the process of admissions and fee regulations and thus, none of the institutions can claim that the fee structure in the medical colleges run by them shall not be governed by the Fee Regulatory Committee constituted by the State pursuant to the directions issued by the Supreme Court of India. Learned counsel submitted that the law laid down in T.M.A. Pai Foundation case, Islamic Academy case and T.A. Inamdar case has been further affirmed by a Constitution Bench of the Supreme Court in Modern Dental College and Research Centre & Ors. vs. State of Madhya Pradesh & Ors.: (2016) 7 SCC 353. Learned counsel submitted that relying upon the aforesaid decisions of the Supreme Court, a Bench of this Court has upheld the provisions incorporated by the State Legislature in Rajasthan Schools (Regulation of Fee) Act, 2016, holding that the provisions incorporated being regulatory in nature with the solemn object of preventing profiteering and commercialisation in school education are intra vires of the Constitution and not in violation of Article 13(2) and Article 19(1)(g) of the Constitution of India. Accordingly, learned counsel submitted that the respondent institutions cannot be permitted to collect advance fee and insist for bank guarantee towards the amount of fee for entire course duration., Mr. Vikas Balia, learned counsel appearing for the respondents no.6, 12 & 13 raising objections regarding maintainability of the public interest litigation, submitted that the petitioner being not an aggrieved party, the petition filed is not maintainable. It is submitted that if the petitioner intended to espouse the common cause by way of public interest litigation, it should have been filed on behalf of the persons aggrieved. Learned counsel submitted that the stand sought to be taken by the petitioner that the parents of the students have not approached the court inasmuch as they do not want to prejudice the education prospects of their children, is absolutely false inasmuch as at least three parents had made application before the Supreme Court for intervention in the special leave petition arising out of the interim order passed by this Court in the present writ petition. Regarding the application preferred by the petitioner seeking directions to the respondent institutions to produce their bank accounts, learned counsel submitted that in the present petition, the petitioner has only questioned the insistence for bank guarantee/advance fee and thus, the question of this Court entering into a roving and fishing inquiry at the instance of the petitioner does not arise. Reliance in this regard is placed on decisions of the Supreme Court in the matters of Ashok Kumar Pandey vs. State of West Bengal: (2004) 3 SCC 349 and Purushottam Kumar Jha vs. State of Jharkhand & Anr.: (2006) 9 SCC 458. Learned counsel submitted that the petition filed lacks bona fide inasmuch as, while questioning the action of the respondent institutions in insisting for furnishing bank guarantee towards the fees for three years, the petitioner has not chosen to implead the dental colleges run by the Government and other private institutions, which are similarly situated. Learned counsel submitted that the respondent institutions are functioning in accordance with the directions and instructions issued by the Director vide Information Booklet. As per instructions issued, the respondent medical institutions are free to either call for a bank guarantee or a bond from the students and thus, in no manner can it be said that while insisting upon furnishing the bank guarantee, the respondent institutions have violated the directions issued by the Supreme Court in Islamic Academy (supra). Learned counsel submitted that the advance fee for one year in lieu of bank guarantee is accepted by the respondent institutions only in cases where the students or their parents are not in a position to furnish the bank guarantee. No institution is receiving the advance fee for the entire course duration. However, learned counsel fairly submitted that the advance fee, if any, deposited by the students, is neither kept in a separate account nor is the interest accrued thereon refunded to the students at the end of the course or adjusted against the fee payable for the final year. According to the learned counsel, in case of advance fee being deposited, some concession is given to the students. It is submitted that in case the student furnishing the bond commits default, the respondent institutions will have to undertake the long process for realization of the money through remedy under the civil law and thus, the action of the respondent institutions in demanding bank guarantee to save themselves from loss of money cannot be faulted. Learned counsel submitted that admittedly, the State Government is also insisting for furnishing of bank guarantee of Rs.1 lakh and bond for Rs.4 lakh in case of admission to BDS Course and thus, the respondent institutions cannot be compelled to accept the bonds and not to ask for bank guarantee. Learned counsel submitted that as a matter of fact, the demand of bank guarantee by the private medical institutions in light of the decisions of the Supreme Court has been upheld by the learned Single Judge of this Court at Jaipur Bench in Harshvardhan Singh Vs. Coordinator, PCPMT & Ors. decided on 24.11.2015. Drawing the attention of the High Court of Rajasthan to the decision in Islamic Academy (supra), learned counsel urged that the Supreme Court has nowhere laid down that the private institutions have no autonomy in the matter of determination of the fee and there should not be any profiteering involved. Learned counsel urged that as a matter of fact, the Supreme Court has categorically laid down that in the matter of determination of the fee structure, unaided institutions exercise greater autonomy and they are like other citizens carrying on an occupation, must be held to be entitled for reasonable surplus for development of education and expansion of institution. Drawing the attention of the High Court of Rajasthan to paragraph 8 of the decision in Islamic Academy (supra), learned counsel submitted that the institution has been given option that if an institution feels that any particular student may leave in midstream, then it may require that student to give bond/bank guarantee towards the balance fee for the whole course and thus, the respondent institutions are free to ask the students to furnish either bond or bank guarantee. Learned counsel submitted that when even the bank would not issue the bank guarantee without collateral security, then why should the respondent institutions take financial risk by accepting bond and not the bank guarantee. Learned counsel submitted that the condition of furnishing bank guarantee in no manner amounts to profiteering and thus, the contention sought to be raised by the petitioner that the action of the respondents is in violation of the directions issued by the Supreme Court in Islamic Academy (supra) is absolutely devoid of any merit. Learned counsel urged that as per the institutions issued by the State Government, the respondent institutions are entitled to ask for bond/bank guarantee as applicable, which is not under challenge in the instant petition and thus, the petition filed by the petitioner without setting out the relevant facts in regard to each of the institutions, just on the basis of imaginary facts, deserves to be dismissed on this count alone., Mr. K.K. Sharma, learned Senior Advocate appearing for respondent no.9 – JNU Institute of Medical Sciences & Research Centre, Jaipur, contended that a lawyer cannot be permitted to espouse the cause of their clients by filing a petition in their behalf and thus, the petitioner who is not an aggrieved person cannot maintain the petition invoking public interest litigation jurisdiction of this Court. It is submitted that the petition filed is absolutely laconic and vague inasmuch as the petitioner, without setting out the necessary facts and figures pertaining to individual institution, raises abstract issues without foundation of facts, which cannot be entertained by this Court. Learned counsel submitted that in Islamic Academy, the Honorable Supreme Court has permitted the unaided institutions to ask for bond/bank guarantee and therefore, the institutions are free to decide as to which mode should be adopted to ensure the realisation of the fee for the entire course duration. Learned senior counsel submitted that the private colleges have no means to comprehend and determine as to which student may or may not leave the MBBS Course in the midstream. Relying on the condition incorporated in the Information Booklet, learned counsel submitted that even as per the instructions of the Government, the candidates have to submit a bond/bank guarantee as applicable, which suggests that students are required to submit the bond/bank guarantee as required. Thus, the private colleges are well within their right to demand bank guarantee which has already been recognized by the various High Courts and the Honorable Supreme Court. Relying upon the decisions in T.M.A. Pai Foundation case (supra) and State of Bihar vs. Project Uchha Vidhya Shishak Sangh: (2006) 2 SCC 545, learned counsel submitted that the right to manage an institution is also a right to property and has been held to be a part of fundamental right being a right of occupation envisaged under Article 19(1)(g) of the Constitution of India and therefore, the conditions imposed by the private institutions while entering into contract with the students cannot be said to be invalid and no restriction can be imposed except by way of appropriate legislation. Learned counsel submitted that regarding the capitation fee, the petitioner has only levelled general allegations and therefore, no adjudication can be made on the issue by this Court on the basis of such pleadings. Learned counsel submitted that no case has been set out by the petitioner against any institution collecting excess money or diverting the same to other use. It is submitted that the bank guarantee is called when a student is admitted and the decisions of the Supreme Court in this regard have to be read keeping in view the practical aspects pointed out by the private institutions. Reiterating the contention raised by learned counsel Mr. Vikas Balia, learned counsel submitted that even the candidates selected in Government Dental College (RUHS) College of Dental Sciences are required to submit a bond of Rs.4 lakh in favour of the Principal of the said college along with bank guarantee of Rs.1 lakh, which are liable to be forfeited if the candidate leaves the course after second round of counselling and thus, the petition preferred by the petitioner challenging the condition of bank guarantee only qua the private institutions apparently lacks bonafides. Learned counsel submitted that as per the college fee details for Medical UG Admissions notified, the respondent institutions are asking the candidates admitted to the course for bank guarantee equivalent to two years' fees along with post‑dated cheques of remaining one and a half years' fee. It is submitted that bank guarantee cannot be treated similar to bond for which the proforma has been provided by the State Government in the Information Booklet. According to the learned counsel, in case of submission of the bank guarantee, if the candidate commits default, the private medical college will have no option but to undertake a long drawn process for releasing the money to civil remedy before the Court and even thereafter, it would be difficult to realise the money and thus, the insistence of the private medical colleges for submission of bank guarantee to ensure the realisation of the fee for the entire duration of the course cannot be faulted. Regarding the fee structure, learned counsel submitted that in the respondent institutions, the fee structure is determined by the University which is approved by the committee constituted for the purpose as per the provisions of Section 33 of Jaipur National University, Jaipur Act, 2008 and thus, the contention raised by the petitioner without any foundation of facts regarding the fee structure is absolutely baseless., Learned counsel appearing for other private institutions have adopted the arguments advanced by learned counsel Mr. Vikas Balia and Senior Advocate Mr. K.K. Sharma., Replying to the arguments of the learned counsel appearing for the respondents, the petitioner Mr. Deepesh Beniwal submitted that it is absolutely incorrect to state that the petitioner has claimed relief only against the private medical institutions. Drawing the attention of the High Court of Rajasthan to the relief clause in the petition, it is submitted that the prayer is made against the colleges run by the State as well. According to the petitioner, the strict rule of locus standi is not applicable in public interest litigation. It is submitted that the material facts are not even disputed by the respondent institutions and it is only the matter with regard to the implementation of the directions issued by the Supreme Court in Islamic Academy (supra) and other subsequent decisions of this Court and the Supreme Court and thus, there is no reason why the issues raised by the petitioner out of public spirit espousing the cause of the students admitted to MBBS Course should not be entertained and adjudicated upon by this Court. Reliance is placed on the decisions of the Supreme Court in Shivajirao Nilangekar Patil vs. Dr. Mahesh Madhav Gosavi & Ors.: (1987) 1 SCC 227 and Guruvayoor Devaswom Managing Committee & Anr. vs. C.K. Rajan & Ors.: (2003) 7 SCC 546. It is submitted that in Kerala, the condition regarding furnishing of bank guarantee for payment of the fees for the entire course was deleted by the State Government which has been upheld by a Bench of the Kerala High Court in Kerala Private Medical College Managements Association & Ors. vs. State of Kerala & Ors.: AIR 2019 Kerala 96, though the special leave petition against the said judgment is pending before the Supreme Court., We have considered the rival submissions and gone through the decisions cited at the bar., At the outset, it would be appropriate to deal with the preliminary objection raised on behalf of the respondents against the maintainability of this public interest litigation filed by the petitioner, an advocate by profession, espousing the cause of students who intend to pursue medical courses., Indubitably, the strict rule of locus standi does not apply to public interest litigations. As a matter of fact, in appropriate cases even where the petitioner might have moved a Court in private interest, if such litigation assumes the character of a public interest litigation, the inquiry into the state of affairs of the subject of litigation by the Court, necessary and essential for the administration of justice, cannot be avoided. Wherever injustice is meted out to a large number of people, the Court cannot hesitate in stepping in. When the Court is prima facie satisfied about the violation of any constitutional right of a disadvantaged group of the people, it may not allow the respondents from raising the question as to maintainability of the petition., There cannot be any quarrel with the proposition that the Court will not enter into a roving and fishing inquiry into the question of facts where the information given by the petitioner regarding the subject matter of the public interest litigation is inadequate, vague or indefinite., It is noticed that in the instant case, the petitioner has challenged the action of the State and the private medical institutions in insisting for submission of the bank guarantee or advance fee against the annual fees for three years of course duration in addition to deposit of annual fee for the first year of the course from the students seeking admission to MBBS Course, alleging it to be in violation of the directions issued by the Honorable Supreme Court in Islamic Academy (supra). There is nothing on record suggesting that the petitioner, an advocate by profession, has filed the present petition identifying himself with the interest of his clients. Merely because the petitioner is an advocate by profession, it cannot be assumed that he must have filed the present petition espousing the cause of his clients and not for the protection of the larger interest of students intending to pursue the studies of medical courses. As noticed above, in the petition filed, essentially, the petitioner has only sought implementation of the directions issued by the Honorable Supreme Court. The respondents must appreciate the tangible binding force embodied in directions issued by the Honorable Supreme Court and it goes without saying that if the action of the respondents in demanding bank guarantee or the advance fees is found to be in violation of the directions issued by the Honorable Supreme Court, the same has to be set at naught. Thus, on the facts and in the circumstances of the case, we are not inclined to dismiss the petitioner on the ground of locus standi to maintain the public interest litigation espousing the cause of the student community intending to pursue medical courses in the State of Rajasthan. Accordingly, the preliminary objection raised on behalf of the respondents questioning the maintainability of the writ petition is rejected., The issues raised by the petitioner essentially revolve around the decision of the Honorable Supreme Court in Islamic Academy (supra) but, so as to appreciate the controversy raised in correct perspective, it would be appropriate to travel through the history of the judicial pronouncements of the Honorable Supreme Court germane to the issues raised., In the first instance, the issue regarding charging of capitation fee in consideration of admission to educational institutions came up for consideration before the Honorable Supreme Court of India in the matter of Mohini Jain (Miss) vs. State of Karnataka & Ors.: (1992) 3 SCC 666. The petitioner therein challenged the notification issued by the State of Karnataka, in exercise of the power conferred under Section 5(1) of the Karnataka Educational Institution (Prohibition of Capitation Fee) Act, 1984, permitting the private medical colleges in the State of Karnataka to charge exorbitant tuition fee from the students other than those admitted to the Government seat. After due consideration of the constitutional scheme, the Court held that the right to education is concomitant to the fundamental rights enshrined under Part III of the Constitution and it flows directly from the right to life enshrined under Article 21 of the Constitution. Emphasizing the constitutional obligation of the State to establish educational institutions to enable the citizens to enjoy the right to education, the Court held: 'We hold that every citizen has a right to education under the Constitution. The State is under an obligation to establish educational institutions to enable the citizens to enjoy the said right. The State may discharge its obligation through state‑owned or state‑recognised educational institutions. When the State Government grants recognition to the private educational institutions it creates an agency to fulfil its obligation under the Constitution. The students are given admission to the educational institutions—whether state‑owned or state‑recognised—in recognition of their right to education under the Constitution. Charging capitation fee in consideration of admission to educational institutions is a patent denial of a citizen’s right to education under the Constitution.', Accordingly, the Court declared that charging of capitation fee by the private educational institutions as a consideration for admission is wholly illegal and not permissible., In Unni Krishnan J.P. & Ors. vs. State of Andhra Pradesh & Ors.: (1993) 1 SCC 645, a Constitution Bench of the Honorable Supreme Court while upholding the declaration made in Mohini Jain’s case (supra) that the right to education flows directly from the right to life guaranteed under Article 21, held that it must be construed in light of the directive principles enshrined under Part IV of the Constitution. The Court held that a child (citizen) has a fundamental right to free education up to the age of fourteen years. Thereafter, the obligation of the State to provide education is subject to limits of its economic capacity and development of the State. The Court rejected the argument that the right to establish an educational institution is an activity which could be classified as a profession and deemed fit to treat the same equivalent to an occupation. Regarding the capitation fee, the Court observed that Mohini Jain’s case was not right in saying that the charging of any amount, by whatever name it is called, over and above the fee charged by the Government in its colleges, must be described as capitation fee. The Court observed that capitation fee means charging or collecting amount beyond what is permitted by law. The Court observed that 'We must strive to bring about a situation where there is no room or occasion for the management or anyone on its behalf to demand or collect any amount beyond what is permitted. We must clarify that charging the permitted fees by the private educational institutions—which is bound to be higher than the fee charged in similar governmental institutions by itself cannot be characterised as capitation fees.' The Court evolved a scheme in the nature of guidelines wherein, while emphasizing that fifty percent of seats in every professional college shall be filled by the nominees of the Government or University, as the case may be, which were referred to as free seats to be filled from amongst the students selected on the basis of merit determined on the basis of a common entrance examination, it permitted filling of the remaining fifty percent seats referred to as payment seats by those candidates who are prepared to pay the fee prescribed therefor and who have complied with the instructions regarding deposit and furnishing of cash security/bank guarantee for the balance of the amount. It was further laid down that the fee chargeable in each professional college shall be subject to the ceiling prescribed by the appropriate authority or by a competent court., The decision in Unni Krishnan’s case (supra) was reconsidered by an eleven‑Judge Bench of the Honorable Supreme Court in T.M.A. Pai Foundation case (supra). The Court held: 'Article 19(1)(g) employs four expressions viz. profession, occupation, trade and business. Their fields may overlap, but each of them does have a content of its own. Education is per se regarded as an activity that is charitable in nature (see State of Bombay v. R.M.D. Chamarbaugwala). Education has so far not been regarded as a trade or business where profit is the motive. Even if there is any doubt about whether education is a profession or not, it does appear that education will fall within the meaning of the expression occupation. Article 19(1)(g) uses the four expressions so as to cover all activities of a citizen in respect of which income or profit is generated, and which can consequently be regulated under Article 19(6). In Webster’s Third New International Dictionary, at p.1650, occupation is, inter alia, defined as an activity in which one engages or a craft, trade, profession or other means of earning a living.' The right to establish an educational institution can be regulated; but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of maladministration by those in charge of management. The fixing of a rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment of nominating students for admissions would be unacceptable restrictions., The Court emphasized that, inasmuch as the occupation of education is, in a sense, regarded as charitable, the Government can provide regulations that will ensure excellence in education while forbidding the charging of capitation fee and profiteering by the institution. Since the object of setting up an educational institution is by definition charitable, it is clear that an educational institution cannot charge a fee that is not required for the purpose of fulfilling that object. However, a reasonable revenue surplus may be generated by the educational institution for the purpose of development of education and expansion of the institution. It would be unfair to apply the same rules and regulations to both aided and unaided professional institutions. Unaid professional institutions are entitled to autonomy in their administration while they do not forego the principle of merit. It would be permissible for the university or the Government, at the time of granting recognition, to require a private unaided institution to provide for merit‑based selection while, at the same time, giving the management sufficient discretion in admitting students. This can be done through various methods, for instance, a certain percentage of the seats can be reserved for admission by the management out of those students who have passed the common entrance test held by itself or by the State/university and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counselling by the State agency. The prescription of percentage for this purpose has to be done by the Government according to local needs and different percentages can be fixed for minority unaided and non‑minority unaided professional colleges. In such professional unaided institutions, the management will have the right to select teachers as per the qualifications and eligibility conditions laid down by the State/university subject to adoption of a rational procedure of selection. A rational fee structure should be adopted by the management, which would not be entitled to charge a capitation fee. Appropriate machinery can be devised by the State or university to ensure that no capitation fee is charged and that there is no profiteering, though a reasonable surplus for the furtherance of education is permissible. Conditions granting recognition or affiliation can broadly cover academic and educational matters including the welfare of students and teachers.
id_1819	2	After the decision in T.M.A. Pai Foundation case (supra), the issue regarding the extent of autonomy in fixing the fee structure came up for consideration before the Supreme Court of India in Islamic Academy (supra). The Court noticed that some educational institutions were collecting in advance the fees for the entire course, i.e., for all the years., It was submitted that institutions collect advance fees because they are not sure whether a student will leave the institute mid‑stream. The Court held that an educational institution can only charge prescribed fees for one semester or year. If an institution fears a student may leave, it may require the student to give a bond or bank guarantee that the balance fees for the whole course will be received even if the student leaves. Any advance fees collected must be kept in fixed deposits in a nationalised bank and only the fees due for the relevant semester or year may be withdrawn. The balance must remain deposited until it falls due, and the interest earned on these deposits must be paid to the student from whom the fees were collected in advance., On a bare reading of the relevant paragraphs of the judgment, it is beyond any doubt that unaided institutions enjoy greater autonomy in determining the fee structure. Like any other citizen carrying on an occupation, they are entitled to a reasonable surplus for development of education and expansion of the institution. The reasonable surplus doctrine can be given effect only if the institutions make profits out of their investment. What is forbidden is (a) capitation fee and (b) profiteering., The fee structure for each college must be determined separately, keeping in view factors such as facilities available, infrastructure, age of the institution, investment made, and future plans for expansion and betterment of educational standards. For this purpose, the books of accounts maintained by the institution may have to be examined. Whatever is determined by the Committee, the management of the institution would not be entitled to charge anything more., While determining the fee structure, safeguards must be provided so that professional institutions do not become auction houses for selling seats. The Committee should consider, inter alia, the salary or remuneration paid to faculty and staff, the investment made, the infrastructure provided, and plans for future development. The State must evolve a detailed procedure for the constitution and smooth functioning of the Committee., Although the Court has not laid down fixed guidelines, reasonable surplus should ordinarily vary from six percent to fifteen percent, as such surplus would be utilised for expansion of the system and development of education., Institutions shall charge fee only for one year in accordance with the rules and shall not charge fees for the entire course., Profiteering is defined in Black's Law Dictionary, 5th Edition, as taking advantage of unusual or exceptional circumstances to make excessive profits., To ensure that an educational institution does not indulge in profiteering or otherwise exploit its students financially, statutory authorities, or in their absence the State, may constitute an appropriate body until suitable statutory regulations are made., The institutions must file an appropriate application before the Committee and place all documents and books of accounts in support of their case., Fees once fixed should not ordinarily be changed for a period of three years unless there exists an extraordinary reason. The proposed fees, before indication in the prospectus, have to be approved by the concerned authority or body set up. The application should be filed no later than April of the preceding year, and the authority shall decide on the fees by October so that they can form part of the prospectus. No institution should charge any fee beyond the amount fixed, and the fee charged shall be deposited in a nationalised bank. No employee or any other person employed by the management shall be entitled to take fees in cash directly from students. The statutory authority may frame a regulation that, if a private unaided professional institution accepts any amount other than the fees prescribed by the Committee, it may have to pay a penalty of ten to fifteen times the amount collected and may also lose its recognition or affiliation., Before any such order is passed, the institutions concerned shall be entitled to an opportunity of being heard. The State shall set up machinery to detect cases where amounts in excess of the permitted limit are collected., If fees have already been collected for a longer period, the amount so collected shall be kept in a fixed deposit in a nationalised bank against which no loan or advance may be granted, and the interest accrued shall benefit the students concerned. Ordinarily, the management should insist on a bond from the concerned students., Thus, in Islamic Academy (supra), the Supreme Court of India held that there is autonomy for the institution in fixing the fee structure but there cannot be any profiteering motive and no advance fee could be charged. The Court required each State to set up a Committee to decide whether the fee structure proposed by the institution was justified. If a particular student may leave the course in the mainstream, the Court observed that such a student may be required to give a bond or bank guarantee for the balance fees, but ordinarily the management would insist on a bond., In P.A. Inamdar case (supra), a larger bench of seven judges of the Supreme Court of India, after considering the earlier decision in T.M.A. Pai Foundation, held that capitation fee cannot be permitted and no seat can be appropriated by payment of capitation fee. Profession must be distinguished from business; while business has a profit motive, profession is primarily a service to society where earning is secondary. Charging capitation fee by unaided minority and non‑minority institutions for professional courses is not permissible, and profiteering is also not permissible. Admission methods must be regulated to ensure merit‑based, transparent admissions and to prevent exploitation of students., The Court answered that every institution may devise its own fee structure but it can be regulated in the interest of preventing profiteering. No capitation fee can be charged., The Court categorically held that, based on judgments in T.M.A. Pai Foundation and other precedents, the scheme of setting up two Committees for regulating admission and determining fee structure, as evolved in Islamic Academy (supra), cannot be faulted on the ground of alleged infringement of Article 19(1)(g) of the Constitution. The Court cautioned the Committees that some have overstepped their powers, approving fee structures that are abysmally low or causing institutions to run into losses, and urged them to act rationally, consider individual institutional accounts, and refrain from generalising fee structures., The Court made it clear that if any Committee exceeds its powers by unduly interfering in the administrative and financial matters of unaided private professional institutions, its quasi‑judicial decisions would be subject to judicial review., In Modern Dental Colleges case (supra), arising from a decision of the High Court of Madhya Pradesh, the Supreme Court of India rejected the contention of private medical colleges that they had an absolute right to make admissions or fix fees. The Court observed that merit cannot be compromised in admissions to professional institutions and capitation fee cannot be permitted. It is open to the State to introduce regulatory measures at the initial stage itself., The principles enunciated in T.M.A. Pai Foundation and P.A. Inamdar were applied in Islamic Academy of Education, where a challenge was mounted against directions issued by the Director of Education to recognised unaided schools under the Delhi School Education Act, 1973, prohibiting transfer of fees collected from parents to any society or trust. The Court upheld the directions, holding that the State may regulate fees to ensure that no profiteering or commercialisation of education takes place., The settled legal position is that education is essentially a charitable activity, not a profession, trade or business, and falls within the meaning of \occupation\ under Article 19(1)(g) of the Constitution of India. The right to establish an educational institution can be regulated to ensure proper academic standards, infrastructure, qualified staff and prevention of maladministration. Institutions may generate a reasonable revenue surplus for development and expansion, but there must be no profiteering motive. Each institution may determine its fee structure based on facilities, investment, and future plans, but the fee must be rational, charged only for one year, and not for the entire course. If a student may leave mid‑stream, the institution may require a bond or bank guarantee, but it should ordinarily insist on a bond rather than a bank guarantee for every student., In the present case, private medical institutions insist that each student admitted to a professional course deposit the fee for one year and furnish a bank guarantee for the remaining duration of the course. Some institutions have admitted that, in addition to the fee for one year, an advance fee is generally accepted for one more year, which is not kept in a separate account and the interest accrued is neither credited to the student’s fee account nor refunded at the completion of the course., The respondent private educational institutions, which impart medical education with a charitable purpose, must take care of students belonging to lower‑income or middle‑income groups and ensure that they are not deprived of pursuing the medical course merely because they cannot deposit an advance fee or provide a bank guarantee for the remaining three years., Charging advance fee for more than one year is apparently in defiance of the directions issued by the Supreme Court of India in Islamic Academy (supra), which state that the institution shall charge fee only for one year and shall not charge the fee for the entire course. The insistence on a bank guarantee cannot be countenanced, as banks generally do not extend unsecured guarantees and such guarantees are usually obtained only against collateral security or fixed deposits. The Reserve Bank of India discourages unsecured guarantees, making the requirement unjustified., The Supreme Court’s directions are unequivocal: if an institution feels that a particular student may leave mid‑stream, it may require that student to give a bond or bank guarantee for the balance fees, but ordinarily the management should insist on a bond., The view of the learned Single Judge in Harshvardhan Singh case (supra) that the demand for a bank guarantee by private medical institutions is not illegal, without referring to the law laid down in Islamic Academy (supra), is not correct., The information booklet issued by the State Government requiring a bond or bank guarantee at the time of reporting must be construed in light of the Supreme Court’s directions in Islamic Academy (supra). It cannot be inferred that a private institution has an absolute choice to ask for either a bond or a bank guarantee. The reason that a bank guarantee is preferred to avoid civil litigation for enforcement of a bond is not a valid justification., Ordinarily, no student who has already deposited the fee for one year and pursued studies would leave the course mid‑stream. Banks charge a substantial commission for issuing a bank guarantee, varying from 2.5% to 3% of the guarantee amount per annum, making the insistence on a bank guarantee for the entire course unreasonable and unfair., Regarding the ancillary issue of the authority of a university established by State legislation to constitute a Fee Fixation Committee, the matter was settled by the Supreme Court in Sachin Mehta case (supra). The Court held that the university could not set up its own Fee Fixation Committee in exercise of powers under the Act, and that the fee‑fixation function must be exercised by the Committee constituted under the directions of the Supreme Court in T.M.A. Pai Foundation and Islamic Academy., The Supreme Court directed each State to set up a Committee headed by a retired High Court judge, nominated by the Chief Justice of that State. The Committee must include a chartered accountant of repute, a representative of the Medical Council of India or the All India Council for Technical Education, depending on the type of private educational institution, and the Secretary of the State Government in charge of Medical or Technical Education. The Committee may co‑opt additional independent members of repute. Each educational institute must place its proposed fee structure, along with relevant documents and books of accounts, before the Committee well in advance of the academic year. The Committee decides whether the proposed fees are justified and not profiteering or capitation fee. The fee fixed by the Committee is binding for three years, after which the institute may apply for revision. Any amount charged beyond the fixed fee, including donations, would amount to a capitation fee and attract penalties, including possible loss of recognition or affiliation., There cannot be two views on the established proposition of law that even non‑minority unaided professional educational institutions can be subject to reasonable restrictions in the public interest. Based on the judgment in Pai Foundation and other Supreme Court decisions, the scheme of setting up Committees for regulatory admissions and fee determination, as evolved in Islamic Academy (supra), is not infringing Article 19(1)(g). The Fee Regulation Committee, headed by a retired High Court judge and assisted by experts, must act rationally, consider individual institutional accounts, and its decisions are subject to judicial review.
id_1819	3	It is not in dispute that the Honourable Supreme Court of India, with reference to the issue of fixation of fee structure to various professional courses in the country including the Bachelor of Medicine and Bachelor of Surgery and Bachelor of Dental Surgery courses, directed all the States to fix fee structure through a Committee as per the directions issued in the case of Islamic Academy of Education. It is also not in dispute that the Fee Regulatory Committee was constituted by the Government of Rajasthan in the backdrop of the verdict of the Honourable Supreme Court of India and directions issued in the case of Vipul Garg. Further, from the material available on record, it is evident that the fee structure determined by the Fee Regulatory Committee of Rajasthan is the criterion for payment to the private medical colleges, as pointed out by the learned Additional Advocate General in the light of the specific condition stipulated while allotting 2012 seats to Mahatma Gandhi Medical College, a constituent professional education institution of the respondent University., From the facts, circumstances and material brought on record in the writ applications, it is evident that the respondent University had no jurisdiction or authority to alter the conditions relating to fee structure once the process of admission to the Bachelor of Medicine and Bachelor of Surgery and/or Bachelor of Dental Surgery courses commenced, which indicated the fee to be charged from the students as one determined by the Fee Regulatory Committee. The admission to MBBS had been conducted, the results declared, and a selected list prepared on that basis, and students were allotted to the institutes including the medical college of the respondent University. Once the process of selection had started on the basis of the terms and conditions spelled out in the information booklet and further detailed while allotting the students to the concerned colleges, including the medical college of the respondent University, it was not within the jurisdiction and competence of the respondent University to effect any changes in the criterion relating to fee structure contrary to that determined by the Fee Regulatory Committee constituted by the State of Rajasthan. Accordingly, the fee structure determined by the Fee Fixation Committee constituted by the respondent University in supersession of the fee structure already proposed by the Fee Regulatory Committee constituted by the State of Rajasthan pursuant to the directions of the Supreme Court of India was held not sustainable in the eyes of law., As a matter of fact, the question with regard to the determination of fee structure is not directly raised before us in the present petition and therefore we are not required to delve into the said questions further, especially when the special leave petition preferred by the respondent No. 10 herein, against the bench decision of this Court in Sachin Mehta’s case, is pending consideration before the Supreme Court of India. For the aforementioned reasons, the writ petition is allowed. Accordingly, the writ petition is allowed. The action of the respondent private institutions and the medical and dental institutions run by the State Government in levying advance fee in addition to annual fee for one year from the students admitted to the medical courses and insisting upon each student to submit a bank guarantee at the time of admission equivalent to the fee for three years of course duration is declared illegal. The respondent private institutions and the institutions run by the State Government are restrained from recovering any amount as advance fee in addition to the fee for one year from any student admitted to the course. The respondent private institutions and the State Government are directed not to insist upon furnishing of bank guarantee towards the fee for the entire duration of the course from each student. The respondent private medical institutions shall be at liberty to ask for the bond or bank guarantee from a particular student in conformity with the directions issued by the Honourable Supreme Court of India in Islamic Academy’s case as discussed hereinabove by this Court. The advance fee in addition to the fee for one year already recovered by any of the private institutions from the students admitted to the medical courses shall be kept in a fixed deposit in a nationalised bank against which no loan or advance may be granted. The advance fee deposited as aforesaid shall carry interest at the rate equivalent to the rate of interest admissible on fixed deposit by the nationalised bank. The interest already accrued and the future interest on the amount of advance fee shall be paid to the students from whom the advance fees were collected at the time of admission. The State Government is directed to ensure compliance with the directions issued by this Court. No order as to costs.
id_182	0	Court Case 3/2023 CNR No. DLCT12-000039-2023 Gajendra Singh Shekhawat Vs. Ashok Gehlot 19.09.2023 Vide this order, I shall decide the application under section 256 of the Criminal Procedure Code filed on behalf of the accused Shri Ashok Gehlot (hereinafter referred to as the accused), seeking acquittal in the matter at hand, citing the absence of the complainant (hereinafter referred to as the complainant) on 07.08.2023 and 21.08.2023., Learned Senior Advocate Shri Mohit Mathur, appearing for the applicant i.e. the accused, has argued that the law under section 256 of the Criminal Procedure Code is absolutely clear and warrants that in the absence of the complainant on any date, without a justifiable cause, which is admitted by the Court in the form of an order on Court Case No. 3/2023 Gajendra Singh Shekhawat Vs. Ashok Gehlot, exemption application of the complainant, the accused ought to be acquitted in a complaint case. It was argued that on the aforementioned two dates when the complainant was not present no exemption application was moved by the counsel for the complainant and since no adjudication, qua the absence of the complainant, was done on the said date, there can be no exoneration for the said absence., Explaining the scope and meaning of the word 'hearing' used under section 256 of the Criminal Procedure Code, Learned Senior Advocate argued that Section 256 of the Criminal Procedure Code is not only applicable when the matter is listed for 'hearing' i.e. at the stage of evidence but is applicable on every date and at every stage. According to him the word cannot be given a restrictive meaning limited to the day of evidence only. The learned counsel stated that Section 256 requires that the complainant must appear on each date and further requires judicial application of mind on each date when the complainant is not present. It was argued that the use of the word 'opinion' under section 256 requires that the Magistrate has to give a reasoned order for adjournment or acceptance of the exemption application when the complainant is not present and, in the absence thereof, the accused must necessarily be acquitted., As per Mr. Mathur, even for the proviso to come into the picture there must have been an exemption application and, since there was no such application on the aforementioned two dates, the accused must necessarily be acquitted., Learned Senior Advocate Shri Vikash Pahwa argued the matter on behalf of the complainant. Arguing per contra, he submitted that Section 256 of the Criminal Procedure Code is applicable only when the matter is pending for evidence of the complainant and not prior thereto. According to Mr. Pahwa, the stage of Section 256 commences only after framing of notice and not before. Since in the matter at hand no notice has yet been framed, no question of application of Section 256 arises., Mr. Pahwa has further submitted that Section 256 of the Criminal Procedure Code cannot be used retrospectively; that is, on the day when the complainant was not present, no application under the said section was moved by the learned counsel for the accused and moving an application at a belated stage would not warrant any favourable adjudication for the accused., Lastly, it was submitted that the proviso to Section 256 of the Criminal Procedure Code clearly provides that where the complainant is represented by a pleader or an advocate, no orders can be passed under the said section., In rebuttal Mr. Mathur argued that Section 256 of the Criminal Procedure Code is an exception to Section 251 of the Criminal Procedure Code; the former is not dependent upon the latter for its operation and it would be incorrect to assume that the provision comes into operation only after the framing of notice. Mr. Mathur further submitted that if any course other than the acquittal of the accused, on occasion of the absence of the complainant on the aforementioned dates, was to be adopted, the Court ought to have passed a reasoned order on those dates; however, since that is not the case in the matter at hand, the accused now ought to be acquitted. He argued that a right provided to the accused by a statutory provision cannot be taken away., Referring to the judgment of Champalal Kapoorchand Jain Vs. Navyug Cloth Stores and Mithra Vs. Sundaramoorthi, it was argued by the learned counsel for the accused that Section 256 of the Criminal Procedure Code mandates acquittal of the accused on account of absence of the complainant on each date., Further, referring to the judgment of State Vs. Reva Chand and L.S. Patil Vs. Dundappa Kalkajappa Mallad, the accused's counsel argued that appearance of the complainant through his counsel does not fulfill the requirement of Section 256 of the Criminal Procedure Code., The complainant's counsel countered the aforementioned arguments by stating that the two dates on which the complainant was not present were the dates fixed for supply of documents to the accused and, therefore, there was no reason for imposing the condition of compulsory attendance of the complainant. Consequently, as per the learned counsel, the entire application at hand and the relief claimed thereof are uncalled for., Learned counsel for the complainant has placed on record the following judgments in favour of his arguments: i) BLS Infrastructure Ltd Vs. Rajwant Singh; ii) S. Anand Vs. Vaumathi Chandrasekar (2008); iii) Associated Cement Co. Ltd. Vs. Keshavanand; iv) Shineshilpi Jewellers Pvt. Ltd. Vs. Vimal Prakash Jain & Anr. (2023) SCC OnLine Bombay; v) Sakthivel Vs. Subramaniyan (2016) SCC OnLine Madras 10458; vi) Chettinad Cement Corporation Ltd. Vs. The Proprietor, Rugmini Steels (2014) (3) MWN (Cr.); vii) Eicher Motors Ltd. Vs. Pushpa Chand (2010) 1 Delhi 126., Learned counsel for the accused has placed on record the following judgments in favour of his arguments: i) Champalal Kapoorchand Jain Vs. Navyug Cloth Stores (2019) SCC OnLine Bombay 4805; ii) Mithra Vs. Sundaramoorthi (2014) SCC OnLine Madras; iii) State Vs. Reva Chand (1960) SCC OnLine Allahabad 100; AIR 1961 Allahabad 352; iv) L.S. Patil Vs. Dundappa Kalkajappa Mallad (1959)., Having heard the submissions at length, I shall now proceed to decide the application at hand on its merits., To begin with, it is logical to take on record the legislative mandate as contained in section 256 of the Criminal Procedure Code, which reads as follows: “Non‑appearance or death of complainant. (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of sub‑section (1) shall, so far as may be, apply also to cases where the non‑appearance of the complainant is due to his death.”, Section 256 of the Criminal Procedure Code has been made a part of criminal procedural law with the purpose to protect the interest of the accused against any malafide prolongation of trial at the hands of a vexatious complainant. It aims to ensure the presence of a complainant in a Court of law, in the course of complaint proceedings, on such occasions where the presence of the complainant is necessary to take the case forward., The Hon’ble Supreme Court of India in Associated Cement Company Ltd. (supra) has explained the purpose of Section 256 of the Criminal Procedure Code in the following words: “What was the purpose of including a provision like Section 247 in the old Code (or Section 256 in the new Code). It affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. An accused who is per force to attend the court on all posting days can be put to much harassment by a complainant if he does not turn up to the court on occasions when his presence is necessary. The section, therefore, affords protection to an accused against such tactics of the complainant. But that does not mean if the complainant is absent, the Court has a duty to acquit the accused in invitum.”, The ingredients of Section 256(1) are: i) summons must have been issued on a complaint; ii) the Magistrate should be of the opinion that for some reasons it is not proper to adjourn the hearing of the case to some other date; and iii) the date on which the order under section 256(1) can be passed is the day appointed for appearance of the accused or any day subsequent thereto, to which the hearing of the case has been adjourned., Section 256 of the Criminal Procedure Code mandates a criminal court to acquit the accused on non‑appearance of the complainant when the presence of the complainant is necessary, if the Court thinks it proper to do so. However, in case the Court decides to adjourn the hearing, the reasons for such adjournments must also be recorded. The discretion provided by the section must be exercised with care and caution., It is a settled position of law, as laid by Hon’ble higher courts in a plethora of judgments, that in exercising the aforesaid discretion under section 256 of the Criminal Procedure Code the conduct of the complainant is of utmost importance. A matter cannot be allowed to linger on for eternity at the cost of prejudice to the rights of the accused., A Magistrate or a criminal court exercising jurisdiction over a complaint case is not justified in acquitting the accused at a drop of a hat, at the cost of adjudicatory disposal of the matter on its merits. Such technical disposals only lead to miscarriage of justice. Hon’ble higher courts have repeatedly pressed that litigants should call upon the courts of law to seek adjudication of disputes on facts and not mere disposal on technical grounds., Coming to the matter at hand, the major thrust of arguments on the side of the complainant is that on the two dates when the complainant was not present, he was not necessarily required to be present for taking the proceedings further and, on both occasions, the complainant was represented by his counsel. According to the learned counsel for the complainant, the two dates cannot be called a hearing within the meaning of Section 256 because the term ‘hearing’ would encompass those dates where the matter is fixed for evidence after framing of notice; however, since no notice has yet been framed, those dates cannot be called a hearing within the meaning of Section 256., On the other hand, Learned Senior Advocate representing the applicant has argued that the term ‘hearing’ refers to every proceeding and every date on which the matter is listed before the Court and the complainant cannot seek absence or exemptions merely because the notice has not yet been framed., Having considered the arguments put forth by both sides and having carefully considered the case laws placed on record by the two sides, I find merit in the submissions of the learned counsel for the complainant., As discussed hereinabove, the object of Section 256 of the Criminal Procedure Code is to protect the interest of the accused against any malafide prolongation of trial at the hands of a vexatious complainant; it aims to ensure the presence of a complainant in a Court of law, in the course of complaint proceedings, on occasions where the presence of the complainant is necessary to take the case forward. The discretion provided by Section 256 can be exercised only in situations where the Court believes that the absence of the complainant is deliberate and is being caused to prolong the suffering of the accused by continued trial. In the matter at hand, it does not appear to be the case., The application at hand seeks acquittal on account of the absence of the complainant on 07.08.2023 and 21.08.2023. The two order sheets are perused. On both dates the matter was listed for supply of documents and scrutiny thereof. It was clearly not an opportunity for the complainant to lead evidence. On both dates the learned counsel for the complainant was present and, therefore, the personal attendance of the complainant was not necessary to take the matter forward., As discussed above, the conduct of the complainant is of immense significance and an absence on merely two dates, during which the complainant was represented by his counsel and his attendance was not necessary for the proceedings of the day, cannot be a justifiable ground to exercise the discretion under section 256 to acquit the accused. Reliance is placed on the observations of the Hon’ble Supreme Court in the cases titled S. Rama Krishna (supra) and Associated Cement Co. (supra). At this juncture, I deem it appropriate to record the following portion of the observations of the Hon’ble Supreme Court in Associated Cement Co. (supra): “When the Court notices that the complainant is absent on a particular day the Court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the Court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must therefore be exercised judicially and fairly without impairing the cause of administration of criminal justice.”, In the matter at hand, it is an undisputed fact that on the days in question the matter was fixed for supply of documents and scrutiny thereof; the presence of the complainant on those days was quite unnecessary, especially considering that the learned counsel for the complainant was present before the Court. Therefore, resorting to the step of axing down the complaint to acquit the accused may not be a proper exercise of discretion under section 256., The facts of the matter at hand may be compared to the decision in Shineshilpi Jewellers (supra). In that matter, the Hon’ble Bombay High Court was faced with a similar question of whether two days’ absence of the complainant was sufficient for dismissal of the complaint. The Court answered as follows: “Now, whether two days’ absence is sufficient for dismissal? There is no straitjacket formula. It depends upon the facts. In particular, even six dates or more can be presumed to be sufficient for not dismissing the complaint. It is a pure question of fact. The learned advocate Mr. Dave is right that nowadays one can see roznam online. He is right that the accused is not required to attend the court and reproduce record. However, two days’ absence cannot be said to be a justifiable ground for dismissing the complaint. It is not the job of the Court to dismiss matters merely because a party is not present. The job of the Court is to ensure that justice is done by giving sufficient opportunities to the parties. The rule of audi alteram partem always applies. In this case, the learned Magistrate hastily dismissed the complaint. One option available to the learned Magistrate was, while adjourning the matter, to regulate the conduct of the complainant, even by passing strict orders or imposing costs. The learned Magistrate simply considered the absence of the complainant on two dates and dismissed the complaint.”, The argument put forth by the learned counsel for the accused was that the complainant must necessarily be present on all dates before the Court and a failure thereof would lead to a compulsory exercise of discretion under section 256. It was further argued that, since on the two dates when the complainant was not present the Court did not specifically allow an exemption application (as none was filed), this by itself amounts to a ground for acquittal of the accused. This Court finds no merit in the arguments of the learned counsel for the accused. The term ‘hearing’ cannot be given a restrictive meaning as argued by the learned counsel. Of the five judgments placed on record, in two the ‘hearing’ is referred to the day of evidence; in the others, the ‘hearing’ cannot be read to have a definitive meaning due to lack of clarity on the stage of proceedings, and they are distinguishable., Ergo, in light of the foregoing discussion, the application at hand stands dismissed. A copy of the order shall be given dasti to the applicant, the accused. Announced in open court on 19.09.2023 by Justice Harjeet Singh Jaspal.
id_1820	0	Leave granted., These appeals involving inter-related issues and the same set of contesting parties have been considered together and are taken up for disposal by this common judgment., Before embarking upon the requisite details, a few preliminary comments and a brief outline shall be apposite., The matters in issue essentially relate to the internal management of a political party, All India Anna Dravida Munnetra Kazhagam, which is registered with the Election Commission of India. This political party, said to have a primary cadre consisting of more than 1.5 crore members, has its own byelaws, which have been amended from time to time. The two upper levels of party structure include the Central Executive Committee and the General Council of the Central Organization. Though, in the scheme of byelaws, the topmost position in the party was earlier assigned to the General Secretary, after the demise of the then General Secretary on 05.12.2016, the party organisation went through a series of changes and ultimately a system of joint leadership by Co-ordinator and Joint Co-ordinator was established by amendment of byelaws on 12.09.2017. Further proposals for amendment have met with divergent views of different factions within the party and have led to at least five civil suits. The prayers for temporary injunction during the pendency of these civil suits have led to different orders at different stages by the High Court of Judicature at Madras on the Original side and on the Appellate side as also by the Supreme Court of India., For introductory purposes, the first three civil suits, being Civil Suit Nos. 102 of 2022, 106 of 2022 and 111 of 2022, involved applications seeking interim reliefs. An order dated 22.06.2022 by the learned Single Judge of the High Court declined to grant any injunction against the meeting of the General Council scheduled for 23.06.2022. This order was challenged by one of the plaintiffs in an intra-court appeal, OSA No. 160 of 2022; and by an order dated 23.06.2022, after an early morning hearing, the Division Bench of the High Court allowed the scheduled meeting of the General Council but placed fetters on its scope by providing that no decision shall be taken on any matter except 23 items of draft resolution. The order dated 23.06.2022 was challenged in the Supreme Court of India in three appeals arising out of Special Leave Petition (Civil) Nos. 11237 of 2022, 11578 of 2022 and 11579 of 2022. By way of an interim order dated 06.07.2022, the Supreme Court of India stayed the operation and effect of the order dated 23.06.2022 and further permitted the next proposed meeting of the General Council slated for 11.07.2022, while leaving it open for the parties to seek any other interim relief before the learned Single Judge dealing with the civil suits., Before the aforesaid order dated 06.07.2022, two more civil suits, being Civil Suit Nos. 118 of 2022 and 119 of 2022, were filed before the High Court against the proposed meeting dated 11.07.2022. A learned Single Judge of the High Court conducted an early morning hearing on 11.07.2022 and declined the interim relief. The meeting dated 11.07.2022 was held at the scheduled time and various resolutions were adopted, but the order dated 11.07.2022 was challenged in the Supreme Court of India and, by an order dated 27.09.2022, the Supreme Court of India remanded the matter for reconsideration. Subsequently, the interim relief applications in the newly filed civil suits were decided by a learned Single Judge of the High Court on 17.08.2022, granting certain interim reliefs and providing, inter alia, that the status quo ante as existing on 23.06.2022 shall be maintained and there shall be no Executive Council or General Council meeting without the joint consent of the Co-ordinator and Joint Co-ordinator. The order dated 17.08.2022 was questioned in intra-court appeals, being OSA Nos. 227 of 2022, 231 of 2022 and 232 of 2022. These three appeals were allowed by the Division Bench of the High Court by its order dated 02.09.2022, which is under challenge in the appeals arising out of Special Leave Petition (Civil) Nos. 15753 of 2022 and 15705‑15706 of 2022., The outline makes it clear that although the issue relating to the meetings of the General Council of All India Anna Dravida Munnetra Kazhagam has raised serious questions with different parties having different propositions and reliefs, the meeting dated 11.07.2022 has taken place and the civil suits remain pending at different stages. The two principal orders in challenge before us, namely the order dated 23.06.2022 and the order dated 02.09.2022, essentially relate to the question of grant of temporary injunction during the pendency of the respective civil suits. The operation and effect of the order dated 23.06.2022, which was stayed by the Supreme Court of India on 06.07.2022, has practically lost its relevance because of subsequent events. The contesting parties stand as follows: the plaintiff‑appellants challenging the order dated 02.09.2022 submit that the order should be set aside and that the order dated 17.08.2022 granting interim relief should be restored, whereas the opposing parties support the order dated 02.09.2022 as just and proper, requiring no interference., We have drawn the foregoing outline to indicate that, although there are multiple parties representing different positions, the matters essentially relate to the question of grant of temporary injunction in the civil suits concerning the affairs of the political party and the disputes among its members and factions. The civil suits giving rise to the orders impugned remain pending and ought to be tried in accordance with law. Hence, we will confine this judgment to the question of grant of temporary injunction in the civil suits and will not delve into issues not germane to the present adjudication., A few basic facts admitting no controversy are that All India Anna Dravida Munnetra Kazhagam was founded in 1972 and is duly recognised and registered with the Election Commission of India. The party, said to have a primary cadre of more than 1.5 crore members, is governed by its own bye‑laws. The upper levels of party structure include the Executive Committee and the General Council. The bye‑laws have been amended from time to time, including amendments in 2011 and 2017. Proposals for further amendments are at the root of the present controversy. In the original scheme of the bye‑laws, the topmost position was the General Secretary, who was to be directly elected by the primary cadre. Dr. J. Jayalalitha held that position until her demise on 05.12.2016, after which the party drifted into uncertainty regarding leadership., On 29.12.2016, in a General Council meeting convened after the demise of Dr. J. Jayalalitha, Ms. V. K. Sasikala was nominated as the interim General Secretary. However, on 14.02.2017, the interim General Secretary was incarcerated in view of a judgment of the Supreme Court of India. Ultimately, on 28.08.2017, a notice was issued for a General Council meeting on 12.09.2017. At that stage, one of the groups in the party claimed to be in charge of the affairs of the party before the Election Commission of India. In the General Council meeting held on 12.09.2017, a unique system was put in place by amendment of the bye‑laws. By way of this amendment, the late Dr. J. Jayalalitha was assigned the status of Eternal General Secretary while the post of General Secretary was abolished, and two high‑level posts of Co-ordinator and Joint Co-ordinator were created., The disputes in the civil suits leading to the interim orders essentially relate to the two persons elected as Co-ordinator and Joint Co-ordinator after the amendment of the bye‑laws: the appellant in the appeal arising out of Special Leave Petition (Civil) No. 15753 of 2022, Thiru O. Panneerselvam (hereinafter referred to as OPS), who was elected as the Co-ordinator, and the respondent No. 1, Thiru E. K. Palaniswamy (hereinafter referred to as EPS), who was elected as the Joint Co-ordinator., The amendment of the bye‑laws on 12.09.2017 assigned to the Co-ordinator and Joint Co-ordinator the powers and role previously entrusted to the General Secretary, establishing a system of joint leadership whereby all decisions were to be taken jointly by the two office‑holders. The tenure of the Co-ordinator and Joint Co-ordinator was fixed for a period of five years, from 12.09.2017 until May 2021, during which All India Anna Dravida Munnetra Kazhagam remained in power, forming the government of the State of Tamil Nadu., On 01.12.2021, the Executive Committee of the party passed a special resolution amending Rules 20‑A(ii), 43 and 45 of the bye‑laws. These amendments empowered the primary membership to directly elect the Co-ordinator and Joint Co-ordinator and provided that even if the General Council could amend the party constitution or the Co-ordinator and Joint Co-ordinator could relax or alter the rules, the provision for direct election of the Co-ordinator and Joint Co-ordinator by primary members could not be changed. The resolution provided that the amendments would take immediate effect but would be subject to approval by the General Council., On 02.12.2021, the party election for the posts of Co-ordinator and Joint Co-ordinator was notified. On 06.12.2021, OPS and EPS jointly contested for the posts, were elected unanimously and unopposed, and the necessary certificates were issued. Subsequent elections for office‑bearers at different levels were conducted in phases from 13.12.2021 to 28.04.2022, culminating in the appointment of the Central Executive Committee members on 29.04.2022 by OPS and EPS functioning jointly. In May 2022, Form AA and Form BB were communicated by the party in relation to the election of the Tamil Nadu Legislative Council, signed by OPS and EPS., Until those processes, the Co-ordinator and Joint Co-ordinator continued to function in tandem as envisaged by the amended bye‑laws. They issued a joint notice convening a General Council meeting on 23.06.2022, which contained no agenda or proposed resolutions. The issuance of this notice appears to have triggered a subtle simmering within the party for a return to a system of single leadership, leading to the present litigation. On 19.06.2022, OPS sent a letter to EPS requesting adjournment of the meeting scheduled for 23.06.2022, which EPS declined. A petition was filed in the Madras High Court for police protection at the meeting dated 23.06.2022. EPS contends that OPS received the final version of the resolution from the Party Headquarters and conveyed consent. The proposed meeting on 23.06.2022 gave rise to three civil suits, being Civil Suit Nos. 102 of 2022, 106 of 2022 and 111 of 2022. In Civil Suit No. 111 of 2022, the plaintiff, Mr M. Shanmugam, sought a prohibitory injunction against the party, the General Council, the Executive Committee, the Co-ordinator and the Joint Co-ordinator, preventing them from convening the General Council meeting proposed for 23.06.2022. Applications OA Nos. 327 of 2022 and 328 of 2022 were also filed seeking temporary injunction to restrain the defendants from placing any agenda in the meeting. Similar applications were filed in the other civil suits, but the subject matter remains the same., The applications for interim order and direction were considered by a learned Single Judge of the High Court on 22.06.2022. The learned Single Judge declined to pass any interim order or direction, and allowed the General Council meeting slated for 23.06.2022 to proceed. The learned Single Judge observed, inter alia, that all parties had reported no objection to conducting the meeting, but the plaintiffs and the third defendant/Co-ordinator would strongly oppose any resolutions regarding amendment of the Rules and Regulations of the party, particularly the abolition of the posts of Co-ordinator and Joint Co-ordinator, as it would cause great prejudice to them. No prima facie case for grant of interim orders was made. The Court noted that in matters of internal issues of an association or party, courts normally do not interfere, leaving it to the association and its members to pass resolutions and frame bye‑laws. Therefore, the Court was not inclined to pass any interim orders except to confirm that the General Council meeting scheduled for 23.06.2022 shall go on., The order dated 22.06.2022 was challenged by the plaintiff of Civil Suit No. 111 of 2022 before the Division Bench of the High Court in OSA No. 160 of 2022. The Division Bench directed that the General Council meeting on 23.06.2022 could proceed but no decision would be taken on any item other than the 23 items mentioned in the draft resolution. The Bench observed that the draft resolution did not contain an item regarding amendment of Rule 20A(1) to 13, 45 and 45, and therefore the appellant had made out a prima facie case for an interim injunction. However, the Court held that the injunction could not be granted and that the General Council could discuss any other matter but could not take any decision on matters other than the 23 items., According to OPS and his supporters, in the meeting dated 23.06.2022 a resolution was proposed to appoint Mr A. Tamizh Magan Hussain as permanent Presidium Chairman, and he assumed that post. Subsequently, a member of the General Council shouted that all 23 resolutions were rejected. Approximately 2000 General Council members handed over alleged affidavits/requisitions to the Chairman and requested the next meeting be convened at a date of their choice. It is alleged that Mr Hussain announced the next General Council meeting as 11.07.2022 in breach of the party bye‑laws. OPS contends that resolution No. 1 in that meeting was materially different from the one approved by him in email. EPS and his supporters state that the requisition of 2190 members was read and handed to the Presidium Chairman, who announced in the same meeting, in the presence of OPS and all members, that the next General Council meeting to discuss single leadership would be held on 11.07.2022 at 9:15 a.m. A report of the meeting dated 23.06.2022 was sent to the Election Commission of India along with the report of the Presidium Chairman on 28.06.2022., After the meeting of 23.06.2022, a notice dated 01.07.2022 was issued by Party Headquarters for a General Council meeting to be held on 11.07.2022. OPS and his supporters raise two serious questions regarding the legality and validity of that notice: first, that the power to convene such a meeting rested jointly with the Co-ordinator and Joint Co-ordinator; second, that the notice was sent only ten days before the scheduled meeting, whereas the bye‑laws require a minimum of fifteen days’ notice., In response to the notice dated 01.07.2022, Mr M. Shanmugam (plaintiff of Civil Suit No. 111 of 2022) moved applications before the Division Bench of the High Court alleging breach of the order dated 23.06.2022. The Division Bench, in its order dated 04.07.2022, clarified that the interim order dated 23.06.2022 pertained only to the meeting scheduled for 23.06.2022 and could not be extended indefinitely, and it expressed no opinion on the meeting scheduled for 11.07.2022., When the High Court, in its order dated 04.07.2022, declined to intervene regarding the meeting dated 11.07.2022, two other civil suits were filed on 05.07.2022, one by OPS and another by Mr P. Vairamuthu. Before addressing the prayers in those civil suits and the interim relief applications, we note an order passed by the Supreme Court of India on 06.07.2022., On 06.07.2022, while the new civil suits and interim relief applications were to be taken up by the High Court, the three petitions seeking special leave to appeal, namely Special Leave Petition (Civil) No. 11237 of 2022, were considered by the Supreme Court of India. After noting the submissions and the scheduled meeting of 11.07.2022, the Supreme Court of India stayed the operation and effect of the impugned order dated 23.06.2022 and clarified that the meeting slated for 11.07.2022 could proceed in accordance with law, while leaving it open for the learned Single Judge dealing with the civil suits to examine any other interim relief. The order read, in part: Permission to file Special Leave Petitions in Dy. No. 19425 of 2022 and Dy. No. 19419 of 2022 is granted. I.A. No. 89644 of 2022 stands rejected for applicant not being a party to the civil suits. The matters require consideration. Issue notice, returnable in two weeks. The operation and effect of the impugned order dated 23.06.2022 shall remain stayed. The meeting of the General Council of respondent No. 3 slated for 11.07.2022 may proceed in accordance with law. No other interim order is deemed necessary. The respondents may file counter‑affidavit within two weeks., The two civil suits, being Civil Suit No. 118 of 2022 and Civil Suit No. 119 of 2022, are now before us. Thiru O. Panneerselvam filed Civil Suit No. 118 of 2022 with Application No. 368 of 2022 for interim relief, questioning the convening of the General Council meeting on 11.07.2022. The main prayers in Civil Suit No. 118 of 2022 are: (a) a declaration that convening the General Council meeting on 11.07.2022 or on any other date without the joint authorization of both Co-ordinator and Joint Co-ordinator is illegal and contravenes the bye‑laws, particularly rule 20A(iv) and 20A(v); and (b) a permanent injunction restraining the defendants from convening the General Council meeting on 11.07.2022 or any other date without the express authorization of both the Co‑ordinator and Joint Co‑ordinator., The prayer in Application No. 368 of 2022 filed with Civil Suit No. 118 of 2022 was: Pass an order of ad‑interim injunction restraining the respondents from convening the alleged General Council meeting on 11.07.2022 or any other date without the express authorization of both the Co‑ordinator and Joint Co‑ordinator pending disposal of the suit and pass such further or other orders as this Hon’ble Court may deem fit and proper in the interest of justice., Civil Suit No. 119 of 2022 was filed by Mr P. Vairamuthu along with Application No. 370 of 2022 for injunctive relief. The main prayers are: (a) a permanent injunction restraining the defendants from convening the General Council meeting on 11.07.2022 or any other date without the express authorization of both the Co‑ordinator and Joint Co‑ordinator.
id_1820	1	For a permanent injunction restraining the Defendants or any other office bearer of the party from convening the General Council meeting on 11 July 2022 or any other date without giving its members a 15‑day notice in advance as contemplated in the rules of the first Defendant party., In Original Application No. 370 of 2022, filed with Civil Suit No. 119 of 2022, the prayer for interim relief was: (a) Pass an order of ad‑interim injunction restraining the Respondents from convening the alleged General Council meeting of the first Respondent party scheduled for 11 July 2022 based on an unsigned notice dated 01 July 2022 issued without giving 15 days’ notice in advance and in violation of the party’s bye‑laws, pending disposal of the suit; and (b) pass such further or other orders as this Supreme Court of India may deem fit and proper in the interest of justice., Further, on 07 July 2022, another interim relief application, Original Application No. 379 of 2022, was filed in Civil Suit No. 119 of 2022, seeking: (a) an order of ad‑interim injunction restraining the Respondents from passing any resolution relating to the abolition of the post of Coordinator and Joint Coordinator, who were elected by the primary members of the party for a term of five years as per bye‑law 20(A)(ii) and 20(A)(iii); and (b) direct the Respondents not to implement the resolutions/decisions relating to items 3, 4, 5, 6, 7 mentioned in the notice dated 01 July 2022 in the alleged General Council meeting, pending disposal of the suit, and pass such further or other orders as this Supreme Court of India may deem fit and proper in the interest of justice., The aforesaid interim relief applications were considered and dismissed by the learned Single Judge of the High Court of Madras on 11 July 2022 at 09:00 a.m., a few minutes before the scheduled time of the General Council meeting., The General Council meeting was held on 11 July 2022, during which certain resolutions were adopted that are the bone of contention between the parties. The resolutions included conversion of the leadership structure of the AIADMK from joint leadership under the Coordinator and Joint Coordinator to single leadership under the post of General Secretary; expulsion of the OPS and other primary members from primary membership of the Party and removal of the OPS from the post of Treasurer; creation of the post of Interim General Secretary; election of EPS as Interim General Secretary; notification of elections to the post of General Secretary; and amendments to the party’s bye‑laws, including imposing a high threshold for contesting the General Secretary election., Although the meeting took place on 11 July 2022, the plaintiffs in Civil Suit Nos. 118 of 2022 and 119 of 2022 questioned the order dated 11 July 2022 passed by the Single Judge of the High Court of Madras, declining to interfere with the meeting. They filed Special Leave Petition (Civil) Nos. 12784‑12785 of 2022 and Special Leave Petition (Civil) No. 12782 of 2022 before this Supreme Court of India., The Supreme Court of India noted that the High Court had not adjudicated on the reliefs sought with reference to the order dated 06 July 2022 of this Court and held that the interim relief applications ought to be reconsidered by the High Court. The petitions were decided on 29 July 2022, and the Court remanded the matter, directing that the status quo as existing on that date be maintained until hearing by the High Court, without this being construed as an expression of opinion on the merits., The order dated 29 July 2022 read as follows: (1) Exemption applications are allowed; (2) Learned Senior Advocates for the parties were heard at length; (3) The parties to the underlying dispute pending before the High Court of Madras had filed Special Leave Petitions (C) No. 11237 of 2022, (C) No. 11578 of 2022 and (C) No. 11579 of 2022; (4) The petitioners filed civil suits challenging the holding of the General Council meeting of respondent No. 1 dated 11 July 2022 and sought interim reliefs, but the learned Single Judge of the High Court of Madras did not adjudicate on those reliefs., The Supreme Court of India observed that the Hon’ble Supreme Court had earlier directed that the General Council meeting scheduled for 11 July 2022 could proceed in accordance with law, and therefore this Court could not contrary to that direction interfere by granting an injunction. It further held that no other interim relief besides preventing the meeting had been sought, and that the High Court was not barred from exercising its discretion., The Court concluded that the learned Single Judge had taken the view that, by virtue of the earlier order dated 06 July 2022, he could not properly adjudicate the matters, but the order of 06 July 2022 did not restrict the High Court’s power or discretion. Accordingly, the issue was remanded to the High Court of Madras for reconsideration, without being influenced by any of the orders passed by this Supreme Court of India in the present Special Leave Petitions or in Special Leave Petition (C) Nos. 11237, 11578 and 11579 of 2022., The High Court of Madras then took up the interim relief applications in Civil Suit Nos. 118 of 2022 and 119 of 2022 and formulated the points for determination: (1) Whether the plaintiff has locus to maintain the suit; (2) Whether the General Council meeting dated 11 July 2022 was convened by a person authorised to convene the meeting; (3) In whose favour the prima facie case and balance of convenience lie., The learned Single Judge examined the facts, the party’s bye‑laws and a Division Bench decision of the High Court in S. Thirunavukkarasu and Anr. v. Selvi J. Jayalalitha and Anr., (1997) 3 CTC 229, and observed that if any action was contrary to the party constitution and likely to injure the rights of members, there was no bar to seeking redressal from the Civil Court. He held that the principle of indoor management applies only to deliberations in a meeting convened in accordance with the bye‑laws; if the convening process itself is faulty, Section 9 of the Code of Civil Procedure, 1908 permits approaching the Civil Court. Accordingly, the plaintiff was found to have locus to maintain the suit., The judge then recorded his conclusions on the second point: (i) The General Council meeting dated 11 July 2022 was not convened by a person competent to do so; (ii) The meeting was not convened providing 15 days’ advance notice; (iii) The contention that the posts of Coordinator and Joint Coordinator lapsed after 23 June 2022 is unfounded; (iv) Rule 20(A)(vii) of the party constitution deals with exigencies when those posts become vacant before the expiry of the nominated Central Executive Committee office‑bearers’ tenure and does not empower the temporary Presidium Chairman to convene the General Council meeting; (v) Sub‑Rule (viii) of Rule 20‑A vests with the Coordinator and Joint Coordinator the powers to convene the Executive Committee and General Council meetings, to implement policies, and to conduct elections. If they refuse, the General Council members may invoke the second limb of Rule 19(vii), whereby a request by one‑fifth of the total members obliges the Coordinator and Joint Coordinator to convene the meeting within 30 days, with written notice 15 days in advance. Hence, the meeting of 11 July 2022 was both unauthorized and deficient in notice., On the question of prima facie case and balance of convenience, the judge observed that the respondents enjoy the support of more than 95 % of the General Council members elected by the primary members, and that Thiru Edappadi K. Palaniswami had been elected as temporary General Secretary in the meeting of 11 July 2022. However, the interim order of the Hon’ble Supreme Court had directed the parties to maintain the status quo, and the election process could not proceed further. The balance of convenience was therefore held to be in favour of the respondents, who seek to run the party democratically., The Court applied the triple test of prima facie case, balance of convenience and irreparable injury. It noted that if the injunction were not granted, Thiru Edappadi K. Palaniswami, who convened the meeting contrary to the party constitution, would be in a more convenient position, while the plaintiffs and several others would be removed from primary membership and barred from participating in the proposed General Secretary election, constituting irreparable injury., The Court further held that the balance of convenience must be assessed from the standpoint of the primary members, the foundation of the party, not from the leaders’ perspective. It observed that the claim that dual leadership caused inconvenience lacked quantifiable data, especially since the dual leadership had successfully governed the state for nearly four years. The Court questioned how, between 20 June 2022 and 01 July 2022, a party with more than one crore cadres could decide to change the dispensation through 2,500 old General Council members, and whether the views of those 2,500 members truly reflected the one‑crore primary members. While amendments to the party constitution are permissible, they must follow due process, and any patent violation of process can be remedied by the Court., The Court declared that the notice dated 01 July 2022 calling for a General Council meeting on 11 July 2022, issued by a person not authorised to call the meeting, is void ab initio. Allowing the consequences of the void meeting would cause uncertainty and inconvenience to party cadres. The Court also noted that, due to the dispute between the two leaders, party workers were unable to obtain the recognised election symbol ‘two leaves’ in recent local body elections because the Election Commission did not allocate the reserved symbol, constituting irreparable injury., Consequently, the learned Single Judge disposed of the Original Applications Nos. 368, 370 and 379 of 2022 with the following directions: (i) A status quo ante as on 23 June 2022; (ii) No Executive Council or General Council meeting without the joint consent of the Coordinator, Thiru O. Panneerselvam, and the Joint Coordinator, Thiru Edappadi K. Palaniswami; (iii) The Coordinator and Joint Coordinator may jointly convene a General Council meeting to decide party affairs, including amendment of the constitution to restore single leadership; (iv) If a proper representation from not less than one‑fifth of the total General Council members is received, the Coordinator and Joint Coordinator shall not refuse to convene the meeting; (v) Such a meeting shall be convened within 30 days of receipt of the requisition and shall be held after 15 days’ written notice; (vi) If further direction is required, the Coordinator and Joint Coordinator may approach this Supreme Court of India for relief. No order as to costs was made., The order dated 17 August 2022 was challenged in three intra‑court appeals filed by EPS, being Original Special Appeals Nos. 227 of 2022, 231 of 2022 and 232 of 2022. The Division Bench of the High Court of Madras allowed these appeals by its impugned order dated 02 September 2022., The order of 02 September 2022 stated that the General Council meeting was convened by the appellant and the first respondent on 23 June 2022, and that the meeting on 23 June 2022 had announced that the next General Council meeting would be conducted on 11 July 2022. Rule 19(vii) of the party’s bye‑law provides that the General Council meeting shall be convened once a year or whenever the Coordinator and Joint Coordinator consider it necessary, by giving 15 days’ notice in advance, and that the quorum shall be one‑fifth of the total members. If one‑fifth of the members request a special General Council meeting, the Coordinator and Joint Coordinator must convene it within 30 days of receipt of the request., The court explained that Rule 19(vii) distinguishes between a regular General Council meeting, which requires 15 days’ notice, and a special General Council meeting convened at the request of one‑fifth of the members, which does not require a separate notice to each member. The notice for the special meeting was given by announcement in the 23 June 2022 meeting, which satisfied the requirement of due notice., The court observed that if the Coordinator and Joint Coordinator are at loggerheads, they may be unable to jointly convene a special General Council meeting, leading to a deadlock. The provision does not compel a single office‑bearer to act unilaterally, and strict application of the second limb of Rule 19(vii) could prevent any meeting from being convened., The court distinguished the present case from the precedent of S. Thirunavukkarasu v. Selvi J. Jayalalitha (1997) 3 CTC 229, where an expelled member called a parallel General Council meeting and an interim injunction was granted. In the present case there was no parallel meeting, and the ratio of the earlier case was held not applicable.
id_1820	2	It cannot be said as a general rule that the requisitioners have no option but to go to Court if the leaders do not call for a meeting. Such a statement would be undemocratic and illegal. When the Interim General Secretary could not act in the year 2017, the Office Bearers stepped in to convene the meeting on 12.09.2018 (sic) based on a requisition received. It is not in dispute that the General Secretary was given power to convene the General Council Meeting. After the death of Selvi J. Jayalalithaa, Mrs. V. K. Sasikala was appointed as the Interim General Secretary and she could not perform as Interim General Secretary in the year 2017 because of her incarceration in a criminal case. Therefore, the Office Bearers convened the meeting on 12.09.2017 based on the requisition made by the Members. A similar situation has arisen now, since the Co‑Ordinator and the Joint Co‑Ordinator are in loggerheads, the calling for the meeting by the Presidium Chairman on 23.06.2022 at the floor of the General Council Meeting cannot be termed as illegal., Admittedly, there is a functional deadlock in the Party due to the stand taken by the appellant and the first respondent (in Original Special Appeal No. 227 of 2022). Rules 5, 19(i) and 19(viii) are absolutely clear that the General Council is the Supreme body of the Party. As per the By‑laws of the Party, the Executive Council has not been given power either to amend the Rules or to take any important decision. If such decision is taken, the same should be approved by the General Council of the Party. Even if the Leaders take any decision or action apart from what has been specifically provided to them under the Rules and Regulations, they have to be ratified at the General Council. The supremacy of the General Council is because it is elected ultimately by the Primary Members in terms of Rules 6 to 14 of the Bye‑Laws., As already stated, the General Council consists of 2,665 members, who were elected through the Organizational Elections under Rules 6 to 14 of the By‑laws. The elected General Council Members represent the Primary Members of the Party. It cannot be disputed that the General Council is the Supreme Body in the party. As per Rules 19(i) and 19(viii) of the Bye‑Laws, the General Council was given authority to decide on policy matters. As per Rule 43 of the Bye‑Laws, the General Council was given power to amend the Bye‑Laws. The General Council held on 11.07.2022 was a requisitioners special meeting under Rule 19(vii) of the Bye‑Laws. As already stated, 2,190 members have made the requisition for convening a special General Council Meeting. The requisition given at the General Council Meeting on 23.06.2022 was announced at the floor of the meeting, informing the members that a General Council Meeting would be convened on 11.07.2022. The requisition made by 2,190 members was followed by an agenda, which was signed by 2,432 members. The meeting was conducted on 11.07.2022 and a total of 2,460 members were present in the meeting. Thereafter, 2,539 members, supporting the resolutions passed in the General Council Meetings, filed affidavits before the Election Commission of India., The Co‑ordinator and Joint Co‑ordinator could not act on the requisition since there was a deadlock in the decision making in the Party. According to the appellant, the posts of Co‑ordinator and Joint Co‑ordinator had lapsed on 23.06.2022 for want of ratification. It is pertinent to note that the elections of the other members of the General Council shall not lapse since their elections were not based on any amended Bye‑Law. The present situation is identical to the situation that was prevailing in 2017. When the Co‑ordinator and Joint Co‑ordinator were not in a position to call for the meeting, the members cannot be forced to approach the Court every time, therefore, the power vested on the office‑bearers under Rule 20A(vii) should be exercised for this purpose as exercised for the meeting held on 12.09.2017., For easy reference, the Bye‑laws of the Political Party is annexed with this judgement., The amendments to the Bye‑laws can happen only at the General Council under Rule 43 of the Bye‑laws., The General Council Meeting was convened on 11.07.2022 pursuant to the order passed by the learned Single Judge in Original Applications Nos. 368, 370 and 379 of 2022 and thereafter, by order dated 06.07.2022 the Hon'ble Supreme Court of India in Special Leave Petition (Civil) No. 11237 of 2022 has observed as follows: So far as the Meeting of the General Council of the respondent No. 3, slated to be held on 11.07.2022 is concerned, the same may proceed in accordance with law and in that relation, the other aspects of any interim relief ought to be projected and presented before the learned Single Judge dealing with civil suits on the Original Applications., The appellant‑Co‑Ordinator sent a letter dated 28.06.2022 to the Election Commission of India stating that the posts of Co‑Ordinator and the Joint Co‑Ordinator had lapsed for the reason that the election in the Executive Council Meeting dated 01.12.2021 was not ratified in the General Council Meeting held on 23.06.2022. From the said letter, it is clear that the appellant‑Joint Co‑Ordinator has given up his right to continue as Joint Co‑Ordinator. Therefore, there is no Joint Co‑Ordinator in the Party after the said letter. The appellant cannot be compelled to continue as Joint Co‑Ordinator forever. When the appellant has given up his right to continue as Joint Co‑Ordinator, the appellant and the first respondent in Original Special Appeal No. 227 of 2022 cannot jointly conduct the General Council Meeting. The common sense approach was followed on 12.09.2017, wherein the General Council Meeting was announced at the instance of the Office Bearers Party Headquarters. The strict compliance of Rule 19(vii) would lead to absurdity. In these circumstances, the General Council Meeting called for by the Presidium Chairman on 23.06.2022 to convene the Special General Council Meeting on 11.07.2022 is proper., The requisition for the meeting was made by 2,190 members out of the 2,665 members of the General Council. This amounts to more than 80% of the General Council members. The requisition was to be made by the members for deciding the issue of the Single Leadership. The requisition was read out to all the members who were present and with their approval, it was handed over to the Chairman of the meeting on the stage in front of the requisitioners. The requisition was followed with an agenda being signed and requested by 2,432 General Council Members. Thereafter, the meeting on 11.07.2022 was attended by 2,460 members and 2,539 members have filed affidavits before the Election Commission of India affirming their support to the resolution passed at the General Council Meeting on 11.07.2022., The learned Single Judge, while disposing of the Original Applications observed that since there is interpolation, it can only be a manufactured document. It is pertinent to note that none of the members who signed the requisition or the agenda or attended the meeting have come before this Court, claiming that they did not do so. That apart, the first respondent‑plaintiffs has not made any assertion in the plaint that there was no requisition that was placed at the meeting. Absolutely, there is no averment in the pleadings that the requisition letter is a fabricated document or not genuine. In the absence of any pleading or averment, the contention of the first respondent (in Original Special Appeal No. 227 of 2022) that the requisition letter given by 2,190 members is not genuine cannot be accepted. When none of the 2,190 members who have signed the requisition letter to convene the Special General Council Meeting disputed their signature or contents of the document, a third party to the said letter cannot question the same. The person who can dispute the signature can only be that particular person and not a third party. In the absence of any challenge made by the signatories to the requisition letter, the said letter cannot be held as fabricated or not genuine document. Even assuming that the Resolutions passed on 23.06.2022 and on 11.07.2022 are found to be illegal or against the Bye‑Laws of the Parties, it is always open to one‑fifth members of the General Council to convene a Special General Council Meeting and reverse the resolution passed in those two meetings. In the case on hand, no such meeting was called for at the instance of one‑fifth of the General Council members to reverse the decision. This would establish that no irreparable injury has been caused to the first respondent (in Original Special Appeal No. 227 of 2022)., The members of the General Council are representing the Primary Members of the Party and when the majority of the members of the General Council have given requisition for convening the Special General Council Meeting on 11.07.2022 and also supported the Resolutions on 23.06.2022 and 11.07.2022, the balance of convenience cannot be held in favour of the first respondent. On the contrary, the balance of convenience can only be in favour of the appellant., With regard to the prima facie case, (2012) 6 SCC 792 the Hon'ble Supreme Court held that even where prima facie case is in favour of the first respondent‑plaintiff, the Court will refuse temporary injunction if the injury suffered by the first respondent on account of refusal of temporary injunction was not irreparable. In the judgement reported in (1992) 1 SCC 719 the Apex Court held that while granting or refusing to grant interim injunction, the Court should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of interim injunction pending the suit., By giving a direction that there shall be no Executive Council Meeting or General Council Meeting without joint consent of the Co‑Ordinator and the Joint Co‑Ordinator, a situation has arisen where the party, as a whole, will undergo irreparable hardship, since there is no possibility of the appellant and the first respondent (in Original Special Appeal No. 227 of 2022) acting jointly to convene a meeting, much less a General Council Meeting to discuss Single Leadership. The direction only furthers the functional deadlock that was already in existence in the Party., As per Rule 20A(ix), the Co‑Ordinator and Joint Co‑Ordinator are empowered to take such actions as they may deem fit on important political events, policies and programmes of urgent nature which cannot brook delay and await the meeting of either Executive Committee or General Council of the Party. Such decisions and actions have to be ratified by the General Council in its next meeting. However, it is open to the Co‑Ordinator and Joint Co‑Ordinator to obtain the views of the General Council Members on such urgent matters by post when the Council is not in session. Therefore, even if the Co‑Ordinator and Joint Co‑Ordinator take any decision/action, the same is to be ratified at the General Council Meeting., When the applications have been filed challenging the Special General Council Meeting held on 11.07.2022 and when the learned Single Judge, by order dated 11.07.2022 permitted the convening of the Special General Council Meeting on 11.07.2022, which was challenged before the Hon'ble Supreme Court, the Apex Court, by order dated 29.07.2022, while remanding the matter back to the learned Single Judge for fresh consideration, directed the parties to maintain status quo as on the date of 29.07.2022. It is pertinent to note that the Apex Court has not directed the parties to maintain status quo as on 11.07.2022 or on 23.06.2022. Therefore, it is clear that the Resolutions passed on 23.06.2022 and 11.07.2022 were not disturbed till the pronouncement of the order by the learned Single Judge in Original Applications Nos. 368, 370 and 379 of 2022 on 17.08.2022., When the Presidium Chairman had announced the date of next Special General Council Meeting based on the requisition made by 2,190 members of the General Council on 23.06.2022 the first respondent‑plaintiff should have challenged the decision taken on 23.06.2022 to convene a Special General Council Meeting on 11.07.2022. In the case on hand, the first respondent has filed the suit challenging only the Special General Council Meeting held on 11.07.2022. When the first respondent did not challenge the Resolutions passed in the General Council Meeting held on 23.06.2022, an order of status quo ante as on 23.06.2022 cannot be granted., So far as the direction to the appellant and the first respondent (in Original Special Appeal No. 227 of 2022) to conduct the Executive Council Meeting or General Council Meeting jointly is not workable, as the appellant and the first respondent have not been able to act together and there has been a deadlock, which has resulted in the impossibility to perform the functions, which is the very premise based on which the General Council of the Party was held on 12.09.2017, wherein the posts of Co‑Ordinator and the Joint Co‑Ordinator were created and the appellant and the first respondent came to be elected to the said posts., Since the appellant‑Joint Co‑Ordinator, by his letter dated 28.06.2022 to the Election Commission of India, has stated that his post along with the post of Co‑Ordinator had lapsed, as already stated, he cannot be compelled to continue in the said post. That apart, the first respondent (in Original Special Appeal No. 227 of 2022) alone cannot take any decision independently. In these circumstances, we are not giving any finding with regard to the stand taken by the appellant that the posts of Co‑Ordinator and Joint Co‑Ordinator had lapsed for want of ratification on 23.06.2022. The said issue can be decided in the pending suit., The ratio laid down in the Judgments relied upon by the learned Senior Counsel appearing for the appellant squarely applies to the facts and circumstances of the present case. The ratio laid down by the Gauhati High Court in an unreported judgement made in CRP No. 22 (AP) of 2015 applies to the case of the first respondent., Though there is no dispute with regard to the ratio laid down by the Hon'ble Supreme Court in the judgment reported in 1990 Supp (1) SCC 727 relied upon by the learned Senior Counsel appearing for the first respondent, since the facts and circumstances of the present case differ, the said ratio is not applicable to the present case., For the reasons stated above, the order passed by the learned Single Judge in the Original Application in Original Application No. 368 of 2022 in Civil Suit No. 118 of 2022 and the Original Applications in Original Applications Nos. 370 and 379 of 2022 in Civil Suit No. 119 of 2022 are set aside. Consequently, the Original Applications in Original Application Nos. 368, 370 and 379 of 2022 are dismissed. The above Original Side Appeals are allowed. No costs. Consequently, the connected Miscellaneous Petitions are closed., The aforesaid order dated 02.09.2022 has been challenged in the appeal arising out of Supreme Court of India Special Leave Petition (Civil) No. 15753 of 2022 by the plaintiff O. Panneerselvam and in the appeal arising out of Supreme Court of India Special Leave Petition (Civil) Nos. 15705‑15706 of 2022 by the other plaintiff P. Vairamuthu. These two petitions were entertained by this Court on 30.09.2022 and on that date, the learned counsel appearing on behalf of the Election Commission of India stated at the Bar that until hearing of these matters, there shall not be any election of the General Secretary. This Court recorded the statement so made and directed the respondents accordingly. The order dated 30.09.2022 reads as under: Issue notice. The respective learned counsel accepts notice on behalf of the respective respondents, therefore, the respondents need not be served now. Notice be made returnable on 21.11.2022. To be notified with Supreme Court of India Special Leave Petition (Civil) No. 11237 of 2022. In the meantime, all the parties are directed to complete the pleadings. Shri C. Aryama Sundaram, learned Senior Advocate appearing on behalf of respondent No. 1 has stated at the Bar that till the present matters are heard, there shall not be any election of the General Secretary held. We record the statement and direct the respondents accordingly., In the above backdrop, the appeals preferred in challenge to the said order dated 02.09.2022 as also the previous order dated 23.06.2022, as passed by the Division Bench of the High Court, have been taken up by this Court for analogous hearing. However, it may be usefully reiterated that so far as the order dated 23.06.2022 is concerned, it has practically lost its relevance because of the subsequent events of holding of meeting dated 11.07.2022 and passing of other orders by the High Court and by this Court. The principal part of the matter therefore relates to the legality and validity of the order dated 02.09.2022. In this position and as agreed to by the learned counsel for the parties, we have heard the respective submissions principally in relation to the order dated 02.09.2022. Though as indicated hereinbefore, a wide variety of contentions have been urged by the learned counsel for the parties but, having regard to the fact that the appeals herein essentially relate to the matter of grant of temporary injunction, only the relevant submissions in that regard need to be dealt with in this judgment., We have heard the detailed and elaborate submissions of the learned senior counsel Mr. Ranjit Kumar and Mr. Guru Krishna Kumar appearing for the respective appellants on one hand and those of the learned senior counsel Mr. C. Aryama Sundaram, Mr. C. S. Vaidyanathan, Mr. Mukul Rohtagi and Mr. Atul Chitale appearing for the respective contesting respondents., Before proceeding further, it may be indicated that while the detailed arguments were concluded on 11.01.2023 and judgment was reserved, the matters were taken up again on board in view of mention made on behalf of the respondent No. 1 of Supreme Court of India Special Leave Petition (Civil) Nos. 15705‑15706 of 2022 and thereafter, this Court passed an order on 03.02.2023 for the limited purpose of making arrangements for the party, in relation to the upcoming bye‑election of 98‑Erode (East) Assembly Constituency. Therein, we provided for choosing of the candidate of the party by the General Council and it was also provided that expulsion of the appellant O. Panneerselvam and other persons would not operate for that limited purpose of decision‑making by the General Council; and that the choice of the candidate shall be conveyed to the Election Commission of India by the Presidium Chairman. The said order was passed in the peculiar circumstances and looking to the requirements of urgency as also in the larger interest of democracy but, while making it clear that such arrangement shall be without prejudice to the rights of the parties and without conferring any additional right in any of the parties., The order dated 03.02.2023 reads as follows: In continuity with and as per the permission granted in the order dated 30.01.2023, we have heard learned counsel for the parties for the limited purpose in relation to the bye‑election of 98‑Erode (East) Assembly Constituency. We have taken note of the respective stand of the contesting parties as also the Election Commission of India in these matters. As the judgment remains reserved, we do not wish to elaborate on any of the contentious issues involved in the matters. However, having taken note of the fact that bye‑election for 98‑Erode (East) Assembly Constituency has already been announced where the last date for filing nominations is 07.02.2023, in our view, a workable solution/interim arrangement appears to be in the interest of the political party concerned as also in the larger interest of democracy with participation of the party’s candidate in the forthcoming bye‑election. Hence, after taking note of the submissions and counter‑submissions of the learned counsel appearing for the contesting parties as also the propositions of the learned counsel appearing for the Election Commission of India, we deem it appropriate to make the interim arrangement only in relation to the forthcoming bye‑election and only for the purpose of participation of a candidate of the party concerned., The relevant contentions urged on behalf of the appellants in challenge to the impugned order dated 02.09.2022 could be summarised as follows: Learned senior counsel for the appellants have submitted that the Division Bench of the High Court could not have interfered with the order dated 17.08.2022 as passed by the learned Single Judge of the High Court without recording a finding to the effect that the order as passed was arbitrary, capricious, perverse or contrary to the settled principles of law regulating grant of injunctions., It has been strenuously argued that the very convening of the meeting of General Council, to be held on 11.07.2022, had been illegal and non est; the said meeting remains unauthorised; and no resolution taken therein could be said to be permissible in law for two main reasons. First, from a reading of the Rules 19(vii) and 20‑A(viii), it is clear that the authority to convene the General Council meeting is vested only with the Co‑Ordinator and the Joint Co‑Ordinator, acting jointly. Therefore, the Presidium Chairman neither had the power to make any announcement on 23.06.2022 about convening of the General Council meeting on 11.07.2022 nor could have convened any such meeting. Further, the written notice dated 01.07.2022, not signed by O. Panneerselvam and sent to the General Council members by an unspecified body (Headquarters Office Bearers) to call for the meeting on 11.07.2022, is void for having been issued by persons without authority under the by‑laws of the party. It has also been submitted that in regard to such questions arising in the past, the High Court has held in the case of S. Thirunavukkarasu that the scheme of by‑laws does not envisage the requisitionists to convene the General Council meeting; and if the General Secretary does not act on the requisition with sufficient dispatch, the only option in such a scenario is to approach the Court. On the same principles and analogy, if at all the Co‑Ordinator and the Joint Co‑Ordinator would fail to convene the meeting, the only option is to seek intervention of the Court but a meeting cannot be convened by persons not authorised., It is further submitted that the notice dated 01.07.2022 did not comply with the requirement of fifteen days period as stipulated under Rule 19(vii) of the by‑laws of the party; and there is a long‑standing practice of AIADMK party to issue written invitations to the members of the General Council for the meetings. It is further submitted that the announcement made by the Presidium Chairman at the meeting was lacking in material particulars such as venue, etc., which is contrary to settled principles of law as laid out in the authoritative book Shackleton on the Law and Practice of Meetings., Learned counsel for the appellants have further contended that the balance of convenience in the present matters has been in favour of grant of injunction as prayed for. It is submitted that the so‑called will of a purported majority in the General Council does not reflect the will of the entire primary membership of the party; and no data has been submitted by the respondents to suggest that the primary members of the party want to revert to the regime of single leadership. It is further submitted that the issue of balance of convenience is to be considered in light of the nature of prima facie case set up by the plaintiffs in the suit; and not de hors such issue, as has been done by the Division Bench of the High Court in the order impugned. Reliance has been placed on one passage in the decision of this Court in State of Karnataka v. State of Andhra Pradesh and Ors.: (2000) 9 SCC 572 and on another decision of this Court in Surya Nath Singh and Ors. v. Khedu Singh (Dead) by LRS and Ors.: 1994 Supp (3) SCC 561 to submit.
id_1820	3	Furthermore, on the issue of grant of interim injunction as a discretionary measure, balance of convenience and prima facie case, the learned counsel for the appellants have relied upon the decisions of the Supreme Court of India in Assistant Collector of Central Excise, Chandan Nagar, West Bengal versus Dunlop India Ltd. and Ors. (1985) 1 SCC 260, Dalpat Kumar and Anr. versus Prahlad Singh and Ors. (1992) 1 SCC 719 and American Express Bank Ltd. versus Calcutta Steel Co. and Ors. (1993) 2 SCC 199., The contra contentions urged on behalf of the respondents in support of the said order dated 02.09.2022 could also be usefully summarised as follows:, Learned senior counsel for the respondents have submitted that the decision as to acceptance or rejection of an interim injunction is a matter of discretion, which does not require interference under Article 136 of the Constitution of India. It has also been argued that the reliefs claimed in the applications in question had been against holding of the General Council meeting dated 11.07.2022, which has already been concluded and hence, the reliefs have practically become infructuous. The decisions of the Supreme Court of India in Seema Arshad Zaheer and Ors. versus Municipal Corporation of Greater Mumbai and Ors. (2006) 5 SCC 282 and Skyline Education Institute (India) Private Limited versus S.L. Vaswani and Anr. (2010) 2 SCC 142 have been relied upon to submit that in the matter of grant or refusal of injunction, interference by the Supreme Court under Article 136 of the Constitution of India could only be considered when the discretion exercised by the High Court is vitiated by an error apparent or perversity or manifest injustice. It is submitted that the impugned order dated 02.09.2022 does not suffer from any such infirmity and hence, calls for no interference., It has further been argued that the General Council is the supreme authority in the party as is evident from Rules 5, 5(vii), 19(i), 19(viii) and 43. The General Council, therefore, has unfettered powers to amend, add or delete the bylaws; including the powers that are not specifically placed in the bylaws; and it is for this supremacy that as a condition of membership into the party, one has to abide by the decision of the General Council. Relying on the decision of the Supreme Court of India in K. Rajendran and Ors. versus State of Tamil Nadu and Ors. (1982) 2 SCC 273 it has been submitted that the General Council has the power even to create, abolish and replace the post., It has been contended, particularly with reference to Rule 19(vii) of the bylaws, that the notice sent on 01.07.2022 would qualify to be a proper notice because the bylaws only speak about notice of the meeting and not notice to the members; the bylaws do not require service of written notice for convening of a meeting; the dictionary meaning of the word notice is intimation and does not necessarily mean notice in writing; and 15 days notice is to be given only for the regular meeting of the General Council and not for the special meeting. Further, it has been submitted that in the Tamil version of the bylaws, the expression aforesaid in the first part of Rule 19(vii) has been clearly used to denote that 15 days notice is required to be given for the regular meeting and not for the special or requisitioned meeting. It has also been submitted that the formality of notice cannot vitiate the action when parties had intimation of the event, as announced by the Presidium Chairman on 23.06.2022. These contentions have been supported by relying on a decision of the Supreme Court of India in Nilkantha Sidramappa Ningashetti versus Kashinath Somanna Ningashetti and Ors. AIR 1962 SC., As to the functional deadlock, due to the divergent and discordant views of the coordinator and joint coordinator leading to non‑functioning of the party, the learned counsel for the respondents have relied on the decision in the case of B.N. Viswanathan and Anr. versus Tiffins Barytes, Asbestos and Paints Ltd. (1953) 66 LW 124, wherein it was held that the General Body of shareholders had the power to carry out the functions of the board when it was impossible for the board to perform its functions. It has been submitted that if there is a vacuum and something is done within the framework, such an action is valid unless it is impermissible within the framework. It has also been submitted that having regard to the position obtaining in the present case, the decision in S. Thirunavukkarasu is of no application because therein an expelled member of AIADMK attempted to convene a General Council meeting parallel to the meeting called by the then General Secretary whereas, in the present case no parallel meeting of the General Council has been convened by anyone., It has further been submitted, relying on the decision of the Supreme Court of India in T.P. Daver versus Lodge Victoria No. 363 Supreme Court of India Belgaum and Ors. (1964) 1 SCR 1, that in matters pertaining to internal affairs or management of an association, the Court would ordinarily be slow in interfering; and the impugned order of the Division Bench of the High Court, standing in conformity with these principles, calls for no interference., In rejoinder submissions, learned senior counsel for the appellants have submitted that until 23.06.2022, there was not even a whisper of reverting to the system of single leadership amongst the party members; the functions of the party were being carried out smoothly; and even during the Panchayat elections, by both the coordinator and the joint coordinator jointly. Hence, the argument of functional deadlock is disingenuous and incorrect., It has been further submitted that the General Council is not superior to the coordinator and joint coordinator of the party as pursuant to the amendments made to the bylaws on 01.12.2021, the coordinator and joint coordinator are to be elected directly through vote by an electorate consisting of the entire primary membership of the party. Further, Rule 45 of the bylaws authorizes them to relax or make alterations to any of the rules and regulations of the party. Therefore, the logic that a party organ is supreme because its members are ultimately elected by the primary membership of the party applies even more to the posts of coordinator and joint coordinator., Learned counsel for the appellants would submit that if it be assumed that the posts of coordinator and joint coordinator lapsed because of non‑ratification of the amendments of 01.12.2021 by the General Council, the elections of other office‑bearers held after the amendments of 01.12.2021 would also stand annulled and, in any case, even according to Rule 20‑A(vii) of the bylaws, the other office‑bearers as mentioned therein do not have the power to convene the General Council meeting., We have given anxious consideration to the rival submissions and have examined the record of the case with reference to the law applicable., Before proceeding further, a few comments on the width and limits of the consideration in these appeals appear necessary. Having regard to the subject‑matter of the civil suits leading to the order dated 17.08.2022 by the learned Single Judge and the impugned order dated 02.09.2022 by the Division Bench of the High Court and the totality of circumstances, it may at once be observed in relation to the submissions made by either of the parties concerning the contents of the resolution taken in the questioned meeting on 11.07.2022, that no challenge thereto as such has been laid in the suits as filed or by way of any amendment of pleadings; and entering into any aspect relating to the substance, contents and merits of the decisions said to have been taken in the said meeting dated 11.07.2022 would be practically traversing even beyond the scope of the subject civil suits. In other words, the real question to be determined in these appeals against the order dated 02.09.2022 would only be as regards the prayer for temporary injunction against convening of the meeting dated 11.07.2022. Within this framework and boundaries, we may examine the rival contentions to determine the question as to whether the impugned order dated 02.09.2022 calls for any interference., While dealing with the relevant contentions, we may usefully take note of a few decisions cited in these appeals so as to define the parameters and contours of the discussion forthcoming., The case of S. Thirunavukkarasu (supra) has been referred to by the learned counsel for the appellants in order to submit that therein, a Division Bench of the High Court extensively interpreted the scheme of the bylaws of the party‑AIADMK and held that the scheme of bylaws does not envisage the requisitionists to convene the General Council meeting; and if the General Secretary (now replaced by the coordinator and the joint coordinator jointly) fails to convene the meeting, the only option is to seek intervention of the Court but a meeting cannot be convened by persons not authorised to do so. As per Rule 20(v) of the party, the General Secretary of the party is competent to convene the General Council meeting. Rule 19(viii) does not authorise anyone else to convene the special General Council meeting of the party. The learned single judge held that the letter of requisition was not posted and also held that even otherwise the plaintiff had convened the meeting of the General Council as per Rule 19(viii). Consequently, the defendant had no authority to convene the meeting of the General Council. Rule 19(viii) makes no provision for convening the meeting of the General Council by the requisitioning members in case the plaintiff as the General Secretary failed to convene the meeting. In the order of the learned single Judge of the Supreme Court of India in Karuppasamy Pandian & others versus All India Anna Dravida Munnetra Kazhagam and others (Application No.119 of 1988 disposed of on 20.1.1988 is C.S. No.28 of 1988), it was observed that if the General Secretary refuses to convene a meeting, any member of the party's General Council may convene a meeting and take a decision after establishing their majority. However, we do not agree that the requisitioning members may convene a meeting in case the General Secretary fails to convene a meeting under Rule 19(viii). Rule 20(v) specifically states that the General Secretary shall have the powers and responsibilities to convene the executive and General Council meeting. Rule 19(viii) also obliges the General Secretary to convene a special meeting of the General Council on requisition within 30 days of receipt of such requisition. Rule 19(viii) provides a specific provision to preside over the General Council meeting, that in the absence of the Chairman, one of the members of the General Council elected by the body shall preside over the meeting. Again, Rule 23(ii) states that in the absence of the Chairman, one of the members present will preside over and conduct the meeting of the Central Executive Committee and General Council. The argument of the learned senior counsel for the defendant is that Rule 19(viii) may be harmoniously construed so as to serve the purpose of the rule; if the General Secretary does not convene the meeting, the requisitioning members cannot be made helpless, and having given the requisition, they were entitled to have a meeting, and if not convened by the General Secretary within the given time, they could themselves convene such a meeting. It was also added that even if the General Secretary convenes a meeting within 30 days from the date of receipt of the requisition fixing the date of the meeting after several years, it will create an anomalous situation. The learned counsel submitted that convening a meeting must be taken as holding a meeting. The General Council meeting has to be called at least once in six months. If the General Secretary convenes a meeting within the time given but schedules the meeting after a few years, such a situation can always be challenged as unreasonable because the object of the rule is defeated. It is equally open to the members of the party to amend the rule if so desired to make a specific provision in this regard. Rule 19(vii) says that a meeting of the General Council shall be held once in six months by giving 15 days notice in advance of the date of the meeting. Rule 19(viii) states that if a requisition is made the General Secretary has to convene a special meeting within 30 days from the date of receipt of such requisition. The learned single Judge, referring to various decisions, held that convening a meeting is to call for a meeting. The plaintiff herself had convened the meeting. The defendant, having been expelled on 19.5.1997 from the primary membership of the party, prima facie had no locus standi to convene the meeting of the General Council., In Wander Ltd. (supra), a decision strongly relied upon by the learned counsel for the appellants, the Supreme Court of India explained the principle that ordinarily the Appellate Court would not interfere with the exercise of discretion by the Court of first instance and substitute its own discretion except in cases where discretion was shown to have been exercised arbitrarily, capriciously or perversely or against the settled principles of law. The Court observed that the prayer for grant of an interlocutory injunction is made at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at trial on evidence. The Court, at this stage, acts on well‑settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his rights for which he could not be adequately compensated in damages if the uncertainty were resolved in his favour at trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from being prevented from exercising his own legal rights for which he could not be adequately compensated. The Court must weigh one need against another and determine where the balance of convenience lies. The interlocutory remedy is intended to preserve in status quo the rights of parties which may appear on a prima facie case. The Court also, in restraining a defendant from exercising what he considers his legal right, must consider whether the defendant has yet to commence his enterprise or is already doing so, as the considerations differ. The appellate court will not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, capriciously or perversely or where the Court ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. The appellate court will not reassess the material and seek a different conclusion if the one reached by the lower court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely because it might have reached a contrary conclusion at trial. If the discretion has been exercised by the trial court reasonably and in a judicial manner, the fact that the appellate court might have taken a different view does not justify interference with the trial court's exercise of discretion. After referring to these principles, Gajendragadkar, J. in Printers (Mysore) Private Ltd. versus Pothan Joseph (1960) 3 SCR 713 noted that the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established., The case of State of Karnataka (supra) related to a suit involving inter‑State water disputes and indicated that, although balance of convenience or inconvenience is a requirement, no fixed rules or notions ought to be had in the matter of grant of injunction; the relief depends on the facts and circumstances of each case with the justice of the situation being the guiding factor. Generally, the issue of grant of injunction is to be looked at from the point of view of whether, on refusal of the injunction, the plaintiff would suffer irreparable loss, keeping in view the strength of the parties' case. Balance of convenience or inconvenience is also a requirement but there are no hard‑and‑fast rules; the relief is always flexible depending upon the facts and circumstances of each case, and the justice of the situation is the guiding factor., In Surya Nath Singh (supra), the Supreme Court of India held that though the grant of injunction is a matter of discretion, it must be exercised on settled principles of law to advance the cause of justice and is subject to correction by the Appellate Court., In the case of Dunlop India Ltd. (supra), the Supreme Court of India explained the requirements of due consideration of balance of convenience and irreparable injury. It warned against granting interim orders merely because a prima facie case has been made out without being concerned about balance of convenience, public interest and other relevant considerations. While interim orders may be justified in the interests of justice, especially where gross violations of law and injustices are imminent, the Court must be circumspect in granting far‑reaching interim orders that cause administrative inconvenience or prevent collection of public revenue unless a prima facie case is shown. There are no hard and fast rules; prudence, discretion and circumspection are called for, and factors such as balance of convenience, irreparable injury and public interest must be weighed., In the case of Dalpat Kumar (supra), the Supreme Court of India explained the principles for exercise of judicial discretion in granting or refusing injunction. Order 39 Rule 1(c) provides that a temporary injunction may be granted where, by affidavit or otherwise, it is proved that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute. The Court may grant a temporary injunction to restrain such act until the disposal of the suit or further orders. An injunction is a preventive relief to preserve the subject matter of the suit in status quo. The grant of injunction is discretionary and subject to the Court being satisfied that (1) there is a serious disputed question to be tried and a probability of the plaintiff being entitled to the relief; (2) the Court's interference is necessary to protect the party from injury; and (3) the comparative hardship from withholding the injunction would be greater than that from granting it., In the case of American Express Bank Ltd. (supra), the Supreme Court of India observed that declaration of rights or status under Section 34 of the Specific Relief Act, 1963, and the grant or refusal of declaration and injunction are discretionary. The plaintiff cannot claim relief as a right; it must be granted according to sound principles of law and ex debito justitiae. The Court must not become an instrument of injustice and must exercise discretion with circumspection, weighing pros and cons, considering facts and circumstances, and furthering the ends of justice. The Court held that the relief of declaration granted was unjust and illegal as it impeded free flow of capital and thwarted the growth of mercantile business., In the case of Seema Arshad Zaheer (supra), the Supreme Court of India reiterated that the grant or refusal of injunction is a matter of discretion and does not ordinarily call for interference under Article 136 of the Constitution unless the discretion has been exercised arbitrarily, capriciously, or perversely, or the impugned order ignored settled principles of law. The Court held that the Appellate Court was justified in interfering with the matter and vacating the injunction of the Trial Court.
id_1820	4	The Supreme Court of India observed that in exercise of jurisdiction under Article 136, it would not ordinarily interfere with the exercise of discretion in the matter of grant of temporary injunction by the High Court and the trial court and substitute its own discretion, except where the discretion has been shown to have been exercised arbitrarily, capriciously or perversely or where the order under scrutiny ignores settled principles of law., The discretion of the court is exercised to grant a temporary injunction only when the plaintiff establishes (a) existence of a prima facie case as pleaded, necessitating protection of the plaintiff's rights by issue of a temporary injunction; (b) when the need for protection of the plaintiff's rights compared with the need for protection of the defendant's rights tilts the balance of convenience in favour of the plaintiff; and (c) clear possibility of irreparable injury to the plaintiff if the temporary injunction is not granted. In addition, because a temporary injunction is an equitable relief, the discretion will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands., Where the lower court acts arbitrarily, capriciously or perversely in the exercise of its discretion, the appellate court will interfere. Exercise of discretion by granting a temporary injunction when there is no material, or refusing to grant a temporary injunction by ignoring the relevant documents produced, are instances of action which are termed as arbitrary, capricious or perverse. Acting on no material (similar to no evidence) includes cases where there is total dearth of material, or where there is no relevant material, or where the material taken as a whole is not reasonably capable of supporting the exercise of discretion. In this case, there was no material to make out a prima facie case and therefore the High Court in its appellate jurisdiction was justified in interfering in the matter and vacating the temporary injunction granted by the trial court., We find no reason to interfere with the order of the High Court in the seven appeals. Accordingly we dismiss these Special Leave Petitions as having no merit. The petitioners are granted fifteen days to make alternative arrangements. Parties shall bear their respective costs., In Skyline Education Institute (supra), a three‑Judge Bench of the Supreme Court of India again explained that in the matter of injunction, interference under Article 136 of the Constitution would not ordinarily be made. We have thoughtfully considered the entire matter. Before pronouncing upon the tenability of the appellant's prayer for restraining the respondents from using the word “Skyline” for the Institute of Engineering and Technology established by them, we consider it necessary to observe that as the suit filed by the appellant is pending trial and issues raised by the parties are yet to be decided, the High Court rightly considered and decided the appellant's prayer for temporary injunction only on the basis of the undisputed facts and the material placed before the learned Single Judge. Unless this Supreme Court of India concludes that the discretion exercised by the High Court in refusing to entertain the appellant's prayer for temporary injunction is vitiated by an error apparent or perversity and manifest injustice has been done to it, there will be no warrant for exercise of power under Article 136 of the Constitution., The ratio of the above judgments is that once the court of first instance exercises its discretion to grant or refuse temporary injunction and that exercise is based upon objective consideration of the material placed before the court and is supported by cogent reasons, the appellate court will be loath to interfere simply because on a de novo consideration it is possible for the appellate court to form a different opinion on the issues of prima facie case, balance of convenience, irreparable injury and equity., In the case of Nilkantha Sidramappa Ningashetti (supra), this Supreme Court of India held that formality of notice cannot invalidate the action when the parties had intimation of the event; and that the term notice does not necessarily mean communication in writing. Sub‑section (1) of Section 14 of the Arbitration Act, 1940 requires the arbitrators or umpire to give notice in writing to the parties of the making and signing of the award. Sub‑section (2) requires the court, after the filing of the award, to give notice to the parties of the filing of the award. The notice required under sub‑section (2) need not be in writing; it may be given orally. No question of service of notice in the formal way arises when notice is given orally. The communication that an award has been filed is sufficient compliance with the requirements of sub‑section (2). Notice, according to the Oxford Concise Dictionary, means intimation, intelligence, warning and has this meaning in expressions such as “give notice”, “have notice” and also means formal intimation or instructions. We are of the opinion that the expression “give notice” in sub‑section (2) simply means giving intimation of the filing of the award, which was given to the parties through their pleaders on 21‑21‑1948. Notice to the pleader is notice to the party, in view of Rule 5 of Order 3 of the Civil Procedure Code, which provides that any process served on the pleader of any party shall be presumed to be duly communicated and made known to the party represented, and unless the court otherwise directs, shall be as effectual as if served on the party in person., We see no ground to construe the expression “date of service of notice” in column 3 of Article 158 of the Limitation Act to mean only a notice in writing served in a formal manner. When the legislature used the word notice it must be presumed to include both formal and informal intimation. To construe it as meaning only a written notice served formally would allow a party, even with full knowledge of the filing of the award and participation in subsequent proceedings, to challenge the decree on the ground of lack of proper notice, which would defeat the purpose of speedy arbitration., In the case of T.P. Daver (supra), a three‑Judge Bench of the Supreme Court of India held that in matters relating to internal management of an association, the courts generally do not interfere. The following principles may be gathered: (1) A member of a Masonic lodge is bound to abide by the rules of the lodge; if the rules provide for expulsion, he shall be expelled only in the manner provided by the rules. (2) The lodge is bound to act strictly according to the rules; whether a particular rule is mandatory or directory falls to be decided in each case, having regard to well‑settled rules of construction. (3) The jurisdiction of a civil court is limited; it cannot sit as a court of appeal from decisions of such a body; it can set aside the order of such a body only if the body acts without jurisdiction, does not act in good faith, or violates principles of natural justice., Apart from the above, we may note the principles relating to grant of interim relief, as stated and re‑emphasised by this Supreme Court of India in Union of India and Ors. v. M/s. Raj Grow Impex LLP and Ors. (2021 SCC OnLine SC 42). In addition to the general principles for exercise of discretion, a few features specific to interim relief need special mention. It is elementary that satisfaction of the court only about existence of a prima facie case in favour of the suitor is not enough. The other elements – balance of convenience and likelihood of irreparable injury – are not empty formalities and carry their own relevance; while exercising discretion in interim relief, the court must weigh the risk of injustice if the final decision runs counter to the course adopted at the time of granting or refusing the interim relief., The decision of the Chancery Division in Films Rover International Ltd. v. Cannon Film Sales Ltd. (1986) 3 All ER 772 states: The principal dilemma about the grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is a risk that the court may make the wrong decision – granting an injunction to a party who fails to establish his right at trial, or failing to grant an injunction to a party who would succeed at trial. A fundamental principle is that the court should take whichever course appears to carry the lower risk of injustice if it later turns out to have been wrong. The guidelines for the grant of both kinds of interlocutory injunctions are derived from this principle., In Dorab Cawasji Warden v. Coomi Sorab Warden (1990) 2 SCC 117, the Supreme Court of India observed that relief of interlocutory mandatory injunctions is generally granted to preserve or restore the status quo that existed before the pending controversy until the final hearing, or to compel the undoing of acts that have been illegally done or to restore that which was wrongfully taken. Because granting such an injunction to a party who would fail at trial may cause great injustice or irreparable harm to the other party, and conversely, not granting it to a party who would succeed may also cause great injustice, courts have evolved certain guidelines: (1) The plaintiff must have a strong case for trial, a higher standard than a prima facie case. (2) It is necessary to prevent irreparable or serious injury that cannot be compensated in money. (3) The balance of convenience must be in favour of the party seeking relief. Being essentially an equitable relief, the grant or refusal of an interlocutory mandatory injunction ultimately rests in the sound judicial discretion of the court, exercised in light of the facts and circumstances of each case., In the present cases, a simple question at the threshold stage was whether the importers (writ petitioners) were likely to suffer irreparable injury if interim relief was denied and they ultimately succeeded in the writ petitions. Their injury would be loss of profit, which can be measured in monetary terms and is not irreparable. Another question concerned the balance of convenience; the inconvenience to the importers because of the notifications was far lesser than the inconvenience to the appellants, whose national interest would be affected if the notifications were stayed and Indian markets were flooded with excessive quantities of imported peas/pulses., A few of the provisions in the by‑laws of the party, as existing before the meeting dated 11‑07‑2022 and before the amendment dated 01‑12‑2021, are extracted as follows: (i) Members shall have no right to resort to court proceedings regarding party matters; a member who does so shall cease to be a primary member. (ii) The General Council’s decision shall be final with regard to party matters and only those who abide by this condition are eligible for membership. (iii) Office‑bearers of party units shall preside over General Body and Executive Committee meetings; in their absence, a member shall preside. The Secretary shall administer and execute decisions of the Executive Committee and, in emergencies, obtain ratification within fifteen days. (iv) If office‑bearers are absent, a person elected by the Executive Committee members shall perform functions on an ad‑hoc basis until regular office‑bearers are elected within one month. (v) The General Council of the AIADMK shall consist of the Chairman, Co‑ordinator, Joint Co‑ordinator, Deputy Co‑ordinators, Treasurer, Headquarters Secretaries, members of the Central Executive Committee, members elected from districts and other states, members of the Audit Committee, Property Protection Committee, and the Parliamentary Board. It shall be the supreme body of the party with all powers of the Kazhagam. (vi) Various categories of secretaries at Union, Municipal, District and State levels shall be members of the General Council by virtue of their offices. (vii) General Council members shall be elected from each District Kazhagam in numbers equivalent to the total number of Assembly constituencies in the district; for other states, the number shall be determined by the Co‑ordinator and Joint Co‑ordinator. (viii) The Co‑ordinator and Joint Co‑ordinator may nominate up to one hundred members to the General Council of the Central Organisation. (ix) The General Council shall meet at least once a year or whenever deemed necessary, giving fifteen days’ notice; a special meeting may be convened on request of one‑fifth of members within thirty days. (x) The General Council is the supreme authority to frame policies and programmes of the party; its decisions are final and binding. (xi) The General Council’s tenure is five years, extended until the next meeting. The post of General Secretary is abolished; no person shall be elected, appointed or nominated to that post. (xii) The Co‑ordinator and Joint Co‑ordinator shall be primary members for a continuous period of five years, elected by the General Council, and shall hold office for five years. They shall discharge duties jointly, be responsible for the entire administration of the party, constitute the Executive Committee of the Central Organisation, and may exercise powers to convene meetings, implement policies, conduct elections, examine accounts, manage party property, represent the party in legal proceedings, and take disciplinary actions. They may also take urgent decisions on political matters, which must be ratified by the General Council at its next meeting. (xiii) The Co‑ordinator and Joint Co‑ordinator are authorized to deposit party funds in legally constituted banks, withdraw such funds, operate accounts, obtain loans on party assets, and authorize the Treasurer to operate bank accounts on their behalf. (xiv) Authorisation forms for allotment of the Two Leaves Symbol to candidates shall be signed only by the Co‑ordinator and Joint Co‑ordinator. (xv) They may nominate Joint Secretaries or Deputy Secretaries for various units and may nominate women to ensure at least one‑third representation where lacking., The members of the General Council will elect the Chairman of the Central Organisation of the party. The Chairman will preside over and conduct the proceedings of the Central Executive Committee and the General Council meetings; in his absence, a member present will temporarily preside. Unless it cannot be convened for valid reasons, the Central Executive Committee shall meet once in six months; the Co‑ordinator and Joint Co‑ordinator may convene it at any time. Fourteen days’ notice is required for ordinary meetings and seven days for urgent meetings; the Co‑ordinator and Joint Co‑ordinator may exempt from these rules in genuine circumstances. The General Council has the power to frame, amend or delete any rules of the party constitution., Rule 45 authorises the Co‑ordinator and Joint Co‑ordinator to relax or make alterations to any of the aforesaid rules and regulations of the party. Some provisions were amended by the Executive Committee on 01‑12‑2021. The by‑laws before and after that amendment are compared as follows: Rule 20(A) – Co‑ordinator and Joint Co‑ordinator election: before amendment, the Co‑ordinator and Joint Co‑ordinator were elected by the members of the General Council; after amendment, they are elected by the primary members of the party, jointly by a single vote. Rule 43 – Amendments: the General Council retains power to frame, amend or delete any rules of the party constitution; however, the rule that the Co‑ordinator and Joint Co‑ordinator must be elected only by all primary members cannot be changed as it forms the basic structure of the party. Rule 45 – Authorisation: the Co‑ordinator and Joint Co‑ordinator are fully authorised to relax or alter any of the rules, but the election‑by‑primary‑members rule cannot be relaxed or altered., A quick recapitulation of past events is apposite. Although the by‑laws originally assigned the topmost position to the General Secretary, after the demise of the then General Secretary on 05‑12‑2016, the party organisation underwent changes and a system of joint leadership by Co‑ordinator and Joint Co‑ordinator was established by amendment of the by‑laws on 12‑09‑2017. The principal contesting parties – OPS and EPS – were jointly and unanimously elected to those positions and acted jointly for a long time, until before the meeting dated 23‑06‑2022. When the proposition to amend the by‑laws to revert to a single leadership at the apex level was likely to arise in the General Council meeting of 23‑06‑2022, litigation ensued. Initially, in the first three civil suits (CS Nos. 102 of 2022, 106 of 2022 and 111 of 2022), prayers for interim injunction against holding the meeting of 23‑06‑2022 were declined by a learned Single Judge of the High Court on 22‑06‑2022, with reference to settled principles that courts normally do not interfere in internal issues of an association or party, leaving it to the members to pass resolutions and frame by‑laws. This order was challenged in intra‑court appeal OSA No. 160 of 2022, wherein, by order dated 23‑06‑2022, the Division Bench of the High Court allowed the scheduled meeting to proceed but placed fetters by providing that no decision shall be taken on any matter except the 23 items of draft resolution.
id_1820	5	It is the case of the respondents that in the said meeting the proposed agenda items could not be taken up and hence the proposal for continuance of Coordinator and Joint Coordinator lapsed. The appellant would submit various reasons for which the said meeting dated 23.06.2022 was nothing but a faux pas and, in any case, the Presidium Chairman of that meeting had no authority to convene another meeting of the General Council. On 06.07.2022, while examining the challenge to the order dated 23.06.2022 as passed by the Division Bench of the High Court, the Supreme Court of India took note of the events that had taken place as also the fact that the next meeting of the General Council was scheduled to be held on 11.07.2022 and, while issuing notice, stayed the operation and effect of the impugned order dated 23.06.2022 and made it clear that the meeting slated for 11.07.2022 could proceed in accordance with law while also leaving it open for the learned Single Judge dealing with the civil suits to examine the prayer for any other interim relief and/or to pass any other order as may be required on the facts and in the circumstances of the case., The prayers made in the freshly instituted civil suits, being CS Nos. 118 of 2022 and 119 of 2022, for preventing the meeting dated 11.07.2022 were declined by a learned Single Judge of the High Court on 11.07.2022 in the order passed just before the scheduled time of the meeting. The meeting dated 11.07.2022 was, accordingly, held at the scheduled time and various resolutions were adopted therein but the said order dated 11.07.2022 as passed by the learned Single Judge was found to have been passed on a wrong notion about the purport of the order of the Supreme Court of India dated 06.07.2022 and, by an order dated 27.09.2022, the Supreme Court of India remanded the matter for reconsideration. Thereafter, the interim relief applications in the newly filed civil suits were decided by a learned Single Judge of the High Court on 17.08.2022 granting certain interim reliefs and providing, inter alia, that status quo ante as existing on 23.06.2022 shall be maintained and there would be no Executive Council or General Council meeting without joint consent of the Coordinator and Joint Coordinator. The order dated 17.08.2022 was, however, set aside by the Division Bench of the High Court by its impugned order dated 02.09.2022., The question is whether the order so passed by the Division Bench of the High Court calls for interference by the Supreme Court of India. It is apparent from a close look at the order dated 17.08.2022 that the grant of temporary injunction in these matters by the learned Single Judge was premised essentially on three factors: first, as per the by‑laws of the party, the General Council meeting could have been convened only by the Coordinator and Joint Coordinator and, having not done so, the meeting dated 11.07.2022 was wholly unauthorised; second, the meeting dated 11.07.2022 was not convened by providing fifteen days advance notice as required by Rule 19(vii) of the by‑laws; third, the learned Single Judge was of the view that by not granting injunction, EPS, who convened the General Council meeting contrary to the provisions of the by‑laws, would be in a more convenient position for having allegedly removed the plaintiff OPS and few others from the party membership and they could not have even participated in the proposed General Secretary elections., The ultimate injunction issued by the learned Single Judge was that of restoring status quo ante as on 23.06.2022 and further ordained that the Coordinator and Joint Coordinator have to function jointly, meetings have to be called with their joint consent and, on being properly requisitioned, they would not refuse to convene the General Council meeting, and that they could approach the Court for necessary directions for conducting the General Council meeting., While dealing with the intra‑court appeals against the order of the learned Single Judge, the Division Bench of the High Court took note of the events that transpired on 23.06.2022 in the General Council meeting and noted that the requisition was given by 2190 members and that the plaintiff OPS was present in that meeting wherein it was announced that the next meeting would be conducted on 11.07.2022. After examining the record and particularly Rule 19(vii) in its Tamil and English versions, the Division Bench observed that the requirement of fifteen days notice appears to be referable to the regular meeting of the General Council to be convened once a year or whenever considered necessary but not to a meeting requisitioned by one‑fifth members of the General Council where the only requirement is for the Coordinator and Joint Coordinator to convene the meeting within thirty days of receipt of the requisition., The High Court observed that it was not the case of the plaintiff OPS that they were unaware of the announcement made on the floor of the General Council meeting on 23.06.2022. The Division Bench also referred to an undeniable fact that the Coordinator and Joint Coordinator were at loggerheads and any strict application of Rule 19(vii) was likely to result in a deadlock. It further referred to the past event when the interim General Secretary could not perform the functions because of her incarceration in a criminal case and, therefore, the office bearers convened the meeting on 12.09.2017 based on the requisition made by the members. The Division Bench also took note of the apex position assigned to the General Council in the by‑laws to take all decisions. Moreover, the Division Bench noted that the Joint Coordinator EPS had sent a communication to the Election Commission of India stating that the post of Coordinator and Joint Coordinator had lapsed because the election in the Executive Committee meeting dated 01.12.2021 was not ratified in the General Council meeting held on 23.06.2022, and that when the Joint Coordinator gave up his position there was no Joint Coordinator in the party., Regarding the views of the learned Single Judge doubting the requisition as a manufactured document, the Division Bench pointed out that none of the members who signed the requisition or attended the meeting came forward with any such claim. The plaintiffs did not make any assertion in the plaint that there was no requisition placed in the meeting nor that the requisition letter was fabricated. The Division Bench observed that even if the resolutions passed on 23.06.2022 and on 11.07.2022 were found to be illegal or against the by‑laws, it was always open to one‑fifth members of the General Council to convene a special meeting and reverse the resolutions, but no such requisition was given, and this factor operated against the claim of irreparable injury., The Division Bench also referred to the principles governing the grant or refusal of temporary injunction and pointed out that the directions given by the learned Single Judge for convening the meeting only with the joint consent of the Coordinator and Joint Coordinator were leading to a situation where the party as a whole would undergo irreparable hardship because there was no possibility of the appellant and the respondent No. 1 OPS and EPS acting jointly to convene the meeting. The Division Bench noted that the directions of the learned Single Judge would only further the functional deadlock already existing in the party., The Division Bench, while passing the order dated 02.09.2022, has amply and clearly pointed out that the order of temporary injunction as passed by the learned Single Judge was against sound judicial principles and that the discretion exercised by the learned Single Judge suffered from arbitrariness as well as perversity., In our view, the logic and reasoning of the Division Bench of the High Court stand in accord with law as also the facts of the present case. The main plank of submissions on the part of the appellants in challenge to the order dated 02.09.2022 has been that convening of the meeting dated 11.07.2022 suffered from illegalities inasmuch as the meeting was not convened by an authorised person and that fifteen days notice was not given. The same reasoning was adopted by the learned Single Judge while finding a prima facie case in favour of the plaintiffs. That reasoning and similar arguments remain fallacious and cannot be accepted., The facts make it abundantly clear that, as far as convening of the meeting dated 23.06.2022 is concerned, there was never any doubt or dispute. The meeting was indeed convened by the Coordinator and Joint Coordinator jointly. They had been working in tandem until that stage but seem to have fallen apart immediately thereafter, particularly when a proposition for amendment of the by‑laws and reverting to the system of single leadership was in the offing. In any case, the meeting dated 23.06.2022 was duly convened and the efforts to prevent it did not meet with success in the Court. The plaintiff OPS and the persons standing with him were also very much present in that meeting. The General Council consists of 2665 members; if 2190 members gave a requisition on 23.06.2022 for convening the General Council meeting and the Presidium Chairman announced the date of this requisitioned meeting as 11.07.2022, such announcement, at least at the present stage, cannot be dubbed as wholly redundant. When the Coordinator and Joint Coordinator were shown not to be functioning jointly, a functional deadlock came into existence for the party and a workable solution was required. In the given scenario, the actions and steps taken by the requisitioning members as well as by the Presidium Chairman cannot be declared as unwarranted or illegal at this stage. Consequently, convening of the meeting dated 11.07.2022 could not have been taken as an act unauthorised., The learned Single Judge, while passing the order dated 17.08.2022, appears to have fallen in serious error and that order was clearly suffering from perversity when convening of the meeting dated 11.07.2022 was taken as an act unauthorised. The Division Bench, in our view, has rightly looked at the substance of the matter and the realities of the situation. The other alleged infirmity about the want of clear fifteen days notice has also been rightly dealt with by the Division Bench in the impugned order dated 02.09.2022. In such an internal matter of the party, the approach of the Court while considering the prayer for interim relief cannot be limited to finding technical faults detached from the substance of the matter. Even as regards technicalities, the Division Bench has rightly analysed the frame of Rule 19(vii), where the requirement of fifteen days notice is referable to the regular meeting and not to a requisitioned or special meeting., The considerations of the learned Single Judge as regards the question of prima facie case suffered from basic flaws, and interference by the Division Bench was warranted looking to the subject‑matter of the litigation and its implications. Even if it is assumed that the plaintiffs were able to project some arguable case before the Court, the approach of the learned Single Judge while examining the questions of balance of convenience and irreparable injury was from an altogether wrong angle. The learned Single Judge took the view that by not granting injunction, EPS would be in a more convenient position for having allegedly removed the plaintiff OPS and few others from the party membership and that they could not have even participated in the proposed General Secretary elections. Such observations do not stand in conformity with sound judicial principles. The balance of convenience and irreparable injury could not have been examined with reference to the consequences of the meeting dated 11.07.2022 or the strength of the primary membership of the party., Having examined the matter in its totality, we are constrained to observe that the learned Single Judge did not examine the questions relating to balance of convenience and irreparable injury in the correct perspective and failed to weigh the competing possibilities and risk of injustice. If the order of the learned Single Judge were to remain in force until the decision of the suits, it would have been drastically detrimental to the interest of the political party, which is a recognised political party with the Election Commission of India. The simple and precise view, as stated by the learned Single Judge at the initial stage on 22.06.2022 while declining the prayer for interim relief, was that ordinarily the Court would not interfere in the internal issues of an association or party and would leave it open to the association or party and its members to take a particular decision for better administration; that was the correct approach towards the facts of the case., The submission on behalf of the appellants based on the decision in S. Thirunavukkarasu that the scheme of by‑laws does not envisage the requisitionists to convene the General Council meeting, and that if the Coordinator and the Joint Coordinator jointly fail to convene the meeting the only option is to seek intervention of the Court, has its own shortcomings. As rightly noticed by the Division Bench, in the cited case an expelled member of the party called for a General Council meeting parallel to the meeting called by the then General Secretary, and the Court granted interim injunction in favour of the General Secretary against convening the parallel meeting. In the present matter, no parallel meeting of the General Council has been called for or requisitioned by any of the members. It cannot be laid down as a general rule that the requisitionists have no option but to go to the Court if the meeting is not convened. When the interim General Secretary could not act in 2017, the office bearers stepped in and convened the meeting based on a requisition received. The present situation, where the position earlier occupied by the General Secretary was assigned to the Coordinator and the Joint Coordinator in their jointness, and where they do not stand in jointness, is akin to the situation when the apex position holder was not in a position to act. A workable solution was to be found and, when the solution applied, it does not offend the spirit of the by‑laws or the norms of functioning of an association or a party., It is also noteworthy that the ultimate injunction issued by the learned Single Judge was that of restoring status quo ante as on 23.06.2022 and directing that the Coordinator and Joint Coordinator would have to function jointly, meetings have to be called with their joint consent, and, on being properly requisitioned, they would not refuse to convene the General Council meeting and could approach the Court for necessary directions. Apart from the fact that the injunction was far beyond the scope of the applications before him, it could have only perpetuated the functional deadlock in the party. The order passed by the learned Single Judge could not have been countenanced from any angle and thus the Division Bench has rightly interfered with the same., While filing the suit and seeking interim relief, the plaintiff OPS and the other plaintiff have represented the political party AIADMK, its General Council and its Central Executive Committee as being represented by the Coordinator and Joint Coordinator jointly. This effort carries its own shortcomings when it remains undeniable that OPS and EPS, the Coordinator and the Joint Coordinator respectively, do not stand in jointness or togetherness to work cohesively as a unit. The effort does not stand in conformity with the existing realities., Before closing on these matters, we make it clear that although several submissions have been made on behalf of the appellants assailing the validity and correctness of the resolutions adopted in the meeting dated 11.07.2022, we have chosen not to deal with any of those contentions. The decisions taken in that meeting do not form the subject‑matter of the applications for temporary injunction, which were restored for reconsideration by the Supreme Court of India and ultimately decided by the learned Single Judge by the order dated 17.08.2022, with the intra‑court appeals against that order allowed by the Division Bench on 02.09.2022. In the interest of justice, we leave all the related aspects concerning those resolutions open to be agitated strictly in accordance with law, and the objections and rebuttals of the contesting parties are also kept open., Having regard to the circumstances of the case and the scope of these appeals, we have not found it necessary to deal with any of the impleadment applications moved in these matters and we would leave it open for all such applicants to take recourse to appropriate remedy in accordance with law in case of any legal grievance., For the reasons discussed above, the appeals arising out of Special Leave Petition (Civil) Nos. 15753 of 2022 and 15705‑15706 of 2022 are dismissed while affirming the impugned order dated 02.09.2022. The appeals arising out of Special Leave Petition (Civil) Nos. 11237 of 2022, 11579 of 2022 and 11578 of 2022 are disposed of while making the interim order dated 06.07.2022 absolute. The parties are left to bear their own costs of these appeals. All the pending applications also stand disposed of.
id_1821	0	Criminal Writ Jurisdiction Case No. 880 of 2023 arising out of Police Station Case No. 7 Year 2022, Thana Salimpur, District Patna. The petitioner is a 23‑year‑old male, son of late Ram Pravesh Ram, resident of Village Rupas Mahaji, Police Station Salimpur, District Patna., Petitioner(s) versus: 1. The State of Bihar through its Additional Chief Secretary, Home Department, Government of Bihar, Patna. 2. The Director General of Police, Bihar, Patna. 3. The Inspector General of Police, Patna. 4. The Senior Superintendent of Police, Patna. 5. The District Magistrate, Patna. 6. The Deputy Superintendent of Police, Patna. 7. The Station House Officer, Police Station Salimpur, District Patna. 8. The Director‑In‑Charge, State Girls Care Home, Gaighat, Patna. 9. The Child Welfare Committee through its Director/Chairman, District Patna, Bihar., Appearance: For the petitioner – Mr Lakshmindra Kumar Yadav, Advocate. For the respondents – Mr P K Shahi, Advocate General; Mr Prabhu Narayan Sharma, Additional Counsel to Advocate General. Date: 16‑01‑2024. Heard learned counsel for the Patna High Court., The present criminal writ application is a habeas corpus filed on behalf of the petitioner seeking the release of respondent No. 11 from the State Girls Care Home, Gaighat, Patna. The petitioner alleges that respondent No. 11 was examined by a doctor who assessed her age to be under 18 years, and her statement under Section 164 of the Criminal Procedure Code records that she moved of her own will to the petitioner, subsequently gave birth to a child, and now claims to be a major and that the marriage was without her consent. A criminal case (Salimpur Police Station Case No. 07 of 2022) filed by the father of respondent No. 11 against the petitioner has resulted in the petitioner being granted bail., Learned counsel for the petitioner submitted that the case involves a love marriage between Nitish Kumar and the girl, who married voluntarily without any force or coercion. Although the girl was a minor, counsel argued that she has a legal right to live with her husband and cannot be compelled to remain in the State Girls Care Home. The petition is filed by Nitish Kumar and seeks a writ of habeas corpus, which is maintainable. Since the girl has voluntarily married Nitish Kumar and wishes to stay with him rather than with her parents, there is no useful purpose in keeping her in the care home until she attains majority., Counsel for respondents No. 5 and No. 9, relying on the affidavit of the District Magistrate, submitted that the father’s application states the girl’s age as 14 years. Letter No. 412 dated 26‑07‑2023 issued by the Chairman of the Child Welfare Committee, Patna, also declares her a minor. State counsel further submitted that because the girl is less than 17 years of age, the marriage is a child marriage prohibited under law; even if she consented, the marriage has no legal significance and the girl should remain in the State Girls Care Home until she reaches the age of majority., On 12‑12‑2023, the girl (respondent No. 11) residing at Gaighat, Patna, was produced before the Patna High Court. She informed the Court that she is duly married to Nitish Kumar, that her age is about 18‑19 years and that she is a major. When asked where she wishes to reside, she stated that she wants to go with her husband and categorically refused to go with her father., The Court directed the Registry to issue notice to the In‑Charge Principal of the Primary School, Patna, to furnish the admission register. The register records her date of birth as 17‑03‑2008, which matches the birth certificate produced by the father, also dated 17‑03‑2008., The question before the Patna High Court is whether a girl who is less than 18 years of age and who has married a boy with her consent can be compelled to remain in the State Girls Care Home, Gaighat, Patna, when she refuses to accompany her parents., In a full‑bench judgment of the Delhi High Court in Lajja Devi v. State (2012 SCC OnLine Del 3937), two issues were considered: (i) the status of a marriage under the Hindu Marriage Act when one party is below the age of 18 years, contravening Section 5(iii) of the Hindu Marriage Act 1955 and Section 2(a) of the Prohibition of Child Marriage Act, 2006; and (ii) whether a husband who has attained the prescribed age of marriage can be regarded as the lawful guardian of a minor wife and claim custody despite objections by the girl’s parents. The Court held that a marriage contracted with a female under 18 years or a male under 21 years is not void but voidable; it may become valid if no action is taken under Section 2(a) of the Prohibition of Child Marriage Act. The girl child retains the right to approach the Court to have the marriage declared void until she attains the age of 20 years. The Court further observed that allowing the husband to consummate the marriage may not be appropriate, given the purpose of the Prohibition of Child Marriage Act to prevent child marriages., The judgment reiterated that such a marriage is voidable, the girl child can seek declaration of voidness under Section 3 of the Prohibition of Child Marriage Act, and that allowing consummation may be inappropriate. The Court emphasized that the age of consent for sexual intercourse is definitively 18 years, and a child below that age cannot give consent, express or implied, for sexual intercourse., Exception 2 to Section 375 of the Indian Penal Code provides that sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape., The Supreme Court, in Independent Thought v. Union of India (2017) 10 SCC 800, observed that a girl child below 18 years who is sought to be married is a child in need of care and protection and must be produced before the Child Welfare Committee under Section 27 of the Juvenile Justice (Care and Protection of Children) Act, 2015. The Court held that the age of consent for sexual intercourse is 18 years and has not been reduced by any statute; consequently, a child below 18 cannot give consent to sexual intercourse. Child marriage is not in the best interest of the girl and violates the Prohibition of Child Marriage Act, 2006., The Juvenile Justice (Care and Protection of Children) Act, 2015 defines a child as a person who has not completed 18 years of age (Section 2(12)) and defines a child in need of care and protection as a child who is at imminent risk of marriage before attaining the age of marriage, and whose parents, family members, guardian or any other persons are likely to be responsible for solemnising such marriage., Pro‑child statutes are intended to consider the best interest of the child. A child remains a child regardless of description—street child, surrendered child, married child, etc. The age of consent for sexual intercourse is definitively 18 years, and no statute has reduced it. Exception 2 to Section 375 of the Indian Penal Code creates an artificial distinction between a married girl child and an unmarried girl child, allowing a husband to have sexual intercourse with his wife who is between 15 and 18 years of age, which is inconsistent with the purpose of the Prohibition of Child Marriage Act and other child protection laws., The artificial distinction encourages violation of the Prohibition of Child Marriage Act. The Union of India has overlooked the provisions of the Prohibition of Child Marriage Act, the Juvenile Justice Act and the Protection of Children from Sexual Offences Act. This oversight makes Exception 2 to Section 375 of the Indian Penal Code arbitrary and discriminatory., Early marriage and sexual intercourse at a young age have detrimental effects on the physical, mental and psychological health of the girl child, as well as on her nutrition, education, employability and overall well‑being. The adverse impact can extend to the children of the girl, leading to inter‑generational disadvantages. Such practices, even if sanctioned by tradition, are undesirable in view of contemporary awareness of their harmful effects., Article 21 of the Constitution guarantees a fundamental right to a life of dignity. Early marriage deprives a girl child of self‑esteem and subjects her to sexual abuse. Under Section 375 of the Indian Penal Code, a husband effectively has control over his wife's body, and the exception allowing sexual intercourse with a wife under 18 creates a situation where the husband can commit rape without it being punishable as rape, though he could be punished for molestation. This inconsistency calls for harmonisation of statutes., The Juvenile Justice Act indicates that a girl child who is at imminent risk of marriage before attaining 18 years is a child in need of care and protection (Section 2(14)(xii)). The Act mandates efforts to ensure care, protection, appropriate rehabilitation or restoration of such a child. Ignoring this provision would expose the girl to aggravated sexual assault for which she may not be physically, mentally or psychologically prepared., The Court considered several options: (i) maintain the status quo; (ii) reduce the age of consent from 18 to 15 years (a legislative matter); (iii) bring the Protection of Children from Sexual Offences Act in consonance with Exception 2 to Section 375 of the Indian Penal Code (requiring retrograde amendment); (iv) read Exception 2 to Section 375 of the Indian Penal Code purposively to align with the Protection of Children from Sexual Offences Act, the spirit of other pro‑child legislations and the human rights of a married girl child. The Court opines that the only pragmatic option is to read Exception 2 purposively so that it reads: ‘Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.’, The doctrine of parens patriae, originating in the 13th century, holds that the State is the guardian of those unable to care for themselves. The Supreme Court, in Charan Lal Sahu v. Union of India (1990) 1 SCC 613, and later in Shaon Jahan v. Asokan K M and others, 2018 AIR (SC) 1933, observed that constitutional courts exercise parens patriae jurisdiction in child‑custody matters, treating the welfare of the child as paramount. This doctrine may be invoked when a minor girl who has eloped expresses fear of life if returned to her parents; the Court should place her in an appropriate shelter home until she becomes a major., Considering statutory provisions and judgments of the Supreme Court and various High Courts, respondent No. 11 was directed by the Child Welfare Committee, exercising powers under the Juvenile Justice (Care and Protection of Children) Act, 2015, to be sent to the State Girls Care Home. Being a minor below 18 years, she has refused to go with her father and insists on staying with her husband. The Hindu Marriage Act and the Prohibition of Child Marriage Act provide penal provisions for child marriage, which is an offence. The petitioner's claim that the marriage was performed with the consent of a minor girl is outweighed by the fact that child marriage itself is an offence, making the marriage voidable under the Prohibition of Child Marriage Act, 2006., The welfare of the girl is always of paramount consideration. Several decisions of the Patna High Court have affirmed this principle.
id_1821	1	WJC No.880 of 2023 dated 16-01-2024 cases where the girl does not marry with her choice then there is an apprehension that she may be forced to get married to any other person by her parents, steps which are required to be taken in that eventuality is to protect the girl by keeping her in a safe custody rather than permitting her to marry before she attains the age of majority. The consequences of girl child marriage are much more devastating. It exposes girls to increased health problems and violence, denies them access to social networks and support systems and perpetuates a cycle of poverty and gender inequality. The element of consent is always subservient to overall welfare of a child. Furthermore, the medical hazards in case of a child marriage cannot be overlooked. Fixing the age of marriage for females as 18 years by the Legislature is not without any reason as it is also based upon the evil effects of a child marriage in terms of medical, social, psychological, economic and other like factors., Considering the observations made by the Honourable Supreme Court of India in Independent Thought Patna High Court, WJC No.880 of 2023 dated 16-01-2024 (supra) that a girl child below the age of 18 years who is sought to be married is a child in need of care and protection and is required to be produced before the Child Welfare Committee under Section 27 of the Juvenile Justice (Care and Protection of Children) Act, 2015 so that she can be cared for, protected and rehabilitated in a society and that under no circumstances can a child below 18 years of age give consent, express or implied, for sexual intercourse., When a girl is not a major and expresses fear of life in the custody of her parents, the Court may exercise jurisdiction to send her to an appropriate home meant to give shelter to women till she becomes a major. This Court is of considered view that there is no inherent right vested in the husband to claim custody of a minor girl by a writ of habeas corpus on illegal detention; this observation was made by the Honourable Supreme Court of India in Shahn Jahan (supra)., In the present case, respondent No. 11 has specifically refused to go along with her father; therefore, her stay at State Girls Care Home cannot be said to be detrimental to her well-being and her child. She cannot be directed to be released till she attains the age of majority by giving her custody to her husband (petitioner). It is hereby directed that the Child Welfare Committee constituted under the Juvenile Justice (Care and Protection of Children) Act, 2015 shall monitor the well-being by making periodical inspections of State Girls Care Home and shall comply with all statutory obligations cast upon the Child Welfare Committee under the same Act. It has been unarguably admitted that respondent No. 11 gave birth to a child out of the relationship with the petitioner. The petitioner is hereby directed to open a bank account in the name of the newborn child and regularly deposit a considerable amount of money for the newborn child's welfare., It is made clear that if at any time respondent No. 11, even before attaining the age of 18 years, expresses her desire to go to her father or parents, then the Child Welfare Committee shall permit her to do so in the presence of her father or parents and by passing an appropriate order in this regard. In view of the above, the present petition is hereby disposed of. Brajesh Kumar/-( Ramesh Chand Malviya, Judge).
id_1822	0	The instant writ petition under Article 226 of the Constitution of India has been filed on behalf of the petitioner for issuance of a writ in the nature of mandamus or any other writ, order or direction directing the respondents to adhere to the Standard Operating Procedure dated 23.11.2016 issued by the Ministry of Women and Child Development and to locate the whereabouts of the missing minor daughter of the petitioner., Facts of the present case are that the petitioner is the father of minor X, who is about 16 years of age and went missing on 10.07.2023. She left her house at about 9:30 AM to visit her aunt who resides near their home. When she did not return, the petitioner went to inquire and was informed that minor X had never reached her aunt’s house. Attempts to find her in the neighbourhood were unsuccessful. On 11.07.2023, the petitioner lodged a complaint at Police Station Kalindi Kunj and First Information Report No. 336/2023 was registered under Section 363 of the Indian Penal Code., The petitioner states that despite several visits to the police station between 12.07.2023 and 16.07.2023 he could find no information about his daughter. He then made representations to the Deputy Commissioner of Police, South‑East District, and to the Station House Officer, Police Station Kalindi Kunj on 16.07.2023. The petitioner’s grievance is that the police did not take steps in accordance with the Standard Operating Procedure for cases of missing children issued on 23.11.2016 by the Ministry of Women and Child Development. The present writ petition was therefore filed to point out the lapses in the procedure adopted by the police officials in finding the missing child., When the matter was taken up for hearing on 28.07.2023, the State and the Investigating Officer produced the missing daughter of the petitioner before the Delhi High Court. Her statement was recorded under Section 164 of the Criminal Procedure Code, wherein she made no allegations against any person and stated that she had left her home of her own free will due to a misunderstanding with her parents., The Delhi High Court interacted with the minor victim, who expressed apprehension about accompanying her father. She stated that she wants to continue her studies and attend school regularly and feared that her parents might discontinue her studies or treat her badly if she left home. The father and the minor were counselled; the father undertook to ensure that the minor daughter attends school regularly, and the minor expressed willingness to accompany her father., In such circumstances, considering that the minor child X wants to continue her studies, is about 16 years of age and is presently studying in the 10th standard, her studies will not be discontinued. The principal of the school concerned will accept the leave application to be moved by the father and will accept as leave the period when she had not attended school, without asking any uncomfortable questions to the child or the father. The father will ensure that the child continues to attend the government school in which she is studying. The Station House Officer, Police Station Kalindi Kunj is directed to send a female Sub‑Inspector in plain clothes to the petitioner’s house for the next six months to verify that the child is attending school comfortably and that her studies have not been discontinued., Learned counsel for the petitioner pointed out that the entire guidelines of the Standard Operating Procedure were not followed in the case and stated that the Delhi High Court may pass appropriate directions for the police to follow in all cases of missing children. Shri Sanjeev Bhandari, learned Additional Solicitor General for the State, who is present in the Delhi High Court, along with learned counsel, stated that they will assist the Court in doing so., The matter was listed on 01.08.2023 for consideration. Though the minor in this case had been found by the police and produced before the Delhi High Court, the petitioner sought indulgence on the ground that the minor could be found only after about 17 days due to lapses and negligent conduct of the police officials in relation to the petitioner’s complaint. The petitioner insisted that, although his daughter has been recovered, his prayer for the issuance of a writ of mandamus or any order directing the respondent to adhere to the Standard Operating Procedure for Cases of Missing Children dated 23.11.2016 issued by the Ministry of Women and Child Development be heard and that necessary directions be passed., It is stated that the petitioner has suffered hardships as a helpless father who was totally relying upon the State machinery to protect his minor daughter. The attention of the Delhi High Court is drawn to the fact that many helpless parents like him have been victims of a lackadaisical approach, lapses and delay in taking steps, lapses which are not merely procedural but grave, and the same should be addressed by this Court., The petitioner has raised several concerns before the Delhi High Court regarding missing children, which he faced as a father belonging to a poor strata of society, and requests necessary directions. The issues flagged are: the State has miserably failed to adhere to the procedure and guidelines prescribed by the Standard Operating Procedure for Cases of Missing Children dated 23.11.2016 issued by the Ministry of Women and Child Development; the State has failed to inform the Child Welfare Police Officer and forward a copy of the FIR to the Special Juvenile Police Unit for immediate action in tracing the child; the State has further failed to collect a recent photograph of the missing child and upload the data and submit Form‑M prescribed under the SOP on the official web portal; the State has failed to send the Missing Persons Information Form to the Missing Persons Squad, District Missing Persons Unit, National Crime Records Bureau, State Crime Records Bureau, Central Bureau of Investigation, Police Control Rooms, Railway Police and other related institutions; the State has further failed to share copies of the FIR with the Legal Services Authority along with details of the parents of the missing child; the State has not issued hue‑and‑cry notices containing the photograph and description of the missing child, nor have such notices been published in any newspapers, television/electronic media, or given wide publicity at all outlets of the State; and the State has further failed to search areas or spots of interest and scan CCTV footage of the vicinity from where the child was reported missing., The arguments addressed by Shri Soayib Qureshi, learned counsel for the petitioner, and Shri Sanjeev Bhandari, learned Additional Solicitor General for the State, were heard at length. The documents filed on record by both parties have also been perused by the Delhi High Court., In the case at hand, the petitioner insisted that the Delhi High Court must issue directions since the respondent police had failed to adopt proper investigative procedure and had failed to take into account the plight of the petitioner when his daughter went missing and her life was at stake., It is noted that, regarding the concerns expressed before the Delhi High Court, detailed directions and a Standard Operating Procedure to be adopted in cases of missing children have already been dealt with in several judgments, which can be referred to by the investigating agencies and other stakeholders for guidance., Reference can be made to the directions issued by the Supreme Court of India in Bachpan Bachao Andolan v. Union of India (2016) 13 SCC 698(2). The Secretary, Ministry of Women and Child Development, Government of India, will be the nodal officer to coordinate efforts for preventing children going missing, tracing missing children, and for the resettlement and rehabilitation of children in child‑care institutions. The Secretary will coordinate with counterparts in all States and Union Territories in respect of directions issued by the Delhi High Court and obtain necessary information from them as required by the Delhi High Court from time to time, instead of having separate affidavits filed by the States and Union Territories in the Delhi High Court, thereby burdening the record of the Delhi High Court. The website mentioned in the directions has been in operation since 2012; the Director, Faculty of Management Studies, University of Delhi, is requested to appoint competent members of the faculty and, if necessary, to take outside assistance to study the website and suggest improvements at the earliest. Many States have prepared their own Standard Operating Procedures to trace missing children; some are in line with the SOP framed by NALSA. The Secretary will compile all these SOPs and hand them over within a week to the Director, Tata Institute of Social Sciences, Mumbai, which will set up a group to study all these SOPs and produce a model SOP for implementation in all States and Union Territories. The Secretary will inform the Delhi High Court on the next date of hearing whether the Advisory Committee mandated under the Juvenile Justice (Care and Protection of Children) Act, 2000, has been set up in all States and Union Territories and, if so, will provide details of meetings held. The Secretary will also take urgent steps to fill all vacancies in the National Commission for Protection of Child Rights, including the Chairperson and members. The Secretary will issue immediate directions to counterparts in all State Governments and Union Territories to vigorously renew efforts to trace missing children., Vide order dated 06.11.2015, the Supreme Court of India observed that the Ministry had worked out a Standard Operating Procedure with regard to tracing out missing children. The relevant portion of the order in Bachpan Bachao Andolan v. Union of India (2016) 13 SCC 706(2) reads: Two broad issues have been taken up for consideration in this writ petition. The first issue pertains to missing children. In this regard, the Ministry of Women and Child Development, along with the Ministry of Home Affairs, has launched the programmes called \Operation Smile\ and \Operation Muskaan\ for tracing out missing children and returning them to their parents. This is an ongoing process and is not likely to end at any time. The learned counsel for the petitioner pointed out serious discrepancies in the figures made available regarding missing children. The learned Additional Solicitor General said the figures available with the Ministry are based on information provided by the National Crime Records Bureau. The petitioner’s representative is willing to sit with a competent officer of the National Crime Records Bureau to reconcile the figures; the Additional Solicitor General will coordinate and arrange a meeting for reconciliation to the petitioner’s satisfaction. The Ministry has worked out a Standard Operating Procedure for tracing missing children, which is at the stage of finalisation. The Additional Solicitor General submitted that once finalised, the SOP will be given to the petitioner’s counsel for suggestions, after which the final SOP will be issued and published on the website of the Ministry of Women and Child Development. In view of the above, the Court does not propose to proceed further with regard to the issue of missing children raised in the writ petition, but liberty is given to the petitioner to revive the issue should the need arise., In compliance with the directions of the Supreme Court of India, the Ministry of Women and Child Development formulated the Standard Operating Procedure for Cases of Missing Children dated 23.11.2016, which guides all stakeholders. When a child goes missing, the police shall, as per the Supreme Court’s directions in Bachpan Bachao Andolan (WP (Civil) 75 of 2012) dated 10 May 2013, register an FIR forthwith as a case of trafficking or abduction. The Child Welfare Police Officer must be informed and the FIR forwarded to the Special Juvenile Police Unit for immediate action. The police shall also collect a recent photograph of the missing child and make copies for the District Missing Persons Unit, Missing Persons Squad, National Crime Records Bureau and media; fill Form M on the designated portal; fill the Missing Persons Information Form and immediately send it to the Missing Persons Squad, District Missing Persons Unit, National Crime Records Bureau, State Crime Records Bureau, Central Bureau of Investigation, Police Control Rooms, Railway Police and other related institutions; send a copy of the FIR by post/email to the nearest Legal Services Authority along with parents’ addresses and contact numbers after uploading the information onto the portal; prepare sufficient hue‑and‑cry notices containing the photograph and physical description of the missing child for publication; give wide publicity by publishing or telecasting the photographs and description in leading newspapers, television/electronic media, local cable networks and social media, and submit for ratification by the appropriate board or children’s court; give wide publicity in the surrounding area through loud‑speakers and distribution of hue‑and‑cry notices at prominent places, using social networking portals, SMS alerts and cinema‑hall slides; distribute hue‑and‑cry notices at all city or town outlets such as railway stations, bus stands, airports, regional passport offices and other prominent places; search areas and spots of interest such as movie theatres, shopping malls, parks and game parlours where missing or runaway children may be found; scan CCTV recordings installed in the vicinity of the area from where the child was reported missing and on all possible routes; inquire from under‑construction sites, unused buildings, hospitals, clinics, child‑line services, local outreach workers and railway police; send details of missing children to the District Crime Records Bureau of neighboring States and to the Station House Officers of bordering police stations, and conduct regular interaction to ensure follow‑up action; invoke the services of District Legal Services Authorities through empanelled lawyers and the paralegal volunteer appointed at the police station or district authority; upload information on the portal and, if already uploaded, match the complaint with case details on the portal; assess the level of threat or danger to the child or his/her family and take immediate steps to ensure protection; and also inform immigration authorities, Border Security Force, Railways, other transport authorities, provincial/territorial and municipal agencies, and any NGOs involved in spotting and rescuing missing children., The Division Bench of the Delhi High Court, in Sadhan Haldar v. State of NCT of Delhi (W.P. (CRL.) 1560/2017), issued directions to the State for strengthening the timelines in the Standing Order of the Delhi Police in relation to missing children. The Court observed that the timeline for the steps mentioned in different columns of the \Check list of steps to be taken for missing children/persons\ is fairly open‑ended and needs to be further tightened and streamlined. The aspect shall be examined by the Delhi Police and the Standing Order shall be suitably amended., In compliance with the aforesaid order, the Delhi Police issued Standing Order No. Crime/18/2022 titled \Procedure to be Followed on Receipt of Information About Missing Children Persons & Incentive to Police Personnel for Recovery of Missing Children\. A number of children are reported missing in Delhi from time to time. For the purpose of launching all possible efforts to trace a missing child, the following procedures are spelt out: a missing child may be one who is lost (separated from family), has left home on his/her own without notice, or has been abducted, kidnapped, trafficked or abandoned. Information received directly from the complainant at a police station or through CPCR No. 1090/112 must be acted upon as detailed in paragraph V of this Standing Order by the staff of the concerned police station. In addition to the eight‑digit helpline number (011 23241210), a four‑digit 24 × 7 helpline number 1094 is functional at MPS, Daryaganj, to report missing children/persons in the National Capital Territory of Delhi. All possible assistance is provided to the complainant/caller to record the missing report/FIR at the police station where the missing occurred. The helpline staff shall: obtain the full description of the missing child/person along with the complainant’s contact number and address; advise the caller to give full details of the missing child/person along with photographs to the police officer who will contact him; inform the CPR, District Missing Person Unit and the concerned police station through their District Control Room immediately; maintain a register of all calls received with details of the victim and the caller’s contact information; update the progress of the action taken by the police on the complaint, including feedback from the police station; and guide the complainant suitably when he/she calls subsequently about the progress of the case. Whenever any information regarding a missing person/child is received by the Station House Officer or any other staff deployed at a police station through fax, e‑mail, SMS, WhatsApp or any other social‑media platform, it shall be recorded immediately in the Daily Diary of the police station and the steps provided in paragraph V of this Standing Order shall be followed. When information regarding a missing child/person is forwarded to the Station House Officer or any other staff of the concerned police station by any police officer in the hierarchy who does not have jurisdiction over the police station, the Station House Officer or the Investigating Officer will immediately make efforts to contact the actual complainant and take further steps as provided in paragraph V of this Standing Order. An online reporting procedure is proposed: the complainant may submit details through a link on the Delhi Police website (https://delhipolice.nic.in) or via mobile phones. The \Report a Missing Person/Child\ form will seek personal details of the missing person/child, a photograph if available, place last seen, approximate date and time of missing, personal details of the complainant including address and police‑station area, and mobile number and email ID of the complainant. After submission, the computer application will generate a PDF report and forward it to the relevant stakeholders for police response., The Investigating Officer will maintain a complete record of all efforts made to trace the missing children/persons. The record should be monitored and reviewed by the Station House Officer on a weekly basis and by the Assistant Commissioner of Police on a fortnightly basis, who shall issue timely instructions and provide assistance to the concerned officers. As soon as information or a complaint about a missing child is received, necessary steps for the child’s recovery must be taken immediately. The first fifteen days, and especially the first forty‑eight hours from receipt of information or complaint, are crucial; diligent efforts must be made within this period and all steps taken should be closely monitored by supervisory formations at the police station/sub‑division level. The following steps must be taken at the police station and by Investigating Officers as per the stipulated time‑frame: a missing report should be lodged in the Daily Diary of the police station immediately, clearly mentioning the date and probable time when the child was noticed missing and all other details such as name, parentage, age, height, complexion, sex, clothes worn and any special marks of identification; the photograph and contact number of the complainant or relative should be obtained and placed on file; an experienced officer not below the rank of Assistant Sub‑Inspector should be deputed to contact the complainant and collect all details about the victim; registration of a case is mandatory for all missing children below eighteen years of age, and the Investigating Officer will ensure that a case under the appropriate sections of law is registered; an experienced officer should be entrusted with the investigation, and, if required, the assistance of a woman police officer should be enlisted; guidelines regarding the manner in which cases shall be dealt with by the District Anti‑Human‑Trafficking Unit and the Anti‑Human‑Trafficking Unit/Crime Branch have already been issued vide Circular No. 25/2012 and must be strictly complied with., Whenever any foul play is suspected in a case of a missing person above eighteen years of age or where suspects are specifically mentioned, a case shall be registered without delay under the relevant sections of law and investigation shall be undertaken. In cases of a missing person over eighteen years of age where no suspicion has been raised and the person remains untraced for a period of three months despite efforts, the Deputy Commissioner of Police shall order registration of a case under Section 365 of the Indian Penal Code and commence investigation accordingly. It must be ensured that no harassment is caused to adult couples who are legally married during investigation; adequate police protection should be provided so that they are not forced to live under trauma, and any coercive action should be initiated only after consulting the concerned Sub‑Divisional Police Officer and Deputy Commissioner of Police. Whenever the police encounter a child unable to provide information regarding his/her parentage and address, a kidnapping case shall be registered and the procedure outlined in the Standard Operating Procedure for a missing child shall be initiated immediately to ascertain the parentage and address of the child, the circumstances under which the child became separated from the family, and any involvement of organized criminal gangs. The Investigating Officer shall make all necessary efforts to reach the root of the matter; the child shall be treated as a juvenile in need of care and protection and will be produced before the Child Welfare Committee as per the instructions contained in SOP No. 68 and the Juvenile Justice Act. A copy of the FIR shall also be sent to the District Legal Services Authority to provide legal aid to the victim child. The Investigating Officer/Station House Officer will be held responsible if any complaint disclosing non‑registration of an FIR in connection with the missing child is received; any negligence will invite strict departmental action. As soon as a District/District entry/FIR about the missing child/person is recorded, the Police Control Room should be informed immediately. The information should also be transmitted to the State Crime Record Bureau, the National Crime Record Bureau and uploaded on the ZIPNET/\Track The Missing Child\ portal immediately but not later than twenty‑four hours. A wireless telegraphy message should be flashed within twelve hours on an all‑India level with the detailed description of the victim. Information should also be shared with the relevant section of the Central Bureau of Investigation within twenty‑four hours. The Missing Children Information Form should be filled up immediately and sent to the District Missing Persons Unit and the Police Station Kotwali within twenty‑four hours. Hue‑and‑cry notices should be prepared and circulated in prominent localities within forty‑eight hours. The Investigating Officer should immediately activate informers and take up enquiries from persons present at the scene.
id_1822	1	The missing child was last seen. The Investigating Officer must collect the details of suspects and question them without any loss of time. He must also interrogate the persons at the last workplace, school, tuition place, etc., within twelve hours. While questioning children less than eighteen years of age, the relevant provisions of the Juvenile Justice Act should be kept in mind., Cell phone details, if any, of the missing child, suspect or accused should be immediately obtained (requisitioned) within forty‑eight hours for further investigation of his or her whereabouts., Photographs of missing children should be given wide publicity at all prominent outlets of the city, town or village concerned – i.e., at railway stations, interstate bus stands, airport, regional passport office and through law enforcement personnel at border check posts. This should be done promptly and in any case not later than one week from the receipt of the complaint or information about the missing child. However, prior written permission of parents or guardian shall be taken, particularly in case the missing child is a girl, before the photograph is published or broadcast., Border check posts should be alerted immediately within four hours. In case of a missing minor, the check post staff should also be sensitised to question suspicious adults carrying children, especially where abnormal behaviour is noticed, during the checking of vehicles or public transport. The angle of child labour and trafficking should also be kept in mind while investigating cases concerning missing minors., Publicity should be given in the surrounding areas using loudhailers, if necessary., All necessary publicity should be given in newspapers and electronic media expeditiously, preferably within seven days. Publicity should also be given through local cable TV network within twenty‑four hours, wherever possible., It is very important to check the email account, Facebook and other social networking sites such as Instagram, WhatsApp, etc., of the missing child as well as suspect or alleged persons. The Investigating Officer will check all these accounts, if any, of the missing persons as well as suspect in coordination with the Cyber Cell of Delhi Police. The parents, family members, friends and relatives should be examined within the first forty‑eight hours to find out the probable cause of disappearance., The computer, diaries, etc., of the missing child, if any, as well as his or her personal belongings should be scrutinised for any clue within twenty‑four hours with the concurrence of family members and complainant., Face Recognition Application Software (FRS) is functional in the Crime Branch of Delhi Police, which is integrated with the online application ZIPNET (Zonal Integrated Police Network) Missing Children Module. As and when the photograph of a missing child is uploaded, it automatically searches the recovered or found children data, including the data of the Ministry of Women and Child Development being uploaded on an all‑India basis. The status of the missing child should be checked on this portal regularly. Similarly, as soon as a photograph of a recovered child is uploaded, an online search is done automatically with the missing children data. All missing and found children photographs should be uploaded at the first opportunity and the probable results provided by the system should be obtained by the Investigating Officers to link the missing child with the data of a found child and vice‑versa. Since the success of the search through FRS greatly depends on the quality of the photograph, Investigating Officers must ensure that good‑quality photographs are uploaded on ZIPNET., The nearby areas or spots of interest such as malls, amusement parks, games parlours, etc., should also be searched within four hours., The footage of CCTV cameras installed in the vicinity of the scene or last seen location should also be scanned within forty‑eight hours., Any person having inimical terms with the missing child or family should be identified and examined within twenty‑four hours. Also, the level of threat or danger to the child or his or her family should be duly assessed and immediate steps taken to ensure their protection, if necessary., The Police Officer handling the missing report should remain in touch with the complainant or family members of the missing child to ascertain if any demand for ransom has been received, and further legal action should be initiated accordingly., Enquiries should be made within forty‑eight hours from the neighbouring police stations about any unidentified dead body found or information about missing children or persons admitted in hospitals., Enquiries should also be made from hospitals about unidentified injured children or persons admitted in hospitals at the earliest but not later than a week., Poor homes, children homes, rain baseras, Nari Niketan, mortuaries in hospitals, NGOs records, etc., should be checked for the missing children or persons at the earliest but not later than a week., In appropriate cases, a reward should be declared for furnishing any clue about the missing child within a month of his or her disappearance., The Investigating Officer of the missing complaint or information should update the complainant about efforts made in the matter, ascertain further clues, if any, and also find out if the missing child or person has returned on his or her own., All known offenders in the area should be associated in the investigation. If any known offender is found to be missing, he or she will be tracked on his or her cell phone and, through notice to the Central Police Crime Register, alerts will be sent to all beats and other informal networks. If the child is found to be a drug or substance user, all known drug peddlers in the area should also be duly investigated., Some age‑specific actions will be initiated depending on the age of the missing child. For children aged zero to five years, all helpers, servants, persons frequently visiting the victim's family, friends of the child, and the last seen person should be examined immediately and government or private hospitals in Delhi should also be alerted online about the missing child within twenty‑four hours of receipt of the complaint. For children aged five to fourteen years, all social media and online application companies may be approached for tracing any online activity, IP address or GPS location of the child; this must be continuously done till the case is closed. In respect of children aged fourteen to eighteen years, friends, teachers, tuition centres and other places visited by the child should be searched and people questioned. In cases of false promise of marriage, the suspected person or relatives should be questioned within twenty‑four hours of the complaint., The local police will keep the search continued till the missing child is located. A missing report in respect of any child, once recorded in the relevant register maintained in the Missing Persons Squad and the Delhi Metropolitan Police Unit, will be kept open till the child is located. The case will be treated as a Special Report Case and its investigation will be closely monitored by supervisory levels including the concerned District Deputy Commissioner of Police. The progress of enquiry and investigation will be reviewed periodically by the Station House Officer and the Assistant Commissioner of Police. A separate register of Missing Children or Persons shall be maintained in each police station for record, as specified in Annexure B, with adequate space under the column “Action Taken” for detailed entries. The SHO and ACP shall scrutinise this register regularly and guide the officers dealing with the missing reports. They shall also evaluate the circumstances accompanying each case and order registration of a criminal case. A separate file will be maintained for each missing child or person, containing a complete record of efforts made to trace the individual, including copies of all relevant documents. The file will be properly paged and its contents reflected in an index for ready reference, as given in Annexure C. The SHO and the Inspector (Investigation) of the police station will ensure that this file is properly updated. The record of missing children will be digitised in the concerned police station and the data will be uploaded to the computer installed in the station. It will be the responsibility of each Investigating Officer to ensure that efforts made towards tracing the missing children are both recorded in the Missing Children File and uploaded on the computer, so that an updated computerized record is available for scrutiny by supervisory officers as and when required., The Delhi High Court, in the present case, confronts the situation where the father of the minor child fortunately found his daughter who returned to his lawful guardianship, but not without facing hardships and stress because he did not know the progress of the case and the hue and cry notice as well as other information, which as per the mandate of the Standing Order of the Delhi Police, were not followed in time., Considering the overall facts and circumstances and the situation explained by the investigating officers and the complainant, the Delhi High Court finds that the investigating officers also face challenges while investigating cases involving missing children. The Court therefore, for the benefit of the investigating agency, complainants and the public at large, in addition to the directions of the Hon'ble Apex Court and the procedures and standing orders mentioned in preceding paragraphs, deems it crucial to lay down the following additional guidelines and directions., Multi‑Lingual Standard Operating Procedure: To ensure successful implementation of the Standard Operating Procedure and the Standing Orders, it is crucial to translate them into various languages widely spoken in Delhi, such as Hindi, Punjabi and Urdu. This strategic multilingual approach will enhance comprehension and foster strict adherence to the outlined procedures among both law‑enforcement officers and the general public. The comprehensive translation effort will facilitate a clear understanding of the SOP among police personnel, ensuring seamless execution of protocols, and will also raise awareness among Delhi residents about their rights and responsibilities in cases involving missing children., The translated Standard Operating Procedure and Standing Orders will serve as a vital tool in empowering individuals with knowledge, fostering a sense of community responsibility, and ultimately contributing to the collective effort to safeguard and support the welfare of children in need. By bridging language barriers and promoting a shared understanding of procedures, a more inclusive and informed community can be created, where every individual can actively contribute to the well‑being of society, particularly in addressing the critical issue of missing children., Training Modules: To ensure sustained proficiency and accessibility, learning modules must be crafted for police personnel, enabling convenient access to all relevant Standard Operating Procedures and Standing Orders. This initiative will foster a culture of continuous learning, catering not only to seasoned officers but also to new recruits who may encounter challenges attending regular training sessions. Development of these learning modules will result in a dynamic and flexible platform that empowers officers to enhance their understanding of the SOP independently. The modular approach facilitates self‑paced learning, allowing officers to acquire and reinforce knowledge on the SOP whenever and wherever it is most convenient for them., The Delhi Police Academy shall take note of the aforesaid and ensure that such training modules are provided to all newly recruited police officials in the Academy., Periodic Review: Standard Operating Procedure – A Living Document: Regular and systematic reviews of the Standard Operating Procedure and Standing Orders must be carried out by the concerned ministries and the State Authorities or Police Department, ensuring that the SOPs and Standing Orders evolve in accordance with changing times. These periodic evaluations are crucial for identifying any gaps, inefficiencies or areas that may require refinement or enhancement. They also ensure that the SOP remains a living document, actively contributing to the professional growth of police personnel throughout their careers., Ready‑to‑Use Handbook: A user‑friendly ready‑to‑use handbook should be developed condensing key Standard Operating Procedure details for quick reference. The same should be available in every police station across Delhi, ensuring easy accessibility to aid swift referencing during investigations., Comprehensive Checklist: A standardized checklist must be formulated and maintained at all police stations, providing a comprehensive guide for investigating officers when handling cases related to missing children. This checklist, easily accessible in every station, is intended to be diligently followed without delay, adhering to the specified time periods for a thorough and efficient investigation process. The checklist for investigating cases of missing children must incorporate specific timeframes for the completion of each procedure, ensuring that investigating officers have a clear roadmap, thus promoting accountability and expeditious resolution in such sensitive cases., Complainants to Inform the Investigating Agency if Missing Child Is Found: The Court, mindful of the challenges faced by investigating agencies in cases of missing minors, has observed a recurring issue where parents or guardians locate the missing child but do not inform the investigating agency of the recovery, resulting in a significant waste of time and resources. Henceforth, when a complaint is filed with the police regarding a missing minor, the complaint must specifically include a provision that if, at any point, the parents or guardians discover the whereabouts of the missing child or if the child returns home independently, the Investigating Officer should be promptly and mandatorily informed within forty‑eight hours., Changes with Technological Advancements: As technology advances, offenders also evolve in sophistication to evade detection. Reports of missing children may involve elements of human trafficking through the use of cyberspace. Therefore, it is critical that investigating agencies invest time, energy and resources to periodically review their own standing orders on how investigations in such cases should be conducted, and also conduct periodic workshops and online or physical lectures, drawing on both national and global expertise, to learn modern techniques of investigation in cases of missing children and human trafficking. The investigating agencies, being the hope of the relatives and parents of missing children, must be trained in specialised techniques of finding missing children., These initiatives, drawing insights from global expertise, are vital for assimilating advanced investigation techniques; specialised training in cutting‑edge cyber‑enabled investigation techniques becomes paramount. This comprehensive approach ensures that investigators are well‑versed in the latest tools and methodologies, effectively combating the challenges posed by both traditional and cyber‑enabled crimes. By staying abreast of technological advancements, investigating agencies can play a pivotal role in reuniting families and swiftly resolving cases involving missing children and human trafficking in an increasingly digitised and interconnected world., Ensuring Access to Current Court Rulings and Administrative Procedures for Law Enforcement: The Delhi High Court deems it necessary that all relevant recent court rulings, along with translated copies of any new and existing administrative procedures, be systematically compiled and periodically supplied to every police station. This practice will ensure that law‑enforcement personnel are equipped with up‑to‑date legal information, guaranteeing a consistent and informed approach across all police stations. By facilitating access to relevant legal materials, this initiative ensures adherence to established legal procedures and enhances the overall effectiveness of law‑enforcement efforts., Law‑enforcement agencies must ensure that the Standard Operating Procedures and Standing Orders issued by the ministries and the Police Department are implemented and translated into practice. This will require a commitment embraced by all stakeholders. The concerned officials, ministries and law‑enforcement agencies will have to provide adequate resource allocation and align their strategies and resources for long‑term benefits. The guiding philosophy in cases of investigation, following the SOP, law, judicial precedents and standing orders, must be that children, being the most valuable treasures of a dynamic Bharat, deserve the best and safest environment. In case they become targets of kidnapping or human trafficking, the law‑enforcement and investigating agencies must work collectively to ensure that the children are found at the earliest, restored to their guardians and the offenders punished as per law., The Court wishes to place on record its appreciation for the learned counsel for the petitioner, Shri Soayib Qureshi, who has given valuable suggestions and assisted the Court, as well as for the State and the investigating officers from the rank of Constable to Inspector who were personally called to the Court and candidly informed about the challenges they face, which they are unable to communicate to the concerned authorities for various reasons. Their names are not disclosed in this order, however, their assistance to the Court, understanding of grassroots realities and difficulties faced by them, being first on the ground of investigation, is deeply appreciated. Needless to say, their assistance will go a long way in addressing not only the difficulties faced by the police force but also the parents of missing children and society at large., A copy of this judgment shall be forwarded to (i) the Secretary, Ministry of Child and Family Welfare, Government of India, and (ii) the Director, Delhi Police Academy, for necessary information and compliance., Accordingly, the present petition stands disposed of in the above terms. The judgment shall be uploaded on the website forthwith.
id_1824	0	Reserved on 02 June 2021 and pronounced on 10 June 2021. The parties are: Mister Vikas Singh, Senior Advocate with Mister Varun Singh, Miss Deepika Kalia, Mister Akshay Dev and Miss Sammridhi Bendbhar, Advocates for the Plaintiff; versus Mister Hiren Kamod, Mister Bhushan M Oza, Mister Anand Mishra and Mister Anees Patel, Advocates for Defendants 1 and 2; Mister Chander M Lall, Senior Advocate with Mister Vedanta Varma and Miss Nancy Roy, Advocates for Mister Vibhor Kush, Advocate for Defendant 4; Doctor A P Singh, Miss Geeta Chauhan and Miss Richa Singh, Advocates for Defendant B. The case concerns whether celebrity rights can be enforced posthumously, Plaintiff’s Right to Privacy versus Defendants’ Right to Freedom, I.A. 5697/2021 under Order XXXIX Rule 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908., By way of this application, the Plaintiff, who is the father of the late actor Shri Sushant Singh Rajput (hereinafter referred to as SSR), seeks an ad‑interim ex‑parte injunction against the named and unnamed Defendants from using his son’s name, caricature, lifestyle or likeness in forthcoming films and other ventures. The Plaintiff contends that any such publication, production or depiction would infringe personality rights, the right to privacy which includes the right to publicity, and would be undertaken without the prior approval of his legal heir, thereby violating the right to a fair trial under Article 21 of the Constitution of India., The Plaintiff asserts that he is the Category‑I of Class‑II legal heir of SSR and the absolute legal heir under Section 16 of the Hindu Succession Act, 1956, entitled to bring the present suit for protecting the reputation, privacy and rights of his deceased son. SSR was a renowned actor who worked in several blockbuster movies and television series, bagged multiple awards and attained the status of a public figure and celebrity. He passed away under suspicious circumstances on 14 June 2020. The Plaintiff lodged an FIR on account of his unnatural death. The matter is being investigated by the Central Bureau of Investigation, and no conclusive report has been submitted as yet. As SSR commanded a huge fan following, people of the country were deeply moved by his untimely demise, which attracted widespread coverage in electronic, social and print media. The Plaintiff believes that the Defendants are trying to exploit this media frenzy and public curiosity surrounding SSR’s life and death for commercial gain., In September 2020 the Plaintiff’s counsel made a widely circulated statement that no movies, books or series based on the Plaintiff’s son should be made without obtaining the prior consent of his family. Despite that, Defendants No 1 to 4 are making a self‑proclaimed tribute film titled Nyay: The Justice slated for release on 11 June 2021, produced by Defendant No 1 (Sarla A Saraogi) and Defendant No 2 (Rahul Sharma), directed by Defendant No 3 (Dilip Gulati) and outlined by Defendant No 4 (Ashok Saraogi). Defendant No 5 and 6 (M/S VSG Binge and Vijay Shekhar Gupta) are making a film titled Suicide or Murder: A Star Was Lost. Defendant No 7 (Sanoj Mishra) is making a film titled Shashank and Defendant No 8 (Nikhil Anand) is making a crowd‑funded untitled film. Defendant No 9 is a John Doe/Ashok Kumar impleader of unknown persons, against whom a similar relief is sought as a pre‑emptive measure. The Plaintiff has filed the present suit seeking enforcement of John Doe orders against known Defendants No 1 to 8 and other unknown Defendants on the ground that their actions violate the right to publicity, the right to privacy and the right to a free and fair trial., Mister Vikas Singh, learned Senior Counsel for the Plaintiff, submitted that celebrity rights have been acknowledged for the benefit of those who have worked hard to be known as distinguished personalities. Such rights give them the right to publicity, allowing them to control the commercial use of their identity and to receive the money that arises from their fame. Celebrity rights are assignable and licensable for commercial benefit and offer post‑humous protection to the legal heirs of the celebrities; they cannot be used by third parties for commercial advantage without the consent of the legal heir. The public perception of the Plaintiff’s son is of tremendous value, and after his death the public at large cannot be permitted to make windfall gains by commercially exploiting the deceased’s persona. No strict proof of identifiability is required; a resemblance of name, likeness or reputation is sufficient. Reliance was placed upon Titan Industries Ltd. v. M/s. Ramkumar Jewellers and Shivaji Rao Gaikwad v. M/s. Varsha Productions. The law is well‑settled and courts have granted injunctive relief prior to the release of a movie in cases such as Shivaji Rao and Kirtibhai Raval & Ors v. Raghuram Jaisukhram Chandrani, where the Gujarat High Court upheld that the right to publicity of a celebrity is transferred to the direct descendant after death. The right to life under Article 21 includes the right to privacy of one’s family, and any depiction of the Plaintiff’s son’s life would violate that right unless the information is part of a public record under the Public Records Act, 1993 and the Indian Evidence Act, 1872, which is not the case here., Mister Chander M Lall, learned Senior Counsel for Defendant No 3, argued that while the celebrity status of the Plaintiff’s deceased son is acknowledged, the right of a celebrity is infringed only when they are identifiable as part of an artistic work. He denied that the use of the deceased’s name, image, caricature or style of delivering dialogues in Defendant No 3’s film is permissible. He cited Section 306 of the Indian Succession Act, 1925, which enumerates certain rights that cease to exist after a person’s demise, and argued that the cause of action for defamation under the Indian Penal Code, 1860, also ceases upon the celebrity’s death, relying on A. Balakrishnan v. R. Kanagavel Kamaraj and Anr.. He further contended that public persons are expected to have a thick skin and that the right to privacy available to private citizens does not extend in the same manner to public figures., Mister Hiren Kamod, learned Counsel for Defendants No 1 and 2, presented additional arguments: goodwill and reputation earned by the Plaintiff’s son cannot be inherited like movable or immovable property; the Plaintiff has failed to make out the prima facie ingredients of passing off or misappropriation of the personality of the Plaintiff’s son; the cause of action for defamation does not survive the son’s death, relying on Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair; the suit improperly amalgamates distinct causes of action against different sets of parties; granting an interim order would prejudice the Defendants if the Plaintiff ultimately fails, whereas the Plaintiff could re‑apply later; Bollywood is replete with films inspired by true events that are already in the public domain, relying on Deepa Jayakumar, Ram Gopal Verma and Vadlapatla Naga; news coverage of the son’s death is already public, and under the Copyright Act, 1957, no one can claim copyright in facts or historical events; the right to publicity in India is derived from the right to privacy and extinguishes with death, as held in Justice K. S. Puttaswamy v. Union of India; the Defendants are not selling celebrity merchandise, so false endorsement does not arise., Mister Vibhor Kush, learned Counsel for Defendant No 4, submitted that the plaint does not disclose any cause of action against Ashok Saraogi, who has been mis‑joined as a party in an attempt to keep him from representing Defendants No 1 to 3. He noted that Mr. Saraogi, an advocate since 1982, acted as legal advisor to the film producers and is the husband of Defendant No 1, but is not otherwise connected with the production. Any statements he made to the media were in his professional capacity as an advocate and were based on facts provided by his client. He further argued that the entire cause of action is based on newspaper articles and press reports, which are merely hearsay and secondary evidence, citing Ravinder Kumar v. State of Assam and Vadlapatla Naga v. Chairperson., Doctor A P Singh, learned Counsel for Defendant No 7, argued that the territorial jurisdiction for the suit lies in Patna or Mumbai, not New Delhi; Defendant No 7’s film titled Shashank bears no resemblance to Sushant and is based on the struggles of first‑generation actors in the Hindi film industry, making the Plaintiff’s claim that the film is based on his son untenable; and that the right to a fair trial is not implicated because Defendant No 7’s movie does not cover the ongoing investigation into the son’s death., Mister Vikas Singh, in rejoinder, emphasized that under Article 19(1)(a) the right to make a movie for commercial gain is separate from journalistic freedom, that the FIR was filed by the Plaintiff and his right to a fair trial is subsisting, and that the Plaintiff’s right to privacy is violated by the media’s villainous portrayal. He argued that the Defendants’ statements to the media create confusion and prejudice, that the right to celebrity is distinct from the right to privacy, and that the information reported in the news about public figures arises from the moral duty of journalists and cannot be equated with commercial exploitation. He cited Phoolan Devi v. Shekhar Kapoor for the meaning of public record and noted that the right of the complainant and the victim to a free and fair trial is protected under the Constitution of India, as recognized by the Madras High Court in A. V. Bellaramin and Ors v. Mr. V. Santhakumaran Nair. He also pointed out that the Plaintiff does not seek relief under defamation law., The works sought to be injuncted include the film titled Nyay: The Justice produced by Defendants No 1 and 2 and directed by Defendant No 3, which has not yet been released to the public. The Defendants argue that the film is inspired by true events surrounding the lives of film or TV celebrities, including the Plaintiff’s son, and that it is a fictional rendition with creative dramatization of such events, drawing only on information already available in the public domain such as news reports. They assert that the film does not portray the name, image, caricature or photographs of SSR or the Plaintiff’s family and that a disclaimer has been inserted to deny any resemblance to a real person., The Plaintiff seeks a limited injunction restraining the use of SSR’s name, caricature, lifestyle or likeness in forthcoming projects or films, arguing that pre‑publication injunctions are granted only in exceptional circumstances and that the importance of free speech outweighs the Plaintiff’s claims.
id_1824	1	Relief is sought regarding, inter alia, passing off; infiltration of personality rights by such unauthorized use; misrepresentation and causing deception in the minds of the public leading to passing off; violation of the right to a fair trial of the plaintiff under Article 21 of the Indian Constitution and other ancillary reliefs. Besides, in the body of the application as well as the plaint, the plaintiff has also referred to the film being defamatory in nature and in violation of privacy rights; however, no relief has been sought for defamation. Now, let us delve into the multitude of rights which have been pressed by the plaintiff to seek such restraint orders., The suit is centred around the celebrity rights of S. S. R., and the plaint and interim application refer to the terms publicity right, celebrity right and personality right interchangeably. There is no express statutory recognition of publicity, personality or celebrity rights in India, although there are limited provisions under which some of these rights can be claimed as intellectual property rights, such as under the Trade Marks Act, 1999, but that is not the case canvassed here. Nevertheless, on the basis of rights asserted, the Copyright Act, 1957, becomes relevant, but again, it does not define the term celebrity; the most relevant definition found thereunder is of the terms author (Section 2(d)) and performer (Section 2(qq)) and their associated rights, who may not necessarily be celebrities. While the term performer includes an actor within its ambit, the rights ascribed to an actor under this Act are neither relevant nor asserted in the instant case. In the absence of a statutory definition of a celebrity, we refer to its common‑parlance meaning. The Collins Online Dictionary defines a celebrity as someone who is famous, especially in areas of entertainment such as films, music, writing, or sport. SSR's status as a celebrity is not in dispute, as the defendants accept the same. The Supreme Court of India is thus not concerned with the aspect of who or what constitutes a celebrity., The law on the subject of celebrity rights is still in its nascent stage, and it has been developing predominantly through judicial precedents which have given recognition and protection to such rights when the courts have been approached in diverse situations. The common law, as discussed hereinafter at length, recognizes the commercial value ascribed to the fame or popularity of a celebrity, due to which various rights are attained and enjoyed by them. Indeed, many such precedents have been cited by both parties, some of which we have examined hereinbelow. In Titan Industries Ltd. (supra), the plaintiff, who owned the brand Tanishq, filed a suit against the defendant for putting up hoardings depicting Mr. Amitabh Bachchan and Ms. Jaya Bachchan endorsing the defendant's jewellery, which were exact copies of the plaintiff's hoardings placed all over the country. The plaintiff also had an exclusive licence agreement with the actors for endorsement of its jewellery and owned the copyright in all the work produced pursuant to the said agreement. The Supreme Court of India, while discussing the publicity right of a celebrity, noted: “A celebrity is defined as a famous or a well‑known person. A ‘celebrity’ is merely a person who many people talk about or know about. When the identity of a famous personality is used in advertising without their permission, the complaint is not that no one should commercialise their identity but that the right to control when, where and how their identity is used should vest with the famous personality. The right to control commercial use of human identity is the right to publicity.”, In ICC Development (International) Ltd. v. Arvee Enterprises and Others, the plaintiff, as the organiser and marketer of the ICC World Cup, sued for injunction, pleading that the ICC events have acquired a persona or identity of their own which vests entirely and exclusively with the plaintiff company, which owned and controlled all commercial rights including media, sponsorship and other intellectual property rights relating to the ICC events, and the defendant was unlawfully deriving commercial benefit of association with the plaintiff and the World Cup by issuing advertisements in media, including newspapers, television and the internet, by passing off the indicia, mark and identity of the plaintiff. In that case, the Supreme Court of India, while discussing the concept of publicity rights, held that the right of publicity has evolved from the right of privacy and can inhere only in an individual or in any indicia of an individual’s personality such as his name, personality trait, signature, voice, etc. An individual may acquire the right of publicity by virtue of his association with an event, sport, movie, etc.; however, that right does not inhere in the event that made the individual famous, nor in the corporation that organised the event. Any effort to take away the right of publicity from the individual to the organiser (a non‑human entity) of the event would be violative of Articles 19 and 21 of the Constitution of India. No persona can be monopolised. The right of publicity vests in an individual and he alone is entitled to profit from it. For example, if any entity were to use Kapil Dev’s or Sachin Tendulkar’s name, persona or indicia in connection with the World Cup without their authorisation, they would have a valid and enforceable cause of action., In DM Entertainment (supra), Mr. Daler Mehndi had assigned all his rights, title and interest in his personality, inherent in his rights of publicity, along with the registered trademark DALER MEHNDI and the goodwill vested therein, in favour of the plaintiff company, which then brought an action against the defendants who were involved in the sale of dolls in the image and likeness of Mr. Daler Mehndi. In this context, an injunction was granted, and the Supreme Court of India observed: “The right of publicity can, in a jurisprudential sense, be located with the individual’s right and autonomy to permit or not permit the commercial exploitation of his likeness or some attributes of his personality. However, a word of caution has to be expressed here. In a free and democratic society, where every individual’s right to free speech is assured, the over‑emphasis on a famous person’s publicity rights can tend to chill the exercise of such invaluable democratic right. Thus, for instance, caricature, lampooning, parodies and the like, which may highlight some aspects of the individual’s personality traits, may not constitute infringement of such individual’s right to publicity. If it were held otherwise, an entire genre of expression would be unavailable to the general public. Such caricature, lampooning or parody may be expressed in a variety of ways, i.e., cartoons in newspapers, mime, theatre, even films, songs, etc. Such forms of expression cannot be held to amount to commercial exploitation per se; if the individual is of the view that the form of expression defames or disparages him, the remedy of damages for libel or slander, as the case may be, would then be available to him.”, The Madras High Court was dealing with a suit filed by the actor Mr. Shivaji Rao Gaikwad (who goes by the screen name Rajinikanth) against the release of a film titled Main Hoon Rajinikanth on the ground that his name in the title would cause gross damage to his goodwill, infringe his personality rights, and cause deception in the minds of the public, leading to passing off. The Madras High Court granted an injunction in favour of the plaintiff against the release of the film and made the following observations: “From a reading of the above‑said judgments (ICC Development (supra) and Titan (supra)), I am of the opinion that the personality right vests in those persons who have attained the status of celebrity. In fact, in the present case, it has been categorically admitted by the defendant himself in the counter‑affidavit that the plaintiff is a well‑acclaimed actor with high reputation and he is a doyen of the film industry in India. Therefore, the defendant now cannot say that the name Rajinikanth is a common name and as such does not refer to the plaintiff alone. A celebrity must be identifiable from the defendant’s unauthorized use. Infringement of the right of publicity requires no proof of falsity, confusion or deception, especially when the celebrity is identifiable.”, The Supreme Court of India, in Puttaswamy (supra), wherein the right to privacy was declared to be a fundamental right under Article 21 of the Constitution of India, reflected upon personality rights and observed: “Every individual should have a right to be able to exercise control over his or her own life and image as portrayed to the world and to control commercial use of his or her identity. This also means that an individual may be permitted to prevent others from using his image, name and other aspects of his or her personal life and identity for commercial purposes without his or her consent.”, The above‑noted cases, and many others on the subject, clearly recognize the concept of celebrity rights. It can therefore be fairly said that celebrity rights are essentially a compendium of the other rights accrued by a person upon attaining the status of a celebrity, comprising a bundle of rights which include certain intellectual property rights, publicity, personality and privacy rights., The plaintiff emphasizes the brand value of a celebrity and contends that it is a settled principle of law that the likeness and brand value of a celebrity must only be used with the consent of the celebrity. It is also argued that the judgments relied upon, and those cited by the defendants such as DM Entertainment Pvt. Ltd. (supra), categorically recognize that an unauthorized usage of a persona must be injuncted., Undoubtedly, there are several such cases which recognize this common law right of celebrities to control the commercial use of their image and personality, and in situations where a third party, without consent, has given an impression that a merchandise, product or service has been endorsed or associated with the celebrity, the courts have granted injunctions as well. However, as can be seen from DM Entertainment (supra), ICC (supra) and Titan (supra), these rights rest in the concept that a celebrity, who earns a living on the basis of the monetisation of their recognition by the public, must be entitled to the tangible, economic benefit arising from the utilisation and assignment of their image or likeness, be it through advertisements, merchandise, etc., The question is whether celebrity rights can be enforced posthumously. In the instant case, the celebrity is unfortunately no longer alive, which gives rise to a legal quandary in relation to his posthumous rights. The plaintiff claims that such rights are inheritable by the legal heirs of a celebrity. He has relied upon the judgment of the Gujarat High Court in Kirtibhai Raval (supra) to contend that celebrity rights can be transferred to a direct descendant. The case law has thus been examined by the Supreme Court of India at length., In that case, the plaintiff, claiming to be a direct descendant of the late Shri Jalaram Bapa of Virpur, set up a case based on the right to privacy and the right of publicity. He sought an injunction against publishing any film or artistic work on the life of the late Jalaram Bapa without his consent. The defendants claimed that they had based their film on a pre‑published book on the deceased’s life. While the Supreme Court of India upheld the injunction granted by the trial court on the consideration that irreparable harm would be caused by violation of the right to publicity or privacy, which cannot be compensated monetarily, it also took the view that the contentions raised by the parties required detailed consideration upon leading appropriate evidence. The court therefore did not delve into rival contentions, noting that the right of privacy and publicity urged therein was a triable issue., Thus, in the eyes of the Supreme Court of India, this judgment does not say much on posthumous rights of a celebrity and does not advance the proposition canvassed by the plaintiff., The plaintiff has relied upon a judgment of the Supreme Court of Georgia, USA, in Martin Luther King Jr. Center for Social Change (1982) (supra) to argue that celebrity rights are assignable and licensable for commercial benefit and survive beyond the life of a celebrity. In that case, the Court of Appeals, Eleventh Circuit, certified to the Supreme Court of Georgia the questions of whether the right to publicity as recognized in Georgia was distinct from the right of privacy, and if so, whether such right survived the death of its owner. The Supreme Court instructed that the right to publicity was distinct from the right to privacy and further opined that it is an inheritable and devisable right, concluding that while private citizens have the right of privacy, public figures have a similar right of publicity, and that the measure of damages to a public figure for violation of his or her right of publicity is the value of the appropriation to the user. In the opinion of the Supreme Court of India, this judgment cannot assist the cause of the plaintiff as it is based on state‑specific law and not federal law of the United States. Moreover, it would not be entirely relevant in view of the legal position in India, especially in view of the observations in the landmark judgment of the Supreme Court in Puttaswamy (supra), which will be considered shortly., At this juncture it is noted that, curiously, the plaintiff has sought to distinguish celebrity rights from the right to privacy. Celebrity rights, as noted earlier, are a bundle of rights, including publicity, personality, privacy and, in some cases, intellectual property rights, and in the opinion of the Supreme Court of India, any assertion of such rights (except those claimed through Intellectual Property Rights for which special statutory protection is provided) cannot be appreciated divorced from the concept of the right to privacy. In the absence of statutory acknowledgement of such rights, the fountainhead of such rights would be the right to privacy emanating from Article 21., There can also be no doubt that a limited class of celebrity rights which are protected as intellectual property rights under applicable laws, and are assignable and licensable under such statutes, could survive the death of the celebrity. However, the plaintiff claims that the deceased celebrity has a posthumous publicity right. Since it is inextricably interlinked to and birthed from the right of privacy, the Supreme Court of India prima facie finds merit in the submission of the defendants that the posthumous privacy right is not permissible. The Supreme Court of India, in Puttaswamy (supra, at paragraph 557), has also held: “Right to privacy of any individual is essentially a natural right, which inheres in every human being by birth. Such right remains with the human being till he or she breathes last. It is indeed inseparable and inalienable from the human being. In other words, it is born with the human being and extinguishes with the human being.”, Apart from the above‑noted view expressed by the Supreme Court of India, there are other authoritative decisions holding that the right of privacy does not survive after death. It is worthwhile to note the Madras High Court’s view in Managing Director, Makka Tholai Thodarpu Ltd. (supra, at paragraphs 17 and 18), wherein it was held that the right of privacy of the late forest brigand Veerappan did not subsist after his death. Again, in the recent judgment of Deepa Jayakumar (supra), the Madras High Court framed a specific question regarding posthumous enforceability of the privacy right and, after considering the law on the subject, held that the right of privacy of an individual cannot be inherited after his death by his legal heirs and that personality right, reputation or privacy enjoyed by a person during his lifetime come to an end after his lifetime., Even if one were to assume that the plaintiff has inherited the persona of SSR and has the right of publicity as a posthumous right, it would be essential to understand what this right is. In Titan Industries Ltd. (supra), the Supreme Court of India, while defining the building blocks of the right of publicity, held that the basic elements comprising liability for infringement of the right of publicity are: Validity – the plaintiff owns an enforceable right in the identity or persona of a human being; Identifiability – the celebrity must be identifiable from the defendant’s unauthorized use., In the present context, the enforceable right being claimed is in the persona of SSR, on the basis of the events that occurred in his life. The plaintiff specifically contends that no picture, show or any other related document of Sushant Singh Rajput could be created without the plaintiff’s consent. In other words, the plaintiff claims to have inherited the exclusive right over the life story of SSR as an intangible or commercial property. In another sense, the plaintiff claims a copyright over the life of SSR. However, under the Copyright Act, 1957, facts which are historical, biographical or news of the day cannot be copyrighted as they are part of the public domain, available to every person, and involve no originality that lies at the heart of copyright protection. The necessary corollary, therefore, is that anyone is entitled to make movies on events which have actually occurred., The defendants have, in fact, pitched their case higher and have argued that personality rights are recognized through the right to privacy and publicity, which are considered to be mirror rights of each other. The right to publicity or celebrity deals with the commercial utilisation of the celebrity’s name, photograph, voice, image, signature, etc., whereas the right to privacy is a personal right essentially saying, ‘let me be.’ They have argued that in India the right to publicity is derived from the right to privacy and the two are not completely independent of each other, as the former cannot exist without the latter. It has then been argued that, in the context of the reasoning in Puttaswamy (supra), if the right to privacy extinguishes with the human being, the necessary corollary is that the right to publicity would also extinguish and would not survive after the death of the person., Having said that, in the opinion of the Supreme Court of India, whether commercial celebrity rights, such as personality or publicity rights, would survive or extinguish after the death of the celebrity requires a deeper probe. In the absence of codified laws protecting such rights, the common law which governs such rights has to be analysed. Moreover, additional questions emerge, such as whether a personality or publicity right is property, being part of the estate or assets of the deceased as a concept detached from the theory of dignity, or whether it can only be harmonised with the right of privacy from where it originated. Such enquiries would first require evidence to be led by the plaintiff to prove that the persona of SSR is still surviving as a commercial property, which is alleged to be exploited by the defendants for profit. The foundational facts have to be established and proved, and mere status of a celebrity is not enough. Even in a passing‑off action—a remedy available under common law—the plaintiff is required to satisfy the Classical Trinity test. Therefore, this debate should be kept for another day and would not detain the Supreme Court of India in deciding the present application, keeping in view the specific nature of the case put forth by the plaintiff, the rights asserted and the reliefs sought at this stage., The Supreme Court of India may also deal with the plaintiff’s claim of passing off. A passing‑off action is initiated to safeguard the plaintiff’s goodwill from another who is deliberately trying to mislead the public that his goods or services are those of the plaintiff. In view of the facts noted above and the specific disclaimer of the defendants, the Supreme Court of India prima facie does not find any element to hold that the film would lead the public to believe that it is a true story or a biopic that has been authorised or endorsed by the plaintiff. Pertinently, once the disclaimer is included at the beginning of the cinematograph film, any apprehension that the plaintiff has about passing off the film as a biopic of SSR will be put to rest. A more detailed enquiry into the same, as stated earlier, should be kept for another day when appropriate evidence to this effect can be appreciated., Furthermore, in the case at hand, the name, caricature, lifestyle and/or likeness of SSR is not being exploited by applying it to any merchandise such as t‑shirts, toys, posters, mugs, etc., to evoke his persona. The defendants are not making any misrepresentation or claiming a false endorsement for their respective films. They represent their work to be fictional, i.e., neither a biopic nor based on true events. For such reasons, as detailed in the foregoing discussion, the plaintiff is unable to convince the Supreme Court of India on the point of infringement of celebrity rights., The Supreme Court of India does not find merit in the plaintiff’s contention seeking restraint on the strength of his right to a fair trial. The plaintiff asserts that, since he is the complainant in the FIR, he is entitled to a fair trial relating to the unnatural death of his son. He has relied upon the order of the High Court of Bombay in the PIL in Nilesh Navalakha (supra) to contend that it is the duty of all media houses to protect the right to a fair trial, and that in case of a competing interest between the right to a fair trial and the right to free speech, the former should be given importance., The directions issued by the High Court of Bombay are already in force. Here, the right to a fair trial is being claimed by the petitioner, being the informant/complainant, but no foundation is set up to demonstrate how the films would impair the fairness of the investigation or trial. In fact, the accused persons named in the FIR or being investigated have not come forward claiming prejudice. While it needs no emphasis that the right to a fair trial is a valuable right, it must be remembered that investigative agencies and the judicial system do not rely on cinematographic films for the purpose of investigation or judicial pronouncements. They must decide the issues before them by drawing their own inferences and conclusions based on the materials placed before them, in accordance with the law. The films in question are not documentaries but works of fiction. The Supreme Court of India does not find any reasonable ground to believe that the danger apprehended by the plaintiff is real or imminent. The two‑pronged test of necessity and proportionality, as recognised and applied by the court in the case of Dr. Shashi Tharoor (supra), has not been satisfied., The views of the Supreme Court of India in Adarsh Cooperative Housing Society Limited (supra) are also relevant and must be noted. In that case, the Supreme Court held, inter alia, that the doctrine of sub judice may not be elevated to such an extent that any reference or allusion to a member of society would warrant the negation of the right to freedom of speech and expression, which is an extremely cherished right enshrined under the Constitution. In Nachiketa Walhekar v. Central Board of Film Certification & Anr. (supra), the Supreme Court held that a film, drama, novel or a book is a creation of art, and that an artist has his own freedom to express himself in a manner which is not prohibited by law. The Court also held that prohibitions should not, by implication, crucify the rights of expressive minds., Thus, a newspaper report pertaining to Defendant No. 4 cannot be the sole basis to conclude interference in the administration of justice or investigation. The cause of action for asserting the right of a fair trial herein seems to be based on unreasonable apprehension and vague possibilities. Keeping in view the parameters applied in such cases, the defendants’ right to present their fictional stories, in the opinion of the Supreme Court of India, cannot be curbed purely on an unsubstantiated hypothesis, and no gag order can be issued., Although Mr. Vikas Singh has not pressed the allegations of defamation, and rightly so, as the movie has neither been released nor seen by the plaintiff yet, it must be noted that, in the suit, the plaintiff has also briefly alluded to the content of the film being defamatory, by contending that having SSR associated with the defendants’ forthcoming feature film of immoral and promiscuous nature would subject the plaintiff and his son to defamation and slander, and cause gross damage to his vast reputation and goodwill amongst the public worldwide and the Hindi film industry, which has been built over the hard work of several years by SSR. The Supreme Court of India finds this plea to be misconceived and the allegation entirely speculative, based on assumptions and presumptions. Without knowing the contents of the said film and only relying on some news articles, the plaintiff cannot argue that the depiction in the films is intended to tarnish the plaintiff. The Supreme Court of India finds no prima facie case in favour of the plaintiff’s tort action for defamation and is impelled to reject the prayer for injunction, in light of the law laid down in Melepurath (supra, at paragraphs 6‑8), that the civil wrong or tort action based on defamation is in personam and would not survive the death of the complainant., The plaintiff also claims injury to his personal image and damage to his reputation. The reasons discussed above would apply equally to the plaintiff’s personal tort action, for which, without viewing the content of the films and on the mere basis of the material placed on record, there is no compelling reason to grant an injunction., This brings us to the intersection where competing rights of the parties lead to the much‑debated issue that recurrently arises whenever a plaintiff’s rights under Article 21 are pitted against a defendant’s rights under Article 19(1)(a) of the Constitution of India. In such cases, the Supreme Court of India has to strike a balance and align the rights and interests of the parties. Mr. Vikas Singh has fleetingly argued that the right of free speech, in matters of news reporting, does not enjoy the same protection when it comes to matters of commercial exploitation. The argument is misconceived, and one cannot read this classification of core and non‑core rights under Article 19(1)(a) of the Constitution of India. The protection and guarantee provided by the Constitution would apply with equal rigour, even if the publication leads to commercial gain.
id_1824	2	On this issue, firstly, as discussed above, we must not lose sight that the Defendants claim of the film being a fictional rendition of true events surrounding the lives of film/TV personalities, including Plaintiff's son, who has reportedly passed away due to unnatural causes. They have firmly stated that nowhere has the Plaintiff or his family or SSR's name, image, persona, likeness etc. been used by them. The only resemblance to SSR, as Defendants have asserted, would be an imaginary dramatization of some of the events occurred in his life. The artistic freedom to create fictional works cannot be controlled, limited, or confined within set boundaries. An artist's inspiration can come from any source, and the Supreme Court of India cannot filter real-life events. This Supreme Court of India finds merit in the submission of the Defendants that details of the demise of SSR received widespread and protracted news coverage in all media, which are available in the public domain, and form a part of the public record. The Supreme Court of India also finds merit in the contention of Defendant Number 3 that if information of events which have occurred is already in the public domain, one cannot plead any violation of right to privacy if a movie is inspired from such events. Admittedly, there are several news reports, articles, write-ups, features, videos, etc. on this topic which are widely available in the public domain. This fact is admitted by the Plaintiff in the suit. The Defendants are also quick to point out that the Plaintiff has not raised any objections against author/publishers of such information, and therefore now cannot plead violation of privacy, particularly when such movie does not use any photos, images, caricature or name of the Plaintiff's son. If the events that form the subject matter of the film are in the public sphere, in terms of there being prior reporting of the matter in controversy, the Supreme Court of India does not find any justification to restrain publication of work that is claimed to be fictional and only draws inspiration from such events., On this issue, it is also pertinent to note the following extract from R. Rajagopal v. State of Tamil Nadu (supra): 28. We may now summarise the broad principles flowing from the above discussion: (1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a \right to be let alone\. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters. None can publish anything concerning the above matters without his consent – whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy. (2) The rule aforesaid is subject to the exception that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interest of decency (Article 19(2)) an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised in press/media. (3) There is yet another exception to the Rule in (1) above – indeed, this is not an exception but an independent rule. In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable for damages. It is equally obvious that in matters not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen, as explained in (1) and (2) above. It needs no reiteration that judiciary, which is protected by the power to punish for contempt of court and the Parliament and Legislatures protected as their privileges are by Articles 105 and 104 respectively of the Constitution of India, represent exceptions to this rule. (4) So far as the government, local authority and other organs and institutions exercising governmental power are concerned, they cannot maintain a suit for damages for defaming them. (5) Rules 3 and 4 do not, however, mean that Official Secrets Act, 1923, or any similar enactment or provision having the force of law does not bind the press or media. (6) There is no law empowering the State or its officials to prohibit, or to impose a prior restraint upon the press/media. (Emphasis supplied)., The Plaintiff has argued that the news articles covering the death of the Plaintiff are not verified and cannot be construed as public record in terms of Section 2(e) of the Public Records Act and Section 74 of the Evidence Act and further relies upon Phoolan Devi (supra), to argue that the usage of newspaper articles and reports is not to be construed as public record. However, this argument cannot discern the fact that the events relating to the life and demise of SSR are in the public domain. Even in the case of R. Rajagopal (supra), it was held that the petitioners in the said case had right to publish what they alleged to be a life‑story/autobiography, insofar as it appears from the public records, even without the consent or authorisation of said person. Further it was held that if they go beyond that and publish his life story, that may be evading the right of privacy, they will be liable for consequences in accordance with law. Here, the fictional rendition for dramatic presentation based on certain events falls within the scope of artistic freedom of expression and speech. Similarly, in the case of Ram Gopal Verma (supra), the Madras High Court set aside an injunctive order against a movie made by the appellant therein, on the ground that violation of right of privacy cannot be pleaded by the respondent when events which occurred in her life are already in the public domain and covered widely by the news. The court held that as long as the respondent's name was not used and a disclaimer was published along with the movie, the appellants cannot be disallowed from making a movie based on such events., Accordingly, since the Defendants' films are neither portrayed as a biopic nor a factual narration of what transpired in the life of SSR, and are depicted to be completely fictional and inspired from certain events which have occurred in the past and have been widely discussed and are available in the public domain, the Supreme Court of India finds no reason to grant a restraining order. Moreover, Defendants Number 1 to 3 have inserted the following disclaimer to their film: Disclaimer: all characters, names, locations, buildings, properties, assigned are all fictitious; if there is any resemblance to any location, person, property, etc., it is purely coincidental and not intentional. Any mention of a community, language or region in this film is not intended to inflict contempt at any point. The film must therefore be viewed as purely a non‑commenting source of harmless entertainment not designed to hurt or disdain any individual or a community., Lastly, breach of privacy is not being asserted on the ground of defamation. It is founded primarily on the commercial exploitation of the personality of the celebrity, which, as elaborated herein, can be adequately remedied by award of damages/compensation., Before moving on to the other issues, we must note that the right to privacy has also been invoked not just of the deceased but also in respect of the right of the family of SSR. The submissions on this aspect are unspecific and vague. No definite instance has been presented by the Plaintiff to show how this right is infringed and therefore, the plea is devoid of merit. Nevertheless, the views noted above, expressed with respect to SSR's privacy, which is alleged to be infringed, would be equally applicable to the Plaintiff's personal cause of action emanating from Article 21 of the Constitution of India, as well., In view of the above, this Supreme Court of India opines that the Plaintiff has failed to establish a prima facie case., The Supreme Court of India finds merit in the contention of the Defendants that Plaintiff's action is belated. SSR passed away on 14th June 2020. News on his death was widely circulated in the media. Production of the said film was publicly announced in August 2020. Admittedly, in September 2020, Plaintiff's counsel made a public statement that no film, serial etc. shall be allowed on Plaintiff's son without Plaintiff's consent. Defendants Number 1 to 3 have filed numerous documents to show that the said film was being publicised and promoted since August 2020. Therefore, Plaintiff ought to have been aware that these Defendants were in the process of producing the said film as early as September 2020. Plaintiff has filed the present suit close to the release of the said film, after substantial time, money and effort have been expended by Defendants Number 1 to 3 on production and promotion. For this reason, the balance of convenience lies entirely in favour of the Defendants., On the aspect of irreparable loss, we may note that the suit is not premised as a tortious action for defamation. It is founded on the basis of breach of celebrity/publicity rights inhering to the Plaintiff. It is thus opined that if an interim order is granted, it would be difficult to compensate the Defendants in the event Plaintiff ultimately does not succeed in the suit. Whereas, the Plaintiff can always re‑apply at a later juncture for injunction, if there is a change in circumstances after the release of the said film, and has an adequate remedy of being compensated by award of damages, if the Plaintiff proves in trial that the celebrity/publicity rights were inheritable and inured to him exclusively. To ensure that, the Defendants are directed to render complete and true accounts of the revenue earned from the films by way of sale/licensing of all rights relating to the films., In view of the above, the Plaintiff has failed to satisfy the three‑pronged test for grant of pre‑emptory injunction to restrain exhibition of the films., Accordingly, with the above directions, the present application is dismissed.
id_1825	0	Proceedings of the meeting of the Search Committee held via video conferencing on Monday, 09 August 2021 at 7.00 pm regarding elevation of Supreme Court lawyers to the High Courts. The Search Committee was constituted to facilitate the process of identifying deserving and meritorious Supreme Court practitioners for elevation to various High Courts. In order to select the best amongst available, the Committee met on various occasions via video conferencing, that is on 06 June 2021, 08 June 2021, 15 June 2021, 24 June 2021, 28 June 2021 and 09 August 2021. There were 69 names for the consideration of the Committee. After an initial scrutiny of the eligible candidates, the Committee had detailed discussions to finalise the names. On its final meeting on 09 August 2021, the Committee unanimously agreed upon 48 names., List of meritorious Supreme Court practitioners as prepared by the Search Committee is as follows:\n\nHigh Court: Gauhati\n\nManish Goswami – Age: 49 years, 24 days\nAvijit Roy – Age: 51 years, 2 months, 25 days\nMs Madhumita Bhattacharya – Age: 45 years, 8 months, 9 days – Manipur\nPukharambam Ramesh Kumar – Age: 45 years, 4 months, 29 days – Kerala Uttarakhand\nJatinder Kumar Bhatia – Age: 52 years, 4 months, 16 days\nDoctor Abhishek Atrey – Age: 47 years, 9 months, 16 days\nMs Prerna Kumari – Age: 45 years, 4 months, 24 days – Delhi\nMs Aparna Bhat – Age: 51 years, 4 months, 3 days\nMs Kaveeta Wadia – Age: 50 years, 4 months, 14 days\nMs Mamta Tiwari – Age: 50 years, 1 month, 11 days – Calcutta\nPijush Kanti Roy – Age: 54 years, 5 months, 26 days\nSiddhartha Chowdhury – Age: 53 years, 7 months, 3 days\nAnurag Pandey – Age: 48 years, 6 months, 23 days\nHiren Dasan – Age: 47 years, 6 months, 20 days\nSnehasish Mukherjee – Age: 47 years, 8 months, 10 days – Allahabad\nMs Veera Kaul Singh – Age: 55 years, 9 months, 27 days\nArvind Kumar Shukla – Age: 51 years, 5 months, 28 days\nMs Reena Singh – Age: 51 years, 1 month, 3 days\nShail Dwivedi – Age: 55 years, 11 months, 29 days\nDoctor Sandeep Singh – Age: 48 years, 6 months, 9 days\nKamlendra Mishra – Age: 50 years, 7 months, 10 days\nSanjay Kumar Tyagi – Age: 50 years, 9 months, 24 days\nVishnu Sharma – Age: 52 years, 10 months, 12 days\nManoj K. Mishra – Age: 50 years, 5 months, 29 days – Rajasthan\nMs Shobha Gupta – Age: 51 years, 10 days – Punjab and Haryana\nMs Nidhi Gupta – Age: 54 years, 11 months, 2 days\nMs Jastpreet Gogia – Age: 51 years, 8 months, 21 days\nSanchar Anand – Age: 46 years, 9 months, 23 days\nManjeet Singh Dalal – Age: 51 years, 9 months, 4 days\nMs Kiran Bhardwaj – Age: 53 years, 9 months, 3 days\nAjay Bansal – Age: 52 years, 6 months, 27 days – Madras\nM Yogesh Kanna – Age: 46 years, 5 months, 10 days\nR Anand Padmanabhan – Age: 53 years, 10 days – Jharkhand\nAjay Kumar – Age: 52 years, 1 day\nAnil Kumar Mishra – Age: 47 years, 3 months, 27 days\nRajesh Ranjan – Age: 50 years, 6 months, 29 days – Bombay\nGagan Sanghi – Age: 47 years, 4 months, 11 days\nArun Ramnath Pednekar – Age: 50 years, 6 days – Patna\nRitesh Aggarwal – Age: 46 years, 6 months, 18 days\nRudreshwar Singh – Age: 52 years, 4 months, 5 days\nMs Aparna Jha – Age: 50 years, 11 months, 15 days\nRajiv Ranjan Dwivedi – Age: 46 years, 6 months, 25 days\nPrem Prakash – Age: 47 years, 10 months, 29 days – Telangana\nMallapadi Rambabu – Age: 44 years, 11 months, 23 days – Karnataka\nMs KV Bharathi Upadhyaya – Age: 55 years, 4 months, 8 days – Orissa\nSibo Sankar Mishra – Age: 53 years, 1 month, 27 days\nMansoor Ali Shoket – Age: 50 years, 5 months, 5 days, The above list of meritorious Supreme Court practitioners as prepared by the Search Committee may now be placed before the Honorable Chief Justice of India in a sealed cover for further action., Vikas Singh, Pradeep Rai, Ms Mahalakshmi Pavani (President, Supreme Court Bar Association), Vice President, Supreme Court Bar Association, Senior Executive Member, Supreme Court Bar Association, Rakesh Dwivedi, Shekhar Naphade, Vijay Hansaria, V Giri, Senior Advocate, Senior Advocate, Senior Advocate, Senior Advocate. Note: Mister Shekhar Naphade was not available to sign the minutes as he was not in Delhi. However, he has read the contents of the minutes of meeting and has agreed to place the list of candidates before the Honorable Chief Justice of India at the earliest.
id_1828	0	Writ Petition Nos. 13203, 13204, 13205, 13521, 13645, 13665, 13666, Public Interest Litigation Nos. 184, 185, 200, 201, 208, 209, 215, 217, 230, 235, Writ Petition Nos. 13206, 16634 of 2020; Writ Petition Nos. 9154, 9528, 10700 of 2020; Public Interest Litigation No. 179 of 2019; Public Interest Litigation Nos. 8, 24, 40, 102, 213 of 2020; Writ Petition Nos. 925, 1207, 4004, 5057 of 2020; Public Interest Litigation Nos. 7, 153 of 2020; Writ Petition Nos. 932, 933, 8472 of 2020; Public Interest Litigation No. 121 of 2020 and Writ Petition No. 1388 of 2020, dated 03.03.2022, filed by Rajadhani Rythu Parirakshnana Samithi, Office at H. No. 1194 Tullur, Amaravati, Andhra Pradesh, represented by its Secretary Sri Dhanekula Rama Rao and others, versus the State of Andhra Pradesh, represented by its Chief Secretary, 1st Floor Secretariat, Velagapudi, Amaravati, and others., Counsel for the petitioners: 1. Mr. Sai Sanjay Suraneni, 2. Mr. Unnam Sravan Kumar, 3. M/s. Bharadwaj Associates, 5. Mr. Karumanchi Indraneel Babu, 6. Mr. Sudhakar Rao Ambati, 7. Mr. Ponnekanti Mallikarjuna Rao, 10. Mr. Prabhunath Vasireddy, 11. Mr. Srinivasa Rao Narra, 12. Mrs. T. Srilakshmi, 13. Mr. G. Ronald Raju, 14. Mr. Kishore Babu Manne, 15. Mr. Chalasani Ajay Kumar, 16. Mr. K. M. Krishna Reddy, 17. Mrs. Avanijalnuganti, 18. Ms. Sodem Anvesha, 19. Mr. Yelamanchili Shiva Santosh Kumar, 20. Mr. Sunkara Rajendra Prasad, 21. Mr. Kishore Para, 22. Mr. Ravi Shankar Jandhyala, 23. Mr. M. Lakshminarayana, 24. Mrs. S. Pranati, 25. Mr. Subba Rao Korrapati, 26. Mr. Balaji Medamalli, 27. Mr. Nagaraju Naguru, 28. Mr. K. S. Murthy, 29. Mr. Vivek Chandrasekhar, 30. Mr. V. V. Lakshminarayana, 31. Mr. P. Vasu Sekhar, 32. Mr. Nalin Kumar, 34. Mr. Y. Surya Prasad. Counsel for the respondents: 1. Advocate General for the State, 2. Mr. Mahfooz Nazki, Senior Counsel, 3. Mr. Kasa Jagan Mohan Reddy, Standing Counsel for Andhra Pradesh Capital Region Development Authority, 4. Mr. Harinath, learned Assistant Solicitor General, 5. Mr. Metta Chandrasekhar Rao, Standing Counsel for Legislative Council, 6. Government Pleader for Municipal Administration & Urban Development, 7. Government Pleader for Legislative Affairs, 8. Government Pleader for General Administration Department., The dispute arises between poor land owners who claim to have sacrificed their livelihood by surrendering agricultural land under the Land Pooling Scheme for the development of the capital city and capital region, and the Government of Andhra Pradesh, which is alleged to have failed to develop infrastructure, hand over reconstituted plots as agreed in the Development Agreement cum Irrevocable General Power of Attorney in Form No. 9.14. A batch of writ petitions has been filed on different grounds., All the writ petitions seek essentially the same reliefs, and therefore the High Court of Andhra Pradesh will dispose of them by a common order, treating Writ Petition No. 13203 of 2020 as the leading case. The reliefs claimed in Writ Petition No. 13203 of 2020, filed under Article 226 of the Constitution of India, are: (a) a writ of mandamus declaring that the State of Andhra Pradesh has no legislative competence to change the capital of the State or to denude Amaravati from being the city of the three civic wings – Legislature, Executive and Judiciary; (b) a declaration that the Andhra Pradesh Capital Region Development Repeal Act, 2020 is ultra vires Articles 3, 4, 14, 19, 21, 197, 174, Parts IX and IXA, Article 300‑A of the Constitution of India read with Sections 5, 31(2) and 94 of the Andhra Pradesh State Reorganisation Act, 2014, and is therefore null and void; (c) a declaration that the Andhra Pradesh Decentralisation and Inclusive Development of All Regions Act, 2020 is ultra vires the same constitutional provisions and is likewise null and void; (d) a declaration that the report of the High Powered Committee dated 17 January 2020 is bad in law and ultra vires Articles 14 and 21 of the Constitution; (e) an order directing the respondents to forbear from acting pursuant to the High Powered Committee report, including shifting any offices of the three civic wings from their current locations in and around Amaravati and from trifurcating the capital for a period of 30 years or such time as this Honorable Court deems fit; and (f) an order directing the respondents to implement the Master Plan notified on 23 June 2016 under Section 39 of the Andhra Pradesh Capital Region Development Authority Act, 2014, including constructing the necessary buildings and housing the offices of the three civic wings in Amaravati., During arguments, the learned Advocate General informed that the Andhra Pradesh Capital Region Development Authority Repeal Act, 2020 (Act No. 27 of 2020) and the Andhra Pradesh Decentralisation and Inclusive Development of All Regions Act, 2020 (Act No. 28 of 2020) were likely to be withdrawn. Subsequently, both Acts were repealed by the State Legislature, and an affidavit along with additional affidavits filed by the Principal Secretary and Additional Secretary of the Municipal Administration & Urban Development Department confirmed the repeal. A copy of the Repeal Act, i.e., Act No. 11 of 2021, was placed on record, thereby restoring the Andhra Pradesh Capital Region Development Authority Act, 2014 (Act No. 11 of 2020). The affidavits also asserted that development activities were being undertaken by the authorities., In view of the repeal of Acts No. 27 and 28 of 2020, senior counsel for the petitioners contended that all reliefs except the constitutional validity of the repealed Acts survive for adjudication. Accordingly, the petitioners claim that their remaining reliefs remain alive and must be adjudicated by this Court., The petitioners submitted memoranda indicating that the following issues survive for adjudication: (a) the State’s failure to deliver the developed plots as per the final Master Plan dated 23 February 2016 within three years, despite the deadline of January 2020 under Rule 12(6) of the Land Pooling Scheme Rules, 2015; (b) the State’s suo motu modification of the Master Plan through Gazette Notification No. 355, MAUD (APCRDA) dated 10 March 2020, which seeks to do away with the concept of the electronic city, and the petitioners’ contention that the Master Plan cannot be amended unilaterally but only upon reference by local bodies; and (c) the State’s claim of lack of resources to implement the Master Plan, which the petitioners argue estops the State from invoking financial incapacity., The learned Advocate General submitted a note asserting that none of the reliefs survive for adjudication and requested dismissal of the writ petitions as infructuous., Given the rival contentions regarding the survival of reliefs, the High Court of Andhra Pradesh must consider the issues raised by both sides, including the arguments of the learned Advocate General, senior counsel for the Andhra Pradesh Capital Region Development Authority, and senior counsel for the State Legislative Assembly, to determine which issues survive for adjudication., It is acknowledged that Acts No. 27 and 28 of 2020 have been repealed by Act No. 11 of 2021. Consequently, the Court is not required to adjudicate the legality, validity, or arbitrariness of those Acts, and the question of their constitutionality does not survive for adjudication., Senior counsel for the petitioners vehemently contended that the petitioners challenged the power of the Andhra Pradesh State Legislature to enact any law for trifurcating or shifting the capital from Amaravati. Since the petitioners questioned the legislative competency of the State Legislature, the Court is required to adjudicate that issue. However, the Advocate General and senior counsel for the State argued that the Court cannot issue a pre‑emptive direction holding that the State is denuded of legislative power, as that would amount to a pre‑emptive mandamus on an academic issue., Senior counsel for the Andhra Pradesh Capital Region Development Authority referred to the Constitutional Bench judgment in Islamic Academy of Education and Another v. State of Karnataka, wherein the Supreme Court held that hypothetical questions should not be entertained and that the constitutionality of a law must be tested only when the law is actually made. Pre‑emptive answers on hypothetical questions are impermissible., Similarly, in National Insurance Company Limited v. Laxmi Narain Dhut, the Supreme Court held that the Court cannot issue a declaration interpreting liability hypothetically in vacuum, and once a law is repealed, the Court cannot issue a pre‑emptive mandamus in anticipation of future legislation., Senior counsel for the State reiterated that the Court cannot adjudicate infructuous petitions because the cause of action no longer exists after the repeal of Acts Nos. 27 and 28 of 2020 by Act No. 11 of 2021. Consequently, consequential reliefs do not survive, and the Court is not required to decide the legislative competency of the State Legislature., The petitioners also argued that the Andhra Pradesh Reorganisation Act, 2014, enacted by Parliament under Article 3 of the Constitution, provided for the division of the erstwhile State of Andhra Pradesh into Telangana and Andhra Pradesh, with Hyderabad serving as the common capital for ten years. Section 5 of the Act stipulated that after this period Hyderabad would remain the capital of Telangana and a new capital would be created for Andhra Pradesh. Section 30 provided for a common High Court at Hyderabad until the President notified the principal seat of the High Court of Andhra Pradesh under Section 31(2). Section 6 required the Central Government to constitute an expert committee to study alternatives for the new capital of the residuary State., Sections 94(3) and (4) of the Reorganisation Act imposed an obligation on the Central Government to provide special financial support for essential facilities in the new capital, including the Raj Bhavan, High Court, Secretariat, Legislative Assembly, Legislative Council, and other infrastructure., The Sivaramakrishnan Committee was constituted by the Central Government under Section 6 of the Reorganisation Act to study alternatives for a new capital. Its terms of reference included consultation with various stakeholders, assessment of potential growth, zoning regulations, feasibility of accommodating key institutions, and evaluation of impacts on agriculture, ecology, disaster vulnerability, construction costs, and land acquisition., The Committee considered criteria such as water availability, connectivity, climate, proximity to existing urban centres, land availability, construction cost, topography, centrality, defence and security, and historical significance to identify suitable locations for the capital., The Committee’s report acknowledged that the State of Andhra Pradesh has the prerogative to decide the location of its capital in consultation with the Central Government. It examined three approaches: a Greenfield single city, expansion of existing cities (rejecting the Vijayawada‑Guntur‑Tenali corridor due to displacement concerns), and distributed development across three sub‑regions – Vizag, Rayalaseema, and Kalahasti‑Nadikudi., A separate study annexed to the Committee’s report, prepared by the Indian Institute of Human Settlements, examined land acquisition models and concluded that a public‑private partnership model would be most suitable for land acquisition under the Land Pooling Scheme., The survey conducted by the Committee found that about 52 % of respondents favoured locating the new capital around the Vijayawada‑Guntur region., Following the Committee’s report, a motion was moved in the Andhra Pradesh Legislative Assembly on 04 September 2014 to locate the capital in the central part of the State, particularly around the Vijayawada‑Guntur region, and to adopt a decentralized development model with three mega‑cities, fourteen smart cities, and a Land Pooling Scheme. The motion was adopted without significant opposition., The factors that favoured the chosen location included low risk of cyclones and seismic activity, centrality, connectivity by rail, road and air, proximity to ports such as Kakinada and Machilipatnam, water availability, existing infrastructure, and proximity to urban centres like Vijayawada, Guntur and Tenali. The capital area was identified as 53,748 acres covering 24 revenue villages and part of Tadepalli Municipality in Guntur district., On 22 December 2014, the Andhra Pradesh Capital Region Development Authority Bill, 2014 was introduced in the Legislative Assembly and passed with broad consensus. The Andhra Pradesh Capital Region Development Authority Act, 2014 (Act 11 of 2014) was enacted, received the Governor’s assent, and was published in the Andhra Pradesh Gazette on 30 December 2014 (G.O. Ms. No. 252, MA&UD)., The objective of the APCRDA Act is to declare the new capital area, establish the Andhra Pradesh Capital Region Development Authority, and provide for planning, coordination, execution, supervision, financing, and promotion of the development of the capital region, including construction of the new capital and provision of urban services., The Chief Secretary filed a counter‑affidavit on behalf of Respondents No. 4, 5 and 6, denying all allegations of unconstitutionality of Acts Nos. 27 and 28 of 2020 and supporting the reports of the K. T. Raveendran Committee, Boston Consultancy Group and the High Powered Committee, while invoking Article 38 of the Constitution. However, these contentions are now irrelevant because Acts Nos. 27 and 28 of 2020 have been repealed by Act No. 11 of 2021, which reserves the Legislature’s right to introduce another bill after due consultation., The respondents also filed additional and common counter‑affidavits, reiterating their position and invoking the doctrines of promissory estoppel and legitimate expectation, arguing that public interest overrides those doctrines. Since Acts Nos. 27 and 28 of 2020 have been repealed, the related contentions are not applicable to the present proceedings., The Principal Secretary to the Government, Municipal Administration and Urban Development, filed a preliminary counter‑affidavit highlighting the works undertaken by the APCRDA and the expenditure incurred, which will be considered at the appropriate stage., Dr. P. Lakshminarasimham filed counter and additional affidavits on behalf of the Commissioner, APCRDA, echoing the contentions of Respondents Nos. 4, 5 and 6. These will be referred to when deciding the points raised., Respondent No. 6 filed another counter‑affidavit in Writ Petition No. 20622 of 2018, supporting the legislative process and denying any malice attributed to the Legislature. These contentions are also irrelevant in view of the repeal of Acts Nos. 27 and 28 of 2020., Respondents Nos. 2 and 3 filed common counter‑affidavits in Public Interest Litigation No. 40 of 2020, attaching the reports of the K. T. Raveendran Committee, Boston Consultancy Group and the High Powered Committee. Their submissions merely reiterate the common affidavits of Respondents Nos. 4, 5 and 6. Respondent No. 1, in Writ Petition No. 13203 of 2020, supported the committee reports, criticized the previous government’s handling of the Sivaramakrishnan Committee report, and highlighted the three‑capital model (Executive at Visakhapatnam, Judicial at Kurnool, Legislative at Amaravati). These points are not required to be detailed here., The respondents disputed the petitioners’ vested rights in the land pooled under the scheme, asserting that the scheme does not confer any vested right and that development activities would continue whenever funds are available., Finally, the respondents, in a unified manner, requested the High Court of Andhra Pradesh to dismiss all the writ petitions.
id_1828	1
id_1828	2	Therefore, the Power Purchase Agreements can be regarded as statutory only to the extent that they contain provisions regarding determination of tariff and other statutory requirements of Section 43A(2). In E.I.D. Parry (I) Ltd and others v. State of Tamil Nadu, the Madras High Court held that the Power Purchase Agreements can be regarded as statutory only to the extent that they contain provisions regarding determination of tariff and other statutory requirements of Section 43A(2). Opening and maintaining an escrow account or an escrow agreement are not statutory requirements and, therefore, merely because Power Purchase Agreements contemplate maintaining escrow accounts that obligation cannot be regarded as statutory., In Har Shankar and others v. Deputy Excise and Taxation Commissioner and others, the Constitution Bench of the Supreme Court of India held that the writ jurisdiction of the High Court under Article 226 of the Constitution is not intended to facilitate avoidance of obligations voluntarily incurred. At the same time, it was observed that the licencees are not precluded from seeking to enforce the statutory provisions governing the contract. It must be remembered that we are dealing with parties to a contract, which is a business transaction governed by statutory provisions. While examining complaints of violation of statutory rules and conditions, it must be remembered that violation of each and every provision does not furnish a ground for the Court to interfere. The provision may be a directory one or a mandatory one. In the case of directory provisions, substantial compliance would be enough. Unless it is established that violation of a directory provision has resulted in loss or prejudice to the party, no interference is warranted. Even in the case of violation of a mandatory provision, interference does not follow as a matter of course. A mandatory provision conceived in the interest of a party can be waived by that party, whereas a mandatory provision conceived in the interest of the public cannot be waived by him. In other words, wherever a complaint of violation of a mandatory provision is made, the Court should enquire in whose interest the provision is conceived., In Indian Oil Corporation v. M/s Raja Transport Private Limited, the Supreme Court of India held that arbitration is a binding voluntary alternative dispute resolution process by a private forum chosen by the parties. It is quite common for governments, statutory corporations and public sector undertakings, while entering into contracts, to provide for settlement of disputes by arbitration, and further provide that the arbitrator will be one of its senior officers. If a party, with full knowledge and comprehension of the said provision, enters into a contract with a government, statutory corporation or public sector undertaking containing an arbitration agreement providing that one of its Secretaries or Directors shall be the arbitrator, he cannot subsequently contend that he is agreeable to settlement of disputes by arbitration but not by the named arbitrator who is an employee of the other party. No party can say he will be bound by only one part of the agreement and not the other part, unless such other part is impossible of performance or void as contrary to the provisions of the Act, and such part is severable from the remaining part of the agreement. The arbitration clause is a package which may provide for what disputes are arbitrable, at what stage the disputes are arbitrable, who should be the arbitrator, what should be the venue, and what law would govern the parties. A party to the contract cannot claim the benefit of arbitration under the arbitration clause but ignore the appointment procedure relating to the named arbitrator contained in the arbitration clause., The principle laid down in the above judgment, though not applicable directly, is that the petitioners are denuded from ventilating their grievance before any court of law or authority as per the conditions enumerated in Form No. 9.14. When the petitioners voluntarily agreed to surrender their land, the respondents, the State and the Andhra Pradesh Capital Region Development Authority, being the State and its instrumentality, are bound by the terms and conditions of the Development Agreement cum Irrevocable General Power of Attorney in Form No. 9.14., In Pimpri Chinchwad Municipal Corporation v. M/s Gayatri Construction Company and another, the Supreme Court of India referred to the judgment of Kerala State Electricity Board v. Kurien E. Kalathil and others, where the Court dealt with the question of maintainability of a petition under Article 226 of the Constitution and the desirability of exhaustion of remedies and availability of alternative remedies, as well as the difference between statutory contracts and non‑statutory contracts. The Court observed: \We find that there is a merit in the first contention of Mr Raval. Learned counsel has rightly questioned the maintainability of the writ petition. The interpretation and implementation of a clause in a contract cannot be the subject‑matter of a writ petition. Whether the contract envisages actual payment or not is a question of construction of contract. If a term of a contract is violated, ordinarily the remedy is not the writ petition under Article 226. We are also unable to agree with the observations of the High Court that the contractor was seeking enforcement of a statutory contract. A contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body. We are also unable to agree with the observation of the High Court that since the obligations imposed by the contract on the contracting parties come within the purview of the Contract Act, that would not make the contract statutory. A statute may expressly or impliedly confer power on a statutory body to enter into contracts in order to enable it to discharge its functions. Dispute arising out of the terms of such contracts or alleged breaches have to be settled by the ordinary principles of law of contract. The fact that one of the parties to the agreement is a statutory or public body will not by itself affect the principles to be applied. The disputes about the meaning of a covenant in a contract or its enforceability have to be determined according to the usual principles of the Contract Act. Every act of a statutory body need not necessarily involve an exercise of statutory power. Statutory bodies, like private parties, have power to contract or deal with property. Such activities may not raise any issue of public law. In the present case, it has not been shown how the contract is statutory. The contract between the parties is in the realm of private law. It is not a statutory contract. The disputes relating to interpretation of the terms and conditions of such a contract could not have been agitated in a petition under Article 226 of the Constitution of India. That is a matter for adjudication by a civil court or in arbitration if provided for in the contract. Whether any amount is due and if so, how much and refusal of the appellant to pay it is justified or not, are not the matters which could have been agitated and decided in a writ petition. The contractor should have relegated to other remedies.\, The principle laid down in the above judgment has no direct application, for the reason that the agreement‑cum‑General Power of Attorney in Form No. 9.14 contains a condition that the farmers cannot approach any court for redressal. That condition does not take away the jurisdiction of the Supreme Court of India under Article 226 of the Constitution of India, in view of the law declared by the Supreme Court of India in L. Chandra Kumar v. Union of India., Learned counsel for the petitioners mainly relied on the judgments of the Supreme Court of India in India Thermal Power Limited v. State of Madhya Pradesh and others, where the Court held that merely because a contract is entered into in exercise of an enabling power conferred by a statute, that by itself cannot render the contract a statutory contract. If entering into a contract containing the prescribed terms and conditions is a must under the statute, then that contract becomes a statutory contract. If a contract incorporates certain terms and conditions which are statutory, then the contract to that extent is statutory. A contract may contain other terms and conditions which are not of a statutory character and which have been incorporated as a result of mutual agreement between the parties., The principle laid down in the above judgment is directly applicable to the facts of the present case, for the simple reason that the terms and conditions incorporated in the Development Agreement cum Irrevocable General Power of Attorney dated 16 March 2015 constitute a statutory contract, since the terms and conditions are based on The Andhra Pradesh Capital City Land Pooling Scheme (Formulation and Implementation) Rules, 2015. In the Development Agreement, Sections 55 and 56 of the Andhra Pradesh Capital Region Development Authority Act, 2014 and Rule 8(8) of the Andhra Pradesh Capital City Land Pooling Scheme Rules, 2015 are specifically mentioned and form the basis for the Agreement. Therefore, by applying the principle laid down therein, it can be safely held that the Development Agreement cum Irrevocable General Power of Attorney in Form No. 9.14 is statutory in nature., In Kapila Hingorani v. State of Bihar, the Supreme Court of India laid down certain tests to determine whether a government company is a State within the meaning of Article 12 of the Constitution of India and concluded that SAIL is a government company within Article 12, as an agency or instrumentality of the State. The Court held that the State may not be liable in relation to the day‑to‑day functioning of the companies, but its liability would arise on its failure to perform constitutional duties and functions by the public sector undertakings. The State acts in a fiduciary capacity. The failure of the State in such cases must also be viewed from the angle that statutory authorities have failed or neglected to enforce social welfare legislations such as the Payment of Wages Act and the Minimum Wages Act. Such welfare activities, as enshrined in Part IV of the Constitution, cast a duty upon the State, being a welfare State, and its statutory authorities to perform all things which they are statutorily obligated to perform. The power of the State in the sphere of exercise of its constitutional power, including those contained in Article 298, inheres in a duty towards the public, whose money is being invested. Article 298 confers a prerogative upon the State to carry on trade or business, but the State must fulfill its constitutional obligations, including protection of rights under Articles 14, 19, 21 and 300‑A., In the facts of that judgment, the question was about vicarious liability of the State Government of Bihar for payment of arrears of salaries to employees of State‑owned corporations, public sector undertakings or statutory bodies. The Supreme Court of India held that the liability of the State of Bihar cannot be shifted to the Union of India. The fact that the Union of India is the repository of funds raised through central excise and other levies does not make it indirectly or vicariously liable for the failings of the State public sector undertakings. The Court further observed that the State must thank itself for having placed itself in such a state of affairs and that, had it properly supervised the functioning of the government companies and taken necessary steps to refer sick companies to the Board for Industrial Financial Reconstruction under the Sick Industrial Companies (Special Provisions) Act, 1985, the position might have been different. The Court noted that the States of India are welfare States and, having regard to the constitutional provisions in Part IV and Part IVA, are bound to preserve human dignity., In view of the law declared by the Supreme Court of India in various judgments, when a contract is entered into by the State or its instrumentalities or a statutory authority of the State, incorporating terms of the statute, such contract must be held to be a statutory contract, though not a government contract as contemplated under Article 299 of the Constitution of India. The State is liable for the default of its statutory authority, i.e., the Andhra Pradesh Capital Region Development Authority. When the Andhra Pradesh Capital Region Development Authority failed to develop the capital region as agreed in Form 9.14 of the Land Pooling Rules, the State is liable to develop the capital region and city, since the Authority is a State instrumentality and the State has total control over it., The State, by its instrumentalities, has total control over the Andhra Pradesh Capital Region Development Authority. Denial of development as per the Development Agreement cum Irrevocable General Power of Attorney in Form 9.14 to provide infrastructure to the land owners who surrendered their land under the land‑pooling scheme amounts to violation of fundamental rights. At the same time, the petitioners also lost their livelihood of agriculture on account of surrender of lands. Thus, they lost their livelihood both presently and in the future because of the actions of the respondents, violating Articles 21 and 300‑A of the Constitution of India., Right to property is a human right and the petitioners failed to enjoy their property on account of surrender of lands and the failure to deliver reconstituted developed plots as agreed in the Development Agreement cum Irrevocable General Power of Attorney in Form 9.14. Such denial amounts to denial of a human right in view of the law declared by the Supreme Court of India in Tukaram Kana Joshi v. MIDC., Accordingly, the point is decided in favour of the petitioners and against the respondents., As points 2 and 3 are interrelated, we deem it expedient to decide both points by common discussion., During the hearing, Sri Shyam Divan, learned Senior Counsel submitted that the petitioners surrendered their land voluntarily with a strong hope that the State would establish a premier capital and thereby increase the value of the developed plots allotted to them. The land was pooled for the specific purpose of establishing a capital, and the process of land pooling would be completed only after issuance of a final completion certificate under the Rules and other obligations imposed on the State and the Andhra Pradesh Capital Region Development Authority, which is the beneficiary under the scheme for construction of a People's Capital. When the State and the Authority failed to establish the capital after sale of a large extent of property to different persons, the failure to take up development activities in the pooled land seriously infringed the rights of the petitioners guaranteed under Articles 21 and 300‑A. Further, the State failed to keep its promise under the statutory contract, defeating the legitimate expectation of the land owners who voluntarily surrendered their land under the Land Pooling Scheme with the expectation that fully developed residential or commercial plots would be given to them. Although the Authority is obligated to complete the process within three years from the date of land pooling, the respondents did not take any steps towards final completion of the scheme after developing the area. In any event, the respondents started carrying on real‑estate business and mortgaging the property to raise loans. In such a case, the land pooled from the owners should be returned to them or otherwise dealt with for the purpose for which it was pooled, instead of establishing a capital. Moreover, the objects and reasons of Act No. 11 of 2021 indicate that the State intends to shift the capital to another place after due consultation with stakeholders. This intention, expressed in the objects and reasons and in the affidavit filed by the Principal Secretary and Additional Secretary of Municipal Administration & Urban Development, confirms that the State intends to present suitable legislation in the future addressing the concerns of all regions of the State and favouring decentralisation. In such a case, the rights of the petitioners will be prejudiced and their right to property will be seriously invaded, having part‑ed with large parcels of land in the Land Pooling Scheme with a strong hope of receiving fully developed plots. When the petitioners agreed to forego three‑quarters of the land while accepting a return of a plot equivalent to one‑quarter, with the expectation that a People's Capital would be constructed in the pooled land of 34 385.27 acres in the Amaravati region, the State's failure to keep its promise defeats the legitimate expectation of the petitioners. On this ground alone, the State is bound to keep its promise and meet the legitimate expectation of the petitioners by constructing a People's Capital in the pooled land., Sri Shyam Divan, Sri B. Adinarayana Rao, Sri M.S. Prasad, learned Senior Counsel, Sri Narra Srinivasa Rao, and Sri Unnam Muralidhar Rao, learned Counsel, relying on several judgments, vehemently contended that the State is bound to keep its promise, keeping in view the legitimate expectation of the land owners who part‑ed with a huge extent of land with the expectation of developed reconstituted residential and commercial plots for their future sustenance and livelihood. However, on account of the repeal of Acts No. 27 and 28 of 2020 and the proposed introduction of a Bill after due consultation, the livelihood of these petitioners is drastically affected and the right to livelihood guaranteed under Article 21 and the right to property guaranteed under Article 300‑A are violated by the State itself, besides violation of human rights, since the right to property is a human right. Therefore, the Court can issue a continuous mandamus for development of the land pooled, strictly in terms of the Land Pooling Scheme. Failure to implement the scheme in letter and spirit is a serious infraction of the fundamental and constitutional rights of the petitioners guaranteed under the Constitution of India, and a writ of continuous mandamus should be issued against the State and the Andhra Pradesh Capital Region Development Authority for implementation of the Land Pooling Scheme., In view of these contentions, it is appropriate to decide the nature of the contract between the land owners and the State under the Andhra Pradesh Capital Region Development Authority Act and the Land Pooling Scheme formulated by the State under the Act. The specific points to be considered are: (a) whether the voluntary surrender of land to the State and its instrumentalities is made as per the provisions of the Andhra Pradesh Capital Region Development Authority Act and the Andhra Pradesh Capital City Land Pooling Scheme (Formulation and Implementation) Rules, 2015; (b) whether the State is under an obligation to keep its promise and is liable to be estopped, applying the principles of promissory estoppel; (c) whether the State failed to implement the Land Pooling Scheme in its letter and spirit, and if so, whether that amounts to defeating the legitimate expectation and constitutional trust of the land owners who surrendered their land under the scheme, and what the liability of the State is., The respondents argue that the petitioners' plea that any review of the activities in the capital would be in violation of the equitable doctrines of promissory estoppel and legitimate expectations is untenable, and that there is an overriding public interest backed by cogent material considered before the Government decided to review the activities in the capital region. They rely on the judgment of the Supreme Court of India in Sharma Transport represented by D.P. Sharma v. Government of Andhra Pradesh and Union of India v. Godfrey Philips India Limited. It is submitted that promises made in the previous regime, without weighing the expert committee reports appointed by the Central Government and in the interests of the public, cannot estop the Government from reviewing the decisions taken earlier. In view of the public outcry and deep resentment, the constitutional obligations under Article 38 and the preliminary findings of the cabinet sub‑committee, it is just and equitable to review the earlier decisions, and the equitable relief of promissory estoppel cannot be claimed by the petitioners., The Government has chosen to revise the policy of a centralized capital at a single place to the exclusion of participation of other regions on the following grounds: (a) inclusive and equitable development of all the regions of the State; (b) deterrent costs in carrying forward the plans of development under the Andhra Pradesh Capital Region Development Authority Act, 2014; (c) overriding public interest of saving State monies in the process of locating the seats of governance., The respondents state that the material available was elaborately considered and concluded by the High Power Committee, and its report has been accepted by the Government. The Government, in its objective and bona‑fide wisdom in respect of overall public welfare, on the basis of various studies, has decided to review the existing works being carried out in the capital region to enable growth of all regions and the people residing in under‑developed regions of the State. The Government has taken this decision to review the existing projects while placing the public purpose of development of the entire State over the public necessity of a particular region, which, apart from being unviable, hinders the public purpose of equitable development of the State. The respondents rely on the judgments of the Supreme Court of India in Sooraram Pratap Reddy and others v. District Collector, Ranga Reddy District., The respondents submit that when there is an imminent clash between individual loss and larger public interest, individual loss must make way for the furtherance of larger public interest, which is the upliftment of all regions of the State. They rely on Union of India v. Unicorn Industries, Monnet Ispat and Energy Limited v. Union of India, State of Haryana v. Eros City Developers Private Limited, and Hira Tikkoo v. Union Territory, Chandigarh, to contend that larger public interest outweighs individual loss and that promissory estoppel must yield to overriding public interest., Addressing the contention that the farmers who surrendered their lands with a legitimate expectation that a world‑class capital city would be constructed, the respondents submit that the Government is taking all steps possible to ensure that there is no injustice to the farmers. The farmers are not being deprived of their guaranteed returns. However, the expectation that all government functionaries carrying out judicial and capital functions must be situated in the capital region, as per Act No. 11 of 2021, does not amount to a legitimate expectation. Therefore, it is not within the right of the petitioners to state that the Government has acted arbitrarily or unreasonably. The respondents rely on the judgments of the Supreme Court of India in M/s Sethi Auto Service Station v. Delhi Development Authority and others, and Madras City Wine Merchants Association v. State of Tamil Nadu., It is further submitted that the doctrine of legitimate expectation becomes inoperative when there is a change in public policy or public interest. The decision under challenge has been taken to cater to the interests of the public at large, and it is reasonable to review the decision taken in the previous regime, considering the financial distress prevalent in the State coffers. The Government, in overriding public interest, on the basis of material on record and expert committee reports, has undertaken the said decisions, which are unexceptionable in law., It is further submitted that all decisions taken by the State immediately prior to the passing of the impugned legislations are in furtherance of public interest, larger public good and bona‑fide, in light of the findings tendered by the committees so far. The State, in furtherance of its economic policy, concluded that decentralisation of seats of authority and development of all regions equally is the constitutional goal to be achieved so as to create a sense of participation and involvement amongst the entire populace of the State rather than continuing with earlier models of centralized development in the capital region to the exclusion of other areas. Having regard to the limited economic capacity of the State, after considering the financial position of the State and all relevant parameters necessary for balanced growth of all regions, the State embarked on the policies reflected in the impugned legislations. The petitioners do not have a fundamental right to insist that the contracts entered into and the works initiated at exaggerated costs be continued until completion, notwithstanding the derogation of public interest and the State's interest. The writ petitioners are put to strict proof of the pleadings contained in the writ petitions., The respondent, Andhra Pradesh Capital Region Development Authority, also filed a counter‑affidavit on the same lines., The doctrine of legitimate expectation was first developed in English law as a ground of judicial review in administrative law to protect a procedural or substantive interest when a public authority rescinds a representation made to a person. It is based on the principles of natural justice and fairness, and seeks to prevent authorities from abusing power. The courts of the United Kingdom have recognised both procedural and substantive legitimate expectations. A procedural legitimate expectation rests on the presumption that a public authority will follow a certain procedure in advance when a decision is being taken, while a substantive legitimate expectation arises where an authority makes a lawful representation that an individual will receive or continue to receive some kind of substantive benefit. In determining a claim for an alleged breach of a legitimate expectation, a court will consider three key aspects: (1) whether a legitimate expectation has arisen; (2) whether it would be unlawful for the authority to frustrate such an expectation; and (3) if the authority has done so, what remedies are available to the aggrieved person., The doctrine of legitimate expectations is one amongst several tools incorporated by the Court to review administrative action. This doctrine pertains to the relationship between an individual and a public authority. According to this doctrine, the public authority can be made accountable in lieu of a legitimate expectation. A person may have a reasonable or legitimate expectation of being treated in a certain way by the administrative authorities owing to some consistent practice in the past or an express promise made by the concerned authority., In Halsbury's Laws of England, Fourth Edition, Volume I(I) 151, a passage explaining the scope of legitimate expectation runs as follows: “Legitimate expectations. A person may have a legitimate expectation of being treated in a certain way but an administrative authority, even though he has no legal right in private law to receive such treatment, may be bound by the expectation. The expectation may arise either from a representation or promise made by the authority, including an implied representation, or from consistent past practice.”
id_1828	3	The existence of a legitimate expectation may have a number of different consequences; it may give locus standi to seek leave to apply for judicial review; it may mean that the authority ought not to act so as to defeat the expectation without some overriding reason of public policy to justify its doing so; or it may mean that, if the authority proposes to defeat a person's legitimate expectation, it must afford him an opportunity to make representations on the matter. The courts also distinguish, for example in licensing cases, between original applications, applications to renew and revocations; a party who has been granted a licence may have a legitimate expectation that it will be renewed unless there is some good reason not to do so, and may therefore be entitled to greater procedural protection than a mere applicant for a grant. The doctrine is not a specific legal right engraved in a particular statute or rule book. The first attempt to establish the principles of the doctrine was in the case of Council of Civil Service Unions and Others v. Minister for the Civil Service, where the decision by the public authority should affect the person such that his rights or obligations are altered, which are enforceable by or against him; he is deprived of some benefit or advantage which he had been permitted by the authorizing body in the past and which he could have legitimately expected to enjoy until a valid ground for withdrawal of the same was communicated to him or he had been assured by the decision‑making body that such a benefit or advantage would not be withdrawn until he is given an opportunity to contend reasons as to why they were withdrawn., Procedural legitimate expectations have been recognized in a number of common law jurisdictions. Since its inception, the doctrine of legitimate expectation has been viewed as an offshoot of natural justice. The duty to act fairly is a core tenet of administrative law and a predominant feature in the application of the rules of natural justice. With each individual's entitlement to natural justice and fairness, legitimate expectation reinforces the duty of public bodies to act fairly. It is this protection of fairness that made way for the courts' acknowledgement of legitimate expectations. In their elaboration of the doctrine, courts of the United Kingdom adopted other key aspects of judicial review such as Wednesbury unreasonableness, fairness (vide R v. Inland Revenue Commissioners, ex parte M.F.K. Underwriting Agents Limited) and abuse of power (R. (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs) to justify the existence and the protection of legitimate expectations. The term legitimate expectation was first used in the case of Schmidt v Secretary of State for Home Affairs but was not applied on the facts. Subsequently, in O'Reilly v Mackman the doctrine of legitimate expectation was recognized as part of judicial review in public law, allowing individuals to challenge the legality of decisions on the grounds that the decision‑maker had acted outwith the powers conferred upon it. Although initially unclear, the nature and boundaries of the doctrine of legitimate expectation have been elucidated by seminal cases such as Council of Civil Service Unions v Minister for the Civil Service and R v North and East Devon Health Authority, ex parte Coughlan. Notwithstanding efforts of the courts, some ambiguity as to when legitimate expectations arise persisted. In response, Lord Justice of Appeal John Laws proposed the aspiration of “good administration” as a justification for the protection of legitimate expectations (Nadarajah v. Secretary of State for the Home Department)., A procedural legitimate expectation is created when a representation is made by a public authority that it will follow a certain procedure before making a decision on the substantive merits of a particular case. Upon reviewing a claim for the protection of a legitimate expectation against a public authority's decision, courts will deliberate over three key considerations: (a) the situations and circumstances in which legitimate expectations arise; (b) the instances in which it would be unlawful for the public authority to frustrate such an expectation; (c) the remedies that would be available to the aggrieved party if it is found that the public authority had unlawfully frustrated a legitimate expectation., To find out whether there is any legitimate expectation, the parties who approach the Supreme Court of India have to satisfy that the representation must be clear, unambiguous, and not have any relevant qualification; the expectation must be induced by the behaviour of the public authority; the representation must have been made by someone who had actual or apparent authority; and the representation must be applicable to the aggrieved parties. Courts take into account not only the reasonableness of the expectation but also other considerations such as the nature of the representation made., One of the contentions urged by the learned counsel for the petitioners is that the State, being a constitutional authority, is under obligation to perform its duty through its authority, the Andhra Pradesh Capital Region Development Authority, when the statutory authority entered into the Development Agreement cum Irrevocable General Power of Attorney in Form‑9.14 with the farmers of the capital region for pooling their land by applying the principle of the doctrine of legitimate expectation., A legitimate expectation does not arise when it is made ultra vires of the decision‑maker's statutory powers, that is, when the decision‑maker lacked legal power to make the representation. Courts are reluctant to protect such an expectation. In the present case, the Andhra Pradesh Capital Region Development Authority is invested with the power to pass subordinate legislation, that is, the land‑pooling scheme, and to enter into the Development Agreement cum Irrevocable General Power of Attorney in Form‑9.14 under the Andhra Pradesh Capital Region Development Authority Act, 2014. Accordingly, that agreement created bilateral legal obligations between the parties. Various obligations were cast upon the state instrumentality as per the agreement, as modified by Government Order No. 52, Municipal Administration & Urban Development (M2) Department dated 16 March 2015. The reason for adopting the Andhra Pradesh Capital Region Development Authority Act, 2014 was the recommendations of the Sivaramakrishnan Committee, which made three recommendations for choosing a capital city for the residuary State of Andhra Pradesh, including the establishment of a Green Field Capital City. The Legislature passed a resolution to establish the Green Field Capital City in Amaravati. The present Chief Minister, who was the opposition leader in the Assembly, together with other representatives, unanimously accepted the proposal made by the then Government without protest. Consequently, Government Orders No. 253 and No. 254, dated 30 December 2014, were passed declaring Amaravati as the capital city, thereby formulating the scheme based on the power invested in the Andhra Pradesh Capital Region Development Authority for land pooling. Under the land‑pooling scheme, the farmers of the Capital Region Area entered into the Development Agreement cum Irrevocable General Power of Attorney in Form‑9.14 accepting that a single capital comprising the Executive, Judiciary and Legislature would be established in Amaravati. The authority has undertaken works and completed part of them. Therefore, the farmers legitimately expected that the capital would include the Executive, Judiciary and Legislature at Amaravati. However, a proposal under Act 28 of 2020, later repealed, sought to divide the single capital into three capitals—Executive Capital, Judicial Capital and Legislative Capital—and to shift the Executive Capital to Visakhapatnam and the Judicial Capital to Kurnool under Section 8 of Act 28 of 2020. Acts 27 and 28 of 2020 were repealed while intending to present suitable legislation in the future addressing all regional concerns and favouring decentralisation, as per the statement of objects and reasons of the Repeal Act No 11 of 2021. As a result, the legitimate expectation of the farmers who entered into the Development Agreement cum Irrevocable General Power of Attorney in Form‑9.14 is totally frustrated, with development activities in the pooled land abandoned. Hence, there is a representation—an agreement—between the Andhra Pradesh Capital Region Development Authority and the farmers, and the question of unilateral exercise of power to decentralise does not arise., The other requirement is that such statements or representations must be made by a competent person. For an expectation to be legitimate, the individual making the representation must have actual or apparent authority to make it on behalf of the public authority. Such representations would prima facie bind the public authority (vide South Bucks District Council v. Flanagan)., Lastly, Sri M.S. Prasad, learned counsel also placed reliance on the judgment of the Supreme Court of India in Manuelsons Hotels (P) Limited v. State of Kerala, wherein it was held that the doctrine of promissory estoppel is founded on the principle that an unconscionable departure by one party from an assumption of fact or law, present or future, which the other party has adopted as the basis of conduct, should not be allowed to pass muster. The relief in cases involving promissory estoppel contains a degree of flexibility that ultimately renders justice to the aggrieved party. The doctrine was well explained in the Australian High Court judgment in The Commonwealth of Australia v. Verwayen. The court observed that estoppel by conduct is a doctrine of substantive law whose factual ingredients must be pleaded and resolved like other factual issues. It can give rise to primary rights of property and contract. The central principle is that the law will not permit an unconscionable—or more accurately, unconscientious—departure by one party from an assumption that the other party has adopted as the basis of conduct, which would operate to the other party's detriment if the assumption were not adhered to. An estoppel arises only when the party claiming its benefit has adopted the assumption as the basis of action or inaction and is placed in a position of significant disadvantage if the assumption is departed from. The court must consider whether the departure would be unconscionable by examining the conduct of the alleged estopped party in all circumstances. Four main categories justify an affirmative answer: (a) the party induced the assumption by express or implied representation; (b) the party entered into contractual or material relations on the basis of the assumption; (c) the party exercised rights against the other party that would exist only if the assumption were correct; (d) the party knew the other party laboured under the assumption and refrained from correcting it when conscience required. The assumption may be of fact or law, present or future. The doctrine operates consistently in both law and equity; “equitable estoppel” is not a separate doctrine. Estoppel by conduct does not itself constitute an independent cause of action but may be relied upon defensively or used as the factual foundation of an action arising under ordinary principles. The doctrine’s flexibility ensures that relief is not granted beyond what good conscience justifies., In the present case, representation was made by the Andhra Pradesh Capital Region Development Authority, having authority to make such representation, in view of the provisions of the Andhra Pradesh Capital Region Development Authority Act, 2014 and the Andhra Pradesh Capital City Land Pooling Scheme (Formulation and Implementation) Rules, 2015. Hence, the representation made by the competent authority or authorized officer to the farmers, who voluntarily surrendered land and accepted the proposed allotment of reconstructed plots and development of the capital area, was as agreed. Although the proposal to shift the Executive and Judiciary to other places has ceased to exist, it is asserted that the State Legislature intends to present suitable legislation in the future addressing all regional concerns and favouring decentralisation, as per the statement of objects and reasons of the Repeal Act., A representation must be reasonable to decide whether the expectation held by the aggrieved party is legitimate; the courts will consider whether the expectation was, in all circumstances, reasonable when it was formed. The reasonableness test requires the court to assess the behaviour of the parties prior to the alleged representation, keeping in view that the representation may arise from either the words used or the conduct of the parties; the aggrieved party must not have employed fraudulent measures to obtain the representation and must have disclosed all relevant information; the representation must usually be clear, unambiguous and devoid of any qualification. However, this is not required to establish the existence of a legitimate expectation if the public authority acted so unfairly that its conduct constituted an abuse of power., In the present facts of the case, a representation arose on entering into the Development Agreement cum Irrevocable General Power of Attorney in Form‑9.14 without any qualification. Terms (iii) and (iv) of that agreement denuded the farmers of the right to make any claim before any tribunal, authority or court. The agreement discloses all relevant information in clear and unambiguous language without any disqualification and was not obtained by fraud. Therefore, the representation is reasonable, clear and unambiguous. Based on the principle of substantive legitimate expectation, the State is under obligation to fulfil its obligations, as there is a substantive legitimate expectation by the farmers from the public body, the Andhra Pradesh Capital Region Development Authority, and the Government., The only exception to such legitimate expectation is public interest. Public interest overrides the legitimate expectation. The Supreme Court of India must keep in mind the public interest while deciding the applicability of the doctrine of substantive legitimate expectation. The Court has to determine whether there is any overriding public interest justifying the public authority's decision to resile from its representation, or whether fairness dictates that the representation should be given effect., In the present case, the respondents raised the plea of public interest to override the legitimate expectation before the repeal of Andhra Pradesh Act Nos. 27 and 28 of 2020, as they proposed three capitals. After the repeal, the alleged public interest for establishing three capitals vanished. Having agreed in the Agreement‑cum‑General Power of Attorney in Form 9.14, the State and the Andhra Pradesh Capital Region Development Authority cannot resile from the agreement without reasonable cause, even though affidavits were filed by the Principal Secretary and Additional Secretary of Municipal Administration & Urban Development agreeing to undertake development activities including infrastructure in the pooled land. Hence, the State and the Andhra Pradesh Capital Region Development Authority must discharge their obligations strictly in terms of the agreement, the Land Pooling Rules and the relevant provisions., Although the doctrine of legitimate expectation is imported from the United Kingdom and other countries, the Courts in India are applying the principle of legitimate expectation., In State of Kerala v. K.G. Madhavan Pillai, the principle of legitimate expectation was considered. A sanction was issued for the respondents to open a new aided school and to upgrade existing schools, but an order issued fifteen days later kept the previous sanction in abeyance. The respondents challenged the order on the ground of violation of natural justice. The Supreme Court of India ruled that the sanction had created a legitimate expectation and that the second order violated principles of natural justice., In Navjyoti Cooperative Group Housing Society v. Union of India, the new criteria for allotment of land was challenged. The original policy determined seniority for allotment on the basis of date of registration. In 1990 the policy was changed to base seniority on the date of approval of the final list. The Supreme Court of India held that the housing societies were entitled to legitimate expectation owing to the continuous and consistent practice in the past. The Court further stated that legitimate expectations can lead to different outcomes, one of which is that the authority should not frustrate a legitimate expectation unless there is a justifiable public policy reason. It emphasized that providing a reasonable opportunity to those likely to be affected by a consistent policy change is within the ambit of acting fairly., The principle laid down in the above judgment applies to the present facts. The former Government decided to declare Amaravati as the capital city, in view of the unanimous resolution passed in the Assembly, thereby accepting the recommendation of the Sivaramakrishnan Committee to establish a Green Field Capital City. The present Government in the Assembly decided to trifurcate the single capital, establishing an Executive Capital at Visakhapatnam, a Judicial Capital at Kurnool, and continuing the Legislative Capital at Amaravati. This policy became Act No. 28 of 2020 but was repealed by Act No. 11 of 2021. Consequently, the proposed change of policy leaves nothing in Amaravati except the Legislative Capital, and no development will take place except the construction of buildings for meetings of the Legislative Assembly and Legislative Council summoned by the Governor under Article 174 of the Constitution of India., The Governor may summon either House or both Houses to meet at any place at any time, and such a meeting need not be in the Assembly or Council building in the Legislative Capital. It is for the Governor, with the advice of the Council of Ministers under Article 163 of the Constitution of India, to decide where and when to meet. If the Governor's residence is shifted to the Executive Capital, there is a possibility of summoning the Houses to meet at a place other than the Legislative Capital. This directly deprives the farmers of the capital city or capital region of developmental activities, and their legitimate expectation is totally frustrated by the proposed legislation. The change of policy shall not frustrate the legitimate expectation of the farmers who voluntarily surrendered their lands under the land‑pooling scheme. Hence, the proposed action of the State cannot be sustained., The Supreme Court of India elaborated on the nature of the doctrine of legitimate expectations in Food Corporation of India v. Kamdhenu Cattle Feed Industries, stating that the duty to act fairly on the part of public authorities entitles every citizen to have a legitimate expectation of being treated fairly, and that giving due importance to such expectation is essential to satisfy the requirement of non‑arbitrariness in state action, otherwise it may amount to abuse of power. The Court further observed that a reasonable or legitimate expectation may not be a directly enforceable legal right, but failure to consider it may render a decision arbitrary. Determining whether an expectation is legitimate is contextual and must be decided on a case‑by‑case basis., In Union of India v. Hindustan Development Corporation, the Supreme Court of India dealt with the doctrine in great detail, citing Halsbury's Laws of England, Fourth Edition, Volume I, which states that a person can have a legitimate expectation of being treated in a certain fashion even though he does not have a legal right to receive that treatment., If these principles are applied to the present facts, the State and the Andhra Pradesh Capital Region Development Authority, as the responsible public authority, are under obligation to perform the obligations under the Development Agreement cum Irrevocable General Power of Attorney in Form‑9.14. When the State proposes to decentralise administration as outlined in the statement of objects and reasons, it would violate the principle of the doctrine of legitimate expectation., In M.P. Oil Extraction v. State of Madhya Pradesh, the Supreme Court of India held that the doctrine of legitimate expectations operates in the realm of public law and is a substantive and enforceable right in appropriate cases. The Court observed that industries had a legitimate expectation based on past practice and a renewal clause that agreements would be renewed in a similar manner. In National Buildings Construction Corporation v. S. Raghunathan, the respondents were deputed for an overseas project in Iraq by NBCC (a Government company). They sought to draw their salary on the same scale as Central Public Works Department employees with deputation allowance and a foreign allowance of 125 percent of basic pay, despite a revision of basic pay. The Court held that the claim based on legitimate expectation was rejected because no such promise or agreement had been made by NBCC. The Court also noted that the doctrine originates in administrative law and that Government departments must not act in an unfettered manner guided by abuse of discretion, and that the contention of legitimate expectation should have been raised in the pleadings., In view of the law laid down in the above judgments, the State and its instrumentalities must not act in an unfettered manner abusing their discretion. In the present case, the State and the Andhra Pradesh Capital Region Development Authority, by exercising unfettered discretion, abused their power. When they acted in such a manner, the Supreme Court of India can issue a direction, as the respondents' act is arbitrary and defeats the legitimate expectation of the petitioners, who transferred their property believing in the representation of the State and the Authority. Accordingly, the Supreme Court of India, while exercising power under Article 226 of the Constitution of India, can issue a direction., The development of the doctrine of legitimate expectation in India has been in line with the principles evolved in the common law English courts. It was from these English cases that the doctrine was first recognised by the courts in India. Consequently, it creates a new category of remedy against an administrative action and furthers the rule of law in India., The doctrine's use has been embedded into Article 14 of the Constitution, making non‑arbitrariness and unreasonableness necessary qualifiers for assessing whether there was a denial of legitimate expectation., In the present case, the farmers of the capital region voluntarily surrendered their land under the Andhra Pradesh Capital City Land Pooling Scheme formulated under the Andhra Pradesh Capital Region Development Authority Act, 2014. The terms and conditions of the Development Agreement cum Irrevocable General Power of Attorney in Form‑9.14 deprived the farmers of the right to approach any authority, tribunal or court by express condition, thereby denying them the ability to claim any loss or damages.
id_1828	4	At the same time, in view of the irrevocability of the authorization executed in favour of Andhra Pradesh Capital Region Development Authority by these petitioners, that is, Development Agreement cum Irrevocable General Power of Attorney in Form 9.14, the State or Andhra Pradesh Capital Region Development Authority is incompetent to revoke the same. As per the provisions of the Andhra Pradesh Capital Region Development Authority Act and Land Pooling Rules, the property shall continue to vest in the constituted authority known as Andhra Pradesh Capital Region Development Authority. Accordingly, the property of farmers surrendered under the Land Pooling Scheme for the specific purpose of the Capital City and Capital Region is vested in Amaravati Metropolitan Region Development Authority. However, the State reserved its right to develop the region within its economic capacity and consistent with the policy enumerated in the Andhra Pradesh Capital Region Development Authority Act, Land Pooling Scheme Rules and Form 9.14. Failure to develop and construct the capital on the pooled land will seriously affect the rights of the farmers, and the imposition of such a clause is contrary to the terms of the Development Agreement cum Irrevocable General Power of Attorney in Form 9.14. Hence, the inaction of the State and Andhra Pradesh Capital Region Development Authority is unreasonable and arbitrary. On this ground, the Supreme Court of India can exercise its power to strike down the inaction of the State and Andhra Pradesh Capital Region Development Authority and direct them to discharge their obligations under the Development Agreement cum Irrevocable General Power of Attorney in Form 9.14., One of the major contentions raised by the learned counsel for the petitioners in all the writ petitions is that when the State or its instrumentality made a promise and obtained a Development Agreement cum Irrevocable General Power of Attorney in Form 9.14, the State and Andhra Pradesh Capital Region Development Authority are under a legal obligation to perform their part of the agreement without any qualification. Failure to perform their obligations under the agreement of Andhra Pradesh Capital Region Development Authority violates statutory obligations under the contract. By applying the Doctrine of Estoppel, the respondents are bound to undertake development. Consequently, any action taken confers discretion on the State Government and Andhra Pradesh Capital Region Development Authority to develop the region within its economic capacity and consistent with the policy of decentralized development. Such an act can be said to be arbitrary and unreasonable, drastically affecting the rights of the farmers who voluntarily surrendered their valuable agricultural land. The learned counsel for the petitioners relied on various judgments of the Supreme Court of India, which will be referred to at the appropriate stage., Learned Senior Counsel appearing for the State vehemently contended that, based on the principle of promissory estoppel, the legislation cannot be set at naught by a mere request of the farmers who are parties to the contract in the Development Agreement cum Irrevocable General Power of Attorney in Form 9.14. The remedy for such farmers is to approach a competent civil court to claim damages or compensation for the land they surrendered under the Land Pooling Scheme. However, on that ground, the legislation cannot be quashed, and the State requested that Act 28 of 2020 and Act 27 of 2020 not be quashed on the ground of violation of the doctrine of promissory estoppel. This contention is no longer available, as Acts 27 and 28 of 2020 have already been repealed during the pendency of the writ petitions., Estoppel is a rule of equity. That rule has gained new dimensions in recent years. A new class of estoppel, that is, promissory estoppel, has come to be recognised by courts in the country as well as in England. The full implication of promissory estoppel is yet to be spelled out, but the principle was stated and invoked in Central London Property Trust Ltd. v. High Trees House Limited, where it was held that when one party, by his words or conduct, makes to the other a promise or assurance intended to affect the legal relations between them and to be acted upon accordingly, then, once the other party has taken him at his word and acted on it, the party who gave the assurance or promise cannot afterwards revert to the previous relationship as if no such promise or assurance had been made. He must accept the legal relations subject to the qualification he himself introduced, even though it is not supported in law by any consideration, but only by his word. However, that principle does not create any cause of action which did not exist before; therefore, where a promise is made without consideration, the promisee cannot bring an action on the basis of the promise. The rule laid down in these decisions undoubtedly advances the cause of justice, and we have no hesitation in accepting it., Promissory estoppel is a relatively new development. To trace the evolution of the doctrine in England, reference must be made to several English decisions. The early cases did not speak of this doctrine as estoppel; they described it as raising equity. Lord Cairns stated the doctrine in its earliest form in Hughes v. Metropolitan Railway Company, observing that if parties who have entered into definite and distinct terms involving certain legal results, afterwards by their own act or with their own consent, enter upon a course of negotiation which leads one of the parties to suppose that the strict rights arising under the contract will not be enforced, or will be kept in suspense, the person who otherwise might have enforced those rights will not be allowed to enforce them where it would be inequitable having regard to the dealings between the parties. This principle of equity made sporadic appearances, but it was only in 1947 that it was restated as a recognised doctrine by Lord Denning in Central London Properties Ltd. v. High Trees House Limited, who asserted that a promise intended to be binding, intended to be acted upon, and in fact acted upon is binding. The correctness of Lord Denning’s dictum has been the subject of considerable controversy. Two main criticisms have been raised. First, it was argued that the concept of promissory estoppel offends the rule in Jordan v. Money, which held that only a representation of existing or past fact, and not one relating to future conduct, will ground an estoppel. Therefore, estoppel would not apply to a promise as to the future. However, the rule in Jordan v. Money is not absolute and is qualified by several exceptions. One such exception is the principle expressed in Hughes v. Metropolitan Railway Company, which applies where two parties stand together in a contractual or similar legal relationship, and one makes to the other a promise to forbear from enforcing its strict legal rights. To this situation the rule in Jordan v. Money has no application. Secondly, the dictum of Lord Denning was said to be inconsistent with the decision of the House of Lords in Foakes v. Beer. The principle upon which he relied in the High Trees case was that of estoppel, which must be specially pleaded; a plea of estoppel was never raised in Foakes v. Beer. ‘Estoppels’ in English legal phraseology are of infinite variety and are not confined to subjects dealt with in Chapter VIII of the Indian Evidence Act. A person may be estopped not only from giving particular evidence, but from doing acts, or relying upon any particular arguments or contentions which the rules of equity and good conscience prevent him from using against his opponent., The principle of estoppel is traced only under Section 115 of the Indian Evidence Act to a limited extent, describing it as an equitable estoppel. In India, the evolution of the application of this doctrine can be divided into two stages: pre‑Union of India v. Anglo‑Afghan Agencies and post‑Union of India v. Anglo‑Afghan Agencies. Prior to that case, the position was that promissory estoppel did not apply against the Government. The position altered with that case. In Union of India v. Anglo‑Afghan Agencies, the Government of India announced certain concessions with regard to the import of certain raw materials in order to encourage export of woolen garments to Afghanistan. Subsequently, only partial concessions, not full concessions, were extended as announced. The Supreme Court of India held that the Government was estopped by its promise. Since then, courts have applied the doctrine of promissory estoppel even against the Government. In that case, the Government of India promulgated an Export Promotion Scheme to provide incentives to exporters of woollen goods. The respondent exported goods of a certain value and claimed import entitlement equal to the full value of exports as notified in the scheme, but the Textile Commissioner reduced the import entitlement. The Supreme Court of India held in favour of the respondent on the ground that the Textile Commissioner and the Union of India did not act under Clause 10 of the scheme, which authorises the Commissioner to assess the value of the exported goods and issue an entitlement certificate based on such assessed value. Instead, the Commissioner reduced the import entitlement without giving the respondent an adequate opportunity to present its case. The Supreme Court of India also observed: “We hold that the claim of the respondent is appropriately founded upon the equity which arises in their favour as a result of the representation made on behalf of the Union of India in the Export Promotion Scheme, and the action taken by the respondent acting upon that representation under the belief that the Government would carry out the representation made by it.” Having held in favour of the respondent on the ground that the provisions of the scheme had not been followed by the appellants, any reference to promissory estoppel for use against the Government was totally uncalled for and the observation must be treated as obiter pure and simple., Jurisprudence behind the doctrine is that promissory estoppel is an equitable doctrine. Like all equitable remedies, it is discretionary, in contrast to the common law absolute right to damages for breach of contract. The doctrine has been variously called promissory estoppel, equitable estoppel, quasi estoppel and new estoppel. It is a principle evolved by equity to avoid injustice and, though commonly named promissory estoppel, it is neither in the realm of contract nor in the realm of traditional estoppel. The true principle of promissory estoppel is that where one party, by his words or conduct, makes to the other a clear and unequivocal promise intended to create legal relations or to effect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party, and the other party indeed acts upon it, the promise is binding on the promisor and he cannot go back upon it. It is not necessary, in order to attract the applicability of the doctrine of promissory estoppel, that the promisee suffer any detriment. The only requirement is that the promisee should have altered his position in reliance on the promise., This rule is applied by the courts of equity in England, as estoppel is a rule of equity. In India, however, the rule of estoppel is a rule of evidence, and the ingredients of Section 115 of the Indian Evidence Act, 1872, must be satisfied for the application of the doctrine. The doctrine of promissory estoppel does not fall within the scope of Section 115, as that section deals with representations of existing facts, whereas promissory estoppel deals with future promises. The application of the doctrine would negate the constitutional provision under Article 299, which affords exemption from personal liability to the person making the promise or assurance., The ingredients to constitute the doctrine of promissory estoppel are as follows: that there was a representation or promise regarding something to be done in the future; that the representation or promise was intended to affect the legal relationship of the parties and to be acted upon accordingly; and that the other side has, in fact, acted to its prejudice., In the formative period the doctrine of promissory estoppel could not be invoked by the promisee unless he had suffered detriment or prejudice. All that is required is that the party asserting the estoppel must have acted upon the assurance given by the promisor. The alteration of position by the party is the only indispensable requirement of the doctrine. Thus, a party who approached the Supreme Court of India claiming relief based on promissory estoppel must establish the above requirement; otherwise he is not entitled to claim any relief either as a defence or as a claim., According to Halsbury, promissory estoppel is defined as follows: where, by words or conduct, a person makes an unambiguous representation as to his future conduct, intending the representation to be relied upon and to affect the legal relations between the parties, and the representee alters his position in reliance on it, the representor will be unable to act inconsistently with the representation if, doing so, the representee would be prejudiced., Promissory estoppel contains a number of features which distinguish it from estoppel by representation of fact. First, the representation may be one of intention and not one of fact, raising the question of whether it is inconsistent with the House of Lords decision in Jordan v. Money. However, the doctrine is now well established. Secondly, the requirement of detriment to the representee is less stringent in promissory estoppel. Financial loss or other detriment is sufficient, but it is not necessary to show more than that the representee committed himself to a particular course of action as a result of the representation. Thirdly, the effect of the estoppel may not be permanent. The representor may escape from the burden of equity if he can ensure that the representee will not be prejudiced. Consistently with estoppel by representation, promissory estoppel does not create a cause of action; it operates to give a negative protection. It is a shield and not a sword., The doctrine of promissory estoppel is developed in all countries, including the United Kingdom and the United States of America. A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee, and which does induce such action or forbearance, is binding if injustice can be avoided only by enforcement of the promise. According to American jurisprudence, there is considerable dispute as to the application of estoppel with respect to the State. While it is said that suitable estoppel will be invoked against the State when justified by the facts, the doctrine of estoppel should not be lightly invoked against the State. Generally, the State is not subject to an estoppel to the same extent as an individual or a private corporation; otherwise it might be rendered helpless to assert its powers in government. Therefore, as a general rule, the doctrine of estoppel will not be applied against the State in its governmental, public or sovereign capacity. An exception arises in the application of estoppel to the State when it is necessary to prevent fraud or manifest injustice., In India, there has been a vast expansion of the doctrine of promissory estoppel. The principle of promissory estoppel in India is a rule of evidence incorporated in Section 115 of the Indian Evidence Act, and the requirements to constitute promissory estoppel are identical to the principles enumerated above., As discussed above, in the present case, based on the promise made by Andhra Pradesh Capital Region Development Authority, which is a state instrumentality, by framing a statutory scheme of land pooling and exercising power under the Andhra Pradesh Capital Region Development Authority Act, 2014, and believing the representation of the Authority, the farmers in the capital region voluntarily surrendered their agricultural land, thereby altering their position and handing over possession of the property to the Authority for development activities, as agreed under the Development Agreement cum Irrevocable General Power of Attorney in Form 9.14, as modified by Government Order No. 52, Municipal Administration & Urban Development Department dated 16 March 2015. In compliance with the terms and conditions of the Development Agreement cum Irrevocable General Power of Attorney in Form 9.14, the Authority undertook developmental activities, laid access roads and other connecting roads, spent a huge amount, divided the surrendered property into commercial and residential plots to deliver reconstructed plots to the farmers, issued certificates, and allotted plots in various areas. The land was converted from agricultural to non‑agricultural use and approved lands were allotted to various Central Government institutions, universities, and private entrepreneurs for development on payment of its value. The government also raised constructions on the pooled land, including a Secretariat, High Court, Indian Administrative Service officers’ quarters, Members of Legislative Assembly and Members of Parliament residential quarters; ninety percent of the work is completed, and construction of a permanent iconic High Court building near the present judicial complex in Justice City, as well as residential quarters for secretaries and ministers, has been partly completed. However, at this stage the government took a policy decision to trifurcate the capital into three parts—Executive Capital, Judicial Capital and Legislative Capital—proposing to shift the Executive Capital to Visakhapatnam and the Judicial Capital to Kurnool to decentralise administration and develop all three regions in the State. During the pendency of the petitions, this decision was withdrawn. The land pooling was undertaken only for development of the capital region and capital city, and on the promise to develop both, the Authority lured the farmers of the villages to surrender their lands. Now, the Authority has resiled from its promise. Consequently, except for continuing and constructing buildings for meeting Members of the Legislative Assembly and Members of the Legislative Council, no further activity is being undertaken. Even if the State or the Authority intended to return the property to the farmers, it would be difficult to identify the property on the ground, and in fact it would have a disastrous effect on the rights of the farmers because the land has been left fallow for the last five years with overgrown bushes and wild growth. Constructions have been raised in some parts of the property, roads, drainages, and electricity lines have been laid, which have totally destroyed the nature of the agricultural land, making it now unfit for cultivation., As discussed above, believing the promise made by Andhra Pradesh Capital Region Development Authority, the farmers of the Capital Region, including the Capital City area, voluntarily surrendered their land and entered into the Development Agreement cum Irrevocable General Power of Attorney in Form 9.14, agreeing to the delivery of reconstructed plots, both residential and commercial, as mentioned in the agreement. The farmers also agreed, without any qualification, that they would not approach any tribunal, authority, or court claiming compensation under clauses (iii) and (iv) of the conditions mentioned in the Development Agreement cum Irrevocable General Power of Attorney in Form 9.14. The property continues to vest under the Andhra Pradesh Capital Region Development Authority Act., The affidavits filed by the Principal Secretary and Additional Secretary of Municipal Administration & Urban Development, and the argument of Sri S. Niranjan Reddy, learned Senior Counsel for Andhra Pradesh Capital Region Development Authority, indicate that the Authority does not want to develop the area, possibly due to economic constraints. Thus, the farmers are denied the ability to raise any claim before any competent authority, tribunal, or civil court for damages or otherwise, while the Government does not want to develop, as agreed in terms of the Andhra Pradesh Capital City Land Pooling Scheme (Formulation and Implementation) Rules, 2015 and the Development Agreement cum Irrevocable General Power of Attorney in Form 9.14. Such an act of the State or its instrumentality is a highly unreasonable and arbitrary exercise of power by the law‑makers., In M/s Motilal Padampat Sugar Mills Company Limited v. State of Uttar Pradesh, the appellant before the Supreme Court of India was primarily engaged in the manufacture and sale of sugar. An assurance was given by the State Government that new Vanaspati units in the State which went into commercial production by 30 September 1970 would be given a partial concession in sales tax for a period of three years. The appellant set up such a Vanaspati unit and commenced production on 2 July 1970 and sought the exemption. The Government subsequently rescinded its earlier decision of January 1970 in August 1970, by which time the appellant’s factory had already gone into commercial production. A writ petition was filed in the High Court of Allahabad seeking a writ directing the State Government to exempt the sales of the Vanaspati manufacturer from sales tax for three years commencing 2 July 1970 as per the promise. The High Court rejected the plea, and the petitioner appealed to the Supreme Court of India. After discussing the authorities in detail, the Supreme Court held that the law may now be taken to be settled that where the Government makes a promise knowing or intending that it would be acted upon by the promisee, and the promisee, acting in reliance on it, alters his position, the Government is bound by the promise and the promise is enforceable against the Government at the instance of the promisee, notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required by Article 299 of the Constitution., It is elementary that in a republic governed by the rule of law, no one, however high or low, is above the law. Everyone is subject to the law as fully and completely as any other, and the Government is no exception. It is the pride of constitutional democracy and the rule of law that the Government stands on the same footing as a private individual with respect to legal obligations. The former is equally bound as the latter. It is difficult to see on what principle a Government, committed to the rule of law, can claim immunity from the doctrine of promissory estoppel. Can the Government say that it is under no obligation to act in a manner that is fair and just, or that it is not bound by considerations of honesty and good faith? Why should the Government not be held to a high standard of rectitude while dealing with its citizens? There was a time when the doctrine of executive necessity was regarded as sufficient justification for the Government to repudiate even its contractual obligations; but, let it be said to the eternal glory of this Court, this doctrine was emphatically negatived in the Union of India v. Anglo‑Afghan Agencies case and the supremacy of the rule of law was established., It was laid down by the Supreme Court of India that the Government cannot claim immunity from the applicability of the doctrine of promissory estoppel and repudiate a promise made by it on the ground that such promise may fetter its future executive action. If the Government does not want its freedom of executive action to be hampered or restricted, it need not make a promise knowing or intending that it would be acted upon by the promisee, causing the promisee to alter his position in reliance upon it. However, if the Government makes such a promise and the promisee acts in reliance upon it and alters his position, there is no reason why the Government should not be compelled to fulfil the promise like any other private individual. The law cannot acquire legitimacy and gain social acceptance unless it accords with the moral values of society, and the constant endeavour of the courts and the legislature must be to close the gap between law and morality and bring about as near an approximation between the two as possible. The doctrine of promissory estoppel is a significant judicial contribution in that direction. It is necessary to point out that, since the doctrine of promissory estoppel is an equitable doctrine, it must yield when equity so requires. If the Government can show, having regard to the facts as they have transpired, that it would be inequitable to hold the Government to the promise, the Court would not raise an equity in favour of the promisee and would not enforce the promise against the Government. In such a case, the doctrine of promissory estoppel would be displaced because equity would not require the Government to be bound by the promise. When the Government is able to demonstrate that, in view of the facts that have transpired since the making of the promise, public interest would be prejudiced if the Government were required to carry out the promise, the Court must balance the public interest in the Government fulfilling a promise made to a citizen, which induced the citizen to act and alter his position, against the public interest likely to suffer if the promise were required to be carried out. It would not be sufficient for the Government merely to say that public interest requires it not to be compelled to carry out the promise or that public interest would suffer if the promise were honoured. The Government cannot, as Justice Shah observed in the Union of India v. Anglo‑Afghan Agencies case, claim exemption from liability to carry out the promise “on some indefinite and undisclosed ground of necessity or expediency”, nor can it claim to be the sole judge of its liability and repudiate it “on an ex parte appraisal of the circumstances”. If the Government wishes to resist liability, it must disclose to the Court the facts and circumstances on which it claims exemption, and the Court will decide whether those facts render it inequitable to enforce the liability against the Government., Mere claim of a change of policy would not be sufficient to exonerate the Government from liability; the Government would have to show precisely what the changed policy is, along with its reason and justification, so that the Court can determine which way the public interest lies and what the equity of the case demands. Only if the Court is satisfied, on proper and adequate material placed by the Government, that overriding public interest requires the Government not to be bound by the promise and to be free to act unfettered by it, will the Court refuse to enforce the promise against the Government. The Court will not act on the mere ipse dixit of the Government, for it is the Court that must decide whether the Government should be exempt from liability. This is the essence of the rule of law. The burden is on the Government to show that the public interest in the Government acting contrary to the promise is so overwhelming that it would be inequitable to hold the Government bound by the promise, and the Court will insist on a highly rigorous standard of proof in discharging this burden.
id_1828	5	But even where there is no such overriding public interest, it may still be competent for the Government to resile from the promise \on giving reasonable notice, which need not be a formal notice, giving the promisee a reasonable opportunity of resuming his position\ provided, of course, it is possible for the promisee to restore the status quo ante. If, however, the promisee cannot resume his position, the promise would become final and irrevocable. The doctrine of promissory estoppel is founded on the principle that an unconscionable departure by one party from the subject matter of an assumption – which may be of fact or law, present or future – and which has been adopted by the other party as the basis of some course of conduct, act or omission, should not be allowed to pass muster. The relief in cases involving the doctrine of promissory estoppel contains a degree of flexibility which ultimately renders justice to the aggrieved party., The entire basis of this doctrine was well put in a judgment of the Australian High Court reported in Commonwealth of Australia versus Verwayen, by Justice Deane, in the following words: 1. While the ordinary operation of estoppel by conduct is between parties to litigation, it is a doctrine of substantive law whose factual ingredients must be pleaded and resolved like other factual issues in a case. The persons who may be bound by or who may take the benefit of such an estoppel extend beyond the immediate parties to it, to their privies, whether by blood, by estate or by contract. An estoppel by conduct can be the origin of primary rights of property and of contract. 2. The central principle of the doctrine is that the law will not permit an unconscionable – or, more accurately, unconscientious – departure by one party from the subject matter of an assumption which has been adopted by the other party as the basis of some relationship, course of conduct, act or omission which would operate to that other party's detriment if the assumption were not adhered to for the purposes of the litigation. 3. Since an estoppel will not arise unless the party claiming the benefit has adopted the assumption as the basis of action or inaction and thereby placed himself in a position of significant disadvantage if departure were permitted, the resolution of an issue of estoppel by conduct will involve an examination of the relevant belief, actions and position of that party. 4. Whether such a departure would be unconscionable relates to the conduct of the allegedly estopped party in all the circumstances. That party must have played a part in the adoption of, or persistence in, the assumption such that he would be guilty of unjust and oppressive conduct if he were now to depart from it. The cases indicate four main, but not exhaustive, categories in which an affirmative answer may be justified: (a) the party has induced the assumption by express or implied representation; (b) the party has entered into contractual or other material relations with the other party on the conventional basis of the assumption; (c) the party has exercised against the other party rights which would exist only if the assumption were correct; (d) the party knew that the other party laboured under the assumption and refrained from correcting him when it was his duty in conscience to do so. Ultimately, however, the question whether departure would be unconscionable must be resolved by reference to all the circumstances of the case, including the reasonableness of the conduct of the other party in acting upon the assumption and the nature and extent of the detriment which he would sustain by acting upon the assumption if departure were permitted. In cases falling within category (a), a critical consideration will only be that the allegedly estopped party knew or intended or clearly ought to have known that the other party would be induced by his conduct to adopt and act on the basis of the assumption. Particularly in cases falling within category (b), actual belief in the correctness of the fact or state of affairs assumed may not be necessary. Obviously, the facts of a particular case may be such that it falls within more than one of the above categories. 5. The assumption may be of fact or law, present or future. That is to say it may be about the present or future existence of a fact or state of affairs (including the state of the law or the existence of a legal right, interest or relationship or the content of future conduct). 6. The doctrine should be seen as a unified one which operates consistently in both law and equity. In that regard, \equitable estoppel\ should not be seen as a separate or distinct doctrine which operates only in equity or as restricted to certain defined categories. 7. Estoppel by conduct does not of itself constitute an independent cause of action. The assumed fact or state of affairs (which one party is estopped from denying) may be relied upon defensively or it may be used aggressively as the factual foundation of an action arising under ordinary principles, with the entitlement to ultimate relief being determined on the basis of the existence of that fact or state of affairs. In some cases, the estoppel may operate to fashion an assumed state of affairs which will found relief (under ordinary principles) which gives effect to the assumption itself (for example, where the Defendant in an action for a declaration of trust is estopped from denying the existence of the trust). 8. The recognition of estoppel by conduct as a doctrine operating consistently in law and equity and the prevalence of equity in a Judicature Act system combine to give the whole doctrine a degree of flexibility which it might lack if it were an exclusively common law doctrine. In particular, the prima facie entitlement to relief based upon the assumed state of affairs will be qualified in a case where such relief would exceed what could be justified by the requirements of good conscience and would be unjust to the estopped party. In such a case, relief framed on the basis of the assumed state of affairs represents the outer limits within which the relief appropriate to do justice between the parties should be framed., When the applicability of the doctrine of promissory estoppel was considered, the Supreme Court of India relied upon the observations made in State of Rajasthan and Another versus J.K. Udaipur Udyog Limited and Another, and Arvind Industries and Others versus State of Gujarat and Others. From State of Rajasthan and Another versus J.K. Udaipur Udyog Limited and Another, paragraph 25 was quoted by the Supreme Court of India to conclude that the recipient of an exemption granted by a fiscal statute would have no legally enforceable right against the Government, as such right is defeasible and may be taken away in the exercise of the very power under which the exemption was granted. The next paragraph, however, states that where a scheme is notified under the power of the State Government to grant exemptions under Section 15 of the RST Act and Section 8(5) of the CST Act in the public interest, the State Government is competent to modify or revoke the grant for the same reason. Thus, what is granted can be withdrawn unless the Government is precluded from doing so on the ground of promissory estoppel, a principle itself subject to considerations of equity and public interest (see State of Tamil Nadu versus Shree Durga Oil Mills). The vesting of a defeasible right is therefore a contradiction in terms. There being no indefeasible right to the continued grant of an exemption (absent the exception of promissory estoppel), the question of the respondent companies having an indefeasible right to any facet of such exemption such as the rate or period does not arise., The aforesaid paragraph 26 was noticed by the Supreme Court of India in Mahabir Vegetable Oils (P) Limited and Another versus State of Haryana and Others. It is clear, therefore, that the reliance by the Supreme Court of India in Shree Sidhbali Steels Limited and Others versus State of Uttar Pradesh and Others, when it comes to non‑application of the principle of promissory estoppel to exemptions granted under statute, would be wholly inappropriate., In State of Punjab versus Nestle India Limited, for the period from 1 April 1996 to 4 June 1997, purchase tax on milk was to be abolished by the State Government. An announcement to this effect was given wide publicity in several newspapers and a speech was delivered by the Finance Minister while presenting the budget for 1996‑1997. This was further reflected in a memorandum of the Financial Commissioner dated 26 April 1996 addressed to the Excise and Taxation Commissioner. On 27 June 1996, the Chief Minister and the Finance Minister met with the Excise and Taxation Commissioner and various officials, and a financial notification was to be issued \in a day or two\. On 4 June 1998, the Council of Ministers decided that the decision to abolish purchase tax on milk was not accepted and authorities issued notice to the respondents requiring them to pay purchase tax on milk for the year 1996‑1997. The High Court of Punjab held that the State Government was bound by its promise and representation to abolish purchase tax. According to the High Court, the absence of a financial notification was merely a ministerial act yet to be performed. As the respondents had acted on the representation made, they could not be asked to pay purchase tax for the year 1996‑1997. The writ petition was allowed and the demand notice of tax for the aforesaid year was struck down. The Supreme Court of India, after referring to Section 30 of the Punjab General Sales Tax Act, 1948, which gave the State Government the power to exempt goods by notification, recapitulated the law of promissory estoppel in great detail, referred to M/s Motilal Padampat Sugar Mills Company Limited versus State of Uttar Pradesh and other judgments, and finally held that the appellant had been unable to establish any overriding public interest which would make it inequitable to enforce the estoppel against the State Government. The representation was made by the highest authorities, including the Finance Minister, after considering the financial implications of the exemption to milk. It was found that the overall benefit to the State's economy and the public would be greater if the exemption were allowed. The respondents had passed on the benefit of that exemption by providing various facilities and concessions for the upliftment of milk producers. It would, in the circumstances, be inequitable to allow the State Government now to resile from its decision to exempt milk and demand purchase tax with retrospective effect from 1‑4‑1996 so that the respondents could not readjust the expenditure already made. The High Court was also right when it held that the operation of the estoppel would come to an end with the 1997 decision of the Cabinet., The same is the case in the present dispute. Overriding public interest is not adequately pleaded or proved. The rigorous standard of proof has not been met at all., Similarly, Arvind Industries and Others versus State of Gujarat is a judgment in which it is clear that the doctrine of promissory estoppel could have no application because the appellant was not able to show that any definite promise was made by or on behalf of the Government and that the appellant had acted upon such promise., It is clear, therefore, that Shree Sidhbali Steels Limited and Others versus State of Uttar Pradesh and Others was a case concerned only with whether a benefit given by a statutory notification can be withdrawn by the Government by another statutory notification in the public interest if circumstances change., In view of the law declared by the Supreme Court of India and applying the same to the present facts, it is clear that the farmers, based on the promise made by the Andhra Pradesh Capital Region Development Authority, altered their position, thereby obligating the State to perform its obligation. This principle of the doctrine of promissory estoppel is directly applicable to the present facts of the case., The doctrine of promissory estoppel can be used as a shield, but not as a sword. When the State is taking away the rights of the farmers, denying them any claim, though the State failed to perform its obligation substantially, it would amount to the exercise of unreasonable and arbitrary power of the State and APCRDA to fulfill their obligation as agreed under the Agreement‑cum‑General Power of Attorney in Form 9.14., In Kasturi Lal Laskhmi Reddy versus State of Jammu and Kashmir, the Supreme Court of India considered when a statute or State action can be declared arbitrary and held that, unlike a private individual, the State cannot act as it pleases in the matter of giving largess. Although a private individual may be guided by economic considerations of self‑gain, the Government is not free to act arbitrarily in granting largess such as awarding a contract or leasing its property. Every activity of the Government has a public element and must be informed by reason and guided by public interest. If the Government acts arbitrarily and without reason, its action would be liable to be invalidated., The concept of reasonableness pervades the entire constitutional scheme. The interaction of Articles 14, 19 and 21, as analysed by the Supreme Court of India in Smt. Maneka Gandhi versus Union of India, demonstrates that the requirement of reasonableness runs like a golden thread through the entire fabric of fundamental rights and finds positive manifestation in the lofty ideal of social and economic justice which inspires the Directive Principles. The Supreme Court in E.P. Royappa versus State of Tamil Nadu and Maneka Gandhi held that Article 14 strikes at arbitrariness in State action and that the principle of reasonableness and rationality, which is an essential element of equality, must characterise every governmental action, whether under the authority of law or in the exercise of executive power. Similarly, Article 19 requires that restrictions on freedoms be reasonable, and Article 21 insists that deprivation of life or personal liberty must be according to a procedure that is reasonable, fair and just. The Directive Principles give shape to the concept of reasonableness envisaged in Articles 14, 19 and 21, setting standards that must guide governmental action. Any action inconsistent with a Directive Principle would be unreasonable., In G.B. Mahajan versus Jalgaon Municipal Corporation, the Supreme Court observed that reasonableness in administrative law is used to distinguish between proper and improper use of power; failure to exercise power properly or the improper use of power constitutes unreasonableness., Applying the principles laid down in the above judgments to the present facts, the inaction of the State and APCRDA in developing the capital region, providing infrastructure, roads, etc., by constructing the capital city on the land pooled and strictly adhering to the terms of Form 9.14 of LPS Rules, is to the detriment of the farmers who surrendered their lands. Failure to keep the promise made would amount to an improper abuse of power, making such inaction arbitrary and unreasonable. On this ground also, the State action can be said to be unreasonable, arbitrary and contrary to the written agreement in Form 9.14., In the recent judgment of the Supreme Court of India in State of Jharkhand and Others versus Brahmputra Metallics Limited and Others, while considering both the principles of promissory estoppel and legitimate expectation, the Court set aside part of the policy on the ground that it violated the principle of promissory estoppel and legitimate expectation of a citizen. The State of Jharkhand had notified the Industrial Policy 2012 on 16 June 2012 granting certain exemptions. Although the policy envisaged that departmental notifications would be issued within one month, there was a failure to comply with the schedule. To give effect to the exemption from electricity duty, a notification under Section 9 of the Bihar Act 1948 was necessary. Since such a notification was not issued, a writ petition was filed under Article 226 of the Constitution before the High Court of Jharkhand by Usha Martin Limited. Eventually, the State Government issued an exemption notification on 8 January 2015 giving prospective effect to the rebate., The Industrial Policy 2012 announced an incentive in the form of a rebate on electricity duty for a period of five years from the commencement of production. If a notification under Section 9 had been issued within a month, the respondent would have enjoyed almost the entire period of exemption contemplated by the policy. Because the exemption notification dated 8 January 2015 was made prospective, the respondent and similar units received the benefit for a much shorter period. The respondent approached the High Court of Jharkhand, which relied on the judgments of State of Bihar versus Kalyanpur Cement Limited and Manuelsons Hotels Private Limited versus State of Kerala, where the decisions are premised on the doctrine of promissory estoppel enunciated in Motilal Padampat Sagar Mills Co. Ltd. versus State of Uttar Pradesh. The High Court held that a promise was made by the State Government to give a 50 per cent exemption in electricity duty for five years to all new and existing industrial units setting up captive power plants. The High Court observed that the State Government did intend to give the benefit, as evidenced by the belated notification of 8 January 2015. The matter was challenged before the Supreme Court of India, and a Division Bench consisting of Honorable Justice Dr. Dhananjaya Y. Chandrachud and Honorable Justice Indu Malhotra discussed the principle of promissory estoppel and legitimate expectation in detail., The common law recognises various kinds of equitable estoppel, one of which is promissory estoppel. In Crabb versus Arun DC, Lord Denning, speaking for the Court of Appeal, traced the genesis of promissory estoppel in equity and observed: \The basis of this proprietary estoppel as indeed of promissory estoppel is the interposition of equity. Equity comes in, true to form, to mitigate the rigours of strict law.\ The early cases did not speak of it as estoppel; they spoke of it as raising an equity. Lord Cairns said: \It is the first principle upon which all Courts of Equity proceed, that it will prevent a person from insisting on his legal rights whether arising under a contract or on his title deed, or by statute when it would be inequitable for him to do so having regard to the dealings which have taken place between the parties.\, The requirements of the doctrine of promissory estoppel have also been formulated by Hugh Beale in Chitty on Contracts (32nd Edition, Sweet & Maxwell 2017). For the equitable doctrine to operate there must be a legal relationship giving rise to rights and duties between the parties; a promise or representation by one party that he will not enforce against the other his strict legal rights arising out of that relationship; an intention on the part of the former party that the latter will rely on the representation; and such reliance by the latter party. Even if these requirements are satisfied, the operation of the doctrine may be excluded if it is not inequitable for the first party to go back on his promise., Chitty on Contracts clarifies that the doctrine of promissory estoppel may be enforced even in the absence of a legal relationship. Generally, under English law, judicial decisions have postulated that the doctrine of promissory estoppel cannot be used as a sword to give rise to a cause of action for the enforcement of a promise lacking consideration. Its use has been limited as a shield, where the promisor is estopped from claiming enforcement of his strict legal rights when a representation by words or conduct has been made to suspend such rights. In Combe versus Combe the Court of Appeal held that consideration is an essential element of the cause of action: \It may be part of a cause of action, but not a cause of action itself. The principle never stands alone as giving a cause of action in itself; it can never do away with the necessity of consideration when that is an essential part of the cause of action. The doctrine of consideration is too firmly fixed to be overthrown by a side‑wind.\, Even within English law, the application of the rule laid down in Combe has been noted to be inconsistent, and the scope of the rule has been doubted on the ground that it has been widely framed.
id_1828	6	In the absence of a definitive pronouncement by the House of Lords holding that promissory estoppel can be a cause of action, a difficulty was expressed in stating with certainty that English law has evolved from the traditional approach of treating promissory estoppel as a shield instead of a sword. By contrast, the law in the United States and Australia is less restrictive in this regard. The Supreme Court of India has given an expansive interpretation to the doctrine of promissory estoppel in order to remedy the injustice done to a party who has relied on a promise. In Motilal Padampat (referred supra), the Supreme Court of India viewed promissory estoppel as a principle in equity, which was not hampered by the doctrine of consideration, as was the case under English law. The Supreme Court of India, speaking through Justice P. N. Bhagwati, held that, having regard to the general opprobrium to which the doctrine of consideration has been subjected by eminent jurists, we need not be unduly anxious to project this doctrine against assault or erosion nor allow it to dwarf or stultify the full development of the equity of promissory estoppel or inhibit or curtail its operational efficacy as a justice device for preventing injustice. There is no valid reason why promissory estoppel should not be allowed to found a cause of action where, in order to satisfy the equity, it is necessary to do so., Under English law, the doctrine of promissory estoppel has developed parallel to the doctrine of legitimate expectations. The doctrine of legitimate expectations is founded on the principles of fairness in government dealings and arises when a public body leads an individual to believe that they will receive a substantive benefit. The doctrine of substantive legitimate expectation has been explained in R v North and East Devon Health Authority, ex p Coughlan, in the terms: “But what was their legitimate expectation?” Where there is a dispute as to this, the dispute must be determined by the Supreme Court of India, as happened in In re Findlay. This may involve a detailed examination of the precise terms of the promise or representation, the circumstances in which the promise was made and the nature of the statutory or other discretion. Where the Supreme Court of India considers that a lawful promise or practice has induced a legitimate expectation of a substantive benefit, it will decide whether to frustrate the expectation if doing so would be so unfair as to amount to an abuse of power. Once the legitimacy of the expectation is established, the Supreme Court of India will weigh the requirements of fairness against any overriding interest relied upon for the change of policy., Under English law, the doctrine of legitimate expectation initially developed in the context of public law as an analogy to the doctrine of promissory estoppel found in private law. English law has since distinguished between the two doctrines as distinct remedies under private and public law respectively. De Smith’s Judicial Review notes the contrast between the public‑law approach of legitimate expectation and the private‑law approach of promissory estoppel, observing that, despite dicta to the contrary, it is not normally necessary for a person to have changed his position or acted to his detriment in order to qualify as the holder of a legitimate expectation. Private‑law analogies from the field of estoppel are of limited relevance where a public‑law principle requires officials to honour their undertakings and respect legal certainty, irrespective of whether loss has been incurred by the individual concerned. Another difference is that legitimate expectation can constitute a cause of action, whereas promissory estoppel may require a showing of detriment suffered by a party due to reliance on the promise. In Regina (Bibi) v Newham London Borough Council, the Court of Appeal of England and Wales held that the case involved reliance without concrete detriment, but moral detriment and potential detriment to a refugee family were relevant to fairness and possible abuse of power. Disregarding legitimate expectation because no concrete detriment can be shown would place the weakest in society at a disadvantage., Consequently, while the basis of promissory estoppel in private law is a promise made between two parties, the basis of legitimate expectation in public law is premised on fairness and non‑arbitrariness in the conduct of public authorities. This does not suggest that promissory estoppel has no application when a State entity enters into a private contract with another private party; however, in English law it is inapplicable when the State makes a representation to a private party in furtherance of its public functions., Under Indian law, there is often a conflation between the doctrines of promissory estoppel and legitimate expectation. Jain and Jain’s treatise, Principles of Administrative Law, describes this confusion. At times the expressions legitimate expectation and promissory estoppel are used interchangeably, but that is incorrect because legitimate expectation is a broader concept. Indian case law exhibits some confusion; the doctrine has been referred to as merely procedural, or treated interchangeably with promissory estoppel, both of which are wrong. Legitimate expectation is a substantive doctrine with a much broader scope. In Punjab Communications Ltd. v. Union of India, the Supreme Court of India observed that the doctrine of legitimate expectation in the substantive sense has been accepted as part of our law and that a decision‑maker can normally be compelled to give effect to his representation based on previous practice or past conduct unless some overriding public interest intervenes. Reliance must have been placed on the representation and the representee must have suffered detriment., It is suggested that this formulation of legitimate expectation is not correct as it makes “legitimate expectation” practically synonymous with promissory estoppel. Legitimate expectation may arise from the conduct of the authority; a promise is not always necessary., While this doctrinal confusion makes the law unclear, citizens have been the victims. Representations by public authorities must be held to scrupulous standards because citizens rely on the trust they repose in the State. In the commercial world, certainty and consistency are essential for planning business affairs. When public authorities fail to adhere to their representations without providing an adequate reason, they violate the trust reposed by citizens. Professors Jain and Deshpande note that, in India, the characterization of legitimate expectations is on a weaker footing than in jurisdictions like the United Kingdom, where courts are now willing to recognize the capacity of public law to absorb the moral values underlying estoppel in the evolution of doctrines such as legitimate expectation and abuse of power. If the Supreme Court of India has transformed promissory estoppel beyond the limitations of private law, it should also articulate and evolve the doctrine of legitimate expectation for judicial review of administrative resilement from policies and longstanding practices. Adoption of such a notion would allow the Court to remove the artificial hierarchy between promissory estoppel and legitimate expectation and hold administrative authorities to account on a stronger public‑law footing., Justice Frankfurter of the United States Supreme Court articulated the need for an independent doctrine in Vitarelli v. Seton, stating that an executive agency must be rigorously held to the standards by which it processes its actions. If dismissal from employment is based on a defined procedure, even if generous, that procedure must be scrupulously observed. This judicially evolved rule of administrative law is now firmly established. He that takes the procedural sword shall perish with the sword., In Union of India v. Lt. Col. P. K. Choudhary, speaking through Chief Justice T. S. Thakur, the Supreme Court of India discussed the decision in Monnet Ispat and Energy Ltd. v. Union of India. The principle espoused in that judgment has been followed by the Supreme Court of India in Amarjit Singh Ahluwalia (Dr) v. State of Punjab, Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi (concurring opinion of Justice K. K. Mathew) and Ramana Dayaram Shetty v. International Airport Authority of India, and it noted reliance on Attorney General for New South Wales v. Quinn. The Court observed that if denial of legitimate expectation amounts to denial of a guaranteed right or is arbitrary, discriminatory, unfair, or a gross abuse of power, it can be questioned on the grounds of Article 14 of the Constitution, but a claim based solely on legitimate expectation without more cannot ipso facto give a right to invoke these principles., Thus, the Supreme Court of India held that the doctrine of legitimate expectation cannot be claimed as a right in itself, but can be used only when the denial of a legitimate expectation leads to a violation of Article 14 of the Constitution., In The State of Jharkhand and Others v. Brahmputra Metallics Ltd. and Others, the Supreme Court of India, relying on earlier judgments, concluded that the respondent is entitled to a rebate from electricity duty and affirmed the High Court’s order on the ground that the State violated its promise and legitimate expectation. Applying that principle to the present facts, the policy decision taken by the earlier Government—unanimously accepting Amaravati as the capital of Andhra Pradesh and issuing G.O. No. 253 and No. 254 dated 30 December 2014—was later altered after a change of Government, resulting in the trifurcation of the capital and relocation of the High Court to Kurnool and the executive capital to Visakhapatnam. Although Acts 27 and 28 of 2020 were repealed by Act 11 of 2021, the repealed Act’s statement and objects made clear that the State intends to present suitable legislation in the future addressing all regional concerns, favouring decentralisation. This constitutes a violation of promise and legitimate expectation., The farmers of the capital region, believing the representation of the State and APCRDA entered into the Development Agreement cum Irrevocable General Power of Attorney in Form 9.14, expected the State and APCRDA to fulfil their obligations under that agreement. The present Government’s decision violated the legitimate expectation of the farmers and the written promise made in Form 9.14., One contention of the State is that legitimate expectation or promissory estoppel will not give rise to any cause of action. This contention is rejected in view of the Supreme Court of India’s decision in The State of Jharkhand and Others v. Brahmputra Metallics Ltd. and Others, where the Court held that both promissory estoppel and legitimate expectation give rise to a cause of action, although promissory estoppel was initially available as a defence. When a policy decision under statute is taken by the State and APCRDA, a representation is made to the public; reliance on that representation alters the position of the public and farmers, binding the State and APCRDA to implement the representation. The farmers are therefore entitled to relief based on legitimate expectation and the promise under Development Agreement cum Irrevocable General Power of Attorney Form 9.14. The Government’s unreasonable and arbitrary decision can be challenged, and the Supreme Court of India may issue a direction to implement the Land Pooling Scheme and the Development Agreement by invoking the extraordinary jurisdiction of writ under Article 226 of the Constitution of India., Proprietary estoppel is a legal claim, especially connected to English land law, which may arise in relation to rights to use the property of the owner and may be effective in disputed transfers of ownership. It operates where someone is given a clear assurance that they will acquire a right over property, they reasonably rely on that assurance, and they act to their detriment on the strength of the assurance; it would be unconscionable to go back on the assurance. If these elements are present, the usual remedy is transfer of the property to the claimant, provided the court views the reliance as warranting a claim. In the instant case, the land owner is not entitled to claim any remedy in any Court or authority; therefore, the land owner must approach the Supreme Court of India invoking Article 226 of the Constitution of India to revert the property to the land owner., The principle of proprietary estoppel was laid down as early as 1862 in Dillwyn v. Llewelyn and later reiterated in Willmott v. Barber and Inwards v. Baker. The five elements required are: (i) the claimant must have made a mistake as to his legal rights; (ii) the claimant must have acted in reliance; (iii) the defendant, who possesses a legal right, must know of the existence of his own right which is inconsistent with the claimant’s claimed right; (iv) the defendant must know of the claimant’s mistaken belief; and (v) the defendant must have encouraged the claimant’s act of reliance., These five elements were refined in Waltons Store (Interstate) Limited v. Maher, where the High Court of Australia recognised that both proprietary and promissory estoppel encompass the broader principle of equitable estoppel. Where these elements are present in a land dispute, the person who relied on the representation can claim relief through the Court of Law., The Delhi High Court in Raj Kishan Dass v. Mrs. Kusum Singh considered the scope of proprietary estoppel, observing that it operates in a variety of cases and has been described as “an amalgam of doubtful utility”. The cases fall into two categories. In the first, a person acts under a mistake as to the existence or extent of his rights in another’s land; even if the mistake was not induced by the landowner, the landowner may be prevented from taking advantage of it if he “stood by” knowing of the mistake or actively encouraged reliance. These cases of “acquiescence” do not raise enforceability issues. In the second situation, there is “encouragement”: the other party relies on the landowner’s promise or conduct from which a promise can be inferred, creating a legally recognised interest in the land. The present facts attract the second situation, as reliance on the State’s terms led farmers to enter into a contract and deliver possession of agricultural land that was later converted for non‑agricultural development. Accordingly, the farmers are entitled to insist that the State perform its obligation based on the principle of proprietary estoppel, as the courts must interpret this equitable doctrine and extend its benefit to the concerned parties., The Law Commission of India, in its 108th Report on Promissory Estoppel dated 12 December 1984, considered both promissory estoppel and proprietary estoppel with reference to the Transfer of Property Act. Upon expiry of the settlement period for which a lease of the bar‑barini lands had been granted, the Government made a grant to the appellant’s predecessor at a moderate assessment and stipulated that it retained rights necessary for canal management. This did not give the Government a right to seize and confiscate the canal. Under the Transfer of Property Act, 1882, the appellant would be entitled to a perpetual lease of the canal lands, but because the Act was not in force at the time of the transaction, Lord Macnaghten applied the Ramsden rule to give relief. The rule is a rule of proprietary estoppel, not of promissory estoppel, and proprietary estoppel has always enjoyed a special status in English law. The appellant surrendered its own lands in favour of the Government in consideration of a lease of government lands on nominal rent, spent enormous sums on construction, and later faced a suit for arrears of rent. The High Court modified the decree, redefining the appellant’s leasehold right and the respondent’s right to reasonable rent, and Sir Lawrence Jenkins C.J. observed that the Crown comes within the range of this equity., The House of Lords in Ramsden v. Dyson explained the rule as follows: “If a man, under a verbal agreement with a landlord for a certain interest in land, or an expectation created or encouraged by the landlord, takes possession of such land with the landlord’s consent, and on the faith of such promise or expectation, with the landlord’s knowledge and without objection, lays out money upon the land, a court of equity will compel the landlord to give effect to such promise or expectation.”, The Supreme Court of India in A.P. Transco Ltd. v. Sai Renewable Power Pvt. Ltd. referred to the use of promissory estoppel as a basis of cause of action, holding that the doctrine is a settled canon of law evolved by equity to prevent injustice and should not be confined to a defence but can also be the basis of a cause of action., In Jai Narain Parasurampuria (Dead) & Others v. Pushpa Devi Saraf & Others, the Supreme Court of India noted the principle laid down in Pawan Alloys and Casting Pvt. Ltd., Meerut v. U.P. State Electricity Board, that estoppel by acquiescence is not restricted to cases where the representor was aware of his strict rights and that the representee acted on the belief those rights would not be enforced. The court must ascertain whether it would be unconscionable for a party to deny what he had allowed or encouraged another to assume to his detriment. This principle applies if the expectation was encouraged. Similarly, in Amalgamated Investment & Property Co. Ltd. v. Texas Commerce International Bank Ltd., the Court held that where estoppel is founded on active encouragement or representation, it is unconscionable for the representor to enforce strict legal rights if the representee’s conduct was influenced by that encouragement, even if the encouragement was not the initial cause of the conduct., In view of the law declared by the Supreme Court of India and various High Courts, when the farmers of the Capital Region rely on the representation made by the State, reduced to writing as Development Agreement cum Irrevocable General Power of Attorney Form 9.14, the petitioner is entitled to insist that the State fulfil its obligation. If the State fails, the Supreme Court of India may issue a direction under Article 226 of the Constitution of India to implement the Land Pooling Scheme and the Development Agreement‑cum‑Irrevocable General Power of Attorney Form 9.14., The learned Advocate General advanced the contention that public interest will outweigh private interest, thereby negating the application of legitimate expectation and promissory estoppel. He placed on record several judgments in support, relying initially on Punjab Communications Ltd. v. Union of India and Kerala State Beverages (M&M) Corp. Ltd. v. P. P. Suresh, where it was held under English law that a decision‑maker’s freedom to change policy in the public interest cannot be fettered by the principle of substantive legitimate expectation. Earlier cases projected a more inflexible rule than is presently in vogue. In Re Findlay, the House of Lords rejected the plea that altered parole policy required prior consultation with prisoners, observing that a prisoner’s legitimate expectation is limited to individual examination within the lawfully adopted policy., Taking advantage of the decisions referred above, the Advocate General contended that the principle of legitimate expectation will not impede legislators from taking any decision. However, a policy change founded on “Wednesbury reasonableness” can defeat a substantive legitimate expectation, as held by the Supreme Court of India in Union of India v. International Trading Company and Sethi Auto Service Station v. Delhi Development Authority. The proposed legislation in this case violates the Development Agreement‑cum‑Irrevocable General Power of Attorney Form 9.14 under the Land Pooling Rules and therefore may not meet the requirement of “Wednesbury reasonableness”. It is premature to record any finding as the legislation has not yet been passed, except for its expression of intent in the Statement of Objects and Reasons., The Advocate General also contended that legitimate expectation is not a vested right and cannot be claimed against a statutory provision. In the instant case, the petitioners claim a vested and accrued right based on the Development Agreement‑cum‑Irrevocable General Power of Attorney Form 9.14 under the Land Pooling Rules, which is a statutory scheme under the APCRDA Act and is not contrary to any statutory provision.
id_1828	7	At the same time, in State of Jharkhand and others vs. Brahmputra Metallics Limited, the Supreme Court of India held that the Court can interfere if there is arbitrariness or any abuse of power or violation of principles of natural justice. In Ghaziabad Development Authority vs. Delhi Auto & General Finance Private Limited, the Supreme Court of India held that no question of legitimate expectation would arise from the Master Plan stipulated. But the principle laid down in the above judgment will have no relevance to the present facts of the case. At best, as per State of Jharkhand and others vs. Brahmputra Metallics Limited, the Court can interfere if the decision taken is arbitrary and unreasonable., Learned Advocate General, while refuting the contentions of the learned counsel for the petitioners in all the writ petitions about applicability of promissory estoppel, placed reliance on several judgments in support of his contention. The basic contention of the learned Advocate General is that there can be no promissory estoppel against the legislature in the exercise of its legislative function and promissory estoppel cannot be invoked to compel the Government or a public authority to carry out a representation or promise which is contrary to law, as held in Motilal Padampat Sugar Mills Company Limited vs. State of Uttar Pradesh. But this principle is not relevant for the present, as the legislations i.e. Act Numbers 27 and 28 of 2020 were already withdrawn., At the same time, learned Advocate General would contend that the doctrine of promissory estoppel would be displaced in such a case because, on the facts, equity would not require that the Court could interfere only if the decision taken by the authority was found to be arbitrary, unreasonable or in gross abuse of power or in violation of principles of natural justice and not taken in public interest. A claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles based on the judgments of the Supreme Court of India in Union of India vs. Godfrey Philips India Limited, Food Corporation of India vs. M/s. Kamdhenu Cattle Feed Industries. In Union of India vs. Godfrey Philips India Limited, the Court held that public authority is not bound by such promise. However, this principle has changed due to the march of law and even in State of Jharkhand and others vs. Brahmputra Metallics Limited, the Court did not agree with this contention and held that public authority is also bound by it. In Food Corporation of India vs. M/s. Kamdhenu Cattle Feed Industries, the Court is of the view that there must be something more than legitimate expectation., In the instant case, as per the discussion in the earlier paragraphs, the petitioners accrued substantive, vested right under the Development Agreement cum Irrevocable General Power of Attorney in Form‑9.14 under Land Pooling Rules. Therefore, in view of the Development Agreement cum Irrevocable General Power of Attorney in Form‑9.14, the respondents State and Andhra Pradesh Capital Region Development Authority are bound by the agreement, in view of the obligations imposed on them by Schedule II and III of Land Pooling Rules and they cannot escape from their liability to discharge their obligations to the farmers who surrendered their land under the Land Pooling Scheme., Relying upon the judgment of the Supreme Court of India in Madras City Wine Merchants vs. State of Tamil Nadu, learned Advocate General also contended that to attract promissory estoppel, legitimate or reasonable expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue. Even if this principle is applied to the facts on hand, there is an express promise given by the public authority i.e. the State and Andhra Pradesh Capital Region Development Authority in the Development Agreement cum Irrevocable General Power of Attorney in Form‑9.14 and the State is reasonably expected to continue the promise in view of part of the development completed and the State also agreed to continue the developments by filing affidavits by the Principal Secretary and Additional Secretary, Municipal Administration and Urban Development, while annexing note for spending Rs.3000 crores. In view of this decision, the State and Andhra Pradesh Capital Region Development Authority are bound to fulfill or discharge their obligation in view of Schedule II and III and Land Pooling Scheme Rules, since the promise is express and reasonably expected., Learned Advocate General also would draw the attention of this Court to the judgment of the Supreme Court of India in Kasinka Trading and another vs. Union of India and Sales Tax Officer vs. Shree Durga Oil Mills to contend that the doctrine, however, cannot be pressed into aid to compel the Government or the public authority to carry out a representation or promise which is contrary to law or which was outside the authority or power of the officer of the Government or of the public authority to make. The principle laid down in the above two judgments is that, taking aid of promissory estoppel, the Government cannot be compelled to fulfill its obligations, since promissory estoppel will not outweigh the public interest., In the instant case, in view of repeal of Act Numbers 27 and 28 of 2020, proposing to establish three capitals i.e. Administrative Capital at Visakhapatnam, Legislative Capital at Amaravati and Judicial Capital at Kurnool, the public interest is vanished, though the Government proposed to introduce another Bill after consultation with the stakeholders after overcoming the legal hurdles. For the present, there is no public interest to outweigh the principle of promissory estoppel. Therefore, those principles cannot be applied to the facts of the present case., Learned Advocate General finally would draw the attention of this Court to Shree Sidhabali Steels Limited and others vs. State of Uttar Pradesh to contend that the plea of promissory estoppel is not applicable and that the State must think about pros and cons of policy and it is opposite to given benefits. The Supreme Court of India held that the doctrine of promissory estoppel is by now well recognized and well defined by a catena of decisions of this Court. Where the Government makes a promise knowing or intending that it would be acted on by the promisee and, in fact, the promisee, acting in reliance on it, alters his position, the Government would be held bound by the promise and the promise would be enforceable against the Government at the instance of the promisee notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required by Article 229 of the Constitution. The rule of promissory estoppel being an equitable doctrine has to be moulded to suit the particular situation. It is not a hard and fast rule but an elastic one, the objective of which is to do justice between the parties and to extend equitable treatment to them. This doctrine is a principle evolved by equity, to avoid injustice and though commonly named promissory estoppel, it is neither in the realm of contract nor in the realm of estoppel. For application of the doctrine of promissory estoppel the promisee must establish that he suffered detriment or altered his position by reliance on the promise. Normally, the doctrine of promissory estoppel is being applied against the Government and defence based on executive necessity would not be accepted by the Court. However, if it can be shown by the Government that having regard to the facts as they have subsequently transpired, it would be inequitable to hold the Government to the promise made by it, the Court would not raise an equity in favour of the promisee and enforce the promise against the Government. Where public interest warrants, the principles of promissory estoppel cannot be invoked. Government can change the policy in public interest. However, it is well settled that taking cue from this doctrine, the authority cannot be compelled to do something which is not allowed by law or prohibited by law. There is no promissory estoppel against the settled proposition of law. Doctrine of promissory estoppel cannot be invoked for enforcement of a promise made contrary to law, because none can be compelled to act against the statute. Thus, the Government or public authority cannot be compelled to make a provision which is contrary to law., The principle laid down in the above judgment has no direct application to the present facts of the case, since the Land Pooling Scheme is not contrary to law and it is legally valid as on date, in view of restoration of Andhra Pradesh Capital Region Development Authority Act, 2014. Even otherwise, the Land Pooling Scheme is saved by the repealed Acts. In those circumstances, the State is bound to discharge its obligation in view of the principle of promissory estoppel, since the Development Agreement cum Irrevocable General Power of Attorney in Form‑9.14 is not contrary to any law., In S.V.A. Steel Re‑rolling Mills Limited vs. State of Kerala the Supreme Court of India held that before laying down any policy which would give benefits to its subjects, the State must think about pros and cons of the policy and its capacity to give the benefits. Without proper appreciation of all the relevant factors, the State should not give any assurance, not only because that would be in violation of the principles of promissory estoppel but it would be unfair and immoral on the part of the State not to act as per its promise., Taking advantage of this principle, learned Advocate General contended that the decision taken by the earlier government is without taking into consideration of pros and cons of the policy to give benefits and tried to confer benefits on certain ryoths who surrendered their lands. In fact, the earlier government made out its plan for financial resources, funding for construction of the capital. Thus, the earlier government took decision only after considering pros and cons of the policy and resources to meet such promise. Hence, the principle laid down in the above judgment has no application., On overall consideration of the facts and circumstances of the case, including the plea of learned Advocate General, we find no substance in the contentions for the present to decide the present issue as on date and the same is rejected., Accordingly, points are decided in favour of the petitioners and against the respondents., One of the contentions of Sri Shyam Divan, learned Senior Counsel for the petitioners is that, on account of proposed shifting of capital, in view of statement of objects and reasons of Andhra Pradesh Act Number 11 of 2021, the petitioners not only lost their livelihood of agriculture on account of land pooling, but also lost hope in future to restore their livelihood on account of proposed shifting of capital., The specific plea in the petitions is that the petitioners' right to their agricultural land is not a mere right to property under Article 300‑A of the Constitution of India, but also the source of their livelihood. It is settled law that the fundamental right of a farmer to cultivate his land is a part of right to livelihood (vide Bhusawal Municipal Council vs. Nivrutti Ramchandra Phalak). The petitioners herein are farmers who are solely depending upon agriculture for their source of livelihood and sustenance. Each of the petitioners in the petitions have lost title over the entirety of their agricultural lands by virtue of having been induced to surrender their lands on the promise of a reconstituted plot in the capital city under the Land Pooling Scheme and the Andhra Pradesh Capital Region Development Authority Act. Since the respondents' actions violate the right of the petitioners under Article 21 read with Article 300‑A of the Constitution of India, it is not sufficient for the respondents to wash their hands off this grave violation of the petitioners' right to livelihood by offering compensation in the form of an annuity as prescribed under Section 3(e) of the Andhra Pradesh Capital Region Development Authority Act., It is also contended that the petitioners are one of the most thriving agricultural communities in India. They were led to believe that greener prairies of opportunities would present themselves in a state‑of‑the‑art capital of Amaravati. Their livelihoods are inextricably linked with the status and nature of Amaravati since they reside in it. The acute deprivation of property will strike at the very heart of the livelihood of the petitioners. In Lalaram vs. Jaipur Development Authority, the Supreme Court of India recognized the acute impact of loss of property on other cherished fundamental rights., In the present case, the petitioners are forced to comply with the decision of the State Assembly to remain an underdeveloped society without the bounties of its agrarian past or the crystallization of the promised development through the location of the State Capital including all three civic wings of the State. Unlike other cities that are dealt with under the Decentralisation Act, which is now repealed, the premature termination of its status as a State Capital will greatly dampen the prospects of livelihood and would be a criminal waste of the fertile swathes of land acquired which will now vest idly resulting in eventual economic downgrade. It is also an open secret that, as long as the development of Amaravati is subject to Government whims, if past conduct is any evidence, the assurances of development shall ring as empty words and it does not take a soothsayer’s foresight to identify that the petitioners along with the protesting hundreds of thousands are staring at the beginning of a humanitarian catastrophe., In Puttaswamy vs. Union of India, the five‑judge Bench of the Supreme Court of India held that the proportionality review requires that any law that restricts the right to life or liberty be: a) in pursuance of a legitimate state interest, b) adopting suitable means for realizing such state interest; c) necessary, in that there is no less restrictive but equally effective alternative; d) proportional, in that the measure must not have a disproportionate impact on the right holder., Applying the proportionality review to the present case, it is submitted that the respondents have not made out any legitimate state interest. Instead, it is evident from the facts fully set out in the affidavit that the motivation behind proposed introduction of the Bill was entirely political after repeal of Act Numbers 27 and 28 of 2020, owing to disagreements between the present political leadership and the predecessor government., Sri B. Adinarayana Rao, Sri M.S. Prasad, Sri Narra Srinivasa Rao, Sri Unnam Muralidhar Rao, learned Senior Counsel raised a specific contention that the Government's failure to develop the land pooled amounts to violation of fundamental rights guaranteed under Article 21 and right to property under Article 300‑A of the Constitution of India, besides violation of promise under the statutes and defeating the legitimate expectation of the farmers who surrendered large parcels of land under the Land Pooling Scheme, which is a statutory scheme under the Andhra Pradesh Capital Region Development Authority Act., The respondents filed a counter affidavit explaining the extent of land pooled, works carried out and expenditure incurred. At this juncture it is pertinent to state that the status of work completed on the contracts initiated and at various stages of completion are indicated. The following is the table of expenditure so far actually incurred in the Andhra Pradesh Capital Region Development Authority (formerly APCRDA) since December 2014, with the following sources of funds: 1. Expenditure for infrastructure works 5674.00 crore; 2. Consultancy Charges 323.00 crore; 3. Interest on loans 1039.00 crore; 4. Annuity to Capital City Farmers (Capital Expenditure) up to FY 2019‑20 798.00 crore; 5. Pensions to Landless Poor up to May 2020 308.77 crore; 6. Land Pooling Expenses 429.42 crore. Total expenditure incurred for capital city 8572.19 crore. Expenditure split for infrastructure works: IGC Buildings 580.71 crore; Miscellaneous Works for AGC 14.72 crore; Housing Projects 1304.04 crore; High Court (Judicial Complex) 155.13 crore; Project Office 43.89 crore; AGC Infra 34.40 crore; Towers 332.15 crore; Rerouting of Power Lines 191.40 crore; Trunk, Blue & Green Infrastructure, consultancy/PMC Charges (ADCL) 2569.00 crore; LPS Infra 448.54 crore. Total infrastructure works 5673.98 crore., It is submitted that after May 2019, annuity and pensions to a tune of Rs.240 crore have been disbursed. Further, bills have been received from contractors in respect of works executed, approximately amounting to Rs.1980 crore after May 2019 and the same are pending for scrutiny and payment., As on date 34,385.27 acres of land has been pooled by 28,526 farmers in 24 revenue villages and in 22 revenue villages 64,709 returnable plots were allotted, out of which 39,769 plots were registered in the name of the persons who participated in the Land Pooling Scheme. The High Power Committee on the basis of the records of transactions available, as of fact found that 10,050 farmers sold away their lands prior to handing over to APCRDA on comparison of the land records of 2014 with plot allotments made under the land pooling scheme. Further, after allotment nearly 7,500 owners sold their plots. In view of the above, that the State prima facie found each one of the estimates leading to proposals to be based on exaggerated estimates, the State in its wisdom in the interests of protecting public monies, sought to be squandered by the relevant decision‑makers as indicated in the Expert Committee Report and the Cabinet Sub Committee, and was thus constrained to take such decisions as to stop further works etc. The facts and figures suggest that most of the projects completed were designed to meet the interim needs of the various establishments of the State. The State intends deploying all such physical assets optimally for various purposes as indicated in the legislations and there is no factual justification for apprehension from the farmers that they would suffer enormous injury or hardship. While the petitioners insist that the State go ahead with the contracts initially entered into, notwithstanding the huge drain on the exchequer without checks and balances, in pursuance of such decisions which are reportedly made in compromise of public interest and for self‑aggrandizement of a few individuals, the State has taken necessary steps to protect public money from splurging on those issues, based on material on record. Balancing the concerns of all the regions especially the aspirations of the less endowed geography such as Rayalaseema, which is drought‑prone and the backward districts of North Coastal Andhra Region, the Government had to arrive at a policy decision so as not to repeat the mistakes of the past. The social, the human resource and the development costs, which would be suffered by the State, if it persists with the model envisaged in the various policies under the erstwhile APCRDA would defeat the aspirations and growth potential of other regions of the State. The apprehension of the petitioner that the infrastructure so far built will be rendered waste and the region would not witness development at all is untenable. The State shall take all necessary steps to ensure that the development of the region is at par with the other regions of the State. The period and the program envisaged for fruition of the capital under the Andhra Pradesh Capital Region Development Authority Act has a time frame which is more than ten years away from today and for the petitioner to contend that all such developmental activities ought to be undertaken forthwith is untenable, as per the respondents., Adverting to Ground VI, it is submitted by the respondents that the petitioners do not have a fundamental right nor any right in any other law, to insist on the State to organise its programmes of development to ensure appropriate accretion to the value of the property held by them. Most of the lands pooled so far have resulted in return of a reconstituted plot to such owners. In addition thereto, under Chapter IX the repealed Act saved in the Repealing Act, read with land pooling rules, provides annuity to be paid to such farmers. The petitioners' right to livelihood is neither deprived nor their right to property infringed, in view of the continuance and saving of their rights under the Andhra Pradesh Capital Region Development Authority Act. Consequent to the impugned legislation not infringing the right of petitioners to livelihood since development of region is subject to economic capacity the state continues to be undertaken with the state. The indication in the master plan about possible over period of time does not petitioners with fruition all the development indicated therein even overridden economic incapacity and the public interest as narrated above, material resources community prohibitive capital city in land accumulated to be built from the facts and circumstances stated above, unviable. However the petitioners' right to participate in and secure fruits of development of the land pooled is not infringed nor is their right to life livelihood affected by reason of impugned legislation., The contention that petitioners are forced to remain as an undeveloped society and that impugned legislations would result in criminal waste of fertile swathes land. The social and economic policy of the state shall be so organised so as to ensure optimal utilisation of the lands available in Andhra Pradesh Capital Region Development Authority to realise the full potential and there shall be no deprivation of opportunities for livelihood. The assumption underlying the petitioners' contention that there is a beginning of a human catastrophe is without basis, as per the respondents., The further contention of the petitioners that the continued retention of the petitioners' land even after a decision to decentralise the seats of authority i.e. case of acquisition of land without consent and compensation is clear without any substance. Under the repealed Act, Andhra Pradesh Capital Region Development Authority continues to be the seat of Legislature and in the nature of the provisions of the statutory rule the petitioners cannot lay a claim to compensation, afresh, under the terms of the Land Acquisition, Rehabilitation and Resettlement Act, 2013. The rights of the petitioners as provided for under the repealed Act, belie the contention of the petitioners in this regard. It is denied that, in the impugned legislations have a consequence of depriving the petitioners of their right to property without adequate compensation is factually incorrect and requested to reject the plea of petitioners while denying the relief on this ground., During hearing, Sri Shyam Divan, learned Senior Counsel contended that taking property under the Land Pooling Scheme and failure to develop the land, as promised by the State would amount to deprivation of right to life, since they were eking out their livelihood by agriculture. Apart from that, failure to develop the land as promised denuding these petitioners to enjoy the property amounts to deprivation of right to property, as guaranteed under Article 300‑A of the Constitution of India and relied on judgment of the Supreme Court of India in Lalaram vs. Jaipur Development Authority, Tukaram Kana Joshi vs. MIDC and Bhusawal Municipal Corporation vs. Nivrutti Ramachandra Phalak. Based on the principles laid down in the above judgments, learned Senior Counsel requested to issue appropriate direction for development of the lands pooled by issuing writ of continuous mandamus. Apart from that, depriving these petitioners from enjoying the property would amount to violation of right to property guaranteed under Article 300‑A of the Constitution of India., Whereas, Sri S. Sriram, learned Advocate General for the State contended that when Act Numbers 27 and 28 of 2020 are repealed, restoring Andhra Pradesh Capital Region Development Authority Act, 2014, and undertaken to develop the land pooled, question of violation of fundamental right guaranteed under Article 21 and constitutional right guaranteed under Article 300‑A of the Constitution of India does not arise. Government Orders Numbers 23 and 133 Municipal Administration & Urban Development Department dated 23‑04‑2021 issued by the Government and the affidavits filed by Principal Secretary and Additional Secretary of Municipal Administration & Urban Development indicate the intention of the authorities to undertake development activities to fulfil all the obligations imposed on the State Government under the Land Pooling Rules. In the absence of any violation of fundamental right, based on apprehension, writ of mandamus cannot be issued and requested to dismiss the claim on this ground., Indisputably, the ryoths in the villages in the capital region parted with large parcels of land in an extent of 34,385.27 acres under the Andhra Pradesh Capital City Land Pooling Scheme (Formulation and Implementation) Rules, 2015, laid seed access and internal roads. But some of the roads are incomplete, water pipelines and drainage lines are not laid, though it is an obligation of the State Government. Section 57 of the Andhra Pradesh Capital Region Development Authority Act prescribes issue of final notification of land pooling scheme and implementation and completion of final land pooling scheme is prescribed under Sections 58 and 59 of the Act, within the time schedule fixed thereunder. Similarly, Rules 11 and 12 of the Andhra Pradesh Capital City Land Pooling Scheme (Formulation and Implementation) Rules, 2015, imposed an obligation on the Authority to complete the process of land pooling, provide infrastructure, laying roads, etc within the time frame. But, except completion of issue of final notification of final land pooling, the obligations imposed under Sections 58 and 59 of the Act and Rules 11 and 12 of the Rules are not discharged by the authorities., Originally, the land was black fertile agricultural land, yielding three crops in a year. The farmers were lured by the State and its authorities to surrender their land voluntarily with a fond hope that they will get developed reconstructed plots, as specified in the notification issued by the State and APCRDA i.e. 1,000 square yards of residential site and 400 square yards of commercial site. However, land vested in the authority and Land Pooling Ownership Certificates were issued to land owners in respect of the reconstituted plots, final land pooling scheme was published in Form 9.22 for each village between 30‑09‑2016 to 27‑01‑2017 and the Amaravati Master Plan was notified on 23‑02‑2016. But, so far, nothing has been done by the authorities concerned towards implementation of the Land Pooling Scheme and handing over possession of developed reconstructed plots in terms of the provisions of the Andhra Pradesh Capital Region Development Authority Act., One of the major contentions of the learned Advocate General is that when Act Numbers 27 and 28 of 2020 were repealed and issued Government Orders Numbers 23 and 133 Municipal Administration & Urban Development Department dated 23‑04‑2021, question of violation of fundamental right i.e. right to life under Article 21 of the Constitution of India and right to property under Article 300‑A of the Constitution of India does not arise and the Court cannot issue writ of mandamus, based on apprehension of these petitioners., This contention was strongly refuted by the learned Senior Counsel and learned counsel for the petitioners, contending that when there is an apprehension about violation of fundamental right, the Court can issue writ of mandamus and placed reliance on the judgment of the Supreme Court of India in S.M.D. Kiran Pasha vs. Government of Andhra Pradesh. In view of the principle laid down in the above judgment, writ of mandamus can be issued even in case of apprehended violation of fundamental right and in fact, as on date, right to livelihood by cultivating the land was totally infringed by the acts of the State and Andhra Pradesh Capital Region Development Authority, since the State and its instrumentalities i.e. APCRDA failed to fulfil all its obligations under the Andhra Pradesh Capital Region Development Authority Act and Andhra Pradesh Capital City Land Pooling Scheme (Formulation and Implementation) Rules, 2015., It is settled law that right to life embraces the right to livelihood. The right to life is not merely a right to an animal existence, but must enable one's livelihood. The right to property has been recognized to be a human right, which cannot be deprived except by a procedure established by law as held by the Supreme Court of India in Lalaram vs. Jaipur Development Authority, Tukaram Kana Joshi vs. MIDC and Bhusawal Municipal Corporation vs. Nivrutti Ramchandra Phalak. At the same time, the Supreme Court of India succinctly held that whenever the State policy provides for it there is an entitlement to rehabilitation in the form of developed land. The garb of development cannot be used to uproot persons from their lives and livelihood without compensation or rehabilitation made within a reasonable period of time. Delay in rehabilitation loses its efficacy and value when there is loss of sole source of livelihood (vide Bhusawal Municipal Council v. Nivrutti Ramchandra Phalak). Keeping in view the law laid down in the judgments referred above, the present case is to be examined as to how these petitioners lost their livelihood and right to property guaranteed under Articles 21 and 300‑A of the Constitution of India, respectively infringed., The petitioners voluntarily traded the security of their ancestral livelihood, farming for access to jobs in the capital city coupled with the security of return of reconstituted residential and commercial plots.
id_1828	8	To earn a livelihood, there must be job or employment opportunities available in the Capital City Area. Otherwise, the residents of the capital area will be forced to migrate great distances and get displaced. The following actions by the respondent State violate the fundamental rights of the petitioners to livelihood and equal protection of the laws: Construction and infrastructure development at Amaravati has stopped. Development at Amaravati has been abandoned by the State. Numerous grounded contracts are not being implemented. Contractors left the works in the middle of execution, thereby the grounded works were totally abandoned, squandering public money. Infrastructure developed at great public expense with taxpayers' money has been allowed to decay, degenerate and waste away in a reckless manner. The land pooling scheme has been unilaterally undermined by the State. There is no prospect of employment opportunity arising at Amaravati in the Government and Private Sector, as envisioned in the Master Plan; comfort and enjoyment of amenities as envisioned in the Master Plan; appreciation in the value of the reconstituted plots due to world‑class infrastructure coming up; communities growing economic activity through developing the financial city, government city, justice city, knowledge city, media city, sports city, health city, electronic city, tourism city., If these cities are developed and the Master Plan is implemented as scheduled under the provisions of the Andhra Pradesh Capital Region Development Authority Act and Rules, the petitioners would have enjoyed their right to life as common citizens. But, on account of abandonment of development works and failure to implement the Land Pooling Scheme, thirty thousand farmers who faithfully honoured their part of the bargain have been deprived of their rights. The State has consciously and wilfully breached the solemn assurances contained in the statutory Master Plan dated 23 February 2016 and completely abandoned its duties and obligations, thereby bringing ruin and misery upon nearly thirty thousand families. This amounts to deprivation of the right to life and right to property guaranteed under Article 21 and Article 300-A of the Constitution of India., The State assured guaranteed returns, but failed to keep its promise as per the Andhra Pradesh Capital Region Development Authority Act and Andhra Pradesh Capital City Land Pooling Scheme (Formulation and Implementation) Rules, 2015, and failed to complete the infrastructure development in the capital city, as obligated under the same Act and Rules. On the basis of the assurance, a right is vested on the petitioners to receive guaranteed return to the developed and reconstituted plots after the final notification of the Master Plan dated 23 February 2016., The State, in its counter‑affidavit, averred that the petitioners do not have any fundamental right nor any right under any other law to insist on the State to organise its programmes of development to ensure appropriate accretion to the value of the property held by them. The contention that a vested right exists in the Master Plan is untenable., The core of the petitioners’ contention is that they have a right to rehabilitation protected under Article 21 of the Constitution of India, arising from the assurances made by the State or the Andhra Pradesh Capital Region Development Authority. First, the land pooled from the voluntary surrender of their sole sources of livelihood would be used to develop the capital city of Amaravati. Second, they would receive, in exchange for surrendering their source of livelihood, rehabilitation comprising guaranteed return, developed and reconstituted plots, and development in accordance with the sanctioned Master Plan dated 23 February 2016, which includes the capital complex and all nine theme cities, thereby generating public and private employment for the residents of the capital city area, most of whom surrendered their land voluntarily under the Land Pooling Scheme., The State invited people to participate in the development as partners by pooling their lands for the sake of infrastructure and amenities as per the Master Plan dated 23 February 2016. The twin intention behind the scheme was to make people equal partners in the development of the capital city and to do justice to the families affected by the proposed pooling. This intention is stated in the introduction to the Land Pooling Scheme Rules, 2015: “The broad objective of the scheme is to do justice to the families affected by the construction of a livable and sustainable capital city for the State of Andhra Pradesh by making the land owners and local residents partners in development.”, The same intention is recorded in the undertaking enclosed with the application form to take part in the Land Pooling Scheme (Form 9.3 under Rule 6(2)(ii)): “Verified that I/we have exercised the irrevocable option to become partners under the Land Pooling Scheme after complete understanding of the Scheme and its provisions stipulated in the notified rules without any pressure or persuasion by any other person or authority.”, In view of the above undertaking, the land owners who surrendered their land voluntarily under the Land Pooling Scheme are the main stakeholders. The Land Pooling Scheme, as conceived in Chapter IX of the Andhra Pradesh Capital Region Development Authority Act, takes the consent of the land owners at several stages and effects a voluntary surrender of their land with a strong hope of receiving benefits and engaging in public or private employment. However, due to the State’s actions, the hopes of the petitioners have been dashed., After the passage of the Andhra Pradesh Capital Region Development Authority Act, 2014, the draft Master Plan under Section 38 was prepared and published on 26 December 2015 inviting objections and suggestions. After scrutiny and modification, the detailed Master Plan of the capital city of Amaravati was notified on 23 February 2016 following due procedure. Subsequently, a revised Land Pooling Scheme was prepared and notified for draft LPS by the Commissioner under Section 55(6). According to Section 56(1), the draft LPS was to be notified in accordance with the sanctioned plans and in consultation with owners. Notification under Section 56(2) was approved and the draft LPS in Form 9.20 for each village was published, inviting objections within thirty days. The Government dated 8 August 2016 duly notified returnable plots to the land owners as specified in the schedule, in compliance with Rule 9(6) of the Land Pooling Scheme Rules, 2015. Certain objections were considered for modification and approval of the final LPS as per Section 57(1) read with Rule 10 of the Rules. The final LPS was published in Form 9.22 for each village between 30 September 2016 and 27 January 2017, and only on its publication did the land vest in the authority and the Land Pooling Ownership Certificates were issued to land owners in respect of the reconstituted plots. Thus the LPS scheme became part of Section 38., The State also agreed to deliver certain annuity as rehabilitation for the lost livelihood of the land owners and their families who voluntarily surrendered their lands, by providing developed and reconstituted plots in terms of Section 53 of the Andhra Pradesh Capital Region Development Authority Act read with Rule 9(6)(c) of the Rules. The location of the reconstituted plots was to be indicated to the petitioners and other farmers in the draft LPS. Hence the plans made under the LPS were required to be in accordance with the Master Plan and other development plans sanctioned under the Act, not only in size but also in location of reconstituted plots within the sanctioned Master Plan. This formed the substratum of the promise to do justice to the land owners who surrendered their large parcels of agricultural land., The Master Plan of Amaravati consists of several cities such as Government Administrative City, Economic Hub, Justice City, etc. Accordingly, three civic arms of the State should be located within the capital city and the other cities will provide employment to various persons, public or private. After the final LPS was notified between 30 September 2016 and 27 January 2017, the pooled lands vested in the Andhra Pradesh Capital Region Development Authority. Thus the right to return of developed and reconstituted plots as guaranteed rehabilitation for the surrender of the petitioners’ entire livelihood is vested in the petitioners and is protected under Article 21 of the Constitution of India., As per Rule 12(4) of the Land Pooling Scheme Rules, the petitioners were entitled to physical possession of their guaranteed reconstituted plots within one year from the date of final LPS and a basic formation of roads and physical demarcation of plots within the same period, as mandated under Rule 12(3). The latest date for completion of the basic roads and demarcation, and for handover of physical possession, was 27 January 2018. However, to date no steps have been taken to comply with the requirement., Further, as part of the promised rehabilitation, petitioners were entitled to full development of infrastructure around their guaranteed reconstituted plots within three years from the date of final LPS, as per Rule 12(6). The latest date for completion of the full development of infrastructure and amenities was 16 January 2020. No development of infrastructure or amenities has occurred; all works have been stopped, abandoned and left to decay on account of the State and the Andhra Pradesh Capital Region Development Authority, citing lack of funds. Failure to allot developed and reconstituted plots, provide basic roads and other infrastructure by 27 January 2018 and to hand over the plots within three years from the final LPS date has deprived the petitioners of their livelihood. The State has received the cost of development from the land owners by way of surrender of their lands, but the period for implementation of the Master Plan was not extended and the State did not comply with its obligations even after two years from the expiry of the period. No substantial progress has been manifested after the issuance of Government Orders No. 23 and 133 dated 23 April 2021., As a result of the actions of the State and the Andhra Pradesh Capital Region Development Authority, the petitioners suffered an evisceration of the rehabilitation promised to them. Failure to develop the capital city of Amaravati as per the Master Plan dated 23 February 2016 has left each farmer with merely a reconstituted plot in a barren and undeveloped city, not a thriving capital city as promised. Consequently, their right to livelihood guaranteed under Article 21 and right to property guaranteed under Article 300-A are infringed. The promise to develop the Master Plan in future by issuing Government Orders No. 23 and 133 would not serve any purpose, as no development activities have taken place despite the orders., The Supreme Court of India can issue a writ of mandamus in view of the law declared by the Supreme Court in the judgments referred to above, when the State and its instrumentalities, i.e., the Andhra Pradesh Capital Region Development Authority, infringe the fundamental rights of the farmers guaranteed under Article 21 and Article 300-A., Senior Counsel Sri Shyam Divan contends that the State has violated the petitioners’ fundamental rights to equal protection of the laws, non‑arbitrariness, non‑retrogression of rights and good governance under Article 14. The State is raising the following conditions: good governance and non‑wastage of government funds; unequal persons shall not be treated as equals; the test of manifest arbitrariness; the test of proportionality; non‑retrogression of rights., The learned Senior Counsel further argues that unequals cannot be treated as equals and relies on Supreme Court judgments in Bennett Coleman & Co. v. Union of India, T. Shyam Bhat v. Union of India, and DCIT v. Pepsico. He points out that abandoning the development of Amaravati in accordance with the Master Plan violates the principle that only equals ought to be treated alike and that classification must have a rational nexus to the object sought to be achieved., The farmers constitute a distinct class because they have surrendered their land and have vested rights to reconstituted plots, built infrastructure, and assurances that the Master Plan will be implemented within a reasonable time. Section 41 of the Andhra Pradesh Capital Region Development Authority Act ring‑fences the Master Plan and does not permit modification unless the local body or Gram Panchayat makes a reference. The project covered 217 kilometres and involved surrender of 33,771 acres by the farmers. Treating these petitioners as ordinary landowners would violate Article 14., The State, through its Advocate General, contended that the petitioners have no vested right in the capital city and are not entitled to claim any development as a matter of right, but did not deny their entitlement to developed and reconstituted plots in return for land pooling., The contract between the farmers, the State and the Andhra Pradesh Capital Region Development Authority is a statutory contract created by the Development Agreement cum Irrevocable General Power of Attorney in Form 9.14, which imposed a statutory obligation on the State and its instrumentalities to vest the land, develop infrastructure, lay roads and return fully developed and reconstituted plots within the specified time, which expired in 2018. The State and the Andhra Pradesh Capital Region Development Authority failed to fulfil this obligation. Consequently, the farmers who surrendered their land under the Land Pooling Scheme constitute a separate class and cannot be treated as ordinary citizens; such treatment infringes Article 14., Senior Counsel Sri Shyam Divan further contends that the State’s act is manifestly arbitrary. The abandonment of development has stopped the market for reconstituted plots, causing a drastic reduction in property values. He relied on Supreme Court judgments in Shayara Bano v. Union of India and Joseph Shine v. Union of India, which hold that State action may be struck down if it is manifestly arbitrary. However, a mere decline in land prices does not, by itself, constitute arbitrariness., Counsel Sri B. Adinarayana Rao, Sri Unnam Muralidhara Rao and Sri M.S. Prasad relied on Supreme Court judgments in State of Bihar v. Maharajadhiraja Kameshwar Singh of Darbhanga; State of West Bengal v. Mrs. Bela Banerjee; and Nagpur Improvement Trust v. Vithal Rao, which held that the State may make reasonable classifications for legislation and that Article 14 confers an individual right, requiring justification for different treatment., Based on the principles laid down in the above judgments, the learned counsel contended that the State’s abandonment of certain constructions, incurring expenditure of more than Rs 15,000 crore and failure to discharge its obligations, particularly development of infrastructure and handing over of developed reconstituted plots, amounts to infringement of the fundamental right guaranteed under Article 21 and Article 300-A., In Tukaram Kana Joshi v. MIDC, the Supreme Court held that the right to property is not only a constitutional right but also a human right. The “right to the city” is the right of all urban inhabitants, not just citizens, to participate in and appropriate urban space and resources. It is a collective right that seeks to transform cities through collective power., In Ajay Maken v. Union of India, the Delhi High Court held that no authority shall carry out eviction without conducting a survey and consulting the affected population, and that adequate rehabilitation must be provided. The Court observed that the concept of the “right to the city” is relevant as an important element in the policy for rehabilitation of slum dwellers., Ajay Maken marks a departure from earlier Delhi High Court jurisprudence that used the public nuisance narrative to justify slum demolition. The Court, drawing from South African Constitutional Court judgments, emphasized the need for meaningful engagement with affected persons and adopted a participatory approach to rehabilitation., The right to the city formulates a new idea of citizenship based on inhabitance and participation in quotidian practices in the city. It provides constitutional protection for slum dwellers against forced eviction and acknowledges the right to adequate housing. It also allows urban inhabitants to make claims over urban space through practices such as street vending, squatting, and informal construction., It is settled law that the right to property is considered not only a constitutional or statutory right but also a human right. Violation of the right to property therefore amounts to violation of a human right guaranteed under the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the socio‑economic justice assured in our Constitution., In the present case, the State promised to construct a capital city and develop the capital region providing necessary amenities, luring more than thirty thousand farmers in twenty‑eight villages to surrender their agricultural land. However, after a few years, the dream turned into a nightmare due to the enactment of Acts No. 27 and 28 of 2020 and the proposed bill under the Repeal Act No. 11 of 2021, as well as the affidavit filed by the Principal Secretary and Additional Secretary of Municipal Administration and Urban Development. The Government violated the right to life guaranteed under Article 21 and the human right guaranteed under the Draft Principles of Human Rights and the Environment, the Universal Declaration of Human Rights, and the International Covenant on Economic, Social and Cultural Rights. The petitioners filed these petitions to compel the respondents to develop the capital city and region, including roads, water, drainage, approach roads, and seed access roads, and to return developed reconstituted plots to the farmers, which is a legitimate expectation of a poor farmer from the government.
id_1828	9	Thus, the respondents State and Andhra Pradesh Capital Region Development Authority violated the Right to the City and proposed to violate the right to city, which is not only a Human Right under Article 21 of the Constitution of India, but also a Fundamental Right guaranteed under Article 300‑A of the Constitution of India. On account of surrender of livelihood by the farmers i.e., agricultural land for development of the capital city and capital city region, entered into Development Agreement‑cum‑Irrevocable General Power of Attorney in Form‑9.14, a right accrued to the petitioners to claim right in the capital city and a fundamental right, besides the general principle of legitimate expectation to the ryots who surrendered their lands expecting developed and reconstituted returnable plots by providing all amenities for comfortable living. But, by Act Nos. 27 & 28 of 2020, the right accrued to the farmers is taken away. However, on account of repeal of Act Nos. 27 & 28 of 2020 by Act No. 11 of 2021, their accrued right is restored, but still the proposal to take away their accrued right is pending, in view of the Statement of Objects and Reasons in Act No. 11 of 2021., In State of Punjab v. Mohar Singh, the Supreme Court of India had an occasion to deal with the application of the principle of repeal and held that when there is a repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the Section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject, the Court would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. The Court cannot therefore subscribe to the broad proposition that Section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself not material., In Hitendra Vishnu Thakur v. State of Maharashtra, the Supreme Court of India laid down certain guidelines with regard to interpretation of laws, which are as follows: (i) A statute which affects substantive rights is presumed to be prospective in operation, unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning, and should be strictly confined to its clearly defined limits. (ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal, even though remedial, is substantive in nature. (iii) Every litigant has a vested right in substantive law, but no such right exists in procedural law. (iv) A procedural statute should not generally be applied retrospectively where the result would be to create new disabilities or obligations, or to impose new duties in respect of transactions already accomplished. (v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication., In the recent judgment of a Constitutional Bench in Commissioner of Income Tax (Central) – I, New Delhi v. Vatika Township Private Limited, the Supreme Court of India held that if legislation confers a benefit on some persons without inflicting a corresponding detriment on some other person or on the public generally, and where to confer such benefit appears to have been the legislature's object, then the presumption is that such legislation, giving it a purposive construction, would be given a retrospective effect. This is the justification to treat procedural provisions as retrospective. In such cases, retrospectivity is attached to benefit the persons in contradistinction to the provision imposing some burden or liability where the presumption attaches towards prospectivity. Thus, legislations which modify accrued rights or impose obligations, new duties or a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for the purpose of supplying an obvious omission in a former legislation or to explain a former legislation., In L’Office Cherifien des Phosphates v. Yamashita Shinnih on Steamship Company Ltd, it is clarified that legislations which modify accrued rights or impose obligations, new duties or a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect., By applying the principles laid down in the above judgments, it is clear that a right that accrued on any person cannot be taken away. In the instant case, the right to the capital city accrued to the petitioners is a Human Right and almost a fundamental right guaranteed under Article 21 and the right to property guaranteed under Article 300‑A of the Constitution of India, by passing Act Nos. 27 & 28 of 2020. But, on account of repeal of those Acts by Act No. 11 of 2021, those rights are revived and the ryots in the capital region are entitled to protect their rights. However, in view of the contemplated invasion of the right of the farmers, this Court can issue a writ of continuous mandamus to protect the rights of the farmers., Though the learned Advocate General refuted this contention, on account of the restoration of the Andhra Pradesh Capital Region Development Authority Act after repeal of Act Nos. 27 & 28 of 2020, we are unable to accept the contention of the learned Advocate General, as the State and Andhra Pradesh Capital Region Development Authority failed to discharge their obligation under the Land Pooling Scheme and the APCRDA Act within the time frame, thereby the petitioners and land owners lost their livelihood and right to property, having parted with large parcels of land., In view of the foregoing discussion, the act of the State and Andhra Pradesh Capital Region Development Authority has not only deprived the right of life guaranteed under Article 21 of the Constitution of India, but also infringed the right to property guaranteed under Article 300‑A of the Constitution of India, thereby the act of the respondents is violative of Article 14 of the Constitution of India, as the farmers who surrendered their land were treated on par with any other citizen which is prohibited under Article 14. Hence, the contention of the petitioners is upheld, while rejecting the contention of the learned Advocate General for the State., Sri Unnam Muralidhar Rao, learned senior counsel, contended that failure to undertake developmental activities by constructing the capital within the land pooled amounts to fraud on power since the State Government, being a repository of power, failed to act reasonably for development of the capital city., The petitioners did not produce any material, but contended that based on the inaction of the respondents i.e., the State and the Andhra Pradesh Capital Region Development Authority, the Court can draw the inference that the State and the APCRDA did not undertake steps to complete the partly constructed works and failed to provide infrastructure, failed to complete or hand over the developed returnable plots within the specified time under the APCRDA Act; such inaction on the part of the State and the APCRDA can certainly be termed as fraud on power., When a question came up for consideration before the Supreme Court of India in P. Vajravelu Mudaliar v. Special Deputy Collector, Madras and Others with regard to payment of compensation, which is illusory in view of the statutory provisions, it was observed that there may be many others falling on either side of the line. It is clear that if the compensation is illusory or if the principles prescribed are irrelevant to the value of the property at the time of its acquisition, it can be said that the Legislature committed fraud on power and, therefore, the law is bad., The concept of bad faith in relation to the exercise of statutory powers comprises dishonesty (or fraud) and malice. A power is exercised fraudulently if its repository intends to achieve an object other than that for which the power was conferred. The intention may be to promote another public interest or private interest. A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Administrative discretion means power of being administratively discreet. It implies authority to do an act or to decide a matter at discretion. The action taken must therefore be proved to have been made mala fide for such considerations. Mere assertion or a vague or bald statement is not sufficient. It must be demonstrated either by admitted or proved facts and circumstances obtainable in a given case. If it is established that the action has been taken mala fide for any such considerations or by fraud on power or colourable exercise of power, it cannot be allowed to stand., The Andhra Pradesh Capital Region Development Authority Act, 2014 prescribes certain duties of the APCRDA. Failure to discharge those duties would also amount to fraud on power as the APCRDA failed to discharge its duties as prescribed under Schedule II and III of the Rules, 2015., The rules prescribe certain forms in the schedules. Schedule I deals with the process of the scheme. Schedule II deals with the role and responsibility of the authority. Schedule III deals with the role and responsibility of the Government. Schedule IV prescribes the extent of the land reserved under sub‑section 1(e) and 1(f) of Section 53 of the Act. Schedule V prescribes several forms from 9.1 to 9.32 under different provisions of the Act and Rules., The role of the authority, i.e., Andhra Pradesh Capital Region Development Authority, and the role of the Government as mentioned in Schedule II and III are important for deciding the present issue. Schedule II – Role and responsibility of the Authority includes: (i) towards land owners under the land pooling scheme: to undertake implementation of the land pooling scheme and develop the land meant for providing reconstituted plots; to issue statutory receipt for consent application with documents; to allot reconstituted plot by lottery; to return land to the land owners near pooled land or within five kilometres radius of pooled land subject to other planning requirements; to issue statutory land pooling ownership certificate (LPOC) with alienable rights within nine months of agreement with all willing land owners; to hand over physical possession of reconstituted plot within twelve months of the date of notification of final LPS; to complete the development of the scheme area within three years of issue of LPOC; to provide reconstituted plots in one area to a land owner having original plots in different areas as per the category of original land; to provide reconstituted plots in one area to different land owners requesting joint allocation as per the category of original land; to issue LPOC and pay annuity to religious institutions or charitable trusts under the purview of the Endowment Department where original lands belong to them. (ii) towards development of the area under LPS: to declare areas under land pooling scheme and prepare layout plans and sector plans based on the requirement of physical infrastructure; to superimpose revenue maps on the approved master plan; to demarcate all the roads as per layout plan and sector plan within the assembled area and give approval of layout plans/detailed plans; to develop sector roads/internal roads/infrastructure/services including water supply lines, power supply, rain water harvesting, sewage treatment facilities, water treatment facilities, etc., falling in the share of the land guaranteed to the land owners; to create infrastructure facilities, roads, parks, cremation facilities for all religions, community needs etc., at the city level; to allot the prescribed built‑up space/dwelling units for economically weaker sections; to develop identified land in a time‑bound manner with master plan roads, provision of physical infrastructure, and traffic and transportation infrastructure inclusive of metro corridors; to complete external development in a time‑bound manner; to complete development in time and maintain it with all the neighbourhood level facilities i.e., open spaces, roads and services. Schedule III – Role and responsibility of the Government includes: (i) towards land owners under LPS: to provide registration for LPOC without payment of registration charges; to provide one‑time exemption from stamp and registration fee, non‑agricultural land assessment and development fee; to exempt registration fee for registering the agreements with the Competent Authority for Land Pooling. (ii) towards others residing within the area under LPS: to provide one‑time agricultural loan waiver of up to Rs 1,50,000 per family to farmers as per prescribed procedure of Government; to demarcate village sites/habitations duly following procedures of revenue department; to issue possession certificates in village sites in order to enable the occupants to regularise house sites; to provide housing to the houseless as well as those losing houses in the course of development; to provide interest‑free loan of up to Rs 25 lakhs to all the poor families for self‑employment. (iii) towards other promises made: to provide free education and medical facilities to all those residing as on 8 December 2014; to establish old age homes; to establish NTR canteens; to enhance the limit under NREGA up to 365 days a year per family; to establish a skill development institution and provide training with stipend to enhance the skills of cultivating tenants, agricultural labourers and other needy persons; to engage tractors belonging to residents for construction activity; to issue ownership and transit permission through the forest department for cutting and sale of teak trees in private lands duly exempting the relevant fees; to name one building after M.S.S. Koteswara Rao; to allow standing crop to be harvested., The role of the land owners includes: to give consent application and facilitate survey and demarcation; to prove rights over the land; to transfer ownership rights to the Authority against a guaranteed return of a reconstituted plot in the vicinity of pooled land; not to create any encumbrances after entering into agreement with the Competent Authority for Land Pooling; to hand over physical possession to the Competent Authority for Land Pooling for development., When the Government made a promise in terms of the Development Agreement‑cum‑Irrevocable General Power of Attorney in Form 9.14, it is the obligation of the Andhra Pradesh Capital Region Development Authority to complete the land pooling scheme and development as agreed in the agreement, and it cannot resile from its promise under the principle of promissory estoppel. Most of the petitioners based their case on the doctrine of promissory estoppel to contend that the Government cannot resile from its promise since the State and the Andhra Pradesh Capital Region Development Authority are under obligation to fulfil their obligations in view of the specific clause, which denied the owners/farmers the right to approach any authority or Court to claim compensation or any relief. Failure to discharge its duties and obligations both by the State and APCRDA at their whim, stoppage of development, and failure to complete the Land Pooling Scheme process constitute fraud on power., Accordingly, the point is decided in favour of the petitioners and against the respondents., One of the major contentions raised by the learned counsel for the petitioners in most of the petitions is that when the Government is changed either in general elections or in mid‑term elections, the State is bound to continue the projects undertaken by the earlier Government and mere change of the Government is not sufficient to change its policy and stop the projects undertaken by the earlier Government. More particularly, when the project is midway, huge public money has been spent on such project, and it would cause colossal loss to the State exchequer; the State and the Andhra Pradesh Capital Region Development Authority are not expected to squander public money for their political purposes or to meet future strategies. Such change of policy and abandonment of projects is illegal, and a direction should be issued to the respondents., The respondents filed a counter, refuting such contentions, explaining that the projects and developmental activities undertaken by the then Government are unmindful of the expenditure and to benefit the ryots of the particular area even without taking into consideration the original master plan. Such projects are not required to be continued at the cost of people of other regions since the amount spent on those projects is not the public money of the particular region, but the public money of the entire State. Apart from that, the project undertaken by the earlier Government, i.e., construction of the capital city at Amaravati, is nothing but benefiting the ryots on payment of Rs 2 crore per acre by way of annuity for a period of ten years. The contention of the petitioners is therefore rejected., It is an undisputed fact that the then Government passed the Andhra Pradesh Capital Region Development Authority Act, 2014 and, by exercising power under Section 52 of that Act, framed a land pooling scheme to pool land from the ryots who were willing to voluntarily surrender their land subject to certain conditions contained in the land pooling scheme, a unique scheme which tempted the farmers to surrender their land to an extent of 33,771.00 acres with the hope that if the capital city is established, most of the people in the area will get employment either in the private or public sector and they may carry on their avocations to eke out their livelihood in different fields though they lost agriculture livelihood, on account of surrender of land to the Government being partners in the development of the capital area in terms of the preamble of the Andhra Pradesh Capital City Land Pooling Scheme (Formulation and Implementation) Rules, 2015. Indisputably, nearly 30,000 farmers in Amaravati, which is under the governance of the APCRDA Act, 2014, surrendered an extent of 33,771.00 acres., The petitioners in W.P. No. 16514 of 2020 filed certain documents which show that the Andhra Pradesh Capital Region Development Authority issued a white paper (Book‑I) on the Amaravati Project disclosing status by March 2016 and various details including the land pooled, various projects and cost of projects. The Government complex is planned in approximately 900 acres near Rayapudi Village in the capital city. It is proposed to develop the Legislature, Secretariat, High Court, Raj Bhavan along with all Head of Departments, VIP housing etc. The tentative budget cost was approximately Rs 6,000 crores for development of the Government Complex. The action plan is also mentioned in clause 6.2.4 of the said status report and the construction was to be completed by December 2018. The document discloses financial planning, industry and economic development, execution strategy and institutional framework., The second edition of the Amaravati Project (Book‑II) was released in March 2017 by the Andhra Pradesh Capital Region Development Authority disclosing an overview of the development, land pooled, social development, planning, industry and economic development, execution strategy and institutional framework. The LPS status at clause 10.7 of the document discloses the extent of land pooled i.e., 38,535.94 acres and annuity paid during the first and second years. Clause 7.2 consists of sources of funding, but the present Government did not secure the funds mentioned in clause 7.2 under the chapter on financial planning for different reasons., The third edition of the Amaravati Project (Book‑III) was issued in December 2017 disclosing details of land pooled in various villages and plot allotment after pooling on a lottery basis, including the status of land pooling development schemes, status of returnable plots allotted, as well as acquisition of land under different awards in villages that did not come forward for voluntary surrender of land under the land pooling scheme. The building plans of different works, laying seed access road, and spending huge amounts by the APCRDA are shown in edition 3 of the Amaravati Project., The fourth edition of the Amaravati Project (Book‑IV) was issued in February 2019 disclosing details regarding various projects including the inauguration of the High Court of Andhra Pradesh at Amaravati. Clause 8.3 shows details of economic development projects allotted land through various Government Orders/Tender processes. Land was allotted to several private individuals for taking up different projects for the growth of the capital city and amounts were also collected from the beneficiaries. Clause 6.7 disclosed implementation of trunk infrastructure including percentage of physical progress of work in kilometres and other details., In April 2018 the Andhra Pradesh Capital Region Development Authority issued a Happy City Blueprint as part of the Socio‑Economic Master Plan (Book V) disclosing various details of developmental works, financial plans, etc., The Andhra Pradesh Capital Region Development Authority released facts and figures (edition 2) (Book‑VI) disclosing the status as of May 2017., The farmers’ land holdings that were surrendered are described as follows: Total extent 33,771 acres held by 29,754 farmers. Holdings of 1 to 2.5 acres: 6,278 farmers holding 9,857 acres (29.18%). Holdings of 2.5 to 5 acres: 2,131 farmers holding 7,460 acres (22.09%). Holdings of 5.01 to 10 acres: 765 farmers holding 4,405 acres (13.04%). Holdings of more than 10.01 acres: 29,754 farmers holding 33,771 acres (100%). Additional details: Central funds released to Amaravati Rs 2,500 crores; Amaravati Capital Bonds Rs 2,000 crores; tenders finalised Rs 42,170 crores; value of projects grounded Rs 41,678 crores; completed works Rs 5,674 crores; bills and mobilisation advances paid Rs 5,200 crores; bills to be paid for completed works Rs 1,850 crores; land allocated to private and government institutions 1,660 acres with amount paid Rs 450 crores; land allocated to VITS University 200 acres; Amrita University 200 acres; SRM University 200 acres; Indo‑UK University 150 acres; Basava Tharakam Cancer Institute 15 acres; TTD 25 acres; spiritual centres 32 acres; star hotels 38 acres; international and private schools 45 acres; Government of India institutes 175 acres; banks and PSUs 25 acres; RBI 11 acres; CAG 17 acres; Navy 15 acres; NID 50 acres; Andhra Pradesh Government institutes 170 acres; amount paid for Happy Nest Flats Rs 72 crores; lease paid to farmers last five years Rs 800 crores; lease amount to pay for coming five years Rs 1,100 crores; pension paid for farming labour Rs 290 crores; amount to pay for coming five years Rs 290 crores; people contribution for Amaravati Rs 42 crores; government officers allotted plots 350 acres with amount paid Rs 87.50 crores., From the various reports and news articles, the works which appear to have been stopped, postponed indefinitely, abandoned midway or possibly cancelled include: road network; sewer network; storm water network; water supply network; reuse water supply network; footpath (removed from scope); cycle track (removed from scope); multi‑function zone pavers (removed from scope); street lighting (removed from scope); power & ICT (removed from scope); NGO housing; GO Type 1, 2 & Group D housing; bungalows for ministers and judges; bungalows for principal secretaries and secretaries; APCRDA project office; schools; judicial complex (removed from scope); Amaravati Government Complex (removed from scope); High Court (removed from scope); Amaravati IT Tower (removed from scope)., The documents showing the details are not in dispute. However, the present Government took a decision by passing Act Nos. 27 and 28 of 2020, which are now repealed by Act No. 11 of 2021, to trifurcate the capital establishing the judicial capital at Kurnool, the legislative capital at Amaravati and the executive capital at Visakhapatnam in the name of decentralisation of development for all regions to avoid regional disparity in growth. On account of the repeal of Act Nos. 27 and 28 of 2020 by Act No. 11 of 2021, the issue of trifurcation of the capital needs no further examination for the present., As seen from the material filed in W.P. No. 16514 of 2020, more than Rs 15,000 crores were spent for the development of the capital region, i.e., laying seed access roads, external roads, constructing various buildings, and most of the buildings are at the stage of completion, particularly ministers’ quarters, judges’ quarters, MLA quarters, and the APCRDA office. However, due to the decision taken by the present Government, the construction activities were totally stalled, the contractors left the works midway. The State and the APCRDA are not concerned about the amount spent, and now the area is covered by wild growth of thorny bushes and the fertile lands have turned into jungle due to inaction of the State to implement the project undertaken by the then Government. Though the State and APCRDA are under obligation to undertake development activities and complete the development of roads and other projects within three years from the date of final notification of the land pooling scheme as per Rule 12(6) of the Andhra Pradesh Capital City Land Pooling Scheme (Formulation and Implementation) Rules, 2015, which period has already expired, the inaction of the State and APCRDA is resulting in thousands of crores of public money being wasted., When projects are taken up by the then Government, the present Government has to complete them. Learned counsel for the petitioners relied on the judgment of the Supreme Court of India in State of Tamil Nadu and Others v. Shyam Sunder and Others, wherein the Court held that the Government has to rise above the nexus of vested interests and nepotism and eschew window‑dressing. The principles of governance have to be tested on the touchstone of justice, equity, fair play and, if a decision is not based on justice, equity and fair play and has taken into consideration other matters, though on the face of it the decision may look legitimate, the reasons are not based on values but to achieve popular accolade; such a decision cannot be allowed to operate (see Onkar Lal Bajaj v. Union of India and Another)., In State of Karnataka and Another v. All India Manufacturers Organisation and Others, the Supreme Court of India examined under what circumstances the government should revoke a decision taken by an earlier government. The Court held that an instrumentality of the State cannot plead contrary to the State and the policy in respect of a particular project adopted by the State Government should not be changed with the change of the government. The Court further held that it is well‑settled law that when one of the contracting parties is the State within the meaning of Article 12 of the Constitution, it does not cease to enjoy the character of ‘State’ and, therefore, is subject to all the obligations that ‘State’ has under the Constitution. When the State’s acts of omission or commission are tainted with extreme arbitrariness and mala fides, they are subject to interference by the Constitutional Courts. While deciding the case, reliance was placed on earlier judgments in State of U.P. and Another v. Johri Mal, State of Haryana v. State of Punjab and Another, and others. In the former case, the Supreme Court held that the panel of District Government Counsel should not be changed merely because the panel had been prepared by the earlier Government. In the latter case, dealing with a river water‑sharing dispute between two States, the Court observed that in the matter of governance of a State or execution of a decision taken by a previous Government, based on a consensus that does not involve any political philosophy, the succeeding Government must be duty‑bound to continue and carry on the unfinished job rather than putting a stop to it.
id_1828	10	In M.I. Builders Private Limited versus V. Radhey Shyam Sahu and Others, while dealing with a similar issue, the Supreme Court of India held that a Mahapalika, being a continuing body, can be estopped from changing its stand in a given case, but where, after holding enquiry, it concluded that action was not in conformity with law, there cannot be estoppel against the Mahapalika. Thus, unless it is found that an act done by the authority earlier in existence is either contrary to statutory provisions, unreasonable, or against public interest, the State should not change its stand merely because another political party has come into power. Political agenda of an individual or a political party should not be subversive of the rule of law. In State of Karnataka and Others versus All India Manufacturers Organization and Others, the Supreme Court of India noted that the High Court concluded that since the project had been implemented, Nandi had invested a large amount of money and work had been carried out for more than seven years, the State Government could not be permitted to change its stand and contend that the land allotted for the project was in excess of what was required. The Supreme Court of India is satisfied that there is no need to interfere with the High Court’s judgment, and the contention fails., While dealing with the issue of haste, the Supreme Court of India in Bahadursinh Lakhubhai Gohil versus Jagdishbhai M. Kamalia and Others referred to Dr. S.P. Kapoor versus State of Himachal Pradesh and Others and held that when a thing is done in a post‑haste manner, mala fide would be presumed. In Zenit Mataplast Private Limited versus State of Maharashtra and Others, the Supreme Court of India held that anything done in undue haste can also be termed as arbitrary and cannot be condoned in law. Thus, when an authority proceeds in undue haste, the Court may draw an adverse inference from such conduct., In view of the principles laid down in the above judgments, it is clear that the present Government is under an obligation to complete the projects undertaken by the previous Government, unless such projects were undertaken contrary to any statute. The claim that a project is not financially viable is used as a lame excuse to disband or abandon the projects without taking care of the amount already spent on the project and the annuity payments to the farmers who surrendered their lands voluntarily in the Land Pooling Scheme. No specific reason is mentioned except financial un‑viability, and no proof is filed of the alleged financial difficulty. The works were stalled immediately after the present Government came into power, and the Court can infer malafides., The State is accountable for each and every paisa spent on the projects to the public, as the State is spending public money either paid by the Central Government or incurred by the State Government. When more than Rupees 15,000 crore of taxpayers’ money is spent on the project, the State shall continue to complete the projects for the benefit of the public; otherwise, the amount spent becomes waste. To avoid such wastage of public money, the State and the Andhra Pradesh Capital Region Development Authority (APCRDA) must complete the project strictly adhering to the land pooling scheme. Applying the principles laid down in the judgments referred to supra, it is the obligation of the State and the APCRDA, which is a statutory authority, to complete the projects., One of the reasons mentioned for non‑completion of projects is paucity of funds, as averred in the counter‑affidavit filed by the respondents and in the additional affidavits filed by the Special Chief Secretary to the Government, Municipal Administration and Urban Development Department, Government of Andhra Pradesh, and the Secretary to the Government, Municipal Administration and Urban Development Department, Government of Andhra Pradesh., The statement of objects and reasons for repealing Acts Nos. 27 and 28 of 2020 is filed along with the affidavit filed by the Special Chief Secretary to the Government, Municipal Administration and Urban Development Department, Government of Andhra Pradesh, wherein it is specifically stated: And whereas in this backdrop, the subject matter needs further study and consultations to impart further clarity to the policy of decentralisation of the State and explanation to all sections of people exhaustively. And whereas the Government intends to repeal the said Acts to enable further consultations with all the stakeholders once again and to present suitable legislation in the future addressing all the concerns of all the regions of the State favouring decentralisation., The proposal of the first instalment (Rupees 1,500 crore) to be taken up under Phase 1 prioritised projects (Rupees 3,000 crore loan amount) in Amaravati is filed along with the affidavit filed by the Secretary to the Government, Municipal Administration and Urban Development Department, Government of Andhra Pradesh. On 13‑08‑2020, the Hon’ble Chief Minister approved the prioritised Trunk and Low‑Priority Scheme (LPS) infrastructure works of Rupees 11,092.88 crore. Prioritisation of proposals was done with a view to provide infrastructure facilities in a phased manner in tune with development and also approved by the Government. The details of the prioritised Trunk infrastructure were as follows: Balance works worth Rupees 13,058.84 crore were prioritised to Rupees 4,377.35 crore (Roads & Bridges, Storm Water Drains, Sewer Network, RCC Duct, Water Supply and Vaagus works). Balance works worth Rupees 16,223.14 crore were prioritised to Rupees 6,715.53 crore (Bituminous Top & Cement Concrete Roads, Storm Water Drains, Sewer Network, Water Supply works). The prioritised Trunk and LPS infrastructure is phased into three instalments for approaching the consortium of banks for borrowing the loan of Rupees 10,000 crore (Rupees 3,000 crore + Rupees 3,000 crore + Rupees 4,000 crore). Accordingly, the Government vide Government Order No. 23 of Municipal Administration and Urban Development, Government Order dated 24‑03‑2021, accorded a Government Guarantee for Rupees 3,000 crore for developing the initial phase prioritised infrastructure works in Amaravati., Trunk Infrastructure Roads are identified based on regional connectivity, access to various already established institutions and activities, and completed road stretches, with two‑lane carriageways. Storm Water network is identified to connect the Vaagus for avoiding inundation. Water Supply is identified to complete distribution to nearly eleven LPS layouts up to a single point from the AGC area. Flood mitigation aims to create basic infrastructure to discharge collected flood into the fore‑bay of the flood pumping station at Undavalli near the Krishna River. LPS Infrastructure includes roads in various zones with 7.0 m bituminous surface for 25 m right‑of‑way, 6.0 m cement concrete surface for 17 m, 15.6 m, 12 m right‑of‑way, and 5.5 m cement concrete surface for 9 m right‑of‑way. The Phase I development proposal will open up the APCRDA land parcels for faster monetisation of APCRDA lands and facilitate the expected rate of development in the city. Power connectivity will be ensured for the plots with overhead lines., During arguments, the learned senior counsel for the Capital Region Development Authority, Sri S. Niranjan Reddy, submitted that unless the State provides funds for such development activities, APCRDA is not in a position to complete the projects. However, the State did not disclose any reason for its failure to provide funds for developmental activities in the entire argument except the financial un‑viability pleaded in the main counter filed by the State Government. The reason disclosed by APCRDA for its failure to complete the projects undertaken by the earlier Government is lack of funds. Bulletins or white papers issued by APCRDA disclosed funding strategies, but no reason is disclosed for deviating from that strategy. It is settled law that lack of funds is not a ground to refuse to undertake development works in the capital city., When a similar question came up before the Supreme Court of India in Municipal Council, Ratlam versus Vardhichand and Others, the municipal corporation was prosecuted by some citizens for not clearing up garbage. The corporation pleaded lack of money. While rejecting the plea, the Supreme Court of India held that Article 47 makes it a paramount principle of governance that steps are taken for the improvement of public health as a primary duty, and a responsible municipal council cannot run away from its principal duty by pleading financial inability. Decency and dignity are non‑negotiable facets of human rights and a first charge on local self‑governing bodies. Providing drainage systems, not merely as a pompous gesture but in working condition and sufficient to meet the needs of the people, cannot be evaded if the municipality is to justify its existence., In the judgment of M/s Royal Orchid Hotels Limited and another versus G. Jayarama Reddy and others, the Supreme Court of India, while dealing with a similar excuse pleaded by Karnataka Tourism Corporation—lack of funds to complete a tourism project after acquisition of land—held that it is for the State to implement the project for which the land was acquired and the land cannot be used for any other purpose., Applying the principle laid down in the above judgment, we find that the reason assigned by APCRDA—lack of funds—is not at all a ground for its failure to undertake the developmental works, since the earlier Government had worked out sources of funding as published in the relevant documents., The State is bound to account for each and every paisa of public money spent on various developmental activities based on the doctrine of public trust. People have the right to question the use of natural resources; this is why, 1,500 years ago, a Roman legal scholar labelled the Public Trust Doctrine, stating that resources are either available to everyone or to no one. This doctrine questions the ideology of using natural resources for private use and is seen as an ethical principle debated by many philosophers and legal scholars regarding the rights of the public over the earth’s natural resources., In India, the Public Trust Doctrine evolved by the courts and has significance in the Constitution. Various landmark judgments have developed this doctrine. According to Joseph Sax, governmental regulations always create a public trust problem and occur in various situations. Public trust needs protection against private goals. He stated that this doctrine, a delicate mixture of procedural and substantive protection, is appropriate for protection from air pollution, draining of wetlands, strip mining, allocation of resources to private use, etc. (Vide: Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention [1970]). The Public Trust Doctrine imposes three types of restriction on the government: (1) certain resources may not be used by the public but must be stored by the government for the public; (2) these resources are gifts of nature and cannot be sold by the government; (3) the property must be maintained and its adaptation should not lead to private use. No individual should be allowed to cross these limits., The Public Trust Doctrine in India first alluded through M.C. Mehta versus Kamalnath, also known as the SPAN Motel case. A public interest litigation challenged the Minister of Environment, Mr. Kamalnath, who allowed SPAN Motel to construct a hotel near the mouth of the River Beas in Himachal Pradesh and to change the river’s course by blasting the riverbed. The hotel was planned on land taken on a 99‑year lease from the government, approved by the ministry and the gram panchayat. The Supreme Court held that the public trust is an order for the state to use public property for public purposes. It is the duty of the state to protect the environment, lakes and public heritage, and this duty can be abdicated only in a rare case when it is inconsistent with the public trust. The Court observed that earth’s natural resources are the gift of nature, should be protected, and that the public at large is the beneficiary of resources like water, air and wetlands. As the state is the trustee, it is obligated to protect these resources and shall not transfer them to private ownership for its own goals., One of the major contentions of senior counsels Sri Shyam Divan and Sri B. Adinarayana Rao is that after spending Rupees 15,000 crore on developmental activities—including establishment of the High Court, laying the foundation for the permanent High Court building (completed up to 20 %), construction of quarters for judges, MLAs, MLCs, IAS, IPS officers, ministers, secretaries, and apartments for secretariat staff—these buildings were left unattended. The partially constructed structures are exposed to sun and rain, developing rust and damage. Such acts would cause colossal loss to the State exchequer and are against the principles of good governance, constitutional morality and constitutional trust., The learned Advocate General representing the State did not explain the steps taken for completion of construction, who will occupy the buildings, or how the Government would deal with the property, either in the counter or during arguments. Consequently, no plausible explanation or good proposal was disclosed to deal with such constructions, and the act of the Government is against the principle of good governance., Senior counsel placed reliance on the judgment of the Supreme Court of India in A. Abdul Farook versus Municipal Council, Perambalur. In those facts, on or about 13‑02‑1998, the Government of Tamil Nadu issued a notification (G.O.Ms. No. 32) granting permission for installation of statues and erection of arches. Requisitions for permission to put up arches were submitted to the District Collector, who, after receiving reports from the Divisional Engineer of the State Highways, District Superintendent of Police, etc., could make recommendations to enable the Government to grant or refuse the requisite permission., Considering those facts, the Supreme Court of India held that there can be no doubt that authorities, in the interest of the general public and pedestrians, may grant permission to construct such buildings even if they are permanent, as they see fit, or may carry out such construction themselves if necessary. What is important is the public interest in carrying out such construction and not any private interest. The doctrine of good governance requires the Government to rise above its political interest and act only in public interest for the welfare of its people., Similar is the situation in the present case. Since the constructions were not attended by the State and APCRDA, although they are partly completed, this would result in a huge loss of Rupees 15,000 crore, and the question arises as to who will be held responsible for such loss to the public. If the principle laid down in the above judgment is applied to the present facts, the State is responsible for such arbitrary acts arising from the facetious decision taken by the State or APCRDA’s failure to attend to the developmental activities under the APCRDA Act and the Land Pooling Rules, 2015., Recently, the Division Bench of the High Court of Jammu and Kashmir at Jammu, in Azra Ismail versus Union Territory of Jammu and Kashmir (W.P.(C) PIL No. 4 of 2020 dated 05‑05‑2020), held that it is trite that there must be predominance of public interest in governance and public administration. Noting the principle laid down in Central Electricity Supply Utility of Odisha versus Dhobei Sahoo, the Court observed that while dealing with a writ of quo warranto, the doctrine of delay and laches should not be allowed any play because the person holds public office as a usurper and such continuance must be prevented by the Court. The Court is required to see that larger public interest and the basic concept of good governance are not thrown to the winds., The High Court of Jammu and Kashmir further held that several public infrastructure projects in the State are languishing for decades without efficient monitoring. These include projects in road construction, public health, education and administrative systems. No timelines are adhered to, and public systems suffer from opacity and lack of accountability. The litigation before the Court repeatedly notes that government systems are steeped in inefficiency and lack dedication and commitment. The visible delays underline an urgent need for building capacity for meritorious, fearless, independent, fair and strong decision‑makers who would apply themselves selflessly to the common good, spurning nepotism, favouritism and dishonesty. The Court also noted expenses for which no information is available, especially due to the bi‑annual shifting of the Government (Darbar Move). Official accommodation must be allotted in both cities; when the Darbar moves, residential accommodations in the previous city are closed, packed up and disabled for six months, exposing them to harsh winters and natural vagaries. Consequently, extensive renovations and repairs are undertaken before the Darbar Move to ready these houses for occupation., Finally, the Division Bench held that the summer secretariat should not be kept at Srinagar only to avoid loss to the exchequer, as the State is accountable to the public for expenses incurred with public money., Similarly, in State of Haryana versus State of Punjab and Others, the Supreme Court of India, after giving anxious consideration to the submissions made by Dr. Dhawan for the State of Punjab, held that those submissions are of no consequence and there could be no fetter on the Court’s power to issue appropriate directions. The Court noted the genesis of the Sutlej Yamuna Link (SYL) Canal construction, the allocation of water in favour of Haryana, and the agreements entered into between the States in the presence of the Prime Minister of India, which led to the withdrawal of earlier suits. The Court affirmed that the Central Government has a solemn duty to ensure compliance with the agreement in toto. More than Rupees 700 crore of public revenue cannot be allowed to be wasted, as the canal portion within Haryana is completed and a major portion within Punjab is also dug, leaving only minor patches in Punjab. The Court held that the State of Haryana has made out a case for a mandatory injunction against the State of Punjab to complete the remaining portion of the SYL Canal, and if Punjab fails, the Union Government must see to its completion so that the money already spent and that which may be spent is not wasted and Haryana can draw its allotted water. The direction to dig the SYL Canal should not be construed as a licence for Haryana to draw water in excess of its allocation., In view of these principles, the act of the State abandoning the constructions after incurring Rupees 15,000 crore, and after grounding works of Rupees 32,000 crore that are partly completed, would cause economic distress to the State on account of spending public money, and such loss cannot be compensated by anyone. Thus, the action of the respondents is in violation of Article 14 of the Constitution of India and the principle of good governance., In A. Abdul Farook versus Municipal Council, Perambalur, the Court observed that the doctrine of good governance requires the Government to rise above its political interest and act only in public interest for the welfare of its people., In Patangrao Kadam versus Prithviraj Sayajirao Yadav Deshmukh, the Supreme Court of India, referring to the object of the provisions relating to corrupt practices, elucidated that clean, efficient and benevolent administration are essential features of good governance, which in turn depend upon persons of competency and good character., In M.J. Shivani and Others versus State of Karnataka and Others, it has been held that fair play and natural justice are part of fair public administration; non‑arbitrariness and absence of discrimination are hallmarks of good governance under the rule of law.
id_1828	11	Jalgaon Municipal Corporation and Others, it has been ruled that one of the principles of good governance in a democratic society is that smaller interest must always give way to larger public interest in case of conflict., One of the contentions of the learned counsel for the petitioners is that when a huge amount is spent on works and abandoned by the Government that came into power subsequently, the Government remains accountable to the public based on the principle of public accountability as laid down in Uttar Pradesh Power Corporation Limited v. Sant Steels and Alloys (P) Limited, wherein the Supreme Court of India held as follows: In this 21st century, when there is a global economy, the question of faith is very important. Government offers certain benefits to attract entrepreneurs and the entrepreneurs act on those beneficial offers. Thereafter, the Government withdraws those benefits. This will seriously affect the credibility of the Government and would show the shortsightedness of governance. Therefore, in order to keep the faith of the people, the Government or its instrumentality should abide by their commitments. In this context, the action taken by the appellant Corporation in revoking the benefits given to the entrepreneurs in the hill areas will sadly reflect on their credibility and people will not take the word of the Government. That will shake the faith of the people in governance. Therefore, in order to keep the faith and maintain good governance it is necessary that whatever representation is made by the Government or its instrumentality which induces the other party to act, the Government should not be permitted to withdraw from that. This is a matter of faith., Similarly, in Manoj Narula v. Union of India the Supreme Court of India held as follows: In a democracy, the citizens legitimately expect that the Government of the day would treat the public interest as primary and any other interest secondary. The maxim Salus Populi Suprema Lex has not only to be kept in view but also has to be revered. The faith of the people is embedded in the root of the idea of good governance which means reverence for citizenry rights, respect for Fundamental Rights and statutory rights in any governmental action, deference for unwritten constitutional values, veneration for institutional integrity, and inculcation of accountability to the collective at large. It also conveys that the decisions are taken by the decision‑making authority with solemn sincerity and policies are framed keeping in view the welfare of the people, and including all in a homogeneous compartment. The concept of good governance is not an utopian abstraction. It has been the demand of the polity wherever democracy is nourished. The growth of democracy is dependent upon good governance in reality and the aspiration of the people basically is that the administration is carried out by people with responsibility and service orientation., Strangely, the State or Andhra Pradesh Capital Region Development Authority did not come up with any specific proposal about the action to be taken for development of land pooled under the Rules, 2015 and did not explain what action they proposed to take for completion of partly constructed buildings, partly laid roads, drainage, water facility and infrastructure as mandated under Rules, 2015. Such attitude of the State or APCRDA is totally in contravention of the principle of good governance., Learned counsel for the petitioner contended that the people elected the legislators. The Chief Minister is the head of the Council of Ministers in the democratic set‑up. They were elected by the people of the State, not by voters from a specific caste, community, religion or region. The Council of Ministers are the ministers for all the people in the State and discharge their duties as representatives of the people for the development of each and every person in the State. The Chief Minister is the repository of constitutional trust and any action taken by the Council of Ministers and the legislature must be in consonance with the public trust that is reposed in the legislature by the Constitution., The meaning of constitutional trust was earlier considered by various courts. In Manoj Narula v. Union of India, the Supreme Court of India highlighted the principle of constitutional trust while considering the duty of the Prime Minister while advising the President for appointment of the Council of Ministers and described the Prime Minister as repository of constitutional trust, with reference to Article 75(1) of the Constitution of India. The framers of the Constitution bestowed immense trust on the Prime Minister, and the Supreme Court reiterated the principle of constitutional trust as suggested in Article 75(1) of the Constitution., In the present case, the Chief Minister is the repository of constitutional trust being the head of the Council of Ministers. The issue of constitutional trust arises from the debate in the Constituent Assembly concerning the recommendation for appointment of a minister to the Council of Ministers. Responding to the proposal for amendment suggested by Prof. K.T. Shah regarding disqualification of a convicted person becoming a minister, Dr. B.R. Ambedkar replied: 'His last proposition is that no person who is convicted may be appointed a Minister of the State. Well, so far as his intention is concerned, it is no doubt very laudable and I do not think any Member of this House would like to differ from him on that proposition. But the whole question is whether we should introduce all these qualifications and disqualifications in the Constitution itself. Is it not desirable, is it not sufficient that we should trust the Prime Minister, the Legislature and the public at large watching the actions of the Ministers and the actions of the Legislature to see that no such infamous thing is done by either of them? I think this is a case which may eminently be left to the good sense of the Prime Minister and to the good sense of the Legislature with the general public holding a watching brief upon them. I therefore say that these amendments are unnecessary.', The Supreme Court of India, in Supreme Court Advocates‑on‑Record Association and Another v. Union of India, while discussing constitutional functions, observed that it is a constitutional requirement that the person appointed as Prime Minister by the President is the effective head of the Government and the other Ministers are appointed by the President on the advice of the Prime Minister and both the Prime Minister and the Ministers must continuously have the confidence of the House of the People, individually and collectively. The Court further observed that the powers of the President are exercised by him on the advice of the Prime Minister and the Council of Ministers, which means that the said powers are effectively exercised by the Council of Ministers headed by the Prime Minister. All persons possessing a position of power ought to be strongly and lawfully impressed with the idea that they act in trust and are to account for their conduct in that trust to the one great Master, Author and Founder of Society., The Supreme Court of India, in re Article 143, Constitution of India and Delhi Laws Act, opined that the doctrine of constitutional trust is applicable to our Constitution since it lays the foundation of representative democracy. The Court further ruled that the Legislature cannot be permitted to abdicate its primary duty, viz. to determine what the law shall be. Though stated in the context of exercise of legislative power, the same has significance in the present context, for in a representative democracy the doctrine of constitutional trust has to be envisaged in every high constitutional functionary., Turning to the facts of the present case, the Council of Ministers and the Chief Minister are the repositories of constitutional trust and act in accordance with the Constitution for the benefit of public good and not for any individual or to meet larger political needs. Treating citizens of one region unequally with the people of other regions by giving preference to one of them is violative of constitutional trust. Therefore, the acts of the Council of Ministers and legislators, who were elected by the people of the State in a democratic set‑up, have to be continued to gain confidence of the people and work for the people and not for meeting their political ends., In the instant case, though the State has taken up projects through the previous Government, it is the duty of the State to continue the projects unless those decisions were taken contrary to constitutional or statutory provisions, as per the law laid down by the Supreme Court of India in the judgments referred supra. It is not the case of the respondents that those decisions were taken contrary to constitutional provisions or statutes. In the absence of such contention, the State and Andhra Pradesh Capital Region Development Authority are bound to continue developmental activities/projects, i.e., construction of the capital city in the land pooled. If the State and APCRDA fail to construct the capital city within the pooled land, it directly violates constitutional trust and the people will lose confidence in their elected representatives., The other principle drawn to the attention of the Court is constitutional morality. The term constitutional morality is not based on any specific constitutional provision, but on law declared by the Supreme Court of India in Manoj Narula v. Union of India. The Supreme Court observed that the Constitution of India is a living instrument with enormous dynamism. It is a Constitution made for a progressive society. Working of such a Constitution depends upon the prevailing atmosphere and conditions. Dr. Ambedkar, throughout the debates, felt that the Constitution can live and grow on the bedrock of constitutional morality. He said: 'Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people are yet to learn it. Democracy in India is only a top‑dressing on an Indian soil, which is essentially undemocratic.', The principle of constitutional morality basically means to bow down to the norms of the Constitution and not to act in a manner that would violate the rule of law or be arbitrary. It works at the fulcrum and guides institutional building. Traditions and conventions have to grow to sustain such morality. Democratic values survive where the people at large and the persons in charge of institutions are strictly guided by constitutional parameters without deviating, thereby maintaining institutional integrity and requisite constitutional restraints. Commitment to the Constitution is a facet of constitutional morality. In this context, the following passage is apt: 'If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.', Regard being had to the aforesaid concept, it would not be out of place to state that institutional respectability and adoption of precautions for the sustenance of constitutional values would include reverence for the constitutional structure. It is always profitable to remember the famous line of Laurence H. Tribe that a Constitution is 'written in blood, rather than ink.', Categorical observations of the Supreme Court of India are that the citizenry of the State and their representatives must respect the Constitution, develop constitutionalism and value constitutional principles such as constitutional morality., But in the present case, contrary to the principle of constitutional morality, the State and APCRDA, which is the instrumentality of the State, gave a go‑by to the promise for development of the capital city, having lured more than 33,000 farmers to part with their livelihood, i.e., agriculture, with a strong hope that the State/APCRDA would return developed reconstituted plots, both residential and commercial, for their future livelihood by executing the agreement in Form 9.14 prescribed in the land pooling scheme, which created a vested right on the farmers. When it is infringed or invaded by the State, the Court can exercise power of judicial review under Article 226 of the Constitution of India to issue a writ of mandamus., In the present case, the State maintained stoic silence with regard to the huge amount spent on developmental activities, i.e., completed works worth Rs 15,000 crores and grounded works worth Rs 32,000 crores. Even the Advocate General or senior counsel appearing for the APCRDA, Sri S. Niranjan Reddy, did not disclose the State’s proposal for development of infrastructure in the pooled land, at least the proposal for future development strictly adhering to the Land Pooling Rules, 2015, but contended that the State is in financial crisis in the additional affidavits filed by the Principal Secretary and Additional Secretary of Municipal Administration & Urban Development Department., Even if we accept that the State is in financial difficulties, it is still providing financial assistance to several people of the State under various schemes worth crores as social welfare measures in discharge of its duty under Article 38 of the Constitution of India by borrowing large sums or spending the entire income generated on the schemes. When the State is conscious of its obligation under Article 38, it must also be over‑conscious about its duty to be discharged in pursuance of the APCRDA Act, 2014 and the Rules, 2015 and develop the capital city and capital region as per the mandatory guidelines under the Rules, 2015, in the same manner as it provides financial assistance to various persons subject to eligibility. Once the State agreed to take up a particular project and made the farmers part with their huge parcels of land, it is the duty of the State to complete the development as it is not only a constitutional obligation but also a statutory obligation. Maintaining silence by the State as to the proposals for development, except filing affidavits by the Special Chief Secretary to the Government, Municipal Administration and Urban Development Department, Government of Andhra Pradesh and the Secretary to Government, Municipal Administration and Urban Development Department, Government of Andhra Pradesh, is a matter of serious concern., In the present facts, the State Government has already spent more than Rs 15,000 crores and collected amounts from various private individuals who intend to establish hospitals, hotels and educational institutions by sale of the land as part of social and economic development. On account of abandonment of the project by the present Government, the public suffers serious financial loss besides the farmers who voluntarily surrendered their lands under the Land Pooling Scheme and lost their livelihood. Therefore, the State is accountable for such acts based on the doctrine of public trust., Accordingly, the point is decided in favour of the petitioners and against the respondents., It is an undisputed fact that 33,771 acres of land were pooled under the land pooling scheme by the Government, part of the land was used for laying roads and for construction of buildings either fully or partly completed and the remaining land is left fallow without demarcating the reconstituted plots on the ground and allotting them to the farmers who parted with large parcels of land under the scheme as per Section 52 of the Andhra Pradesh Capital Region Development Authority Act, 2014., As of date, land pooling is completed, the notification as required under Section 52 of the APCRDA Act, 2014 is published. According to Section 59 of the APCRDA Act, 2014, the Commissioner shall, after furnishing the details of completion of the works along with the necessary infrastructure plans, publish a notice of completion of the final land pooling scheme within the period prescribed; the Commissioner shall also publish the details of re‑allotment of reconstituted plots/lands along with land mutation records and land pooling ownership certificates; and on verification of the details in sub‑section (1) and sub‑section (2), the Commissioner shall issue the Completion Certificate along with layout of the final land pooling scheme. This part of the obligation of APCRDA is not completed., By exercising power under Section 52 of the APCRDA Act, the Rules, 2015 were framed. According to Rule 11 of the Rules, 2015, after notification of the final Land Pooling Scheme, all the lands for the purposes of laying roads, drainage, lighting, water supply and other utilities mentioned in sub‑sections (4) to (8) of Section 44 as well as the notified area shall vest absolutely in the Authority free from all encumbrances under sub‑section (2) of Section 57, and the Commissioner may summarily evict illegal occupants and enforce the scheme. Within sixty days from the date of notification of the final Land Pooling Scheme, physical marking of road pattern and land earmarked for reconstitution of plots/land shall be done. Thereafter, within thirty days from the date of physical marking, the allotment of reconstituted plots shall be done by draw of lots in an objective and transparent manner with due publicity under video cover while ensuring the presence of not less than one third of the total number of land owners at the time of draw of lots. Thereafter, within thirty days of the draw of lots, the Competent Authority shall issue a Land Pooling Ownership Certificate (LPOC) in Form 9.24 which shall be the final proof of the holder’s title to that land and thereafter cause entry of such ownership details into the records of the registration department without any cost to the land owner. The LPOC contains details of the land owner’s original land and that of the reconstituted plot, including its original ownership details, along with a sketch of the reconstituted plots with schedule of boundaries to each land owner, duly taking prior approval of the Commissioner. After notification of the final Land Pooling Scheme, the Authority shall submit the entire sanctioned scheme documents to the District Collector for updating and mutation of land records; new land records will be prepared and issued to the reconstituted plot owners and the old records shall cease to exist. The details of the LPOCs and parcels of land contributed by the land owners for the scheme shall be made available on the website in Form 9.25. The copies of the documents, plans and maps relating to the final scheme shall be sent to the Stamps and Registration department as well as Mandal Revenue Office, where such copies shall be kept and made accessible to the public. Thus, after issue of final notification, land shall vest on the APCRDA free from encumbrances similar to Section 25 of the Land Acquisition Act., Rule 12 of the Rules, 2015 is also relevant for the present issue and provides: (1) After the notification of the final Land Pooling Scheme, (a) the Authority shall take over all lands reserved for parks, playgrounds and open spaces, roads, social amenities and affordable housing which are deemed to be handed over to the Authority and enter the details in Form 9.26 in separate registers pertaining to each category; (b) the Authority shall take over all lands allotted to it and shall enter the details of all such lands in Form 9.27 register. (2) The notified final Land Pooling Scheme is a deemed layout development permission by the Authority valid for a period of three years. The land owners may apply for development permission and the Commissioner shall accord approval expeditiously. (3) Within one year from the date of notification of the final scheme, the Authority shall complete the basic formation of roads and physical demarcation of plots. (4) Within twelve months of the date of notification, the Authority shall hand over physical possession of reconstituted plots in Form 9.28 to the land owners. (5) The Commissioner shall ensure that LPOCs granted under Section 51 and sub‑section (4) of Section 57 of the Act are in accordance with the provisions of the Registration Act, 1908 without charging registration fee from the land owners. (6) Within three years from the date of final scheme the Authority shall develop the infrastructure in a phased manner., As per Rule 13, within thirty days from the date of completion of development of infrastructure, the Commissioner shall publish a notice of completion of the final Land Pooling Scheme in Form 9.29, furnishing the details of completion of the works along with the necessary infrastructure plans. The Commissioner shall also publish in Form 9.30 the details of reconstituted plots within thirty days after mutations are carried out in land records. On verification of the above details, the Commissioner shall issue the Completion Certificate in Form 9.31 along with layout of the final scheme., Rule 14 imposes an obligation on the owners of the reconstituted plots and other purchasers to pay for usage, consumption and maintenance charges levied by the agencies responsible for common infrastructure and respective services including roads, street lighting, solid waste management, sewerage treatment facility, water supply, parks and playgrounds or other amenities. Finally, all developmental activities shall be completed within three years from the date of final notification as per Rule 12(6) of the Rules., In the present case, the State and APCRDA have not complied with Rules 12, 13 and 14 of the Rules, 2015 to date, but have allowed wild growth in the land pooled without demarcating reconstituted plots to hand over to the allottees as per the Rules, 2015 and have stalled construction activity from the day the present Government came into power. Except for plantation of trees on dividers and roadside, no other activity was undertaken by the Government to date. When the land was pooled for the specific purpose of development of the capital city, naming the scheme as the Andhra Pradesh Capital City Land Pooling Scheme, it must be used for the specific purpose of construction of the Andhra Pradesh Capital City., The introductory paragraph of the Rules, 2015 discloses the object of the land pooling scheme, which runs as follows: In keeping with the will of the Government to build people's capital, the land procurement mechanism has been designed to be voluntary and based on a consensual process of land pooling. The land pooling mechanism is mainly adopted for development of the capital city area wherein the land parcels owned by individuals or groups are legally consolidated by transfer of ownership rights to the Authority, which later transfers the ownership of a part of the land back to the land owners for undertaking development of such areas. These rules are applicable to the capital city area for which zonal plans have been approved. The broad objective of the scheme is to do justice to the families affected by the construction of a livable and sustainable capital city for the state of Andhra Pradesh by making the land owners and local residents partners in development., Though large parcels of land are available, for temporarily accommodating the High Court, partly completing residential quarters, no other activity is undertaken as part of capital city development. Mere establishment of the High Court and construction of official residential quarters, which are incomplete, does not amount to utilizing the land for capital city development. Though the land is vested on APCRDA for the purpose of development under Rule 11 of the Rules, 2015 free from encumbrances, the APCRDA has failed to discharge its obligations under Rules 12, 13 and 14 of the Rules, 2015 to date, which is contrary to the object of the land pooling scheme. Though the land pooling scheme is identical to land acquisition, the land pooling scheme is a voluntary surrender of land, whereas acquisition may be with or without consent., When land is acquired or pooled for public purpose, it must be utilized for the same purpose. In M/s Royal Orchid Hotels Limited and another v. G. Jayarama Reddy and others, the property was acquired for establishment of a hotel on the requisition made by Karnataka State Tourism Development Corporation. Notification was issued under Section 4(1) of the Land Acquisition Act and a declaration under Section 6(1) that the property was required for public purpose, but by the date of the notification the Corporation had entered into agreement to part with a substantial portion of the land. In those circumstances, the High Court held that the Corporation had made a false projection to the State Government that land was needed for tourism projects. Later, the Managing Director admitted that the Corporation did not have the requisite finances and that a private individual was prepared to provide funds subject to transfer of 12 acres of land. The Corporation subsequently transferred land to private entities. The courts have repeatedly held that while the State can compulsorily acquire land for public purpose, this power cannot be stretched to legitimize a fraudulent exercise that deprives landowners of their constitutional right to property in favour of private persons. If land is acquired for a company, the State and the company must comply with the provisions of Part VII of the Act. The diversification of purpose amounted to a fraud on the power of eminent domain. The Apex Court found no valid ground to interfere and dismissed the appeal., In view of the principle laid down in the above judgment, when land is acquired for public purpose, the requisition department or the person cannot be allowed to utilize the same for real‑estate business or profiteering., In Uddar Gagan Properties Ltd v. Sant Singh, the Supreme Court considered whether the power of the State to acquire land for a public purpose had been used to facilitate transfer of title of the land of original owners to a private builder to advance the builder’s business interest, which is not legally permissible, and whether the acquisition was wholly or partly for a private company without following statutory procedure. The Court held that the owner of land has a guarantee against being deprived of his rights except under a valid law for compelling needs of society. The commercial use of land may be rewarding to an individual, but acquisition for public purpose cannot permit another person to take over the land. If the law allows the State to take land for housing needs, the State must keep the title or dispose of the land consistent with Article 14 of the Constitution after completion of acquisition. If the acquisition process is not completed, the land must revert to the owner on the date of the Section 4 notification under the Land Acquisition Act and not to anyone else.
id_1828	12	It was further held that the power to release land from acquisition has to be exercised consistent with the doctrine of public trust and not arbitrarily. In view of our foregoing discussion, the State or the Andhra Pradesh Capital Region Development Authority cannot abandon the partly completed projects, development and infrastructure in the capital city on the ground of financial difficulties or any other ground. Accordingly, the point is decided in favour of the petitioners and against the respondents., One of the contentions of the petitioners in these petitions is that the Master Plan cannot be changed except on the reference made by the local authority or local bodies, as the authority is intending to change the Master Plan creating Zone No. R5 without any reference from the local authority. The respondents filed a counter denying all the allegations contending that the Master Plan can be changed as the land is already vested on the Andhra Pradesh Capital Region Development Authority in terms of Rule 11 of the Andhra Pradesh Capital Region Development Authority Rules, 2015., In view of this contention, it is relevant to refer to certain provisions of the Andhra Pradesh Capital Region Development Authority Act, 2014 to decide the competency of the State or its instrumentalities to modify any Master Plan within the capital region., Section 40 of the Andhra Pradesh Capital Region Development Authority Act obligates the Authority to prepare area development plans subject to overall conformity with the perspective plan, master plan, and infrastructure plan. The Authority or the respective local bodies, under the guidance of the Authority, may undertake the preparation of area development plans for any of the provisions as stated in sub‑section (2) of Section 38 within a time span of five to ten years. The local body shall submit the said area development plans prepared for its jurisdiction, after calling for objections, suggestions and representations, along with the resolution of the local body to the Authority for approval. The sanction accorded by the Authority shall be notified in the Official Gazette and the plans shall come into force from the date of publication., Section 41 of the Andhra Pradesh Capital Region Development Authority Act confers power on the Authority to modify the sanctioned development plan. As per Section 41, the Authority may, on a reference from the local body concerned, make such modifications to the sanctioned perspective plan, master plan, infrastructure plan or area development plan as it thinks fit and which in its opinion are necessary. The Commissioner or the Chief Executive of the local body shall prepare a report together with the plan and full particulars of any such modification. Before making any modifications to the development plans, the Authority shall publish a notice inviting objections or suggestions from the public giving a time period of fifteen days from the date of publication of the notice and shall hear all objections and suggestions. After due consideration of the objections and suggestions received, the final modification made under the provisions of this section shall be published in the Andhra Pradesh Gazette, and the final modifications shall come into operation from the date of publication of such notification. The Authority shall levy such fees and charges including development charges and conversion charges as applicable and as may be prescribed in any such modification effected to the sanctioned development plan from the land owners at whose instance the modifications are effected or who will have the advantage due to such modifications. These charges shall take into account the benefits that would accrue to the land owners from the change and shall seek to capture some share of the increased land value., As per Section 42 of the Andhra Pradesh Capital Region Development Authority Act, the plans sanctioned under Section 38 and Section 39 and modified, if any, under Section 41 shall be binding on all the local bodies, all organisations and the residents in the capital region. The guidelines, policies, specifications and targets regarding affordable housing as proposed in the said sanctioned plans shall be implemented by the local bodies within the capital region. The local bodies shall be responsible for the implementation of the sanctioned plans in the development area under the overall control of the Commissioner., There is no absolute bar to modify the Master Plan prepared under Section 38, approved under Section 39 and published under Section 40 of the Andhra Pradesh Capital Region Development Authority Act, but such modification must be made only on the reference made by the local authority and on making such reference by the Chief Executive Officer of the local body or Commissioner along with its report; then only the procedure prescribed under Section 41 shall be followed, calling for objections and granting fifteen days time with the proposed modification., Sri Shyam Divan, learned senior counsel, would contend that Section 39 deals with the process of approval of plans such as the Master Plan. Section 39(2) provides that a draft plan prepared under Section 38 which is to be published has to contain the details mentioned therein. The proviso states that the items that have to be described in such a draft plan can be modified by the Authority. However, it does not confer the power on the Authority to modify a sanctioned Master Plan. Hence, the respondent Authority cannot modify the sanctioned Master Plan unilaterally, i.e., without a reference from the local bodies concerned. Therefore, the suo moto draft variation plan to the Master Plan notified via Gazette notification No. 355, MAUD (Andhra Pradesh Capital Region Development Authority) Department, dated 10.03.2020 inviting objections and suggestions under Section 41 of the Andhra Pradesh Capital Region Development Authority Act is, inter alia, illegal, arbitrary and ultra vires of Section 41 of the Act as well as the fundamental rights guaranteed to the petitioners under Articles 14 and 21 of the Constitution., As seen from Gazette notification No. 355, MAUD (Andhra Pradesh Capital Region Development Authority) Department dated 10.03.2020, no such reference from the local body or authority is received for creation of R5 Zone. The Commissioner, Andhra Pradesh Capital Region Development Authority, in the affidavit dated 01.02.2022 admitted that by exercising suo moto power, the master plan is amended., Thus, the State Government suo moto amended the Master Plan to create R5 Zone. No suo moto power to modify master plan is conferred on the Authority, and as such exercise of suo moto power to amend Master Plan to create R5 Zone is nothing but abuse of power or fraud on power as held in P. Vajravelu v. Special Deputy Collector, Madras and Others., Hence, Gazette Notification No. 355, MAUD (Andhra Pradesh Capital Region Development Authority) Department, dated 10.03.2020 is declared as illegal, arbitrary and the same is set aside. Accordingly, the point is decided in favour of the petitioners and against the respondents., Learned senior counsel, during hearing, requested to issue a writ of continuous mandamus directing the State and the Andhra Pradesh Capital Region Development Authority to discharge its obligation as governed by the Andhra Pradesh Capital Region Development Authority Rules, 2015 to bring out the desired result., A writ of continuous mandamus can be issued in certain circumstances by the Constitutional Courts, more particularly to compel the State to discharge its obligation under the supervision of the Court., A judgment, order or a decree brings about termination of judicial proceedings except in so far as appellate or other remedies are provided for. A varied range of issues and concerns of public interest may warrant grant of appropriate remedies such as a declaration on the nature of rights or interests involved or setting aside of the infringement proceedings or issuance of direction which may at once and without anything more bring out the desired result or call upon the authorities concerned to frame schemes or guidelines as the case may be for bringing about a fruitful remedial end for the purposes of governance of issues concerned in future or issuance of directions over a period of time in order to finally bring out the desired solution (see Azad Rickshaw Pullers Union (Regd.) v. State of Punjab)., Issuance of positive directions is the essence of the writ of mandamus. Historically, it is a commanding order calling for performance of public duties or towards enforcement of legal rights. It is not a creative process. However, its form and practice do not impact the expression appropriate proceedings in Article 32 or any other order in Article 226 of the Constitution of India. Courts have therefore found it duly falling within the scope of extraordinary jurisdiction conferred under the Constitution and so framed the remedial judicial process so as to ensure effective administration of justice., The concept of \continuing mandamus\ has evolved in the course of the experiences of dilution of judicial interventions or their efficacies, disguised indifferences to court processes or even tendencies to carve out islands of immunity from the rule of law (see Vineet Narain v. Union of India). The lack of dispatch or expedition in acting in aid of the court's processes, demonstration of deficiencies in executive or statutory instruments leading to continued neglect of or non‑realisation of rights/interests of classes of deprived sections of the community, all present a case for engagement of the court over a period (see Bandhua Mukti Morcha v. Union of India)., In view of the law laid down by the Apex Court in M/s Royal Orchid Hotels Limited and another v. G. Jayarama Reddy and others and Uddar Gagan Properties Ltd v. Sant Singh, it is for the State to implement the project for which the land is acquired and cannot use the land for any other purpose. If for any reason the capital is shifted to any other place other than the present capital city as notified by the State, it is impossible for the State to complete the construction of the present capital city. Therefore, the State cannot shift its capital when large parcels of land have already been pooled for the sole purpose of construction of the capital city. Moreover, the sale of land to any private individual for industrial purpose or mortgaging the land for the purpose of obtaining loan without developing the capital city in the pooled land is contrary to the land pooling scheme and such acts at the behest of farmers, who surrendered their lands voluntarily, infringe their right as they were lured to surrender large parcels of land voluntarily on the pretext of construction of the capital city in the pooled land. Therefore, the State and the Andhra Pradesh Capital Region Development Authority are bound to implement the Amaravati project as notified by the Authority and cannot use the land pooled for any other purpose except the purposes specified in the Rules, 2015. By applying the principles laid down in the above judgments, we find that it is appropriate to issue a writ of continuous mandamus., Accordingly, the point is decided in favour of the petitioners and against the respondents., The respondents challenged the reports of various committees on various grounds. However, during hearing, petitioners in all writ petitions requested to grant liberty to challenge those reports in any proceedings in future, since Acts No. 27 & 28 of 2020 were repealed by Act No. 11 of 2021. In view of the request, instead of deciding the legality of the reports, we find that it is appropriate to grant liberty to the petitioners to challenge the reports in any independent writ petition, whenever the petitioners find it necessary., One of the major contentions of the petitioners before this Court in most of the petitions is that the State legislature lacks competency to enact any law in view of Articles 3 and 4 of the Constitution of India to establish capital in any other place other than the notified area of Amaravati or to trifurcate or bifurcate the capital., The main contention of the petitioners before this Court is that Parliament enacted the Andhra Pradesh State Reorganisation Act, 2014 in exercise of power conferred under Article 3 read with Article 4 of the Constitution of India. Under Section 5(2) of the Reorganisation Act, it was mandated that there shall be a new capital for the State of Andhra Pradesh. Article 4 of the Constitution provides for formation of a new state, and Articles 2 and 3 will also contain such supplemental, incidental or consequential provisions that Parliament may deem necessary. In support of this contention, the petitioners placed reliance on the judgment of the Apex Court in Mullaperiyar Environmental Protection Forum v. Union of India, where the Apex Court held that the law‑making power under Articles 3 and 4 is paramount and not subject to or fettered by Article 246 of Lists I and II of the Constitution., It is also contended that the State Government does not have any legislative competence to shift the capital so formed under the powers delegated under the Reorganisation Act. Since the State legislature lacks competence under Article 246 or List II of the Seventh Schedule of the Constitution to frame any enactment, the impugned Acts are purportedly passed by the State Legislature under Entry 5, List II of the Seventh Schedule of the Constitution. However, the said entry only pertains to local government. It is also contended that the power to change the capital is vested in Parliament., Yet another contention of the petitioners is that it is now unequivocally acknowledged that there are implied limitations on any power conferred under the Constitution of India and any state action in violation of these implied limitations is liable to be set aside. No power under a written constitution can be absolute or plenary. In a written constitution it is rarely that everything is said expressly. Powers and limitations are implied from necessity or the scheme of the Constitution. This is a principle of universal character and finds its origin in administrative law and extends across constitutional law. Therefore, two sets of implied limitations are invoked in the present case: (a) the first limitation implied from necessity is that the scope of power that the State Legislature or indeed any constitutional functionary may exercise is limited by the purpose for which that power has been granted. In the present case, the purpose of the power is the passage of legislative enactments which are meant to be general, public, prospective, coherent, clear, stable, and practicable. (b) the second limitation implied from the scheme of the Constitution is that the use of legislative power must not frustrate any other constitutional principle or ideal., In the present case, the impugned Acts violate the constitutional principles: first, good governance under the principle of the rule of law requires stability, consistency and predictability of the legal regime; second, all constitutional power must be exercised in furtherance of the democratic choice of people. Therefore, the State has no authority to enact any law for establishing capital at any other place other than the notified area and the Court can interfere with such enactment, if any passed, by exercising power of judicial review under Article 226 of the Constitution of India. On this ground, the petitioners attacked the legislative competency to pass any such enactment., The State Government in its counter relied upon certain entries in List II and List III along with Article 38 of the Directive Principles of State Policy to justify its stand that it had the competence to legislate and to create three capitals. The following entries are relied upon: List I Entry 32: Property of the Union and the revenue therefrom, but as regards property situated in a State subject to legislation by the State, save in so far as Parliament by law otherwise provides. Entry 5: Local government, that is to say, the constitution and powers of municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self‑government or village administration. Entry 18: Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonisation. Entry 35: Works, lands and buildings vested in or in the possession of the State. Entry 41: State public services; State Public Service Commission. Entry 11A: Administration of justice; constitution and organisation of all courts, except the Supreme Court and the High Courts. Entry 20: Economic and social planning. In addition, Article 38, which states: \State to secure a social order for the promotion of welfare of the people\, is also relied upon., Particular stress was laid on Article 38 and it is submitted that the State is attempting to eliminate regional imbalances by the decentralized three‑capital system., Learned senior counsel Sri Shyam Diwan appearing for the petitioners argues that both the impugned Acts are beyond the competence of the State Legislature and they violate the Andhra Pradesh Reorganisation Act, 2014 (the Reorganisation Act) which has been passed by Parliament of India under Articles 3 and 4 of the Constitution of India. He contends that once the power has been exercised under Articles 3 and 4, the State Legislature does not have the competence to pass the Decentralisation Act. In particular, it is his contention that this is a plenary power that has been exercised by Parliament and therefore, the State Legislature does not have the competence to pass the Repeal Act. He submits that even if the Repeal Act has been withdrawn by L.A. Bill No. 21 of 2021, as was done in this case, the issue of competence can still be decided because the statement of objects and reasons of the Repeal Act L.A. Bill No. 21 of 2021 clearly mentions that the State Government is committed to decentralisation and the establishment of multiple capitals. He argues that the statements made by the Ministers about the Government's commitment to three capitals makes it very clear that the Government is intent upon pursuing the issue. He submits that the threat is imminent. It is his contention that once Parliament has exercised its power and has specified that there shall be a capital for the State of Andhra Pradesh, the State Legislature cannot alter or change the same. It is his contention that the power to change the State capital once formed only vests with Parliament by virtue of residuary power under Entry 97, List I of the Seventh Schedule., Learned senior counsel submits that under the provisions of the Reorganisation Act, a single capital was envisaged and it was put in place. Therefore, he argues that the State Legislature does not have any further power to modify the same. He argues that the actions of the State in planning to move Government Offices out of Amaravati by naming three capitals is furnishing a continuous cause of action which will enable this Court to decide the issue. He points out that even on 22.11.2021, the Chief Minister stated on the floor of the Assembly that the State proposes to go decentralized development and for multiple capitals. He also argues that there is no entry either in List II or List III of the Seventh Schedule which would enable or even empower the State Legislature to pass the Decentralisation Act or any other Act dealing with decentralisation and establishing the Legislative, Judicial and Executive Capitals. According to him, Articles 2, 3 and 4 of the Constitution of India are the sole repository of power in this issue. It is his contention that Article 4 of the Constitution itself gives the power to Parliament to make supplemental, incidental and consequential provisions as the Parliament may deem necessary., Learned senior counsel draws the attention of this Court to the provisions of the Andhra Pradesh Reorganisation Act, 2014 and in particular to Section 5(2) of the Act, which says that after the period prescribed in Section 5(1), Hyderabad shall be the capital of the State of Telangana and there shall be a new capital for the State of Andhra Pradesh. Similarly, he points out that under Section 6 of the Act, an expert committee is to be appointed for setting up of a capital. He argues that even as per Section 11 of the Act, the Government of Andhra Pradesh can alter the name, area or boundaries of any district or other territorial division only. Relying upon Section 94(3) of the Act, he argues that the Central Government shall provide special support for the creation of essential facilities in the new capital of the Successor State. Therefore, he argues that a reading of the Andhra Pradesh Reorganisation Act, 2014 makes it very clear that there shall be a single capital for the State of Andhra Pradesh. Relying upon case law that he has cited, he submits that there is deprivation of right to life and the right to live a life with dignity to the farmers/petitioners, and this Court has the jurisdiction to grant the necessary orders even after the repeal. He contends that the writ petition is maintainable even in case of an anticipated threat, particularly where it relates to the fundamental rights of the farmers. According to the learned counsel, the rights of the farmers of the Vijayawada, Guntur area particularly under Articles 14, 19 and 21 of the Constitution are taken away by the proposed decentralisation. He states that the right to life is not a mere animal existence; it is a right to live a life with human dignity which is also being recognized as an enforceable right. He contends that the action of the State Government in passing the Decentralisation Act establishing the Executive capital at Visakhapatnam etc., and the stoppage of all the works in the designated capital area amount to a clear deprivation of the rights of the farmers who have given up their lands with the hope that they would get reconstituted plots from the Government of Andhra Pradesh. He argues that in view of this legal position, the writ is still not infructuous and that the prayer survives for adjudication. He contends that the State Legislature does not have either the legislative or the executive power for the formation of a capital. It is his contention that neither Article 246 of the Constitution nor the entries in the lists in the Seventh Schedule give the power to the State Legislature to once again decide an issue., Sri B. Adinarayana, learned senior counsel, also adopts the arguments of Sri Shyam Diwan. Apart from adopting the arguments of Mr. Diwan on the main issue with regard to legislative competence, he also drew the attention of this Court to Article 246 of the Constitution of India, citing case law to argue that the boundaries mentioned in the three lists are to be followed and cannot be overlooked. It is his contention that once the power has been exercised by Parliament under Articles 3 and 4 of the Constitution and the Andhra Pradesh State Reorganisation Act, 2014 has come into being, the succeeding Government or the Legislature does not have the power to alter the same or to change the capital or seat of the High Court etc., Sri Prabhunath Vasireddy, learned counsel for the petitioners in PIL No. 215 of 2020, argues that his public interest litigation is devoted essentially to the legislative competence of the State Legislature to enact a law after the Reorganisation Act has been passed. He relies upon paragraphs 4.33 to 4.36 of his affidavit and points out that in the two counter‑affidavits filed, the State has relied upon Entries 5, 18, 35, 41 of List II and Entries 11A, 20 of List III. It is his contention that none of these entries empower the State Legislature to pass the Decentralisation Act, 2020. He argues that there is no connection at all between these entries and the proposal for decentralisation. He also contends that Articles 3 and 4 of the Constitution of India are the sole and exclusive sources of power for creation of a new State and for all matters incidental thereto. He argues that no power is vested in the State Assembly to change the capital which has been decided by the State of Andhra Pradesh pursuant to the Reorganisation Act. It is his contention that the State Government does not have the legislative competence to change the State capital nor alter the seat of the High Court etc., Sri P. B. Suresh Kumar, learned counsel appearing for Ms. Pranitha, also relies upon the language of Sections 5(2), 94(3) and 94(4) of the Reorganisation Act and contends that these sections clearly stipulate the formation of a capital for the State of Andhra Pradesh. He argues that no power is vested in the State to alter the same and create three capitals. According to him, Section 11 of the Reorganisation Act only gives a limited power to the State to alter the name, area and boundaries of a district. He ultimately states that the residuary entry in Item 97 (List I) empowers Parliament alone to change the capital., Sri Y. Surya Prasad, learned counsel appearing in WP No. 1388 of 2020, also argues on similar lines. He states that in view of the provisions of the Reorganisation Act, there can only be one single capital which cannot be changed. The petitioner in this case is an advocate. According to him, the principal seat of the High Court has already been notified by the President of India. He also draws the attention of this Court to the order passed in Union of India v. T. Dhangopal and others (SLP No. 29890 of 2018), wherein the Supreme Court of India noted that the High Court of Andhra Pradesh would be located in Amaravati. He states that by changing the judicial capital from Amaravati to Kurnool, the fundamental right i.e., the petitioners' livelihood is being taken away. He argues that once the matter received the attention of the Supreme Court of India, and an affidavit was filed before the Supreme Court that the State was willing to construct the High Court at Amaravati and the seat of the High Court was notified by the President of India, the same cannot be changed. He points out that even the L.A. Bill No. 21 of 2021, by which the Decentralisation Act was repealed, clearly states in its statements of objects and reasons that the State Government is interested in further decentralized development. Therefore, learned counsel argues that the threat is imminent and the right to livelihood of the petitioners is being denied. He urges the Court to interfere., Sri Unnam Muralidhar Rao, learned counsel for the petitioners in a number of matters, also argues on similar lines and states that the objects and reasons of the Repeal Act clearly stated that the Government in power is again planning to go ahead for the decentralized development of the State of Andhra Pradesh and hence the cause survives., Sri P. A. K. Kishore, learned counsel for the petitioners in WP No. 15035 of 2020, also relies upon Sections 5, 11 and 94(4) of the Reorganisation Act to argue that the Act contemplated the establishment of one capital alone and that since the same was notified and the High Court was also established, the State Government does not have the competence to pass the Decentralisation Act, repeal the same or to make a new Act., These are the broad submissions made by the learned counsels on the issues of legislative competence of the State to decide the issue., In reply to this, the learned Advocate General argues that in view of the passing of the Repeal Act, L.A. Bill No. 21 of 2021, there is no existing fact situation as on date for adjudication. It is his contention that the State Government has passed the Act repealing the Decentralisation Act of 2020. The Andhra Pradesh Capital Region Development Authority Act has come back to life as the repeal Act 27 of 2020 was also repealed by L.A. Bill No. 21 of 2021. Therefore, the learned Advocate General argues that in the absence of the enactment, any decision on the question of the legislative competence of the State would be a decision on an academic issue. It is his contention that there is no cause surviving and that consequently, this Court need not decide at this stage on the legislative competence of the State to pass any law.
id_1828	13	He relies upon the case law to argue that the Supreme Court of India should not decide academic questions of law and should only decide the disputed questions. Alternatively, on merits and without prejudice, the learned Advocate General submits that the interpretation placed by the learned senior counsel and others on the language of the Andhra Pradesh Reorganisation Act is not correct. According to him, it was never specified in the said Act that there should be a single capital for the State of Andhra Pradesh. He points out that Section 5 of the Reorganisation Act states that Hyderabad shall be the capital of the State of Andhra Pradesh and Telangana for a period of ten years. Thereafter, a new capital was directed to be constituted by taking the assistance of an expert committee which has to make appropriate recommendations. This is as per Section 6 of the Reorganisation Act. Therefore, the learned Advocate General argues that Section 5 of the Act merely provides for a ten‑year window within which the capital of these successor states has to be located and put in place. He points out that for this purpose an expert committee called the Sivarama Krishnan Committee is appointed in terms of Section 6 of the Reorganisation Act and they have submitted a report which was overlooked by the then State Government. He also argues that this is not a one‑time measure and that the State is always competent to change the capital and/or establish multiple capitals. He relies upon the Union of India’s counter‑argument to support this submission., The learned Advocate General relied upon a compilation of case law to argue that there is ample power by virtue of the entries in Lists II and III of Schedule VII of the Constitution of India to pass the impugned Act. Relying upon entries 5, 18 and 14 of the State List and 11A and 20 of the Concurrent List, the learned Advocate General argues that the State Government has competence on all issues relating to local government, municipal corporation and so on. Similarly, he argues that rights in land and so on are matters which are eminently within the domain of the State. The administration of justice and the organization of all courts except the Supreme Court and High Court, along with economic and social planning, is vested with the State. He also relies upon Article 38 of the Constitution of India which enjoins upon the State to promote the welfare of all the people in all areas by securing and protecting social order. According to the learned Advocate General, under Article 38(2) of the Constitution of India, the State has a duty to minimise the inequalities in income, status, facilities and so on amongst the people living in different areas of the State. The learned Advocate General therefore argues that the proposal by the Government of Andhra Pradesh to provide for decentralised development of three different areas of the State is for the purpose of achieving the above‑mentioned objectives., Sri S.S. Prasad, learned senior counsel appearing for respondents in Writ Petition (Public Interest Litigation) No. 200 of 2020, also argues on similar lines. According to him, the issue of legislative competence is purely an academic issue now as the Decentralisation Act and the Repeal Act have both been withdrawn and repealed. Relying upon a large number of cases in his compilation of case law, the learned senior counsel argues that the Supreme Court of India should not decide academic issues. Therefore, both the learned Advocate General and Sri S.S. Prasad argue that the issue of legislative competence need not and cannot be decided now. Broadly these are the factual and legal submissions for the respondents., In view of the above contentions, the following questions would arise. Whether the State Government is competent to legislatively decentralise the seat of power from Amaravati and to locate the executive capital at Visakhapatnam, the judicial capital at Kurnool and the legislative capital at Amaravati? Has the issue become academic or is it a live issue?, As per the original decision of the then Government, the three branches of the Government viz., the Legislature, the Executive (Secretariat and so on) and the Judiciary (High Court) have to be located at Amaravati only in a single city. The successor Government wants to decentralise this and has enacted a law (Decentralisation Act) for creating and establishing three capitals: Visakhapatnam (executive capital), Amaravati (legislative capital) and Kurnool (judicial capital). The competence of the State Legislature to enact this law is also an issue raised in many cases including Writ Petition No. 13203 of 2020 and Public Interest Litigation No. 215 of 2020 and so on., These cases have had a chequered history. The writ petitions were initially filed in 2020 and were heard by a bench of three judges. Later, for various reasons the matters were adjourned and this bench took up the hearing of the writ petitions. After considerable progress was made and when arguments were being advanced, the Government of Andhra Pradesh took a decision to repeal Acts 27 and 28 of 2021. This was brought to the notice of the Supreme Court of India by the learned Advocate General, who also filed an affidavit on 26.11.2021 stating that it was decided to repeal Acts 27 and 28 of 2021 by the Legislative Assembly. Thereupon the bench directed all the learned counsels appearing for the petitioners and the respondents to inform the Supreme Court of India about the issues that survive for adjudication., Sri Shyam Divan, learned senior counsel, who appeared for the writ petitioner in Writ Petition No. 13203 of 2020, filed a memo dated 27.12.2021 setting out the prayers which survive for adjudication. Similarly, the other learned counsels have filed their own respective memos. The State of Andhra Pradesh also filed a common memo through the learned Advocate General setting out its version on this issue., According to the learned Advocate General, the entire issue has become academic and there is no need for the Supreme Court of India to pronounce any order whatsoever on any surviving issues. According to him, even with regard to the works that are being carried out since the State has already taken action and initiated action to resume these works, no further orders are necessary and continuing the matter need not be necessary., The question before the Supreme Court of India is whether the State has the competence to pass the Decentralisation Act fixing three capitals in view of the fact that the Andhra Pradesh Reorganisation Act, 2014 was passed by Parliament and received the assent of the President of India., The entire pleadings and arguments on this issue are before the Supreme Court of India. All the learned counsel argued at length on all the aspects including legislative competence and on the issue of the cause surviving., The Supreme Court of India, after hearing the submissions of all the learned counsels, considering the pleadings, the evidence and the law, is of the opinion that it still has the power to decide on the legislative competence of the State Assembly to enact and to pass legislation with regard to decentralisation and the three capitals issue. Reasons for the same are set out hereunder under the respective heads when the submissions are considered., The Government of Andhra Pradesh during the course of hearing has withdrawn the Decentralisation Act, by which three capitals were sought to be established instead of one capital established by the previous regime under the Andhra Pradesh Reorganisation Act. This pendente lite withdrawal was made by L.A. Bill No. 21 of 2021. The statement of objects and reasons of this Act clearly sets out the intention of the State Government to still provide for multiple capitals. The purpose of withdrawal of the earlier Act, as can be seen from the statement of objects and reasons, was further study and consultation to impart further clarity for the policy of the Decentralisation. After the study, the State is attempting to bring suitable legislation in future addressing concerns of all the regions of the State favouring decentralisation. Ultimately, the following is stated: while the matters stood thus, to vividly explain all the good intentions of the Government in relation to decentralised development of all the regions, including by providing multiple capitals, to improve the framework and provisions of law in this regard, to fulfil the aspirations of the people of all the regions of the State and to bring forward suitable legislations to achieve the above‑stated objectives of decentralised development, it has been decided to repeal the said enactments. Accordingly, this bill seeks to give effect to the above decisions., Therefore, as the State is still proceeding to decide on decentralisation and also creation of multiple capitals, the Supreme Court of India is of the opinion that, as the decision is imminent and as the law on the subject is clear, it must decide this issue at this stage only. The entire pleadings and submissions are completed on all the legal and factual aspects., Learned counsels for the petitioners argued that the State of Andhra Pradesh was created pursuant to the Reorganisation Act, 2014, which was passed by Parliament for reorganisation of the existing State of Andhra Pradesh and for matters connected therein. The preamble to the said Act is as follows: \An Act to provide for the reorganisation of the existing State of Andhra Pradesh and for matters connected therewith.\ The enactment of this law by Parliament is not in dispute., Learned counsels for the petitioners relied heavily on Articles 3 and 4 of the Constitution of India which are as follows: Article 3 – Formation of new States and alteration of areas, boundaries or names of existing States. Parliament may by law (a) form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State; (b) increase the area of any State; (c) diminish the area of any State; (d) alter the boundaries of any State; (e) alter the name of any State; provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired. Article 4 – Laws made under Articles 2 and 3 to provide for the amendment of the First and the Fourth Schedules and supplemental, incidental and consequential matters (1) any law referred to in Article 2 or Article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary. (2) no such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of Article 40., According to the learned counsels, the sole exclusive power for the formation of the State and alteration of area with boundaries and so on, and for all matters connected thereto, is a plenary power conferred on Parliament alone. According to them, States do not have any say in the matter of creation of States or for matters incidental, supplemental or consequential thereto. Since this is a plenary power given to Parliament, it is not controlled either by Article 246 or the three lists viz., Union List, State List and the Concurrent List. It is argued that once Parliament has acted under the provisions of Articles 3 and 4 and has passed the Reorganisation Act, which provided for setting up a single capital, the new Government of Andhra Pradesh cannot enter the arena anymore and that it is an occupied field., The Supreme Court of India also finds strength in the said submissions. Sections 5 and 6 of the Reorganisation Act are as follows: 5. (1) On and from the appointed day, Hyderabad in the existing State of Andhra Pradesh shall be the common capital of the State of Telangana and the State of Andhra Pradesh for such period not exceeding ten years. (2) After expiry of the period referred to in sub‑section (1), Hyderabad shall be the capital of the State of Telangana and there shall be a new capital for the State of Andhra Pradesh. Explanation: In this part, the common capital includes the existing area notified as the Greater Hyderabad Municipal Corporation under the Hyderabad Municipal Corporation Act. 6. The Central Government shall constitute an expert committee to study various alternatives regarding the new capital for the successor State of Andhra Pradesh and make appropriate recommendations in a period not exceeding six months from the date of enactment of the Andhra Pradesh Reorganisation Act, 2014., Section 5(2) of the Reorganisation Act thus clearly states that after the ten‑year period mentioned in Section 5(1) is over there shall be a new capital for the State of Andhra Pradesh., Section 6 of the Reorganisation Act states that the Central Government shall constitute an expert committee to study the alternatives regarding the new capital for the successor State of Andhra Pradesh., Section 94(3) and (4) of the Reorganisation Act are also relevant. They are as follows: 94(3) The Central Government shall provide special financial support for the creation of essential facilities in the new capital of the successor State of Andhra Pradesh including the Raj Bhawan, High Court, Government Secretariat, Legislative Assembly, Legislative Council and such other essential infrastructure. 94(4) The Central Government shall facilitate the creation of a new capital for the successor State of Andhra Pradesh, if considered necessary, by denotifying degraded forest land., Therefore, Section 94(3) and (4) of the Reorganisation Act state that the Central Government shall provide special financial support for creation of essential facilities in the new capital of the successor State including the Raj Bhawan, High Court, Government Secretariat, Legislative Assembly and so on. Section 94(4) also states that the Central Government shall facilitate the creation of a new capital for the successor State, if necessary, by denotifying degraded forest land. This is as per the plain language interpretation. Clause (11) of the Thirteenth Schedule of the Andhra Pradesh Reorganisation Act, 2014 provides that the Central Government shall take measures to establish rapid rail and road connectivity from the new capital of the successor State of Andhra Pradesh to Hyderabad and other important cities of Telangana., The case law cited on this issue, particularly Shri Ishar Alloy Steels Ltd. v. Jayaswal's Neco Ltd., also supports this view., The use of the definite article in the opinion of the Supreme Court of India at more than one place in the Reorganisation Act clearly supports the view that there shall be a new capital for the successor State. Both the text and the context support this conclusion. Black's Law Dictionary defines \the\ as follows: \The: an article which particularises the subject spoken of. In construing statute, the definite article the particularises the subject which it precedes and is a word of limitation as opposed to the indefinite or generalising force a or an.\ The Statement of objects and reasons of the Reorganisation Act also clearly states that the Act makes provisions for creation of the new capital. Clause 3(d) makes provisions casting responsibility on the Central Government to assist the successor State of Andhra Pradesh in identification of its new capital and to assist that State financially in the creation of essential facilities in the new capital., In the light of this categorical expression used by Parliament, the Supreme Court of India is of the opinion that the provisions of the Reorganisation Act will alone prevail. As Parliament has expressed its opinion on a subject where it has plenary power, the Supreme Court of India holds that the State cannot once again legislate on this point. In order to ensure that there is no political vacuum, the law made by Parliament merely conferred power on the State to decide on the exact location of the new capital (Article 258(2) of the Constitution)., When the statute is clear, while interpreting its provisions the courts need not fall back on the General Clauses Act. Section 13 of the General Clauses Act, 1897, deals with gender and number. According to it, in all Central Acts and Regulations, unless there is anything repugnant in the subject or context, (1) words importing the masculine gender shall be taken to include females; and (2) words in the singular shall include the plural, and vice versa. Similar provision is also included in Section 3(35) of the Andhra Pradesh General Clauses Act, 1897. Thus, as per the General Clauses Act, 1897, singular can be read as plural and vice‑versa, unless the statute otherwise specifies. Since the statute is clear, the General Clauses Act need not be referred., Before deciding the real controversy with regard to legislative competency, it is necessary to advert to the law laid down by the Apex Court with reference to power to legislate based on the Seventh Schedule, Lists I, II and III of the Constitution of India, apart from the independent power of Parliament to amend the Constitution under Articles 2, 3, 4 of the Constitution of India., The Supreme Court of India is also relying upon the judgments reported in (a) Mullaperiyar Environmental Protection Forum v. Union of India and Others, wherein it is held that the creation of new States by altering territories and boundaries of existing States is within the exclusive domain of Parliament. The law‑making power under Articles 3 and 4 is paramount and is not subjected to nor fettered by Article 246 and Lists II and III of the Seventh Schedule. The Constitution confers supreme and exclusive power on Parliament under Articles 3 and 4 so that while creating new States by reorganisation, Parliament may enact provisions for dividing land, water and other resources; distribute the assets and liabilities of predecessor States amongst the new States; make provisions for contracts and other legal rights and obligations. The constitutional validity of law made under Articles 3 and 4 cannot be questioned on the ground of lack of legislative competence with reference to the Lists of the Seventh Schedule. The new State owes its very existence to the law made by Parliament. (b) State of West Bengal v. Union of India, where it was held that by Article 2 Parliament may admit into the Union or establish new States on such terms and conditions as it thinks fit, and by Article 3 Parliament is authorised to form a new State by redistribution of the territory of a State or by uniting two or more States or parts of States or by uniting any territory to a part of any State, increase the area of any State, diminish the area of any State, alter the boundaries of any State, and alter the name of any State. Legislation which vitally affects the very existence of the States may be moved on the recommendation of the President, and if the proposal in the Bill affects the area, boundaries or name of any of the States, the President has to refer the Bill to the legislature of that State for expressing its views. Parliament is therefore invested with authority to alter the boundaries of any State and to diminish its area so as even to destroy a State with all its powers and authority. (c) Nalluri Venkataraju and another v. The State of Andhra Pradesh and another, where it was held that Article 3 confers plenary powers on Parliament to insert any provision in an enactment to carry out the purpose of the enactment. That power is a constituent power not subject to the limitations imposed by the legislative lists save those provided by Articles 3 and 4. Article 4 confers powers of widest amplitude to make any laws which become necessary as a result of the redistribution of States or areas and may also contain supplemental, incidental and consequential provisions including provisions as to representation in Parliament and in the legislatures of the States affected. (d) Mangal Singh and Another v. Union of India, where it was held that the law referred to in Articles 2 and 3 may alter or amend the First Schedule to the Constitution which sets out the names of the States and description of territories thereof and the Fourth Schedule allotting seats to the States in the Council of States in the Union Parliament. The law so made may also make supplemental, incidental and consequential provisions which would include provisions relating to the setting up of the legislative, executive and judicial organs of the State essential to effective State administration, expenditure and distribution of revenue, apportionment of assets and liabilities, provisions as to services, application and adaptation of laws, transfer of proceedings and other related matters., A reading of these judgments would make it clear that it is Parliament alone that has the power to decide the issues of formation of States and so on. The Honorable Supreme Court of India clearly held that Parliament even has the power to destroy a State with all its powers and authorities (State of West Bengal v. Union of India)., Even the Division Bench of the Andhra Pradesh High Court held that Parliament has plenary powers under Article 3 of the Constitution of India to insert any provision in the enactment to carry out the purpose. It was held that Article 4 confers powers of widest amplitude on Parliament., In Mangal Singh v. Union of India a further discussion on the supplemental and incidental powers was examined and the Honorable Supreme Court of India held that Parliament may make a law and also include supplemental, incidental and consequential provisions which would include provisions relating to setting up of the legislative, executive and judicial organs of the State. In the opinion of this Court, it is this power that was exercised by Parliament to denote that there should be a capital., Therefore, a conjoint reading of these cases makes it amply clear that the power given to Parliament under Articles 3 and 4 of the Constitution is a plenary power of the widest amplitude which would enable Parliament also to decide on the setting up of the legislature, executive and judicial organs of the State. Once this power is expressed by passing the Reorganisation Act, 2014, the Supreme Court of India is of the opinion that all subsequent legislations (both repealed and contemplated) are contrary to law. The Andhra Pradesh Reorganisation Act, 2014, unlike many earlier Reorganisation Acts, makes a provision for the capital. This distinguishing feature further fortifies the view that Parliament wanted a capital only for the State of Andhra Pradesh., On a point of principle the Supreme Court of India is aware that there could arise germane reasons in the future to change the capital but the State has to make a representation to the Central Government and may approach the Union Parliament to amend or modify the Andhra Pradesh State Reorganisation Act, 2014., The Supreme Court of India also notices that in the Decentralisation Act a proposal was made to shift the judicial capital. The seat of the High Court of Andhra Pradesh was declared to be at Amaravati. The foundation stone for the construction of the High Court complex at Amaravati was laid by the Honorable Chief Justice of India on 03.02.2019. The High Court of Andhra Pradesh has started functioning from 01.01.2019 in a temporary building constructed for the City Civil Court and continues to function there. The State Government in the Decentralisation Act wanted to shift the seat of the High Court to Kurnool by calling Kurnool the judicial capital. One of the submissions made by the learned Advocate General is that the State has the competence to initiate steps to seek relocation of the principal seat of the High Court to Kurnool. For the purpose of the present adjudication, Section 31 of the Reorganisation Act is relevant: 31. (1) Subject to the provisions of Section 30, there shall be a separate High Court for the State of Andhra Pradesh (hereinafter referred to as the High Court of Andhra Pradesh) and the High Court of Judicature at Hyderabad shall become the High Court for the State of Telangana (hereinafter referred to as the High Court at Hyderabad). (2) The principal seat of the High Court of Andhra Pradesh shall be at such place as the President may, by notified order, appoint. (3) Notwithstanding anything contained in sub‑section (2), the judges and division courts of the High Court of Andhra Pradesh may sit at such other place or places in the State of Andhra Pradesh other than its principal seat as the Chief Justice may, with the approval of the Governor of Andhra Pradesh, appoint., A plain language interpretation of this section makes it clear that the principal seat of the High Court shall be at such a place as the President may, by notified order, appoint. A presidential order dated 26.12.2018 fixing the seat at Amaravati was already issued. Section 31(3) deals with judges and division courts of the High Court which may sit at other places in the State of Andhra Pradesh other than its principal seat. This can be done with the approval of the Governor of Andhra Pradesh and on the recommendation of the Chief Justice., The relevant constitutional provisions for determining the real controversy are Entry 78 and Entry 97 of List I of Schedule VII of the Constitution of India (the Union List) and Entry 3 and Entry 65 of List II of Schedule VII (the State List) and Entry 11‑A and Entry 46 of List III of Schedule VII (the Concurrent List), besides Articles 214, 245 and 246 of the Constitution of India., Entry 78 of List I of Schedule VII (Union List) deals with the constitution and organization of High Courts and reads as follows: \Entry 78: Constitution and Organization (including vacations) of the High Courts except provisions as to officers and servants of High Courts; persons entitled to practice before the High Courts.\, At the same time, Entry 97 of List I of the Union List confers power on Parliament to legislate on any matter not covered by List II or List III, i.e., the residuary power to legislate. It reads as follows: \Entry 97: Any other matter not enumerated in List II or List III including any tax not mentioned in either of those Lists.\, It is clear from Entry 78 of List I of Schedule VII (Union List) that Parliament alone is competent for the constitution and organization of High Courts and not the State., Similarly, Entry 3 of List II of Schedule VII confers power on the State to appoint officers and servants of the High Court; procedure in rent and revenue courts; fees taken in all courts except the Supreme Court., A brief history of the litigation in the courts regarding the separation of the High Court is necessary at this stage.
id_1828	14	Writ petition in the form of public interest litigation (PIL No. 59 of 2015) was filed before the High Court of Judicature at Hyderabad for constitution of two High Courts i.e., State of Telangana and State of Andhra Pradesh. The Division Bench of the High Court of Judicature disposed of the said writ petition recording certain findings. Aggrieved by the said order, Union of India preferred a special leave petition before the Supreme Court of India. The Supreme Court of India, in Union of India v. T. Dhangopal and Others [Special Leave Petition (Civil) No. D. 29890 of 2018] on the basis of the material available on record, made it clear that the judges of the High Court, who would become judges of the High Court of Andhra Pradesh, are satisfied with the facilities in the said building inasmuch as the Full Court of the High Court has approved the proposal after the Inspection Committee of Judges submitted a report in this behalf. Learned Senior Counsel Mr. Nariman also made a statement at the Bar that the Government would be hiring villas to take care of the residential needs of the judges at Amaravati. The Apex Court also noticed that in Amaravati a very big complex known as Justice City is under construction where the High Court and subordinate courts and some tribunals would be accommodated and there is a provision for construction of a residential complex for the judges of the High Court and judicial officers of the subordinate courts. The aforesaid arrangement is an ad‑hoc arrangement till the Justice City gets completed. Therefore, there is no embargo for the competent authority to issue a notification bifurcating the High Court of Judicature at Hyderabad into the High Court of Telangana and the High Court of Andhra Pradesh respectively and such a notification may be issued by the first day of January 2019 so that the two High Courts start functioning separately and the High Court of Andhra Pradesh also starts functioning in the new building at the earliest., The Supreme Court of India noticed that the contract for construction of the High Court was awarded at a cost of Rs. 1.685 crore. Thereupon, the President of India, in consultation with the Supreme Court of India, issued a notification dated 26 December 2018 for establishment of the High Court at Amaravati. In pursuance of the notification dated 26 December 2018 issued by the President of India, the principal seat of the High Court of Andhra Pradesh was established at Amaravati., In Jamshed N. Guzdar v. State of Maharashtra, the Constitution Bench of the Supreme Court of India considered the legislative competency of Entry 11‑A of List III; Entry 78 of List I and Entry 3 of List II and concluded that the general jurisdiction of the High Courts is dealt with in Entry 11‑A under the caption ‘administration of justice’, which has a wide meaning and includes administration of civil as well as criminal justice. The expression ‘administration of justice’ has been used without any qualification or limitation, wide enough to include the powers and jurisdiction of all the courts except the Supreme Court. The semicolon after the words ‘administration of justice’ in Entry 11‑A has significance and meaning. The other words in the same entry after ‘administration of justice’ only speak in relation to constitution and organisation of all the courts except the Supreme Court and High Courts. It follows that under Entry 11‑A, the State Legislature has no power to constitute and organise the Supreme Court and High Courts. It is an accepted principle of construction of a constitution that everything necessary for the exercise of powers is included in the grant of power. The State Legislature, being an appropriate body to legislate in respect of ‘administration of justice’ and to invest all courts within the State including the High Court with general jurisdiction and powers in all matters, civil and criminal, must be able to invest the High Court with such general jurisdiction and powers including territorial and pecuniary jurisdiction and also to take away such jurisdiction and powers from the High Court except those specifically conferred under the Constitution on the High Courts. It is not possible to say that investing the city civil court with unlimited jurisdiction and taking away the same from the High Court amounts to dealing with ‘constitution’ and ‘organisation of the High Court’. Under Entry 11‑A of List III the State Legislature is empowered to constitute and organise city civil courts and while constituting such courts the State Legislature is also empowered to confer jurisdiction and powers upon such courts inasmuch as ‘administration of justice’ of all the courts including the High Court is covered by Entry 11‑A of List III, so long as Parliament does not enact law in that regard under Entry 11‑A. Entry 46 of the Concurrent List speaks of the special jurisdiction in respect of the matters in List III. Entry 13 in List III is the Code of Civil Procedure at the commencement of the Constitution., Thus, from the law laid down by the Supreme Court of India in the judgment referred above, Parliament alone is invested with the competence to legislate or to issue a notification determining the principal seat of a High Court, whereas the State Legislature is invested with the power to constitute all courts within the State other than the High Court. Therefore, ‘constitution and organisation’ of a High Court is taken away from the legislative competency of the State Legislature., After the 42nd Amendment to the Constitution of India, the power of the States to constitute and organise the High Courts was taken away and vested in Parliament; vide Entry 78 of the Union List of Schedule VII, whereas another entry was added to List III (Concurrent List) i.e., Entry 11‑A. But Entry 11‑A of List III permits the State and Parliament to make legislation for establishment of other courts other than the Supreme Court and High Courts. Thus, as on the date of the Andhra Pradesh State Reorganisation Act, 2014, the power to ‘constitute and organise the High Court’ is totally vested in Parliament and the principal seat of the High Court of Andhra Pradesh shall be at such place as the President may, by notified order, appoint. Therefore, the law applicable for constitution and organisation of the High Court including establishment of the principal seat of the High Court is governed by the Andhra Pradesh State Reorganisation Act, 2014 alone., In the light of this background and clear usage of the language, the question is whether the State Legislature has the power to pass a further Bill for relocation of the High Court. A similar issue fell for consideration before the Division Bench of the Orissa High Court in Bhabani Shankar Tripathy v. Secretary to the Government of Orissa, Home Department and Another, which considered Union List Entry 78 and State List Entry 65 and concluded: Having regard to the meaning of the words ‘constitution and organisation’, namely, to establish, the Parliament alone has power to enact law as to where the High Court shall be established. A Court is not established in vacuum. It is established at a place which is its seat where judges assemble to discharge their function. Hence while the State Legislature has competence to enact law as to how the High Court shall function, i.e., its internal management, jurisdiction, the Parliament alone has the legislative authority to make law as to where the High Court shall function. Any other interpretation would render the subject ‘constitution and organisation’ under Entry 78 of List I nugatory. We are, therefore, of the view that it is not open to the State Legislature to make any law as to where the seat of the High Court shall be, as to where the judges shall sit to discharge their function. That field of legislation has been exclusively assigned to Parliament., The Supreme Court of India also considered a similar issue with relation to Section 51 of the States Reorganisation Act, 1956 in State of Maharashtra v. Narayan Shamrao Puranik and Others. The provisions of Section 31(2) of the Reorganisation Act are similar to Section 51(1) of the States Reorganisation Act, 1956 and Section 31(3) is similar to Section 51(3). The argument before the Supreme Court of India was that a States Reorganisation Act is a transitory Act and the powers of the President of India or the Chief Justice of India are transitory in nature. In that case the constitution of the Bench at Aurangabad was under challenge. The decision was taken in 1981, i.e., 25 years after the States Reorganisation Act, 1956. An argument was advanced that the exercise of this power more than two decades later is incorrect. The Supreme Court of India held that the reasoning of the High Court that the Act being of a transitory nature, the exercise of the power of the President under sub‑section (2) of Section 51 of the Act, or of the Chief Justice under sub‑section (3) thereof, after a lapse of 26 years, would be a complete nullity, does not impress the Court. The provisions of sub‑sections (2) and (3) of Section 51 of the Act are supplemental or incidental to the provisions made by Parliament under Articles 3 and 4 of the Constitution. Article 3 enables Parliament to make a law for the formation of a new State. The Act is a law under Article 3 for the reorganisation of the States. Article 4 provides that the law referred to in Article 3 may contain such supplemental, incidental and consequential provisions as Parliament may deem necessary. Under the scheme of the Act, these powers continue to exist by reason of Part V of the Act unless Parliament by law otherwise directs. The power of the President under sub‑section (2) of Section 51 of the Act, and that of the Chief Justice of the High Court under sub‑section (3) thereof are intended to be exercised from time to time as occasion arises, as there is no intention to the contrary manifested in the Act within the meaning of Section 14 of the General Clauses Act., The contention of the State is that the legislative intention is to relocate the principal seat of the High Court of Andhra Pradesh at Kurnool, shifting it from Amaravati, not for ‘constitution and organisation’ of the High Court. The meaning of the words ‘constitution and organisation of the High Court’ includes establishment. In such case, relocating the High Court of Andhra Pradesh to Kurnool amounts to contravention of Article 246 of the Constitution of India, Entry 78 and Entry 98 of List I; Entry 3 and Entry 65 of List II; Entry 11‑A and Entry 46 of List III of Schedule VII and Section 31 of the Andhra Pradesh State Reorganisation Act, 2014. If such interpretation is accepted, whenever there is a change in the Government, it may relocate the High Court at its whim, which would cause serious damage to the institution. In addition, the burden on the State exchequer and inconvenience caused to the litigant public, who have to travel from one corner of the State to another, e.g., from Srikakulam to Kurnool and vice versa covering a distance of more than 1,000 kilometres, is against the principle of access to justice and would be violative of the fundamental right to life which includes access to justice guaranteed under Articles 14 and 21 of the Constitution of India, as held in Anita Kushwaha v. Pushap Sadan., It is clear, in light of the authoritative pronouncements of the Supreme Court of India and the provisions of the Reorganisation Act, that only the President of India can by notification decide the principal seat of the High Court of Andhra Pradesh. Only the Chief Justice, with the approval of the Governor of Andhra Pradesh, can decide where the judges and the division courts (regional benches) of the High Court may sit other than in the principal seat. Thus there shall be a principal seat and there may be benches at other places, which can be established by following due procedure. The State does not have the power to decide to shift the seat of the High Court to its proposed judicial capital. The orders based upon the affidavit filed and the facts noticed in the case of T. Dhangopal (Special Leave Petition No. 29890 of 2018) also preclude the State from changing its stand., Therefore, the will of Parliament was expressed in categorical language leaving absolutely no reason for the State to legislate or to decide that the judicial capital will be at Kurnool., As far as the manner of interpretation of the Lists is concerned, the law is clear and the Supreme Court of India has held that the entries should be given a wide and liberal interpretation so as to enable the Union or the State legislatures to enact legislation with regard to the State. However, the Supreme Court of India also sounded a note of caution with regard to this method of interpretation. In Union of India and Others v. Shah Goverdhan L. Kabra Teachers’ College, the Court observed: The power to legislate is engrafted under Article 246 of the Constitution and the various entries for the three lists of the Seventh Schedule are the fields of legislation. The different entries being legislative heads are all of enabling character and are designed to define and delimit the respective areas of legislative competence of the Union and the State Legislatures. They neither impose any restrictions on the legislative powers nor prescribe any duty for exercise of the legislative power in any particular manner. It has been a cardinal principle of construction that the language of the entries should be given the widest scope of which their meaning is fairly capable and while interpreting an entry of any list it would not be reasonable to import any limitation therein. The rule of widest construction, however, would not enable the legislature to make a law relating to a matter which has no rational connection with the subject‑matter of an entry. When the vires of enactment is challenged, the court primarily presumes the constitutionality of the statute by putting the most liberal construction upon the relevant legislative entry so that it may have the widest amplitude and the substance of the legislation will have to be looked into. The Court sometimes is duty‑bound to guard against extending the meaning of the words beyond their reasonable connotation in anxiety to preserve the power of the legislature., The judgment in Bimolangshu Roy (Dead) through LRs v. State of Assam and Another cited by the respondents contains the following passages: Our endeavour is only to demonstrate that a great deal of examination of the scheme of the entire Constitution is essential while interpreting the scope of each of the entries contained in the three lists of the Seventh Schedule and no rule which has a universal application with regard to the interpretation of all entries in the Seventh Schedule can be postulated. The statement of Chief Justice Gwyer that a broad and liberal spirit should inspire those whose duty is to interpret the Constitution and the legislative entries should not be read in a narrow or pedantic sense, cannot be understood as a sutra valid for all times and in all circumstances. This Court on more than one occasion cautioned about the perils of placing a construction on the expressions contained in the various entries in the three lists of the Seventh Schedule as taking within their sweep matters that have no rational connection with the subject‑matter of the entry. The caution sounded in Shah Goverdhan L. Kabra Teachers’ College is a constitutional imperative., The plain language interpretation of Article 246 of the Constitution (apart from Entry 78 of List I, Entry 65 of List II and Entry 11‑A of List III) makes it clear that none of these entries empower or enable the State to legislate upon the creation of a new executive capital or setting up of a new High Court at Kurnool etc. The plain language interpretation runs contrary to the submissions of the State. There is no rational nexus between any of these entries and the proposal to establish an executive capital; a judicial capital and a legislative capital. Apart from this, the plenary power of Parliament as detailed in Articles 3 and 4 of the Constitution of India is not controlled by any of the entries in the three lists. Therefore, this Court is of the opinion that the State does not have the competence to legislate on the basis of entries relied on in the Lists., Article 38 is in Part IV of the Constitution of India. It provides a direction to the State to secure a just social order by eliminating inequalities. However, this article cannot be used to justify the actions of the State in enacting a law after Parliament has expressed its opinion. The Supreme Court of India in Koluthra Exports Ltd. v. State of Kerala and Others held that Part IV contains fundamental principles in governance of the country. They indicate the direction for the State but they are not legislative heads or fields of legislation like the entries in Lists I, II and III of the Seventh Schedule. When any statute of a State or any provision therein is questioned on the ground of lack of legislative competence, the State cannot claim legitimacy for enacting the impugned provisions with reference to Part IV; the legislative competence must be demonstrated with reference to one or more of the entries in Lists II and III of the Seventh Schedule., In view of this clear and authoritative pronouncement of the Supreme Court of India, it is clear that the State cannot claim legitimacy or power to pass the legislation by referring to Article 38 in Part IV of the Constitution of India., The last question that survives for adjudication is about the need or necessity for passing an order on legislative competence at this stage, as the impugned Act itself has been repealed. The learned senior counsels and the learned Advocate General appearing for the State have cited a number of cases stating that this Court should not decide academic issues. The law is well settled on this issue. The case law is therefore not being reproduced again., The Advocate General argued that at this stage it is not clear what the proposed legislation would be and therefore pronouncing anything on the legislative competence of the State is not called for., Counsels for the petitioners argued that the issue is not academic; the threat is real and imminent. The conduct of the Government in passing the impugned Acts, the withdrawal of the same after about two years during the protracted hearing and their avowed decision of going for further decentralisation makes it clear that there is an impending threat. The statement of objects and reasons of the Legislative Assembly Bill No. 21 of 2021 (which is to repeal the impugned Act) which was passed by both Houses is as follows: While the matters stood thus, to vividly explain all the good intentions of the Government in relation to decentralised development of all the regions including by providing multiple capitals, to improve the framework and provisions of law in this regard, to fulfil the aspirations of the people of all the regions of the State and to bring forward suitable legislations to achieve the above‑stated objectives of decentralised development, it has been decided to repeal the said enactments. Accordingly, this Bill seeks to give effect to the above decisions., This is the statement of objects of a Bill introduced while this Court was hearing these matters. It is thus clear that even as on date the State still proposes to go for multiple capitals., High functionaries of the Government including the Chief Minister have stated on more than one occasion that the Government is committed to decentralised development and also to the three/multiple capitals. The question is whether this Court should act as a sentinel on the qui vive or wait till the rights of the farmers and others are affected or should it take a quia timet action in the face of a threat of violation of rights., The case before this Court pertains to the area now called Amaravati. It is located near the cities of Vijayawada and Guntur and is a fertile area watered by the River Krishna. The farmers of this area have surrendered their lands with a hope that they would be allotted reconstituted plots in a thriving urban city called Amaravati and that their lifestyles would change for the better. The documents filed in this Court show that the majority of the people, viz., 29,754 farmers, have pooled 33,771 acres of land with a hope that they would get reconstituted plots and also all other benefits. They were also promised that they would be living in a people’s capital which would be a sprawling metropolis generating income for them in the present and in the future. It is clear from the surveys that the staggering majority of farmers in these cases are small and marginal farmers (93 %). They are also not highly educated. The statistics show that 73.1 % are educated up to Class XII (figures from the Social Impact Assessment report for Amaravati). The traditional ancestral agrarian economy based upon multiple crops in fertile soil fed by the river waters has been given up with the hope that they would be living in a modern city. These issues are dealt with in detail in the other part of this order. The question is when the livelihood of farmers itself is being taken away, and their right to life and livelihood is infringed, should the Court be a silent spectator or is the Court empowered to act at this stage?, The Supreme Court of India in Bhusawal Municipal Council v. Nivrutti Ramachandra Phalak and Others held with regard to farmers that the fundamental right of a farmer to cultivate his land is part of the right to livelihood. Agricultural land is the foundation for a sense of security and freedom from fear. Assured possession is a lasting source for peace and prosperity. India being predominantly an agricultural society, there is a strong linkage between the land and the person’s status in the social system. A blinkered vision of development, complete apathy towards those who are highly adversely affected by the development process and a cynical unconcern for the enforcement of the laws lead to a situation where the rights and benefits promised and guaranteed under the Constitution hardly ever reach the most marginalised citizens. For people whose lives and livelihoods are intrinsically connected to the land, the economic and cultural shift to a market economy can be traumatic. A farmer’s life is a tale of continuous experimentation and struggle for existence. Mere words or a visual can never convey what it means to live a life as an Indian farmer. Unless one experiences their struggle, one will never know how it feels. The risks faced by the farming community are many: natural calamities such as drought and floods; high fluctuation in the prices of input as well as output, over which the farmer has no control; a credit system which never extends a helping hand to the neediest; domination by middlemen who enjoy the fruits of a farmer’s hard work; spurious inputs, and the recent phenomenon of labour shortages, which can be conveniently added to his tale of woes. Of late, there have been many cases of desperate farmers ending their lives in different parts of the country. The principles of economics provide for the producer of a commodity to determine his prices but an Indian farmer perhaps is the only exception to this principle, for even getting a decent price for their produce is difficult for them., In paragraphs 151 and 152 of the judgment reported in Lalaram and Others v. Jaipur Development Authority and Another, the Supreme Court of India held that constitutional courts are sentinels of justice and vested with the extraordinary power of judicial review to ensure that the rights of the citizens are duly protected. The quest for justice is a compulsion of judicial conscience, as expressed in C. Chenga Reddy v. State of Andhra Pradesh: A court of equity must act within permissible limits to prevent injustice. Equity is not past the age of child‑bearing and an effort to do justice between the parties is a compulsion of judicial conscience. Courts can and should strive to evolve an appropriate remedy in the facts and circumstances of a given case, so as to further the cause of justice, within the available range and forging new tools for the said purpose, if necessary to chisel hard edges of the law., The Supreme Court of India in Manohar Lal Sharma v. Union of India observed that the Supreme Court has very wide powers for proper and effective administration of justice. The Court has inherent power and jurisdiction for dealing with any exceptional situation in larger public interest which builds confidence in the rule of law and strengthens democracy. The Supreme Court as the sentinel on the qui vive has been invested with powers which are elastic and flexible and in certain areas rigidity in exercise of such powers is considered inappropriate., It is clear that the livelihood of the petitioners/farmers and their right to live a life of dignity has been taken away in this case. However, as a fundamental right to life is affected, this Court is of the opinion that it need not wait for a post‑violation period or for an actual infringement to adjudicate the issue. The Supreme Court of India in S. M. D. Kiran Pasha v. Government of Andhra Pradesh and Others held that conferring the right to life and liberty imposes a corresponding duty on the rest of society, including the State, not to act in a manner that would infringe that right except in accordance with the procedure prescribed by law. The question is at what stage the right can be enforced? Does a citizen have to wait till the right is infringed? Can there be enforcement of a right before it is actually infringed? What remedy will be left to a person when his right to life is violated?
id_1828	15	When a right is yet to be violated, but is threatened with violation can the citizen move the Supreme Court of India for protection of the right? The protection of the right is to be distinguished from its restoration or remedy after violation. When right to personal liberty is guaranteed and the rest of the society, including the State, is compelled or obligated not to violate that right, and if someone has threatened to violate it or its violation is imminent, and the person whose right is so threatened or its violation so imminent resorts to Article 226 of the Constitution, could not the Supreme Court of India protect observance of his right by restraining those who threatened to violate it until the court examines the legality of the action? Resort to Article 226 after the right to personal liberty is already violated is different from the pre‑violation protection. Post‑violation resort to Article 226 is for remedy against violation and for restoration of the right, while pre‑violation protection is by compelling observance of the obligation or compulsion under law not to infringe the right by all those who are so obligated or compelled., To a similar effect is the judgment of the Supreme Court of India reported in D.A.V. College, Bhatinda, etc., v State of Punjab and Others in which it was held as follows: A preliminary objection has been urged on behalf of the respondents that in a petition under Article 32, only where it is shown that there is a violation of fundamental right that the validity of the legislation or of the legislative competence can be raised and determined, but in these cases as there is no violation of Articles 14, 26, 29 and 30 of the Constitution the petitioners ought not be allowed to challenge the vires of the Act on the ground of the competence of the Legislature to enact the impugned law. This question has been dealt with fully in the batch of petitions in which we have just pronounced judgment, where we had also considered the contentions of the learned Advocate‑General of Punjab and Shri Tarkunde, the learned Counsel for Respondent 2 in this behalf and hence we do not propose again to reiterate the reasons in support of the conclusion that a petition under Article 32 in which petitioners make out a prima facie case that their fundamental rights are either threatened or violated will be entertained by the Supreme Court of India and that it is not necessary for any person who considers himself to be aggrieved to wait till the actual threat has taken place., It is thus clear that the Supreme Court of India need not wait till there is an actual violation of the Fundamental Right and that it can and must in fact provide relief / succor to a person even before there is an actual violation of his rights in certain rare cases like the present one. Every Constitutional Court is and must be a sentinel on the qui vive. This is the law since State of Madras v., Learned Advocate‑General appearing for the respondents/State brought to the notice of the Supreme Court of India a judgment of a learned single Judge of the High Court of Andhra Pradesh at Hyderabad in Ramanama Sankirthana Sangham Vs. Government of Andhra Pradesh wherein the learned Single Judge observed as follows: It is well settled that unless compelled to do so this Court, under Article 226 of the Constitution of India, would not, normally, adjudicate the vires of statutory provisions. A Full Bench of the Supreme Court of India in Andhra Pradesh Power Diploma Engineers' Association vs. Andhra Pradesh State Electricity Board held that Courts would not enter into academic discussions regarding the constitutional validity of statutory provisions unless such a decision becomes necessary for the purpose of the decision in the case. In Government of A.P. v. Medwin Educational Society a Full Bench of the High Court held: We remind ourselves of the settled principle of Constitutional adjudication that Constitutional issues should not be considered by the judicial branch as an academic issue. There is also a settled principle that if a lis could be decided on grounds other than constitutional issues the lis should be decided on the other issues., Though the observation made by the learned single Judge is not binding on the Supreme Court of India, still, the two Full Bench judgments in Andhra Pradesh Power Diploma Engineers' Association vs. Andhra Pradesh State Electricity Board, and Government of A.P. v. Medwin Educational Society (referred supra) are binding on the Supreme Court of India since these two judgments are by coordinate bench (Full Bench) of the High Court of Andhra Pradesh., In Attorney‑General of Hong Kong and Another v Rediffusion (Hong Kong) Ltd., the submissions made before the Privy Council by the appellant in jurisdiction summons are as follows: The Jurisdiction Summons: first, the jurisdiction of the Supreme Court of India is defined by reference to the jurisdiction of the High Court in England. There is no express grant or exclusion of jurisdiction to control legislative proceedings. There is no jurisdiction in England to interfere with the legislative process. Sixthly, the power of the Supreme Court of India to exercise jurisdiction over non‑sovereign legislatures is the power to consider the validity of legislation when enacted, and there is no jurisdiction to intervene at any stage before enactment, because that would be an interference with the proceedings of the legislature and the internal affairs of the Legislative Council of Hong Kong are within the exclusive control of the council itself. Seventhly, a declaration regarding the validity of proposed legislation prior to enactment is not profitable, because it is not known in what form the bill will emerge from the legislative assembly. Lastly, the Supreme Court of India does not exercise jurisdiction in hypothetical cases. The proposed legislation is a matter of controversy in which the opinion of the Government itself has wavered. It is uncertain what the comments of the Secretary of State will be on the proposed legislation. It is uncertain whether the bill mentioned in the writ will ever be introduced into the Legislative Council for enactment. It is uncertain how it will be amended before being enacted, even assuming it is introduced. The Supreme Court of India is asked to exercise jurisdiction to make a declaration not of something which has happened or is about to happen but of something which is subject to such uncertainties that it may well never happen. In reply the following was submitted: The Jurisdiction Summons: first, the normal time to bring an action seeking the intervention of the Supreme Court of India by the party threatened by the actions of a subordinate legislature is the earliest time possible to prevent the ultra vires proposals being carried out. Fourthly, it cannot be part part of the lawful process of a legislature to pass that which it is unlawful to enact: Rex v. Marais [1902] A.C. 51, 54. That the Supreme Court of India should not interfere except after enactment is because of the character of parliamentary process and because our courts have accepted freedom of debate and freedom of discussion in the Parliaments of the Commonwealth. In applying that proposition to a subordinate non‑sovereign legislature of the Commonwealth it is necessary to look to the functions and powers of the legislature. The immunity from control by the Supreme Court of India which is enjoyed by members of a legislative assembly while exercising their deliberative functions is founded on necessity. The question of the extent of the immunity which is necessary raises a conflict of public policy between the desirability of freedom of deliberation in the legislature and the observance by its members of the rule of law of which the Supreme Court of India are the guardians. If there will be no remedy when the legislative process is complete and the unlawful conduct in the course of the legislative process will by then have achieved its object, the argument founded on necessity leads to the conclusion that there must be a remedy available in a court of justice before the result has been achieved which was intended to be prevented by the law from which a legislature which is not fully sovereign derives its powers. Sixthly, the Supreme Court of India has power to make a declaration where a future wrong is threatened and to grant an injunction to prevent that wrong happening. The respondents have not sought an advisory opinion but a ruling of the Supreme Court of India on the violation of their rights. The broad question that fell for consideration was answered as follows by the Privy Council: The immunity from control by the Supreme Court of India, which is enjoyed by members of a legislative assembly while exercising their deliberative functions is founded on necessity. The question of the extent of the immunity which is necessary raises a conflict of public policy between the desirability of freedom of deliberation in the legislature and the observance by its members of the rule of law of which the Supreme Court of India are the guardians. If there will be no remedy when the legislative process is complete and the unlawful conduct in the course of the legislative process will by then have achieved its object, the argument founded on necessity in their Lordships' view leads to the conclusion that there must be a remedy available in a court of justice before the result has been achieved which was intended to be prevented by the law from which a legislature which is not fully sovereign derives its powers. In their Lordships' view the Full Court of Hong Kong were right in holding that they had jurisdiction to enter upon the inquiry whether or not it would be unlawful for the Legislative Council of Hong Kong to pass the proposed bill, and if they found that it would be unlawful, to decide in their discretion whether or not to grant the relief by way of declaration and injunction claimed. Their Lordships can deal very briefly with the alternative ground upon which it was contended before them that the Supreme Court of India had no jurisdiction to entertain the action, viz., that it seeks a declaration as to hypothetical and future questions. The evidence showed a clear intention on the part of the Government of Hong Kong, which, with the aid of the Governor's casting vote, commands a majority in the Legislative Council, to seek from the Secretary of State in the United Kingdom an Order in Council in the terms of the draft order referred to in the writ and to enact an Ordinance in the terms of the draft bill. Such a bill, if enacted, would, as previously mentioned, seriously affect the plaintiffs' existing legal rights. All questions involved in quia timet proceedings are hypothetical and future. To exclude the jurisdiction of the Supreme Court of India to inquire into them in order to decide whether to exercise its discretion to grant relief, the defendants would have to show that the questions were purely abstract questions the answers to which were incapable of affecting any existing or future legal rights of the plaintiffs. This they have not done., In view of the law declared by the Privy Council and the Full Bench of the High Court of Andhra Pradesh in the judgments referred supra, the Supreme Court of India is competent to decide other issues including competency as the petitioners claimed relief specifically to decide legislative competency to enact any law to shift the legislature, executive and judiciary, that means when the Supreme Court of India is compelled to answer such constitutional issues, the mere repeal of Act Nos. 27 and 28 will not take away the power of the Supreme Court of India to adjudicate upon such issue touching the powers of legislature under the Constitution of India to enact any other law relating to shifting of three wings of the State. Therefore, the Supreme Court of India is not totally denuded from exercising power under Article 226 of the Constitution of India since the core issue in the writ petitions from the beginning was lack of legislative competency to the State legislature to enact laws to establish three wings of the State at different pleas in the name of decentralisation. Apart from that, the State legislature repealed the Act Nos. 27 and 28 of 2020 by repeal Act No. 11 of 2021. However, in the statement of objects and reasons of Repeal Act No. 11 of 2021 it is made clear that the State Legislature is intending to introduce the bill again for decentralization of administration. Thus, the cause regarding legislative competency of legislature to pass such enactment is still alive and the advocates for the petitioners referred above urged the Supreme Court of India to decide such issue of legislative competency to pass or enact any other law for shifting, trifurcate or bifurcate capital., The Decentralisation Bill 28 of 2020 was enacted on 31.07.2020. Thereafter the judicial challenges have started. There is no change in the situation. The matter was initially held by a Bench constituted of three Judges from August 2020 to August 2021. Thereafter, the present Bench of three Judges has taken up the hearing of the matters from November 2021. Midway during the hearing, the State came up with Bill No. 21 of 2021, by which Act 28 of 2020 was repealed. Even after the said repeal the senior Members of the government continue to lay stress on the issue of Decentralisation, multiple capitals etc. The statement of reasons for withdrawing the Act 28 of 2020 also talks of the intention of the government to go for decentralized development and multiple capitals. Thereafter, it is clear that the intention of the present government is to go forward with the concept of the decentralized capitals or multiple capitals. Since this intention is clear and it is likely to manifest itself in the form of a new Act, the Supreme Court of India is of the opinion that it has a duty and also the jurisdiction to act now itself. The issue ultimately is about the competence of the State to enact the Bill in contrast to the actual contents of the Bill. As the intention of the State Government is manifest and clear, the Supreme Court of India is of the opinion that it need not wait till the Bill is actually passed before embarking on an enquiry and coming to the conclusion about the competency of the legislature to enact. As mentioned earlier, the A.P. State Reorganisation Act 2014 is peculiar and different from the earlier Acts of Reorganisation in the sense that it has clear provisions with regard to the location of the capital. As this is an Act of Parliament, expressed in clear language, the Supreme Court of India is of the opinion that it cannot be reopened or re‑legislated upon. Even the opinion of the Union of India that the location of the capital is the State's prerogative is based upon the earlier Reorganisation Acts. The present Reorganisation Act is different. Lastly, the stand of the Union of India is not the conclusive factor as the Supreme Court of India is the final arbiter on all issues of law / interpretation of law., Sri P.B. Suresh, learned counsel for the petitioners, filed written submissions on 28.01.2022 reiterating the contentions and relied on three judgments of the Apex Court in J.P. Bansal v. State of Rajasthan, Mahendra Lal Jaini v. State of Uttar Pradesh and State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga. Whereas, Sri Unnam Muralidhar Rao reiterated the contentions while submitting that the Repeal Act No. 11 of 2021 is a conditional legislation as the State is intending to reintroduce the bill after due consultations with the stakeholders as per the statement of objects and reasons of the Repeal Act and reserved its right to introduce the bill afresh to overcome the legal impediments. When such conditional legislation is passed repealing the earlier Act Nos. 27 and 28 of 2020 by Act No. 11 of 2021, the Supreme Court of India can decide such issue. Learned counsel for the petitioners relied on judgments of the Apex Court referred above. On the strength of the principles laid down in the above judgments, they contended that the Supreme Court of India can examine the issue of enacting any law for shifting, trifurcating, bifurcating capital though the Act Nos. 27 and 28 of 2020 were repealed and restored the APCRDA Act, 2014 by Act No. 11 of 2021, in view of the reservation of the right by the State to introduce the bill after due consultations etc., Undoubtedly, there are conflicting judgments on this issue regarding power to decide such issue of legislative competency to introduce any bill proposing to shift, bifurcate, or trifurcate the capital, but in view of the reservation of the right by the State to introduce the bill after due consultations in view of the law declared by the two Full Bench judgments of the High Court of Andhra Pradesh in Andhra Pradesh Power Diploma Engineers' Association vs. Andhra Pradesh State Electricity Board, and Government of A.P. v. Medwin Educational Society (referred supra) including the judgment of the Privy Council in Attorney‑General of Hong Kong and Another v Rediffusion (Hong Kong) Ltd., this Supreme Court of India is bound to decide such issue., In Municipal Committee, Patiala v. Model Town Residents Association the Apex Court observed that the Constitution is filled with provisions that grant Parliament or State legislatures specific power to legislate in certain areas. These granted powers are of course subject to constitutional limitations that they may not be exercised in a way that violates other specific provisions of the Constitution. Nothing in the text, history or structure of the Constitution remotely suggests that the jurisdiction of the High Court under Article 226 of the Constitution of India should differ in this respect – that invocation of such power should magically give the High Court a free ride through the rest of the Constitutional document. If such magic were available the High Court could structure, restructure legislative enactments. The possibilities are endless. The Constitution makers cannot be charged with having left open a path to such total obliteration of Constitutional enterprise., In any view of the matter, by passing the legislation, still, the State is asserting its legislative competency to take such decision. Conveniently, the State has withdrawn the Act Nos. 27 and 28 of 2020 by passing Repeal Act No. 11 of 2021 without inviting a verdict from the Court for reasons best known to them and made it clear in the Repeal Act No. 11 of 2021 that there was no sufficient consultation with the stakeholders and they are proposing to introduce a bill after consultation with all stakeholders for decentralisation of administration. Thus, the State is again asserting its legislative competency to take such decision again. Therefore, the petitioners insisted the Supreme Court of India to record a finding about the competency of the State legislature to make any law for shifting, bifurcating or trifurcating the capital., In view of the law declared in the judgments (referred supra), we are of the considered view that it is appropriate to decide the issue of legislative competency of the State legislature to enact such laws, more particularly decentralisation of administration, accepting the contention of the petitioners while rejecting the contention of the learned counsel for the respondents., Indisputably, the Andhra Pradesh Reorganisation Act, 2014 was passed in exercise of powers conferred on Parliament by Article 3 and Article 4 of the Constitution of India bifurcating the State of Andhra Pradesh into the State of Telangana and the State of Andhra Pradesh. Therefore, Parliament enacted the Andhra Pradesh Reorganisation Act, 2014, which is a complete code by itself regulating the procedure of bifurcation of employees, water, power etc. Thus, the power is conferred on Parliament to create a new State i.e. Telangana separating from Andhra Pradesh while treating Andhra Pradesh as residuary State. Article 4 of the Constitution of India conferred power on Parliament to admit new States or alter boundaries etc., and to make all consequential changes in the Constitution, including provisions as to the representation of such States in Parliament, and in the State Legislatures, without going through the special provisions for amendment provided in Article 368 of the Constitution of India., The expression supplemental, incidental and consequential provisions employed in Article 4 of the Constitution of India is wide enough to include provisions relating to the setting up of the legislature, executive and judicial organs of the State, formed under Articles 2 and 3 essential to the effective administration of that State under the Constitution, expenditure and distribution of revenue, apportionment of assets and liabilities, provisions as to services, application and adaptation of laws, transfer of proceedings and other related matters (see: Mangal Singh vs. Union of India). These may not necessarily be consequential to the amendment of the First or the Fourth Schedule. Of course, the power to make such supplemental provisions is not to override the constitutional scheme and would not go to the length of including a power to abolish any of the organs of the State altogether., Article 246 of the Constitution of India deals with powers of Parliament and State legislature to enact laws with respect to any of the matters enumerated in List I, List II and List III in the Seventh Schedule. Therefore, the source of power to make laws either by the State legislature or by Parliament is only Article 246 read with the Seventh Schedule List I, List II and List III., In Bimolangshu Roy (Deceased) through L.Rs. vs. State of Assam the Supreme Court of India held that the authority to make law flows not only from an express grant of power by the Constitution to a legislative body but also by virtue of implications flowing from the context of the Constitution is well settled by the various decisions of the Supreme Court of America in the context of the American Constitution. A principle which is too well settled in all the jurisdictions where a written Constitution exists., The US Supreme Court also recognised that Congress would have the authority to legislate with reference to certain matters because such authority is inherent in the nature of sovereignty. The doctrine of inherent powers was propounded by Justice Sutherland in the context of the role of the American Government in handling foreign affairs and the limitations thereon (see: United States v. Curtiss‑Wright Export Corporation)., In substance, the power to make legislation flows from various sources: (1) express text of the Constitution; (2) implication from the scheme of the Constitution; and (3) as an incident of sovereignty., Unlike the American Constitution, the Supreme Court of India chose to adopt a Constitution which regulates and structures not only the authority of the federal government but also the components of the Federation (States and now even the local bodies). Coming to the question of the authority of the legislatures (Federal and State), the Supreme Court of India is of the opinion that analysis adopted by the US Supreme Court is equally good for our Constitution with appropriate modifications, because there are areas where the two Constitutions differ substantially., The principle that the power to legislate under the Indian Constitution can flow from various sources is recognised by the Supreme Court of India in Synthetics and Chemicals Ltd. vs. State of U.P. that \The power to legislate is given by Article 246 and other Articles of the Constitution\. The Supreme Court of India further held that the power to legislate does not flow from a single Article of the Constitution., Article 246 is one of the sources of authority to legislate under the Constitution of India. It declares that Parliament and the legislatures of the various states have the power to make laws with respect to any of the matters enumerated in each of the three lists contained in the Seventh Schedule. It also makes clear that the power of Parliament is exclusive with respect to List I and that of the State Legislature with respect to List II. List III indicates various fields over which both Parliament as well as the State legislatures would have authority to legislate concurrently, subject of course to the discipline under Article 254 of the Constitution of India., Apart from the declaration contained in Article 246, there are various other Articles of the Constitution which confer authority to legislate either on Parliament or on a State legislature, as the case may be in various circumstances. For example, Article 3 authorises Parliament to make a law either creating a new State or extinguishing an existing State. Such a power is exclusively conferred on Parliament., The entire procedure for enactment of laws by the State Legislature and Parliament is explained in the above judgment, which decides the legislative competency., In Zameer Ahmed Latifur Rehman Sheikh vs. State of Maharashtra the Supreme Court of India held that one of the proven methods of examining the legislative competence of a legislature with regard to an enactment is by the application of the doctrine of pith and substance. This doctrine is applied when the legislative competence of the legislature with regard to a particular enactment is challenged with reference to the entries in various lists. If there is a challenge to the legislative competence, the courts will try to ascertain the pith and substance of such enactment on a scrutiny of the Act in question. In this process, it is necessary for the courts to go into and examine the true character of the enactment, its object, its scope and effect to find out whether the enactment in question is genuinely referable to a field of the legislation allotted to the respective legislature under the constitutional scheme. This doctrine is an established principle of law in India recognized not only by the Supreme Court of India, but also by various High Courts. Where a challenge is made to the constitutional validity of a particular State Act with reference to a subject mentioned in any entry in List I, the Court has to look to the substance of the State Act and on such analysis and examination, if it is found that in the pith and substance, it falls under an entry in the State List but there is only an incidental encroachment on any of the matters enumerated in the Union List, the State Act would not become invalid merely because there is incidental encroachment on any of the matters in the Union List., The Supreme Court of India further opined that it is common ground that the State Legislature does not have power to legislate upon any of the matters enumerated in the Union List. However, if it could be shown that the core area and the subject‑matter of the legislation is covered by an entry in the State List, then any incidental encroachment upon an entry in the Union List would not be enough to render the State law invalid, and such an incidental encroachment will not make the legislation ultra vires the Constitution., In Bharat Hydro Power Corporation Ltd. v. State of Assam the doctrine of pith and substance was considered, when after referring to a catena of decisions of the Supreme Court of India on the doctrine it was laid down as follows: It is likely to happen from time to time that an enactment though purporting to deal with a subject in one list touches also on a subject in another list and prima facie looks as if one legislature is impinging on the legislative field of another legislature. This may result in a large number of statutes being declared unconstitutional because the legislature enacting law may appear to have legislated in a field reserved for the other legislature. To examine whether legislation has impinged on the field of other legislatures, in fact or in substance, or is incidental, keeping in view the true nature of the enactment, the courts have evolved the doctrine of pith and substance for the purpose of determining whether it is legislation with respect to matters in one list or the other. Where the question for determination is whether a particular law relates to a particular subject mentioned in one list or the other, the courts look into the substance of the enactment. Thus, if the substance of the enactment falls within the Union List then the incidental encroachment by the enactment on the State List would not make it invalid. This principle came to be established by the Privy Council when it determined appeals from Canada or Australia involving the question of legislative competence of the federation or the States in those countries. This doctrine came to be established in India and derives its genesis from the approach adopted by the courts including the Privy Council in dealing with controversies arising in other federations. For applying the principle of pith and substance regard is to be had (i) to the enactment as a whole, (ii) to its main objects, and (iii) to the scope and effect of its provisions. For this see Southern Pharmaceuticals & Chemicals vs. State of Kerala; State of Rajasthan vs. G. Chawla; Amar Singhji v. State of Rajasthan; Delhi Cloth and General Mills Co. Ltd. v. Union of India; and Vijay Kumar Sharma v. State of Karnataka.
id_1828	16	In the last-mentioned case it was held: Where a law passed by the State Legislature while being substantially within the scope of the entries in the State List entrenches upon any of the entries in the Central List, the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if, on an analysis of the provisions of the Act, it appears that by and large the law falls within the four corners of the State List and any entrenchment is purely incidental or inconsequential., In State of Gujarat vs. Shantilal Mangaldas, the counsel before the Supreme Court of India urged that the object of the Town Planning Act in pith and substance is to facilitate planned development, to ensure healthy surroundings for people living in congested localities, and to provide them with sanitation and other urban facilities conducive to healthy living. On that account, the Act falls within Entry 6 of List II of the Seventh Schedule – “Public health and sanitation”, and Entry 20 of List III “Economic and social planning”. However, the competence of the Legislature to enact legislation on the subject matter of the Act and the object intended to be served are irrelevant in determining whether any fundamental right of a person is infringed by the impugned Act. The doctrine of pith and substance is applicable in determining whether a statute is within the competence of the legislative body, especially in a federal set‑up where there is division of legislative powers; it is wholly irrelevant in determining whether the statute infringes any fundamental right., On considering the submission of learned counsel, the Supreme Court of India held that it is common ground that a law for compulsory acquisition of property by a local authority for public purposes is a law for acquisition of property by the State within the meaning of that expression as defined in Article 12. The Act was reserved for the consideration of the President and received his assent on August 1, 1955, and since it provides expressly by Section 53(a) that on the coming into force of the scheme the ownership in the lands required by the local authority for public purposes shall, unless otherwise determined in such scheme, vest absolutely in the local authority free from all encumbrances, the clause contemplates transfer of ownership by law from private owners to the local authority. The Act is therefore a law for compulsory acquisition of land. The Supreme Court of India finally concluded that it could not agree with counsel for the State that because the object of the Act is intended to promote public health, it falls within the exception in Article 31(5)(b)(ii). The question is now settled by a recent judgment of the Supreme Court of India in Deputy Commissioner & Collector, Kamrup vs. Durga Nath Sharma. In that case, the Assam Acquisition of Land for Flood Control and Prevention of Erosion Act, 1955, which provided for the acquisition of land on payment of compensation in accordance with the principles in Section 6 of that Act, was held to be a purely exproprietary measure and, being a law for acquisition of land, though for prevention of danger to life and property, was not protected by Article 31(5)(b)(ii)., It was observed that a law authorising the abatement of a public menace by destroying or taking temporary possession of private property, if the peril cannot be abated in some other way, can be regarded as a law for promotion of public health or prevention of danger to life or property within the purview of Clause (5)(b)(ii). However, a law for permanent acquisition of property cannot be said to fall within that category. The object of the acquisition may be the opening of a public park for the improvement of public health or the erection of an embankment to prevent danger to life or property from flood. Whatever the object of the acquisition, the acquired property belongs to the State. Clause (5)(b)(ii) was intended to be an exception to Clause (2) and must be strictly construed. Acquisition of property for the opening of a public park or for the erection of dams and embankments was always made under the Land Acquisition Act, and it could not have been intended that such acquisition be made under laws falling within the purview of Clause (5)(b)(ii) without payment of compensation., In P. Vajravelu Mudaliar vs. Special Deputy Collector, Madras and Others, the Supreme Court of India, while dealing with the validity of a land acquisition law, referred to the principle laid down in Gajapati Narayan Deo vs. State of Orissa, wherein the Supreme Court explained the doctrine as follows: “It may be made clear at the outset that the doctrine of colourable legislation does not involve any question of bona fides or mala fides on the part of the legislature. The whole doctrine resolves itself into the question of competency of a particular legislature to enact a particular law. If the legislature is competent to pass a particular law, the motives which impelled it to act are irrelevant. On the other hand, if the legislature lacks competency, the question of motive does not arise at all. Whether a statute is constitutional or not is thus always a question of power.” The Court further observed that such transgression may be patent, manifest or direct, but it may also be disguised, covert or indirect, and it is to this latter class of cases that the expression “colourable legislation” has been applied in certain judicial pronouncements., The Supreme Court of India again explained the doctrine in Gullapalli Nageswara Rao vs. Andhra Pradesh State Road Transport Corporation as follows: “The legislature can only make laws within its legislative competence. Its legislative field may be circumscribed by specific legislative entries or limited by fundamental rights created by the Constitution. The legislature cannot over‑step the field of its competency, directly or indirectly. The Court will scrutinize the law to ascertain whether the legislature, by device, purports to make a law which, though in form appears to be within its sphere, in effect and substance reaches beyond it. If, in fact, it has power to make the law, its motives in making the law are irrelevant.”, The Supreme Court of India further held that when a Court says that a particular legislation is a colourable one, it means that the Legislature has transgressed its legislative powers in a covert or indirect manner; it adopts a device to outstep the limits of its power. Applying the doctrine to the instant case, the Legislature cannot make a law in derogation of Article 31(2) of the Constitution. It can therefore only make a law of acquisition or requisition by providing for compensation in the manner prescribed in Article 31(2). If the Legislature, though ex facie purports to provide for compensation or indicates the principles for ascertaining the same, but in effect and substance takes away a property without paying compensation, it will be exercising a power it does not possess. If the Legislature makes a law for acquiring a property by providing an illusory compensation or by indicating principles for ascertaining compensation that do not relate to the property acquired or to its value at or within a reasonable proximity of the date of acquisition, or if the principles are so designed and arbitrary that they do not provide for compensation at all, the Legislature can be said to have made the law in fraud of its powers. Briefly stated, the legal position is as follows: If the question pertains to the adequacy of compensation, it is not justiciable; if the compensation fixed or the principles for fixing it disclose that the Legislature made the law in fraud of its powers, the question is within the jurisdiction of the Court., Turning to the facts of the present case, the petitioners contend that when Parliament passed the Andhra Pradesh Reorganisation Act, 2014, separating the State of Andhra Pradesh into two states—Telangana State and the residuary State of Andhra Pradesh—it made clear under Section 5 that, from the appointed day, Hyderabad in the existing State of Andhra Pradesh shall be the common capital of Telangana and Andhra Pradesh for a period not exceeding ten years, and after the expiry of the ten years, Hyderabad shall be the capital of Telangana and a new capital shall be established for Andhra Pradesh. At the same time, Section 6 of the Andhra Pradesh Reorganisation Act, 2014 permits the Central Government to constitute an expert committee to study various alternatives regarding the new capital for the successor State of Andhra Pradesh and to make appropriate recommendations within six months from the date of enactment of the Act., Article 4 of the Constitution of India does not specify the subjects included in supplemental, incidental or consequential provisions. Consequently, the Constitution is silent on certain aspects and does not deal with the capital of a State, except for the capital of India. Thus, the Constitution is silent with regard to the power of Parliament or a State to fix the capital on bifurcation or separation. Such non‑disclosure of subjects covered by supplemental, incidental or consequential provisions in Article 4 can be described as constitutional silence. In such cases, the Court’s duty is to interpret constitutional provisions to achieve their real objective by applying various methods of interpretation., Achieving an idealistic perfection tends to make constitutions rigid. There will always remain areas that are deliberately or inadvertently left unaddressed. These gaps in the constitution are called constitutional silence. Constitutions are evolutionary, and such silence is inevitable. In simple terms, silences involve interpreting what was omitted when a constitution was enacted, not what the framers would have rejected. Silences in constitutions have been termed by many experts as gaps and abeyances. It is a method of adjudication., Constitutional silences are bound to occur, even if constitutions are regarded as exhaustive, like the Indian Constitution. Silence will occur even when drafters have engaged in what they believe is a careful enumeration., Silences and abeyances enable pragmatism, ensure inclusiveness for future ideas, and foster deliberations., The judiciary plays a crucial role in interpreting silences in the Constitution since it is the final interpreter of constitutional provisions. It is the role of courts, primarily the Supreme Court of India, to fill the gaps and abeyances through interpretation. However, it must ensure that this does not result in judicial legislation. Although in extreme cases where there is a legislative vacuum, the courts have cautiously resorted to lawmaking to a certain extent., It is the duty of constitutional courts to interpret the constitutional text with a normative, substantive conception of justice. Constitutional despotism reduces constitutional law to merely a set of ultimate commands whose only function is to resolve conflicting commands within the law. This is contrary to the living tree doctrine, which treats the Constitution as a living document that changes with time to be as inclusive as possible., The Hon'ble Supreme Court of India used the doctrine of constitutional silence to expand the ambit of rights and to make democracy substantive. It kept in mind constitutional morality while dealing with silence. However, courts must ensure that interpreting silence is done objectively and not based on the subjective understanding of the judge, because the purpose of courts is not to make law but to declare it., Elimination of silences in the Constitution depends greatly on the type of interpretation the courts employ; the most prominent are purposive (considering the purpose of the law) and liberal interpretation, which contrast with strict textual interpretation that follows the literal text. Furthermore, many constitutional provisions, such as fundamental rights, have no fixed content and are silent on many aspects. Fundamental rights have been described as empty vessels into which each generation pours its content through judicial interpretation., Mr. Shyam Divan, learned senior counsel for the petitioners, relied on Mangal Singh vs. Union of India, wherein the Supreme Court of India dealt with Articles 2, 3 and 4 and analysed the words supplemental, incidental or consequential provisions and observed as follows: By Article 2 the Parliament may by law admit into the Union or establish new States on such terms and conditions as it thinks fit; and Article 3 provides that the Parliament may by law (a) form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State; (b) increase the area of any State; (c) diminish the area of any State; (d) alter the boundaries of any State; (e) alter the name of any State. Any law referred to in Article 2 or Article 3 shall, as provided by Article 4(1), contain such provision for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the legislatures of the States affected by such law) as Parliament may deem necessary. By clause (2) of Article 4 it is provided: “No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of Article 368.” The law referred to in Articles 2 and 3 may therefore alter or amend the First Schedule, which sets out the names of the States and description of their territories, and the Fourth Schedule, which allocates seats to the States in the Council of States. The law so made may also make supplemental, incidental and consequential provisions relating to the setting up of the legislative, executive and judicial organs of the State essential to effective administration, as well as provisions concerning expenditure, distribution of revenue, apportionment of assets and liabilities, services, adaptation of laws, transfer of proceedings and other related matters. On the plain words of Article 4, there is no warrant for the contention that the supplemental, incidental and consequential provisions which Parliament is competent to make must be limited to the amendment of the First or Fourth Schedule., It is clear from paragraph 6 of the judgment that Parliament alone is competent to deal with the setting up of the legislature, executive and judicial organs of a State, as implied by the language of Article 4 of the Constitution of India—supplemental, incidental or consequential provisions. Therefore, it is for Parliament to establish the three organs of the State—legislature, executive and judiciary—which are essential to State administration. The words supplemental, incidental or consequential provisions thus include the establishment of the legislature, executive and judiciary. Applying the principles laid down in the judgment, we hold that the power is vested in Parliament to set up the legislature, executive and judiciary, but not the State legislature., The learned Advocate General also drew the Court’s attention to the judgment of the Supreme Court of India in Swaran Lata vs. Union of India, where the Court, while dealing with the provision relating to allotment of employees, held that the power to regulate matters relating to services under the Union of India and the various States, as specified in the First Schedule, is an exclusive function of the Union and the States under Entry 70 of List I and Entry 41 of List II of the Seventh Schedule, read with Article 309. Accordingly, it is the exclusive power of the Union and the States to deal with their services, either by exercising legislative functions, rule‑making powers, or, in the absence of any law or rules, by exercising executive power under Articles 73 and 162, which is co‑extensive with their legislative powers to regulate recruitment and conditions of service. Nevertheless, it was urged that this power must yield to the supplemental, incidental or consequential directions issued by the Central Government in relation to setting up services in a newly formed State under a law made by Parliament pursuant to Article 3 of the Constitution. It was argued that the newly formed State is completely divested of its power to deal with its services., In Union of India v. P.K. Roy, the Supreme Court of India touched upon the subject but expressed no final opinion since the question did not directly arise. After the process of integration of services is finalized in conformity with any law made by Parliament under Articles 2 or 3 of the Constitution, the supplemental, incidental and consequential provisions contained therein, which by reason of Article 4 have the effect of divesting the newly formed State of its power to deal with its services, would no longer operate. Such power is kept in suspended animation until the reorganisation of services is completed. Once the integration of services in a newly formed State is finalized, there is no reason for a transitory, consequential or incidental provision such as Section 84 of the Act to operate perpetually. For the reasons stated, there is no basis for the submission that the supplemental, incidental or consequential provisions which Parliament is competent to make while enacting a law under Articles 2 or 3 have an overriding effect for all time. On the plain words of Article 4, a provision like Section 84 of the Act, or the directions issued thereunder, are only supplemental, incidental or consequential to the scheme of reorganisation of services, which is consequential upon the reorganisation of a State, and cannot be given a wider effect than intended., The learned Advocate General also relied on Rai Sahib Ram Jawaya Kapur vs. State of Punjab, where the Supreme Court of India observed that it may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily, executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. The Indian Constitution does not recognise the doctrine of separation of powers in absolute rigidity, but the functions of the different branches have been sufficiently differentiated, and the Constitution does not contemplate one organ assuming functions that essentially belong to another. The executive can exercise powers of departmental or subordinate legislation when such powers are delegated by the legislature, and it can also, when empowered, exercise judicial functions in a limited way. However, the executive Government can never go against the provisions of the Constitution or any law, as clear from Article 154. This does not mean that a specific law must exist for the executive to function; the executive’s powers are not limited merely to carrying out existing laws. The limits within which the executive can function can be ascertained by reference to the form of the executive set up by the Constitution. Although the Constitution is federal in structure, it is modelled on the British parliamentary system where the executive is deemed to have primary responsibility for formulating governmental policy and transmitting it into law, subject to retaining the confidence of the legislative branch. The executive function comprises both the determination of policy and its execution, including initiation of legislation, maintenance of law and order, promotion of social and economic welfare, direction of foreign policy, and supervision of the general administration of the State. For example, if a State ministry formulates a policy to start a trade or business, it is not always necessary to have specific legislation legalising the activity. If the activity involves expenditure of funds, Parliament must authorise such expenditure either directly or under a statute. Typically, the required sums are entered in the annual financial statement laid before the legislature under Article 202. Estimates relating to expenditure other than those charged on the consolidated fund are submitted as demands for grants, and the legislature may assent, refuse, or reduce the amount under Article 203. After the grant is sanctioned, an Appropriation Bill is introduced to provide for the appropriation out of the consolidated fund of the State of all monies required to meet the grants, as per Article 204. Once the Appropriation Act is passed, the expenditure made under its heads is deemed to be properly authorised by law under Article 266(3)., The learned Advocate General also relied on State of Bihar v. Bihar Distillery Limited, where the Supreme Court of India referred to the observations of Lord Denning in Seaford Court Estates Ltd. v. Asher (1949) 2 K.B. 491, which are as follows: ‘Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much poorer if it were.’ This is where the draftsmen of Acts of Parliament have often been unfairly criticised. A judge, believing himself to be fettered by the supposed rule that he must look only to the language, laments that the draftsmen have not provided for this or that, or have been guilty of some ambiguity; it would certainly save the judge’s trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of such perfection, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must undertake the constructive task of finding the intention of Parliament, not only from the language of the statute but also from consideration of the social conditions that gave rise to it and the mischief it was passed to remedy, and then must supplement the words to give ‘force and life’ to the legislature’s intention. This principle was laid down in Heydon’s case and remains a safe guide. Practical advice by Plowden suggests a homely metaphor: a judge should ask himself, ‘If the makers of the Act had themselves encountered this ruck in the texture of it, how would they have straightened it out?’ He must then act as they would have. A judge must not alter the material of which it is woven, but he can and should iron out the creases.’ These observations have been quoted with approval by this Court in several decisions, and are reproduced here to underscore the approach adopted by the High Court in the judgment under appeal., Except for the judgment of Mangal Singh vs. Union of India, other judgments address issues other than the setting up of the legislature, executive and judiciary, which are the three organs of the State., In view of the language employed in Article 4 of the Constitution of India, the words supplemental, incidental or consequential provisions include the setting up of the legislature, executive and judiciary of the State, which are the three organs governing the State. This is within the powers of Parliament, and a State legislature is incompetent to enact any law for establishing those three wings., As discussed above, Article 4 does not clearly define what is to be included in supplemental, incidental or consequential provisions, but the Supreme Court of India in Mangal Singh vs. Union of India clarified the scope. Even otherwise, it is the duty of the Court to interpret such provisions by applying general principles of interpretation or other modes such as the doctrine of progressive interpretation or the doctrine of the living tree., The doctrine of progressive interpretation is a special incident that arises in the interpretation of a Constitution, as distinguished from an ordinary statute. While an ordinary statute can be amended easily and as often as necessary to meet the exigencies of the time, the Constitution is a quasi‑permanent instrument that cannot be amended so easily, except where the process of amendment is the same as that for ordinary legislation., When there is a special provision in the Constitution of India itself, i.e., Article 367, it is easy to interpret any clause invoking Article 367 without resorting to the doctrine of progressive interpretation. However, the doctrine of the living tree can be applied to the present situation because the Constitution of India is regarded as a living document., The Living Tree Doctrine was first recognised in the case of Edwards v. Canada, popularly known as the Persons Case, where Viscount Sankey stated that the British North‑American Act planted a living tree in the Constitution of Canada that is capable of growing and expanding within its natural limits. This came to be known as the doctrine of progressive interpretation. The rule made it possible to interpret the Constitution in a way that reflects the changing needs of society at large, rather than interpreting it only to the extent of the intentions of the framers, whose intellectual capacities were limited to the knowledge of their time.
id_1828	17	Although in India, a very rare expression was given to the Doctrine of Living Tree, the framers of the Constitution of India were aware of the need to make a flexible Constitution to cater to the needs of changing times in the future, for which they included Article 368 of the Constitution of India which empowers the legislatures of the land to amend the Constitution whenever needed subject to necessary conditions as specified in the said Article. At the same time, the Indian Judiciary has also given a broad interpretation and has extended the scope of the Constitution by including new concepts and suggesting new amendments to the Constitution. Since the Supreme Court of India has been entrusted with the role of being the Custodian of the Constitution, it has therefore been able to provide the widest possible interpretation to various provisions of the Constitution in deciding several cases before the Supreme Court of India., Even by applying the doctrine of living tree, the interpretation placed on record by the learned counsel for the petitioners, in view of the law declared in Mangal Singh versus Union of India (referred supra), can safely be held that the establishment of three organs of the State – legislature, executive, and judiciary – are part and parcel of the supplemental, incidental or consequential provisions employed in Article 4 of the Constitution of India and the Parliament alone is competent to undertake such exercise, but not the State legislature., As discussed above, except Article 4 of the Constitution of India, no other provision in the Constitution of India, including entries in List I, II, III of the Seventh Schedule read with Article 246 and Article 38 of the Constitution of India, is applicable for passing any legislation by the Parliament and thus the State has no authority to make such legislation under any provision of the Constitution of India., One of the contentions of Sri P.B. Suresh, learned counsel for the petitioners, is that though the Parliament is vested with power to make such legislation for establishment of the three organs, still such power can be exercised by the State on delegation of power under Article 258(2) of the Constitution of India, that is how the Andhra Pradesh Capital Region Development Authority Act, 2014 was passed and framed the Land Pooling Rules, 2015., The facts on record, i.e., approval of passing of legislation i.e., Andhra Pradesh Capital Region Development Authority Act, 2014 and taking up the land under the Land Pooling Scheme framed under the Andhra Pradesh Capital Region Development Authority Act, 2014, payment of Rupees 15,000 crores for capital city and region development, is sufficient to conclude that the Parliament delegated power to the State under Article 258(2) of the Constitution of India, which is a one‑time delegation. Hence, the contention of the learned counsel for the petitioners is accepted while rejecting the contention of the learned Advocate General and other counsel appearing for the respondents., In view of our foregoing discussion, we hold that the State Legislature lacks competence to make any legislation for shifting, bifurcating or trifurcating the capital and heads of departments of the three wings of the Government including the High Court to any area other than the capital city notified under Section 3 of the Andhra Pradesh Capital Region Development Authority Act, 2014 and the land pooled under the Andhra Pradesh Capital City Land Pooling Scheme (Formation and Implementation) Rules., In view of our foregoing discussion and findings on Point Nos. 1 to 10, we sum up the findings as follows: a) The Agreement in Form‑9.14 is a Development Agreement cum Irrevocable General Power of Attorney and it is a statutory contract, and the violation of terms and conditions by the respondents – the State and the Andhra Pradesh Capital Region Development Authority – warrants interference of the Supreme Court of India, while exercising power under Article 226 of the Constitution of India, to issue appropriate directions. b) Similarly, the petitioners, basing on the representation of the State and the Andhra Pradesh Capital Region Development Authority that a capital city and capital region will be developed in the land pooled, voluntarily surrendered their agricultural land, which is the only source of their livelihood, to the State and the Andhra Pradesh Capital Region Development Authority with a hope that a capital city will be constructed within the notified area while developing the capital region strictly adhering to the Andhra Pradesh Capital Region Development Authority Act and Land Pooling Rules, 2015, within the time limit. Thus, they altered their position. The inaction of the State and the Andhra Pradesh Capital Region Development Authority as on the date of filing the writ petitions, i.e., failure to develop the capital city and capital region as agreed in terms of Form‑9.14 Development Agreement cum Irrevocable General Power of Attorney, is nothing but a deviation from the promise made by the State, defeating legitimate expectation. c) Since the petitioners have no remedy elsewhere, particularly before a civil court or any other authority in terms of the Development Agreement cum Irrevocable General Power of Attorney in Form‑9.14, they are entitled to approach the Supreme Court of India for redressal. Moreover, the reason pleaded by the respondents – the State and the Andhra Pradesh Capital Region Development Authority – that public interest overrides the principle of estoppel and legitimate expectation is no longer available as on date, in view of the repeal of Act Nos. 27 & 28 of 2020 by Act No. 11 of 2021. At the same time, proper estoppel is also applicable to the present case, as discussed in the earlier paragraphs. d) When the respondents – the State and the Andhra Pradesh Capital Region Development Authority – failed to keep up their promise and are acting to defeat the legitimate expectation of the petitioners, the Supreme Court of India can issue appropriate direction to the State and the Andhra Pradesh Capital Region Development Authority to comply with the terms of the Development Agreement cum Irrevocable General Power of Attorney in Form‑9.14, the Andhra Pradesh Capital Region Development Authority Act, and the Land Pooling Rules, 2015 while exercising extraordinary power under Article 226 of the Constitution of India. e) As the respondents – the State and the Andhra Pradesh Capital Region Development Authority – violated the fundamental rights of the petitioners, as they surrendered their only source of livelihood i.e., agriculture under the Land Pooling Scheme, while expecting developed reconstituted plots according to their eligibility, the State is under obligation to complete the entire process within three years and thus expired on 2018 itself. Therefore, the respondents violated the fundamental right guaranteed under Article 21 and the right to property under Article 300‑A of the Constitution of India. f) When the action of the respondents is arbitrary and violative of Articles 21 and 300‑A of the Constitution of India, the Supreme Court of India is under an obligation to protect the right of the poor farmers by exercising power under Article 226 of the Constitution of India and issue appropriate directions. g) As discussed in Point No.5, change of Government is not a ground to change the policy. But the present Government is under statutory legal obligation to complete the projects undertaken by the earlier government unless they are contrary to any statutory or constitutional provisions. The State shall account for the amount spent on the constructions and other activities undertaken by the earlier government to the public, since Rupees 15,000 crores was spent on development activities and for the grounding works worth Rupees 32,000 crores. Sudden stoppage of the developmental activities due to an alleged financial crisis or otherwise is impermissible and thereby, the State and the Andhra Pradesh Capital Region Development Authority are held responsible for the total amount spent on the development activities as on date to the public in general under the doctrine of public trust. When the State and the Andhra Pradesh Capital Region Development Authority failed to maintain the trust and acted against good governance and violated the constitutional trust, the Supreme Court of India, while exercising extraordinary jurisdiction under Article 226 of the Constitution of India, can issue appropriate direction to complete the development activities including infrastructure in the land pooled within the specified time., In the result, the following writ petitions are disposed of: WP (PIL) Nos. 177 of 2020, WP Nos. 13206, 16634 of 2020, WP Nos. 9154, 9528, 10700 of 2020 are granted liberty to the petitioners to challenge the reports in any independent writ petition whenever the petitioners find it necessary; WP (PIL) Nos. 179 of 2019, WP (PIL) Nos. 8, 24, 40, 102, 213 of 2020, WP Nos. 925, 1207, 4004, 5057 of 2020 are allowed with costs of Rupees 50,000 each, payable by the respondents to the petitioners; WP (PIL) Nos. 7, 153 of 2020, WP Nos. 932, 933, 8472 of 2020 are allowed, while declaring that the State or the Andhra Pradesh Capital Region Development Authority cannot exercise power suo motu to amend or vary Master Plans, with costs of Rupees 50,000 each, payable by the respondents to the petitioners; WP (PIL) No. 121 of 2020 and WP No. 1388 of 2020 are allowed with costs of Rupees 50,000 each, payable by the respondents to the petitioners., While declaring that the Andhra Pradesh State Legislature has no legislative competence to enact any law for shifting the three organs of the State, we issue a continuous mandamus with the following directions, keeping writ petitions Nos. 13203, 13204, 184, 185, 200, 201, 208, 209, 215, 217, 230, 235, 236, 239, 253, 256 of 2020 pending for further directions: 1) The State and the Andhra Pradesh Capital Region Development Authority are directed to discharge their duties enshrined under Schedule II and III and the Land Pooling Rules; 2) They are directed not to alienate, mortgage or create any third‑party interest on the land pooled, except for the construction of the capital city or development of the capital region; 3) They are directed to complete the process of development and infrastructure in the Amaravati Capital City and Region providing basic amenities such as roads, drinking water, drainage, electricity in terms of Section 58 of the Andhra Pradesh Capital Region Development Authority Act read with Rule 12(6) of the Land Pooling Rules, 2015 within one month from the date of this order; 4) They are directed to complete the Town Planning Schemes as per Section 61 of the Andhra Pradesh Capital Region Development Authority Act; 5) The State is directed to construct and develop Amaravati capital city and capital region within six months, as agreed in the terms and conditions of the Development Agreement cum Irrevocable General Power of Attorney in Form‑9.14, provisions of the Andhra Pradesh Capital Region Development Authority Act and the Land Pooling Rules, 2015; 6) The State and the Andhra Pradesh Capital Region Development Authority shall develop the reconstituted plots belonging to land owners in Amaravati capital region by providing approach roads, drinking water, electricity connection to each plot, drainage etc., to enable the same to be fit for habitation in the Amaravati Capital City; 7) They are further directed to deliver and hand over the developed reconstituted plots in Amaravati capital region, on ground, to the land holders who surrendered their land as promised by the State, within three months from the date of this order. The State and the Andhra Pradesh Capital Region Development Authority are directed to file separate affidavits with regard to progress of development in terms of the directions issued herein., The notified Master Plan cannot be modified suo motu. The Legislature has no legislative competence to pass any resolution or law for change of capital or bifurcating or trifurcating the capital city. It is left open to the petitioners to challenge the reports of the various non‑statutory committees in any separate proceedings. Interim directions issued earlier in pending writ petitions shall continue to operate until further orders.
id_1829	0	ITEM NO.5 Court 6 (Video Conferencing) SECTION X Writ Petition(s) (Civil) No(s). 555/2020 Date: 03-09-2021. This petition was called on for hearing today. For Petitioners: Mr. V. Chidambresh, Senior Advocate; Mr. Aakash Sirohi, Advocate on Record. For Respondents: Union of India, State of Telangana and Registrar (Vigilance & Administration) of the High Court of Telangana., The petitioner has filed the writ petition under Article 32 of the Constitution of India seeking a writ of mandamus or an appropriate writ, order or direction directing Respondent Nos. 1 to 3 – Union of India, State of Telangana and Registrar (Vigilance & Administration) of the High Court of Telangana – to consider the representation dated 03.09.2019 submitted by the petitioner and take necessary action as per law for proceeding further with the proposal of appointment of Respondent No. 4 as a Judge of the High Court for the State of Telangana., The petitioner is an Advocate and thus well aware of the legal system. He has been enrolled with the Bar Council of Telangana since the year 2000. In effect, the petitioner states that the recommendation of Respondent No. 4 should not be processed for his elevation as a Judge of the High Court of Telangana., We specifically posed to learned senior counsel for the petitioner as to what is the further fate of the decision rendered in Writ Petition No. 4023 of 2018 dated 08.06.2018 by a Bench of the High Court of Telangana. We are informed that a review application has been filed. We have the benefit of the said judgment, though the petitioner did not annex it with the present writ proceedings., In the said petition, the petitioner claimed that he was a legal advisor for the family of a Member of Parliament belonging to the Telugu Desam Party and legal counsel for other politically connected persons. He claimed to have suffered on account of political prejudices as the petitioner and his family members were being subjected to torture due to harassment by the police authorities. Various allegations against the local police authorities were made in that petition., The Supreme Court of India took note of the fact that there are various complaints pending investigation against the petitioner. In fact the petitioner had filed six writ petitions on behalf of fictitious non‑existent persons. This was apart from seven more writ petitions filed by the petitioner in his capacity as counsel for certain third parties and when the efforts were made to serve notices on those persons, it was found that there were no such persons available at the address. The petitioner failed to produce the litigants in those proceedings, though one person arrested is stated to have admitted that the petitioner and others projected an existing person as a non‑existing person in a land‑grabbing case., In a nutshell, the allegation of the petitioner is involvement with such land‑grabbing cases and the action of the police and his endeavour to prevent the action on the pretext of his sufferings on account of legal assistance he was giving to persons of different political dispensations., Suffice to say the detailed judgment is a thorough analysis of the directives of the Constitution Bench of the Supreme Court of India in Lalita Kumari versus Government of Uttar Pradesh, (2014) 2 SCC 1 as the petitioner was insisting that there cannot be any preliminary enquiry but an FIR be registered. The Bench rightly observed that it was not simply a case of invoking the mandate issued by the Constitution Bench in Lalita Kumari's case (supra) but that the petitioner himself is an accused in six criminal complaints, three of which were lodged by public servants., The complaint lodged by Respondent No. 4 in the capacity as the then Registrar (Judicial) was pursuant to a direction issued by a learned Single Judge of the High Court of Telangana in which writ petitioners were found to be non‑existent persons. The incident for which grievance is made on 15.06.2017 was after the petitioner was taken into police custody on the sum and substance of a criminal complaint that the petitioner filed on the file of XIV, Additional Chief Metropolitan Magistrate against eleven named individuals. The contents of the FIR lodged by Respondent No. 4 on the directions of the High Court of Telangana were quoted thereafter. The FIR at the instance of the Registrar was filed on 31.07.2017 in pursuance to a direction issued by the High Court of Telangana on 04.07.2017 and thus, in effect, the case of the petitioner was that multiple FIRs were being filed with a view to harass the petitioner, that complaint registered pursuant to the direction of the Court would also fall in the same category., Respondent No. 4 as the responsible officer only followed the direction passed by the learned Judge of the High Court of Telangana and thus the High Court opined that what the petitioner was attempting to do was to seek an investigation into the allegation that the evidence collected by the investigating officer in criminal complaints filed against him was fabricated and that was found to be nothing but a deflection towards derailing the course of investigation in the complaints lodged against the petitioner. The effect of what the petitioner had prayed for therein was found to be to seek a writ of mandamus to direct the investigating officer to first put himself in the dock along with the material before they can be relied upon in the criminal complaints filed against the petitioner., The writ petition was found to be thoroughly misconceived and appears to be an abuse of process of law and a counterblast to the series of criminal complaints in which persons belonging to the so‑called noble profession got involved. We are surprised at the brazenness of the petitioner now filing the present petition under Article 32 of the Constitution of India, the aforesaid being the finding against him, to now somehow see that the elevation of Respondent No. 4 does not take place on the account of these proceedings initiated by the petitioner. This is gross abuse of process of law., The process of appointment of judges to the High Court is under a well‑known established process where the collegium of the High Court considers recommending the names of judicial officers by seniority and on merits. Thereafter, the proposed Intelligence Bureau inputs and other inputs are obtained and the Government processes the names. The collegium of the Supreme Court has the benefit of all the material before taking a call on whether to recommend the name or not. The appointment takes place thereafter by issuance of warrants of appointment. Thus sufficient safeguards exist in the system., We consider the endeavour of the petitioner as one of harassing Respondent No. 4 and abusing the court proceedings and, since nothing else seems to deter the petitioner in such endeavours, we are of the view that appropriate imposition of costs seems to be the only solution. We thus dismiss the writ petition with costs of Rs. 5 lakhs to be deposited with the Supreme Court Advocates On Record Welfare Fund within four weeks. We also think it appropriate that the Bar Council of Telangana examine the conduct of the petitioner as a member of the \Noble Profession\ and, for that purpose, a copy of the order be sent to the Bar Council of Telangana.
id_183	0	The appellants before us assail two judgments of the Bombay High Court rejecting, in substance, their prayers for bail. Both the applications were filed on 27 October 2018 after the Special Judge, Pune, under the Unlawful Activities (Prevention) Act, 1967 (UAPA) had dismissed their bail plea. The decisions of the Bombay High Court were delivered on the same date, i.e., 15 October 2019., We shall deal with both the appeals in this judgment as the detention of the appellants was on the basis of the same First Information Report (FIR) and the chargesheet also contains the same sections in respect of which offences are alleged to have been committed by them. These are Sections 121, 121A, 124A, 153A, 505(1)(b), 117, 120B read with Section 34 of the Indian Penal Code, 1860 (the Code) and Sections 13, 16, 17, 18, 18B, 20, 38, 39 and 40 of the UAPA. Wherever there are distinguishing features vis-à-vis the individual appellants in relation to the nature of evidence against them relied on by the investigating agency, we shall refer to them separately., In the subject case, initially investigation was conducted by the regular law‑enforcement agency, being the State police. The Central Government, in exercise of its power under Section 6(5) read with Section 8 of the National Investigation Agency Act, 2008, directed the National Investigation Agency (NIA) to take up investigation of the case by an order passed on 24 January 2020. The case was re‑registered at the NIA Police Station, Mumbai as RC No. 01/2020/NIA/MUM. Before us, the appeals have been contested by Mr. Nataraj, learned Additional Solicitor General, appearing for the NIA., The proceedings against the appellants have their origin in an FIR, bearing Crime Report No. 4/2018 dated 8 January 2018, registered with Vishrambaug Police Station, Pune, Maharashtra. The informant is one Tushar Ramesh Damgude. The incident which prompted filing of the FIR was in relation to a programme at Shaniwar Wada, Pune, held on 31 December 2017. The organisers for this event, Elgar Parishad, were activists of Kabir Kala Manch, a cultural organisation. According to the prosecution, the various events were provocative in nature and had the effect of creating enmity between caste groups, leading to violence, loss of life and statewide agitation. Books kept at the venue were also described as provocative. Incidents of violence, arson and stone‑pelting near Bhima‑Koregaon were reported, and six members of Kabir Kala Manch and other associates were named as accused in the FIR. The appellants did not feature in the FIR. The scope of the investigation was subsequently expanded; on 17 April 2018 the Pune Police conducted searches at the residences of eight individuals – Rona Wilson of Delhi; Surendra Gadling of Nagpur; Sudhir Dhawale of Mumbai; Harshali Potdar of Mumbai; Sagar Gorkhe (also referred to as Sagar Gorakhe by the prosecution) of Pune; Deepak Dhengale of Pune; Ramesh Gaichor of Pune; and Jyoti Jagtap of Pune. The residences of Shoma Sen and Mahesh Sitaram Raut were searched on 6 June 2018. The NIA argued that during the searches electronic devices and documents were recovered and sent to the Forensic Science Laboratory (FSL) for analysis. Cloned copies, according to the prosecution, revealed incriminating material. The appellants’ names did not also figure in the initial chargesheet dated 15 November 2018, which implicated ten individuals as accused, including Sudhir Dhawale, Surendra Gadling, Shoma Sen, Mahesh Raut and Rona Wilson, who were in detention at that time. The remaining five accused were absconding; one of them, Milind Teltumbde, has since passed away., Searches were conducted at the residences and workplaces of the appellants and they were arrested on the same day, i.e., 28 August 2018. They were initially put under house arrest and subsequently sent to judicial custody. The NIA case alleges that various letters and other materials recovered from the arrested co‑accused persons, including Surendra Gadling and Rona Wilson, showed the appellants’ involvement with the Communist Party of India (Maoist). This organisation has been placed in the First Schedule to the UAPA as a terrorist organisation by a notification dated 22 June 2009 issued in terms of Section 2(m) of the UAPA. The prosecution’s case is that the appellants played an active role in recruitment and training of cadres of the said organisation and that Arun Ferreira (referred to as AF), the appellant in Criminal Appeal No. 640 of 2023, also had a role in managing finances of that organisation. The other accused persons detained in the third phase were P. Varavara Rao and Sudha Bharadwaj. According to learned senior counsel for the appellants, Ms. Rebecca John, appearing for Vernon Gonsalves (VG), who is the appellant in Criminal Appeal No. 639 of 2023, P. Varavara Rao was released on bail by an order of the Supreme Court of India passed on 10 August 2022. Sudha Bharadwaj was released on default bail by the Bombay High Court on 1 September 2021; a petition for special leave to appeal against that order was rejected by a three‑Judge Bench of the Supreme Court of India on 7 December 2021. Gautam Navlakha is under house arrest. A supplementary chargesheet submitted on 21 February 2019 by the State police implicated the appellants, along with other co‑accused persons, for commission of the aforesaid offences under the UAPA and the Code. On 9 October 2020, the NIA filed a further supplementary chargesheet against, inter alia, Dr. Anand Teltumbde, Gautam Navlakha, Hany Babu, Sagar Gorkhe, Ramesh Gaichor, Jyoti Jagtap, Stan Swami (deceased) and Milind Teltumbde (deceased), broadly under the same provisions of the Code and the UAPA. Barring the deceased Milind Teltumbde, all these individuals had been arrested. Dr. Anand Teltumbde has been released on bail by the Bombay High Court, the judgment to that effect being delivered on 18 November 2022; the petition for special leave to appeal against that decision was dismissed by a coordinate Bench of the Supreme Court of India on 25 November 2022. VG, as per his pleadings, is a writer, columnist and has been vocal on issues of human rights, prison rights and reform of the criminal justice system. AF describes himself as a practising advocate of the Bombay High Court, a cartoonist and a human rights activist., After the arrest of the appellants, a writ petition was filed before the Supreme Court of India (Writ Petition (Criminal) No. 260/2018, Romila Thapar and Ors. v. Union of India and Ors.). One of the prayers in this petition was for direction of immediate release of all activists arrested in connection with the Bhima‑Koregaon violence and for staying any arrest until the matter was fully investigated and decided by the Supreme Court of India. That writ petition was dismissed on 28 September 2018 by a 2:1 majority. The majority view was that the case was not one of arrest for expression of dissenting views or political ideology but concerned the accused’s links with members of the banned organisation. At that stage the Supreme Court of India did not evaluate the materials placed before it. This finding, however, cannot aid the prosecution in a regular bail application, the appeals in respect of which we are adjudicating. The Supreme Court of India, deciding on the specific plea of the appellants for bail, must independently apply its mind and examine the materials placed before it for determining the question of granting bail to the individual applicants., As the charges against the appellants include commission of offences under different sections of the UAPA, including those falling within Chapters IV and VI thereof, the restriction on grant of bail contained in Section 43D(5) of the UAPA would apply in their cases. We shall also refer to the ratio of the judgment of a three‑Judge Bench of the Supreme Court of India in Union of India v. K. A. Najeeb [(2021) 3 SCC 713] while examining the appellants’ cases in the backdrop of the aforesaid provision. In that judgment it was held that such statutory restrictions, per se, do not oust the jurisdiction of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution of India and that it would be within the jurisdiction of the constitutional courts, i.e., the Supreme Court of India and the High Courts, to relax the rigours of such provisions where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone by the detainee covers a substantial part of the prescribed sentence. This ratio has been relied upon by the learned counsel for the appellants. Other authorities cited on this point are Thwaha Fasal v. Union of India [2021 SCC OnLine SC 1000] and Angela Harish Sontakke v. State of Maharashtra [(2021) 3 SCC 723]. On the general proposition of law regarding grant of bail due to delay in trial, the case of Sagar Tatyaram Gorkhe and Another v. State of Maharashtra [(2021) 3 SCC 725] has been relied upon. During the hearing we were apprised by the appellants’ counsel that charges against the appellants are yet to be framed., We have referred to the case of Dr. Anand Teltumbde, who was added as an accused in relation to the same case on 23 August 2018 and has subsequently been released on bail. According to the prosecution, his name surfaced from digital devices and other articles seized by the police in the expanded phase of investigation. Dr. Anand Teltumbde surrendered on 14 April 2020 after his plea for pre‑arrest bail was rejected, but he has since been released on bail., Arguments have been advanced before us on whether mere membership of a banned organisation constitutes an offence. On behalf of the appellants reliance was placed on the prevailing view that membership alone would not be sufficient to constitute an offence under the UAPA or the Terrorist and Disruptive Activities (Prevention) Act, 1987 (which has similar provisions) unless it is accompanied by some overt offending act. A three‑Judge Bench of the Supreme Court of India in Arup Bhuyan v. State of Assam and Another [2023 SCC OnLine SC 338] held that if a person, even after an organisation is declared unlawful, continues to be a member thereof, it would attract penalty under Section 10 of the UAPA., Barring Section 13, all the offences with which the appellants have been charged under the UAPA fall within Chapters IV and VI of that statute, apart from the offences under the Code. Hence, there is a duty of the Supreme Court of India to form an opinion, on perusal of the case diary or the report made under Section 173 of the Code of Criminal Procedure, 1973 (the 1973 Code), that there are reasonable grounds for believing that the accusations against such persons are prima facie true while considering the prayer for bail, and to reject prayers for bail of the appellants. The manner in which the court shall form such opinion has been laid down by the Supreme Court of India in National Investigation Agency v. Zahoor Ahmad Shah Watali [(2019) 5 SCC 1]. It was held that by virtue of the proviso to sub‑section (5) it is the duty of the court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true. The judgment explains that the expression prima facie true means that the materials/evidence collated by the investigating agency must prevail until contradicted or disproved by other evidence and, on its face, shows the complicity of the accused in the commission of the offence. The degree of satisfaction required for a prima facie finding is lighter than that required to record a finding that the accused is not guilty under other special enactments. Guidance may be taken from Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra [(2005) 5 SCC 294 : 2005 SCC (Cri) 1057], where the Supreme Court of India observed that the court need only record an objective finding on the basis of materials on record for grant of bail and that the restrictions on the power of the court to grant bail should not be pushed too far. The court must consider the likelihood of the accused committing an offence while on bail, the nature of the alleged organised crime, and the accused’s mens rea. Further observations from Kalyan Chandra Sarkar v. Rajesh Ranjan [(2004) 7 SCC 528 : 2004 SCC (Cri) 1977] and Puran v. Rambilas [(2001) 6 SCC 338 : 2001 SCC (Cri) 1124] were cited, emphasizing that while detailed reasons are not required, the order granting bail must demonstrate application of mind, especially in serious cases., We shall first deal with the argument of the appellants that the accusations against them under the sections falling within Chapters IV and VI of the UAPA cannot lead to a prima facie satisfaction of the court that such accusations are true and that the available evidence at this stage does not satisfy the ingredients of these restrictive provisions. The nature of the accusations to invoke the bail‑restricting clause has been stated in the supplementary chargesheet in which the appellants were implicated. The counter‑affidavits also contain printouts and copies of several letters and documents. In the case of VG, the agency has relied upon the statement of a protected witness who disclosed that he met VG in the year 2002. Referring to the period between 2002 and 2007, the witness stated that during that period both VG and AF were members of the Maharashtra State Committee of the said party. The protected witness also stated that in 2002 VG wanted to resign from the party but his resignation was not accepted., Before embarking on this exercise we reproduce below the relevant provisions of the Unlawful Activities (Prevention) Act, 1967, the application of which we shall have to examine in respect of the appellants: 2. Definitions – (1) In this Act, unless the context otherwise requires, (k) ‘terrorist act’ has the meaning assigned to it in Section 15, and the expressions ‘terrorism’ and ‘terrorist’ shall be construed accordingly; (m) ‘terrorist organisation’ means an organisation listed in the First Schedule or an organisation operating under the same name as an organisation so listed. 13. Punishment for unlawful activities – (1) Whoever (a) takes part in or commits, or (b) advocates, abets, advises or incites the commission of, any unlawful activity, shall be punishable with imprisonment for a term which may extend to seven years, and shall also be liable to fine. (2) Whoever, in any way, assists any unlawful activity of any association declared unlawful under Section 3, after the notification by which it has been so declared has become effective under sub‑section (3) of that section, shall be punishable with imprisonment for a term which may extend to five years, or with fine, or with both. (3) Nothing in this section shall apply to any treaty, agreement or convention entered into between the Government of India and the Government of any other country or to any negotiations therefor carried on by any person authorised in this behalf by the Government of India. 15. Terrorist act – (1) Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security, economic security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country, (a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological, radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause (i) death of, or injuries to, any person or persons; or (ii) loss of, or damage to, or destruction of, property; or (iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or (iiia) damage to the monetary stability of India by way of production or smuggling or circulation of high‑quality counterfeit Indian paper currency, coin or any other material; or (iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or (b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or (c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or an international or intergovernmental organisation or any other person to do or abstain from doing any act; or (d) commits a terrorist act. (Explanation: ‘public functionary’ means the constitutional authorities or any other functionary notified in the Official Gazette by the Central Government as public functionary; ‘high‑quality counterfeit Indian currency’ means the counterfeit currency as may be declared after examination by an authorised or notified forensic authority that such currency imitates or compromises the key security features as specified in the Third Schedule.) (2) The terrorist act includes an act which constitutes an offence within the scope of, and as defined in any of the treaties specified in the Second Schedule., 16. Punishment for terrorist act – (1) Whoever commits a terrorist act shall, (a) if such act has resulted in the death of any person, be punishable with death or imprisonment for life, and shall also be liable to fine; (b) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine. 17. Punishment for raising funds for terrorist act – Whoever, in India or in a foreign country, directly or indirectly, raises or provides funds or collects funds, whether from a legitimate or illegitimate source, from any person or persons or attempts to provide to, or raises or collects funds for any person or persons, knowing that such funds are likely to be used, in full or in part, by such person or persons or by a terrorist organisation or by a terrorist gang or by an individual terrorist to commit a terrorist act, notwithstanding whether such funds were actually used or not for commission of such act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine. (Explanation: (a) participating, organising or directing in any of the acts stated therein shall constitute an offence; (b) raising funds shall include raising or collecting or providing funds through production or smuggling or circulation of high‑quality counterfeit Indian currency; and (c) raising or collecting or providing funds, in any manner for the benefit of, or to an individual terrorist, terrorist gang or terrorist organisation for a purpose not specifically covered under Section 15 shall also be construed as an offence.) 18. Punishment for conspiracy, etc. – Whoever conspires or attempts to commit, or advocates, abets, advises or incites, directs or knowingly facilitates the commission of, a terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine. 18A. Punishment for organising terrorist camps.
id_183	1	Whoever organises or causes to be organised any camp or camps for imparting training in terrorism shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine. Punishment for recruiting any person for a terrorist act: Whoever recruits or causes to be recruited any person for commission of a terrorist act shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine. Punishment for being a member of a terrorist gang or organisation: Any person who is a member of a terrorist gang or a terrorist organisation involved in a terrorist act shall be punishable with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine. Offence relating to membership of a terrorist organisation: A person who associates himself, or professes to be associated, with a terrorist organisation with intention to further its activities commits an offence relating to membership of a terrorist organisation, provided that this sub‑section shall not apply where the person charged can prove that the organisation was not declared as a terrorist organisation at the time he became a member and that he has not taken part in the activities of the organisation during its inclusion in the First Schedule as a terrorist organisation. Such a person shall be punishable with imprisonment for a term not exceeding ten years, or with fine, or with both. Offence relating to support given to a terrorist organisation: A person who, with intention to further the activity of a terrorist organisation, (a) invites support for the terrorist organisation, or (b) arranges, manages or assists in arranging a meeting which he knows is to support or further the activity of the terrorist organisation, or (c) addresses a meeting for the purpose of encouraging support for the terrorist organisation, commits an offence and shall be punishable with imprisonment for a term not exceeding ten years, or with fine, or with both. Offence of raising funds for a terrorist organisation: A person who, with intention to further the activity of a terrorist organisation, (a) invites another person to provide money or other property for purposes of terrorism, (b) receives money or other property for purposes of terrorism, or (c) provides money or other property knowing it may be used for terrorism, commits an offence and shall be punishable with imprisonment for a term not exceeding fourteen years, or with fine, or with both. Modified application of certain provisions of the Code: Notwithstanding anything contained in the Code or any other law, every offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of clause (c) of section 2 of the Code of Criminal Procedure, and “cognizable case” shall be construed accordingly., Section 167 of the Code of Criminal Procedure shall apply in relation to a case involving an offence punishable under this Act subject to the modification that references to “fifteen days”, “ninety days” and “sixty days” shall be construed as references to “thirty days”, “ninety days” and “ninety days” respectively; and after the proviso, the following provisos shall be inserted: Provided further that if it is not possible to complete the investigation within the period of ninety days, the High Court may, if satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond ninety days, extend the period up to one hundred and eighty days. Provided also that if the police officer making the investigation under this Act requests police custody for a person already in judicial custody, he shall file an affidavit stating the reasons and explain any delay. Section 268 of the Code shall apply with the modification that references to “the State Government” shall be construed as references to “the Central Government or the State Government”. Nothing in section 438 of the Code shall apply to any case involving the arrest of a person accused of an offence punishable under this Act. Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity to be heard; provided that such accused shall not be released on bail if the High Court, on perusal of the case diary or the report under section 173 of the Code, is of the opinion that there are reasonable grounds for believing that the accusation is prima facie true. The restrictions on granting bail specified in the preceding subsection are in addition to the restrictions under the Code or any other law. Notwithstanding anything contained in the preceding subsections, no bail shall be granted to a person accused of an offence punishable under this Act if he is not an Indian citizen and has entered the country unauthorisedly or illegally, except in very exceptional circumstances and for reasons to be recorded in writing., The chargesheet dated 21 February 2019 alleges that the activity of the accused was not limited to creating antagonism between two sections but also involved destructive acts against the country. It states that accused Sudhir Dhawale, Rona Wilson, Surendra Gadling, Mahesh Raut and Shoma Sen had committed unlawful and terrorist acts in accordance with a pre‑planned plot by the banned organisation Communist Party of India (Maoist), a country‑wide conspiracy to overthrow the constitutionally established democracy and administrative system. The participation of accused Varavara Rao, Vernon Gonsalves, Arun Ferreira, Sudha Bharadwaj and others in the said conspiracy became clear, leading to searches of their residences and places from where evidence could possibly be obtained. It further alleges that Vernon Gonsalves, Arun Ferreira and Sudha Bharadwaj, along with other accused, recruited members for the banned terrorist organisation, were active members of the organisation and fulfilled its objectives by propaganda and dissemination through a frontal organisation., Vernon Gonsalves has been convicted and sentenced by the Honourable Court of Session, Nagpur in C.R. No. 10/2007 for offences under sections 10, 13, 16, 17, 18, 20, 23, 40(2) of the Unlawful Activities (Prevention) Act, section 25(1‑B) of the Arms Act, sections 6, 9(b) of the Explosives Act, sections 4(b), 5 of the Explosive Substances Act, and sections 120‑B, 121‑A of the Indian Penal Code. He has served the sentence, but unlawful activities as a member of a banned organisation have been alleged to continue. The investigation also revealed that the Indian Association of People’s Lawyers (IAPL) is a frontal organisation of the Communist Party of India (Maoist) and operates according to the organisation’s direction and economic backing. Accused Arun Ferreira, Sudha Bharadwaj and Surendra Gadling are members of this frontal organisation and have made conscious attempts to spread it, thereby endangering the stability of the country through various unlawful activities. The chargesheet states that accused numbers 01 to 04 and other accused are members of the banned terrorist organisation CPI (Maoist) and conduct all work related to the organisation in an underground manner. It further alleges that frontal organisations such as IAPL, Anuradha Ghandy Memorial Committee, Kabir Kala Manch and Persecuted Prisoners Solidarity Committee have been infiltrated systematically and, under their cover, work related to the terrorist organisation CPI (Maoist) is being accomplished in an extremely secret manner. The investigation concluded that the accused numbered 01 to 04 and others worked as part of a pre‑planned conspiracy devised by the banned organisation CPI (Maoist) to overthrow the democratic administrative system established under the Constitution. It further alleges that Varavara Rao, Rona Wilson and Surendra Gadling, together with the Polit Bureau and Central Committee of the banned organisation, hatched a criminal conspiracy and obtained the participation of Vernon Gonsalves, Arun Ferreira and Sudha Bharadwaj as active members. Seized hard disks, pendrives, memory cards and mobiles from the houses of Varavara Rao, Surendra Gadling and Rona Wilson contained correspondence, papers, photographs and other material related to the banned CPI (Maoist) organisation, indicating attempts to implement its goals, policies and objectives through frontal organisations in urban areas., The first protected witness, who had been associated with the Maoist movement, claimed to have met Varavara Rao in 2002 and described a timeline from 2002 to 2007, stating that at that time Varavara Rao and Arun Ferreira were members of the Maharashtra State Committee of the Communist Party of India (Maoist). This statement was recorded on 27 January 2019 by an Assistant Commissioner of Pune Police. The same witness made another statement on 27 July 2020, referring to Arun Ferreira’s participation in a seminar of the Revolutionary Democratic Front in Hyderabad in 2012 and Varavara Rao’s participation in September 2017 in an organisation referred to as Virasam. These statements were also recorded before a Magistrate under Section 164 of the Code of Criminal Procedure on 28 July 2020. Another witness, Kumarsai, who was associated with the same organisation, gave statements on 2 November 2018 and 23 December 2018, stating that he had never personally seen Varavara Rao but that Varavara Rao was working to unite intellectuals, and that Arun Ferreira was intruding into student organisations and creating cadres sent to forests, meeting him in the 2003‑2007 phase. A third witness, Sudarshan Satyadeo Ramteke, referred to another Arun (Arun Bhelke) whom he had met while working for an organisation in Chandrapur, declared himself a party associate, and claimed to have been introduced to Arun Ferreira by another person. He alleged that Arun Ferreira, Milind Teltumbde and Anil Nagpure had asked him to work with the said organisation., The prosecution referred to several letters alleged to have been recovered from the computers or other devices of co‑accused persons, in which the activities of the two appellants were mentioned. The first document is an undated letter addressed to Surendra from an unnamed sender (Annexure R‑6), claimed to have been recovered from a co‑accused’s computer, referring to a Radical Student Union initiative by Arun Ferreira and Varavara Rao and requesting the addressee to ask Arun to manage finances for the legal defence of one Murgan, with reference to two other individuals inspired by Arun’s struggles. The second document is a letter dated 18 April 2017 (Annexure R‑10) addressed to Comrade Prakash, claimed to have been written by Rona Wilson, stating that the two appellants and others were equally concerned about a two‑line struggle taking shape on the urban front. The third document is a letter dated 25 September 2017 (Annexure R‑12) written by Comrade Prakash and recovered from Surendra Gadling’s computer, appreciating the activities of Vernon Gonsalves and Arun Ferreira in motivating research scholars to join the revolutionary movement, and noting that Comrade G was asked to arrange a meeting to meet Vernon. An undated letter (Annexure R‑4) addressed to Surendra by Darsu refers to organising a joint meeting by the addressee and Arun in Hyderabad. Another letter dated 5 November 2017 (Annexure R‑5) from Surendra to Prakash discusses establishing the Indian Association of People’s Lawyers in Kerala and records a proposed visit to Kerala on International Human Rights Day by Arun Ferreira. A further communication dated 16 July 2017 (Annexure R‑7) from Prakash to Surendra records a proposed visit of Arun to Chennai in connection with the release of a detained party member and raising funds for legal defence, also appreciating the work of Arun and Varavara Rao. Annexure R‑22 is a letter written by Sudha Bharadwaj to Prakash concerning a seminar titled “Udta Loktantra” against the Unlawful Activities (Prevention) Act, in which Arun was to participate. Annexure R‑14 is a letter from Anantwa to Comrade Monibai relating to the celebration of the 50th anniversary of the Great Proletarian Revolution and Naxalite organisation in Mumbai, recording that the party had sent revolutionary greetings to various associations, including the appellant Arun. An account statement alleged to have been recovered from the laptop of Rona Wilson (Annexure R‑3) is reproduced as follows: “Surendra = R = 2.5L from Milind Shoma & Sudhir = R and D = 1L from Surendra Amit B = R = 1.5 for CPDR canvassing And T = R = 90T from Surendra (Through Milind) Myself = R = 1.8L from Com Manoj Arun = R = 2L from Com Darsu.”, The High Court, in dealing with both appeals, opined that the investigating agency possessed materials which prima facie showed that the applicants were part of a larger conspiracy attracting offences under sections 121‑A, 117 and 120‑B of the Indian Penal Code as well as section 18 of the Unlawful Activities (Prevention) Act. The High Court invoked the allegations of recruiting cadres for the banned organisation to import the provisions of section 18B of the Unlawful Activities (Prevention) Act and further invoked section 20 on the ground that the appellants had been active members of the banned organisation. It also held that sections 38 and 39 of the Unlawful Activities (Prevention) Act were attracted against the appellants and found sufficient material in the chargesheet to believe that the accusation of commission of offences punishable under Chapters IV and VI of the Act was prima facie true. The NIA referred to a set of letters recovered from electronic devices of co‑accused persons and to literature, pamphlets and other materials allegedly recovered from the residences of the appellants. Copies of these letters have been annexed to the NIA’s counter‑affidavits. The High Court, however, did not consider the factor of the appellants’ continued detention; its judgment was delivered on 15 October 2019 when the appellants had been in detention for a little over one year. The prosecution’s case includes sections 16, 17, 18, 18B, 20, 38, 39 and 40 of the Unlawful Activities (Prevention) Act, as well as section 13 of the Act and certain offences under the Indian Penal Code. Section 16 prescribes punishment for committing a terrorist act, defined in section 15 of the Act. The material referred to by the prosecution does not attribute any act specified in sub‑clause (a) or (c) of section 15(1) to the appellants, nor does it establish that they overawed any public functionary by criminal force as required by sub‑clause (b). Mere possession of literature that may propagate violent activities does not ipso facto attract the provisions of section 15(1)(b). Regarding section 17, which deals with punishment for raising funds for terrorist acts, the funds attributed to Arun Ferreira cannot be connected to any terrorist act. The Bombay High Court, in the case of Dr. Anand Teltumbde, examined a similar account statement and held that the allegation could not be linked to terrorist activity and that the document was unsigned and recovered from a co‑accused’s laptop, therefore it could not be presumed that the appellant received the funds. The prosecution also presented a request to Surendra to ask Arun Ferreira to manage financial expenses of the cases, and an unnamed person’s reference to another Arun, surname Bhelke, appears in Annexure R‑19 to the NIA’s counter‑affidavit in Arun Ferreira’s case.
id_183	2	In absence of any form of corroboration at the prima facie stage it cannot be presumed that it was the same Arun (that is, Arun Ferreira) who had received money from Darsu. The prosecution has also not produced any material to show that actual money was transmitted. The communication dated 5th November 2017 (R‑5), purportedly addressed by Surendra to Prakash does not speak of any payment being made to Arun Ferreira. The rationale applied by the Bombay High Court in the above‑quoted passage of the judgment in the case of Dr. Anand Teltumbde, which has been sustained by the Supreme Court of India, ought to apply in the case of Arun Ferreira as well., We have already observed that it is not possible for us to form an opinion that there are reasonable grounds for believing that the accusation against the appellant of committing or conspiring to commit a terrorist act is prima facie true. The witness statements do not refer to any terrorist act alleged to have been committed by the appellants. The copies of the letters in which the appellants or any one of them have been referred record only third‑party response or reaction to the appellants’ activities contained in communications among different individuals. These have not been recovered from the appellants. Hence, these communications or their content have weak probative value. That being the position, neither the provisions of Section 18 nor Section 18B can be invoked against the appellants, prima facie, at this stage. The association of the appellants with the activities of the designated terrorist organisation is sought to be established through third‑party communications. Moreover, actual involvement of the appellants in any terrorist act has not surfaced from any of these communications. Nor is there any credible case of conspiracy to commit offences enumerated under Chapters IV and VI of the Terrorist and Disruptive Activities (Prevention) Act, 1967. Mere participation in seminars by itself cannot constitute an offence under the bail‑restricting sections of the 1967 Act, with which they have been charged., So far as the application of Section 20 of the 1967 Act is concerned, the Bombay High Court in the case of Dr. Anand Teltumbde construed the provision in the following manner: Section 20 cannot be interpreted to mean that merely being a member of a terrorist gang would entail such a member for the above punishment. What is important is the terrorist act and the material before the Supreme Court of India must show that such a person has been involved in or has indulged in a terrorist act. Terrorist act is very widely defined under Section 15. In the present case, seizure of the incriminating material as alluded to hereinabove does not in any manner prima facie lead to an inference that the appellant has committed or indulged in a terrorist act as contemplated under Section 15., This judgment has not been interfered with by the Supreme Court of India and we also affirm this interpretation given to Section 20 of the 1967 Act for testing who would be a member of a terrorist gang or terrorist organisation. Moreover, no material has been demonstrated by the National Investigation Agency before us that the appellants are members of the terrorist organisation. Arun Ferreira’s involvement with IAPL as a frontal organisation of the Communist Party of India (Maoist) is sought to be established, and that has been referred to in the chargesheet as well. But the link between IAPL and the Communist Party of India (Maoist) has not been clearly demonstrated through any material. Reference to Arun Ferreira and Vernon Gonsalves as members of the Communist Party of India (Maoist) appears from the statement of a protected witness, but that link is made in relation to events between the years 2002‑2007, before the organisation was included in the First Schedule to the 1967 Act. No evidence of continued membership after the party was classified as a terrorist organisation has been brought to our notice. Nor is there any reliable evidence to link IAPL with the Communist Party of India (Maoist) as its frontal organisation. We have already dealt with the position of the appellants vis‑à‑vis terrorist acts in earlier paragraphs of this judgment and we prima facie do not think that Section 20 can be made applicable against the appellants at this stage of the proceeding, on the basis of available materials., Terrorist act as defined under Section 2(k) of the 1967 Act carries the meaning assigned to it in Section 15. This section also stipulates that the expressions ‘terrorism’ and ‘terrorist’ shall be construed accordingly. This implies construction of these two expressions in the same way as has been done in Section 15. ‘Terrorist organisation’ has been independently defined in Section 2(m) to mean an organisation listed in the First Schedule or an organisation operating under the same name as an organisation so listed. But as far as the word ‘terrorist’ is concerned, the interpretation thereof would be relatable to the same expression as used in Section 15. It is a basic rule of statutory construction that an expression used in different parts of a statute shall ordinarily convey the same meaning unless a contrary intention appears from different parts of the same enactment. We do not find any such contrary intention in the 1967 Act., Section 38 of the 1967 Act carries the heading ‘offence relating to membership of a terrorist organisation’. As we have already observed, a terrorist act would have to be construed having regard to the meaning assigned to it in Section 15 thereof. We have given our interpretation to this provision earlier. ‘Terrorist organisation’ as employed in Section 2(m) is, in our opinion, not a mere nomenclature; it means an organisation that carries on or indulges in terrorist acts, as defined in Section 15. The term ‘terrorism’, in view of the provisions of Section 2(k), ought to be interpreted in tandem with what is meant by ‘terrorist act’ in Section 15., In this context, to bring the appellants within the fold of Section 38 of the 1967 Act, the prosecution ought to have prima facie established their association with the intention to further the organisation’s terrorist activities. Only when such intention to further the terrorist activities is established prima facie could the appellants be brought within the scope of the offence relating to membership of a terrorist organisation. It would not be sufficient to demonstrate that one is an associate or someone who professes to be associated with a terrorist organisation; there must be intention to further the activities of such organisation on the part of the person implicated. The same line of reasoning that applies to membership of a terrorist organisation under Section 20 must also apply to an alleged offender implicated in Section 38. There must be evidence of intention to be involved in a terrorist act. At this stage there is no such evidence before us on which we can rely., In three decisions of the Supreme Court of India—Hitendra Vishnu Thakur and Others v. State of Maharashtra and Others [(1994) 4 SCC 602], Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya and Others [(1990) 4 SCC 76] and Usmanbhai Dawoodbhai Memon and Others v. State of Gujarat [(1988) 2 SCC 271]—the manner in which stringent provisions of a statute ought to be interpreted has been laid down. In all three authorities, the Court has observed that the Court ought to carefully examine every case before making an assessment of whether the Act would apply. When statutes contain stringent provisions, the duty of the Court is more onerous. The graver the offence, the greater should be the care taken to see that the offence falls within the four corners of the Act. Though these judgments were delivered while testing similar rigorous provisions under the Terrorist and Disruptive Activities (Prevention) Act, 1987, the same principle applies to the 1967 Act., In the case of Zahoor Ahmad Shah Watali, it has been held that the expression ‘prima facie true’ means that the materials or evidence collated by the investigating agency in reference to the accusation against the accused must prevail unless overcome or disproved by other evidence, and on its face the materials must show complicity of the accused in the commission of the stated offences. This ratio contemplates that, on its face, the accusation against the accused ought to prevail. In our opinion, however, it would not satisfy the prima facie test unless there is at least a surface analysis of the probative value of the evidence at the stage of examining the question of granting bail and the quality or probative value satisfies the Court of its worth. In the case of the appellants, the contents of the letters through which the appellants are sought to be implicated are in the nature of hearsay evidence recovered from co‑accused. Moreover, no covert or overt terrorist act has been attributed to the appellants in these letters or any other material forming part of the records of these two appeals. Reference to the activities of the accused is in the nature of ideological propagation and allegations of recruitment. No evidence of any persons who are alleged to have been recruited or to have joined this struggle inspired by the appellants has been brought before us. Thus, we are unable to accept the National Investigation Agency’s contention that the appellants have committed the offence relating to support given to a terrorist organisation., The second set of materials includes the witness statements. There is also no covert or overt act of terrorism attributed to the appellants by the three witnesses. We have dealt with the summary of their statements earlier in this judgment. We have also observed earlier that mere possession of literature, even if the content inspires or propagates violence, by itself cannot constitute any of the offences within Chapters IV and VI of the 1967 Act., We have already analysed Sections 38 and 39 of the 1967 Act. The interpretation given by us to the phrase ‘intention to further activities of a terrorist organisation’ could also apply in the same way to Section 39 of the same statute. There has been no credible evidence against the appellants of commission of any terrorist act or entry into conspiracy to do so to invoke the provisions of Section 43D(5) of the 1967 Act., As far as raising funds for a terrorist organisation is concerned, we do not think that, at this stage, in the absence of better evidence, the account statement is credible enough to justify invoking the bail‑restricting clause by attracting Section 40 of the 1967 Act., We are returning these findings as the restrictions on the Supreme Court of India while examining the question of bail under the 1967 Act are less stringent in comparison to the provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985. We are not called upon, for granting bail to an accused with a commercial quantity of contraband article under the 1985 Act, to satisfy ourselves that there are reasonable grounds for believing that an accused is not guilty of such offence and that he is not likely to commit any offence while on bail. Here, we have to satisfy ourselves that the specified offences alleged to have been committed by the appellants cannot be held to be prima facie true., We shall now turn to the other offence under the 1967 Act, which is under Section 13 thereof, and the offences under the Indian Penal Code, 1860. The yardstick for justifying the appellants’ plea for bail is lighter in this context. The appellants have been in detention for almost five years. In the cases of K.A. Najeeb and Angela Harish Sontakke, delay of trial was considered a relevant factor while examining the plea for bail of the accused. In the case of K.A. Najeeb, in particular, Section 43D(5) was involved., In those proceedings, the appellants have not, as under‑trials, crossed a substantial term of the sentence that may have been ultimately imposed against them if the prosecution could establish the charges. The fundamental proposition of law laid down in K.A. Najeeb, that a bail‑restricting clause cannot denude the jurisdiction of a constitutional court in testing whether continued detention would breach the concept of liberty enshrined in Article 21 of the Constitution of India, would apply in a case where such a bail‑restricting clause is being invoked on the basis of materials with prima facie low‑probative value or quality., In the case of Zahoor Ahmad Shah Watali, reference was made to the judgment of Jayendra Saraswathi Swamigal v. State of Tamil Nadu [(2005) 2 SCC 13], which, citing two earlier decisions of this Court in State v. Jagjit Singh (AIR 1962 SC 253) and Gurcharan Singh v. State of (UT of Delhi) [(1978) 1 SCC 118], discussed the factors for granting bail under normal circumstances. It was held that the nature and seriousness of the offences, the character of the evidence, circumstances peculiar to the accused, a reasonable possibility of the accused not being secured at trial, reasonable apprehension of witnesses being tampered with, and the larger interest of the public or the State would be relevant factors for granting or rejecting bail. Juxtaposing the appellants’ case founded on Articles 14 and 21 of the Constitution of India with the aforesaid allegations and considering that almost five years have lapsed since they were taken into custody, we are satisfied that the appellants have made out a case for granting bail. Allegations against them are serious, but for that reason alone bail cannot be denied. While dealing with the offences under Chapters IV and VI of the 1967 Act, we have referred to the materials available against them at this stage. These materials cannot justify continued detention of the appellants, pending the final outcome of the case under the other provisions of the 1860 Code and the 1967 Act., While forming our opinion on granting bail to the appellants, we have taken into account the fact that Vernon Gonsalves was earlier convicted involving offences, inter‑alia, under the 1967 Act and there is also a pending criminal case against him on allegations of a similar line of activities. Hence, we propose to impose appropriate conditions in respect of both, which they shall have to comply with while on bail. Accordingly, the appellants are released on bail in respect of the cases out of which the present appeals arise, on such terms and conditions the Special Court may consider fit and proper, if the appellants or any one of them are not wanted in respect of any other case. The conditions to be imposed by the Special Court shall include: (a) Vernon Gonsalves, appellant in Criminal Appeal No. 639 of 2023, and Arun Ferreira, appellant in Criminal Appeal No. 640 of 2023, upon being released on bail shall not leave the State of Maharashtra without obtaining permission from the Trial Court; (b) both appellants shall surrender their passports, if they possess any, during the period they remain on bail to the Investigating Officer of the National Investigation Agency; (c) both appellants shall inform the Investigating Officer of the National Investigation Agency of the addresses at which they shall reside; (d) both appellants shall use only one mobile phone each during the period they remain on bail and shall inform the Investigating Officer of the National Investigation Agency of their respective mobile numbers; (e) both appellants shall ensure that their mobile phones remain active and charged round the clock so that they remain constantly accessible throughout the period they remain on bail; (f) during this period, the location status of their mobile phones shall remain active 24 hours a day and their phones shall be paired with that of the Investigating Officer of the National Investigation Agency to enable him, at any given time, to identify the appellants’ exact location; (g) both appellants shall report to the Station House Officer of the police station within whose jurisdiction they shall reside while on bail once a week., In the event of breach of any of these conditions, or any of the conditions to be imposed by the Trial Court independently, it would be open to the prosecution to seek cancellation of the bail of each or any of the defaulting appellants without any further reference to the Supreme Court of India. Similarly, if the appellants seek to threaten or otherwise influence any of the witnesses, whether directly or indirectly, the prosecution shall be at liberty to seek cancellation of bail of the concerned appellant by making an appropriate application before the Trial Court., The appeals stand allowed in the above terms., Pending applications, if any, shall stand disposed of., For the appellant(s) the counsel were Rebecca John, Senior Advocate; Jawahar Raja, Advocate; Chinmay Kanojia, Advocate; Archit Krishna, Advocate; Vishnu P, Advocate; Varsha Sharma, Advocate. For the respondent(s) the counsel were Anand Dilip Landge, Advocate; Siddharth Dharmadhikari, Advocate; Aaditya Aniruddha Pande, AOR; Bharat Bagla, Advocate; Sourav Singh, Advocate; Aditya Krishna, Advocate; Tushar Mehta, Solicitor General; Sharath Nambiar, Advocate; Nakul Chnegappa K.K., Advocate; Vatsal Joshi, Advocate; Indra Bhakar, Advocate; Vinayak Sharma, Advocate; Anuj Srinivas Udupa, Advocate; Chitransh Sharma, Advocate; Kanu Agarwal, Advocate; Swati Ghildiyal, Advocate; Deepabali Dutta, Advocate; Sairica S Raju, Advocate; Sabarish Subramanyam, Advocate; Arvind Kumar Sharma, AOR., The Hon’ble Mr. Justice Aniruddha Bose, together with the Hon’ble Mr. Justice Sudhanshu Dhulia, pronounced the judgment of the bench. The appeals stand allowed; the impugned judgments are set aside and the appellants are released on bail in respect of the cases out of which the present appeals arise, in terms of the signed reportable judgment. Pending applications, if any, shall stand disposed of.
id_1830	0	Criminal Revision Jurisdiction. Present: Hon'ble Mr. Justice Subhendu Samanta. Case No. 2018 C.R.R. 1858 of 2018. Mrs. Nandita Sarkar, Tilak Sarkar & Ors. for the petitioner: Subir Banerjee, Sandip Bandyopadhyay, Advocate, Ms. Ruxmini Basu Roy. For the opposite party: Mr. Manjit Singh, Advocate, Mr. Abhisekh Bagal, Advocate, Mr. Biswajit Mal, Advocate. Judgment delivered by Justice Subhendu Samanta., This is an application under section 482 read with section 401 of the Code of Criminal Procedure, 1973, preferred against a judgment and order dated 07 April 2018 passed by the Learned Additional Sessions Judge, First Trial Court, Howrah, in criminal appeal No. 111 of 2015 and 116 of 2015, thereby setting aside the judgment and order of awarding monetary relief including compensation and other reliefs to the petitioner by the order dated July 2015 passed by the Learned Judicial Magistrate, 4th Court, Howrah, in Miscellaneous case No. 269 of 2012 under section 12 read with sections 18, 20, 22, 23 of the Protection of Women from Domestic Violence Act, 2005 (PWDVA)., The present petitioner is the widowed daughter‑in‑law of the opposite parties numbered 1 and 2. The petitioner filed an application under section 12 read with sections 18, 20, 22, 23 of the Protection of Women from Domestic Violence Act, 2005 against the opposite parties before the Learned Jurisdictional Magistrate. The Magistrate awarded monetary relief including compensation in favour of the petitioner. The opposite parties preferred an appeal before the Learned Sessions Judge for setting aside the award; the petitioner also preferred another appeal before the Sessions Judge against the same order for inadequate monetary relief. The Learned Additional Sessions Judge, First Trial Court, Howrah, heard both appeals and passed a common judgment thereby setting aside the magistrate's judgment for monetary relief towards the petitioner. The appeal preferred by the opposite party was allowed and the appeal preferred by the petitioner was rejected. Hence, both criminal revision applications were preferred by the petitioner against the order of the Additional Sessions Judge, First Trial Court, Howrah. The appeals were disposed of by separate judgments; however this High Court is disposing of both instant criminal revision applications by this common judgment., It is the case of the petitioner that her marriage with the deceased Saugata Sarkar, son of opposite parties 1 and 2, was solemnised on 10 May 2009 under the Special Marriage Act, 1954. After the marriage the petitioner resided at the house of opposite parties 1 and 2 along with her husband and in‑laws. All ornaments and other valuable articles gifted by the petitioner’s parents and relatives, as well as other gifted items, were kept at the in‑laws’ house under the custody of the opposite parties., The petitioner alleges that a few days after marriage she found her husband physically unfit and addicted to alcohol and other bad habits. Despite her best efforts to restrain him, the husband died on 29 October 2010., The opposite parties 1 and 2, together with other in‑laws, blamed the petitioner for the death of her husband. On the next day, the petitioner was forced to leave her matrimonial home, keeping all valuable articles and ornaments in the custody of the opposite parties. The petitioner’s parents were forced to sign receipts and blank papers on the same day when she was forced to leave her matrimonial home. All her stridhan articles, including household goods and ornaments, remained in the custody of the opposite parties, who did not return them despite demands. Consequently, the petitioner stayed with her father at Shrinath Bose Lane, Howrah., The petitioner wrote several letters requesting the opposite parties to return the stridhan articles, but they did not comply and also failed to hand over a copy of her husband’s death certificate despite several requests. The petitioner lodged a general diary entry with Bagnan Police Station., The petitioner has no sufficient means to maintain herself and is completely dependent on well‑wishers and family friends. When the opposite parties did not return the stridhan articles, the petitioner was compelled to file a criminal case under section 406 of the Indian Penal Code. By virtue of the magistrate’s order, some articles were recovered from the house of opposite parties 1 and 2., Opposite party No. 1, the father‑in‑law, is a one‑eyed man and an employee of UCO Bank. He owns two houses, one two‑storied and another three‑storied, and has other sources of income from which he receives substantial monthly income., The petitioner filed an application before the Jurisdictional Magistrate under section 12 read with sections of the Protection of Women from Domestic Violence Act, 2005 against the opposite parties for monetary relief of Rs 15,000 per month and a direction to return all stridhan articles, and in default to pay a sum of Rs 4,00,000 as damages or compensation for causing domestic violence. An application for interim monetary relief and interim residence under section 23 of the Act was also filed, but the prayer for interim relief was turned down, leading to a criminal appeal before the Learned District Judge, which was dismissed by the Learned Additional District Judge, First Trial Court, confirming the magistrate’s order. Aggrieved, the petitioner preferred Criminal Revision No. 2846 of 2013 before this High Court., A coordinate bench of this High Court disposed of the criminal revision with a direction that the widowed daughter‑in‑law is entitled to maintenance from her father‑in‑law provided the contingencies enumerated in the Hindu Adoption and Maintenance Act, 1956 are satisfied., The petitioner later preferred an application for amendment of the original application, which was allowed by the Learned Magistrate. After conclusion of the hearing, the Learned Magistrate partially allowed the petition, directing respondent No. 1 to pay monthly monetary relief of Rs 10,000 per month from the date of the order, with a further direction to pay a sum as compensation for mental torture and emotional distress., Opposite parties 1 and 2 preferred Criminal Appeal No. 111 of 2015 for setting aside the award, and the petitioner filed Criminal Appeal No. 116 of 2015 on the ground of inadequacy. The First Appellate Court initially dismissed Appeal No. 111 of 2015 and allowed Appeal No. 116 of 2015 by reducing the compensation from Rs 2,00,000 to Rs 1,50,000. Two revisions, No. C‑2516 of 2017 and C‑17, were preferred before this High Court. A coordinate bench heard the revisions and set aside the First Appellate Court’s orders, remanding the matters with specific directions. On remand, the Additional Sessions Judge, First Trial Court, set aside the magistrate’s order and allowed Criminal Appeal No. 111 of 2015 while dismissing Criminal Appeal No. 116 of 2015., The petitioner submits that her marriage was solemnised on 10 May 2009 and her husband died on 29 October 2010. She left her matrimonial home on 30 October 2010 because the opposite parties and other in‑laws accused her of being responsible for her husband’s death. She is now residing with her father, has no sufficient means to maintain herself, and has received no material relief from the opposite parties., The petitioner contends that the impugned order passed by the lower court is illegal and cannot be sustained. She argues that the Learned First Appellate Court’s observations are baseless, that the court overlooked sufficient evidence, and that the observation that a widowed daughter‑in‑law is not entitled to monetary relief from her father‑in‑law is contrary to the Apex Court decision in Satish Chandra Ahuja v. Sneha Ahuja, which holds that parents‑in‑law can be respondents under the PWDVA and a daughter‑in‑law is entitled to monetary relief from her parents‑in‑law., The petitioner further argues that there is no limitation for filing an application under the PWDVA, citing Kamatchi v. Lakshminaraynan, and that the retention of her stridhan by the opposite parties constitutes a continuing offence, as observed in Krishna Bhattacharya v. Sarathi Chowdhury. She maintains that she has proved she has no personal earnings and the opposite parties failed to prove any income, entitling her to monetary relief under the PWDVA., The opposite parties submit written arguments stating that the Learned Appellate Court correctly held that domestic violence was not proved, that the delay in filing the application under the DV Act was not satisfactorily explained, that the petitioner’s oral evidence of letters was not substantiated by documentary evidence, and that the father‑in‑law’s written declaration to the panchayat was voluntary. They contend that there is no proof the petitioner was deprived of her articles, and that the petitioner left her matrimonial home of her own accord., They further argue that the petitioner did not produce any letters, that no local witnesses were examined, and that the allegation of denial of the death certificate is inconsequential. They maintain that the findings of the Learned Appellate Court are supported by the evidence and should not be interfered with., The opposite parties rely on decisions of the Supreme Court in State of Maharashtra v. Jagmahan Singh, Kuldeep Singh Anand, and on Bombay High Court judgments, asserting that a High Court exercising criminal revisional jurisdiction may only examine whether the impugned judgment suffers from illegality or material impropriety, and not re‑examine factual findings. They cite Section 397, 401, and 410 of the Code of Criminal Procedure, emphasizing that revisional powers are limited to questions of law and material irregularity., The Learned Appellate Court concluded that the petitioner failed to prove domestic violence, either by being driven out of her matrimonial home or by deprivation of her stridhan, and that the petitioner’s application under section 12 of the PWDVA was filed in delay without satisfactory explanation. Consequently, the petitioner's prayer for monetary relief was turned down on three grounds: delay in filing, inability to claim relief from the private opposite party who is her father‑in‑law, and failure to prove domestic violence.
id_1830	1	Decision on Point No. 1. Learned Advocate for the opposite party submitted that the application under section 12 of the Protection of Women from Domestic Violence Act was filed by the petitioner after two years from the alleged date when she left her matrimonial home. He further argued that the petition does not disclose the cause of delay for preferring the application in such belated stage and that the Appellate Court is justified in finding that the petitioner has failed to address the court regarding any ground for which the petition was filed in such belated stage. Learned Advocate for the petitioner submitted before this court that the petitioner was driven out from her matrimonial home and thereafter she was residing at her father's home at the mercy of her father. She tried to contact the opposite parties several times but all the times her effort was frustrated. He again argued that there is no bar or limitation to file the application under section 12 of the Protection of Women from Domestic Violence Act. In support of his submission he cited a decision passed by the Supreme Court of India in Criminal Appeal No. 627 of 2022 (Kamachi vs Lakhsminrayanan) paragraph 15 of the said judgment read as follows: “Let us now consider the applicability of these principles to cases under the Act provisions of the contemplate filing of an application under Section 12 to initiate the proceedings before the concerned Magistrate. After hearing both sides and after taking into account the material on record, the Magistrate may pass an appropriate order under Section 12 of the Act. It is only the breach of such order which constitutes an offence as is clear from Section 31 of the Act. Thus, if there be any offence committed in terms of the provisions of the Act, the limitation prescribed under Section 468 of the Code will apply from the date of commission of such offence. By the time an application is preferred under Section 12 of the Act, there is no offence committed in terms of the provisions of the Act and as such there would never be a starting point for limitation from the date of application under Section 12 of the Act. Such a starting point for limitation would arise only and only after there is a breach of an order passed under Section 12 of the Act.” After going through the judgment of the Supreme Court of India (Kamachi supra) I am of a clear view that there is no limitation to file the application under section 12 of the Domestic Violence Act. The application filed by the present petitioner before the learned Magistrate is not barred by limitation. The finding of the Appellate Court regarding the fact that the application was filed in belated stage appears to me not a good one., Decision on Point No. 2. A long discussion was made in the impugned judgment by the Appellate Court regarding the fact that a widowed daughter-in-law is not entitled to have any relief against her father-in-law under the provisions of the Protection of Women from Domestic Violence Act. The learned Appellate Court is also of the view that it is not codified in the Protection of Women from Domestic Violence Act itself that the father-in-law can be compelled to pay maintenance to her widowed daughter-in-law. The widowed daughter-in-law may have any relief or claim over the notional income of her deceased husband but not beyond that. The learned Court is also of specific view that the father-in-law is not primarily liable to pay compensation to his widowed daughter-in-law. Learned Advocate for the opposite party submitted before this court that the daughter-in-law is not entitled to have any maintenance by her father-in-law under the provisions of the Protection of Women from Domestic Violence Act. He argued that Section 19 of the Hindu Adoption and Maintenance Act provides that a Hindu widow is entitled to maintenance by her father-in-law subject to the limitation and restrictions and conditions enumerated in the Hindu Adoption and Maintenance Act itself. The widowed wife has only right over the coparcenary property of her deceased husband. He also pointed out that during the proceeding of the instant matter of a coordinate bench of this Honorable High Court in Criminal Revision Report No. 2846 of 2013 vide its order dated 28 October 2014 held that the petitioner is required to establish all evidences and conditions laid down in Section 19 of the Hindu Adoption and Maintenance Act. Thus after such order being made the petitioner preferred amendment before the learned Trial Court to prove the conditions as directed by the Honorable Court. The petitioner has failed to prove any criterion as envisaged under the provisions of Section 19 of the Hindu Adoption and Maintenance Act. Thus the finding of the learned Trial Court is very much correct to hold that the petitioner being a widowed daughter-in-law is not entitled to maintenance from her father-in-law. Learned Advocate for the petitioner submitted before this court that the Protection of Women from Domestic Violence Act has a large scope. The neglected and destitute woman can claim maintenance under the Protection of Women from Domestic Violence Act from the respondents. The term “respondent” has been defined in the Protection of Women from Domestic Violence Act in a manner that the person having family relationship with the petitioner may be directed to pay maintenance under the Act. He further argued that irrespective of other provisions regarding claiming maintenance by the wife from her husband, the scope of the Protection of Women from Domestic Violence Act is very wide. He again argued that the widowed daughter-in-law i.e. the petitioner is very much entitled to maintenance by her father-in-law. The question was raised before the Supreme Court of India on several occasions and there were conflicting judgments. Finally, the Supreme Court of India vide its order of a three‑Judge Bench in Satish Chandra Ahuja vs Sneha Ahuja has clearly held that a daughter-in-law is entitled to have relief under the Protection of Women from Domestic Violence Act from her father-in-law. The learned Advocates perused the order passed by this Honorable High Court in Criminal Revision Report No. 2846 of 2013. A coordinate bench of this Court is of view in passing order of a criminal revision that the petitioner being the widowed daughter-in-law is entitled to have the maintenance by her father-in-law subject to the conditions being fulfilled and enumerated under the Hindu Adoption and Maintenance Act. I have also carefully perused the judgment by the Supreme Court of India passed in Satish Chandra Ahuja vs Sneha Ahuja; on perusing the entire judgment of the Supreme Court it appears to me that the three‑Judge Bench is of the view that the judgment passed by the Supreme Court in R. Batra vs Taruna Batra is not good law. The three‑Judge Bench is also categorically pointed out several other issues and is of clear view that the daughter-in-law is entitled to have the maintenance and any relief from her father-in-law. The facts and circumstances of Satish Chandra Ahuja’s case and its principle are very much applicable in this case. Thus after considering the entire circumstances and after considering the judgment of the Supreme Court three‑Judge Bench I am of the view the present petitioner being the widowed daughter-in-law is entitled to have maintenance and other relief from her father-in-law according to the provisions of the Protection of Women from Domestic Violence Act. The judgment of the Supreme Court in Satish Chandra Ahuja vs Sneha Ahuja has its overriding effect upon the finding of the coordinate bench of this Honorable High Court passed in Criminal Revision Report 2846 of 2013. In conclusion, the finding of the learned Appellate Court on point 2 as mentioned above is not legal or proper, and it is not acceptable., Decision on Point No. 3. Learned Appellate Court is of clear finding that the petitioner has failed to prove domestic violence against the opposite parties who are father-in-law and mother-in-law respectively. On that score the Appellate Court has pointed out that the oral evidence of the petitioner regarding her communication with the opposite parties to return stridhan articles was not substantiated in documentary evidence. The petitioner did not produce the so‑called advocate’s letters before the court and they were not exhibited in trial. Learned Appellate Court also held that PW‑2, the father of the petitioner, gave a declaration in writing to the Panchayat that he was voluntarily taking away the petitioner from her matrimonial home. The Appellate Court is also of the view that the petitioner has failed to prove that the opposite parties retained the stridhan articles and used the same for their own use and the petitioner also failed to establish that any physical or mental torture was inflicted upon her at her matrimonial home by the opposite parties. The only allegation of the petitioner against the opposite parties is written on the petition itself; it was not proved by adducing evidence. Thus the Appellate Court is of the view that the petitioner has failed to prove domestic violence. Learned Advocate for the opposite party supported the finding of the Appellate Court and argued that the fact of the petitioner being driven out of her matrimonial home or deprivation of her stridhan articles or any mental or physical torture was not proved by the petitioner. He argued that the finding of the Appellate Court is on the basis of the evidence on record. It was also not proved by the petitioner that her stridhan articles were disposed of by the opposite parties. The decision of the petitioner to leave her matrimonial home was voluntary; on that score the Appellate Court is of correct finding that the petitioner left her father‑in‑law and mother‑in‑law in great peril and sorrow when their only son died. He further pointed out that the Appellate Court below is of correct finding that the so‑called letters stated in the petition itself were not exhibited by the petitioner before the trial court. The petitioner left her matrimonial home on her own accord; thus the finding of the learned trial court is not illegal and there is no material irregularity. Learned Advocate for the petitioner submitted before this court that the learned trial court has committed error in deciding the matter. There are sufficient materials and evidence on record to prove the fact that the petitioner was physically and mentally tortured at her matrimonial home. He further argued that the case of the petitioner was proved before the learned trial court by adducing sufficient evidence but the Appellate Court did not enter into the evidences adduced by the petitioner before the learned trial court and came to an erroneous finding, so his finding is palpably illegal in the eye of law. Heard, the learned Advocates perused the materials on record. In deciding this point I refrain myself from looking into the evidence on record; I only perused the judgments and orders passed by the Appellate Court and by the trial court. The learned trial court in passing its judgment is of the view that the petitioner has proved domestic violence against the opposite parties; on the other hand the Appellate Court is of the view that the petitioner has failed to prove domestic violence against the opposite parties. The Appellate Court has disbelieved the fact of the petitioner on the basis of two points: (i) advocate’s letters dated 29 November 2010 and 17 January 2011 as stated in the petition of the Protection of Women from Domestic Violence Act were not placed before the learned trial court and were not exhibited; (ii) PW‑2, the father of the petitioner, stated before the trial court that he took the petitioner from her matrimonial home voluntarily and a written undertaking was given before the local Panchayat to that effect. The petitioner stated in a petition regarding the two advocate’s letters pertaining to her demand to return all her stridhan articles from the opposite parties and the two letters were not produced before the Magistrate. Non‑production of the letters before the Magistrate does not itself disapprove the entire facts of the case. Non‑production of the two letters may weaken the plea of the petitioner regarding her demand of stridhan articles from the opposite parties; but it is not a case that the stridhan articles of the petitioner were not lying under the custody of the opposite parties nor that the opposite parties ever voluntarily returned or tried to return the stridhan articles to the petitioner. The other circumstances of the case have to be looked into but the Appellate Court did not put any emphasis on looking into other parts of the evidence of the petitioner regarding the domestic violence. It was pleaded before the trial court that the petitioner was subjected to physical and mental torture at her matrimonial home which the petitioner stated before the trial court. Entire testimony of the petitioner was not considered by the Appellate Court; though it is reflected in the judgment of the trial court which was possibly not proved by the petitioner, it cannot itself disapprove the entire case of the petitioner. Secondly, if the statement of PW‑2 is to be considered true then also the fact which was pleaded by the petitioner regarding domestic violence cannot be construed to be false. The Appellate Court did not ever read the judgment of the trial court by observing that the judgment under challenge, a bulky affair spread over twenty‑two pages with only eight and a half of them being devoted to a lackluster effort at analysing the evidence, does not qualify as a happy reading material. The Appellate Court should have considered the entire material placed before it but it committed error in pointing only a few co‑related issues in the petitioner’s case which were not specifically proved. Domestic violence has been defined under section 3 of the Protection of Women from Domestic Violence Act. Domestic violence includes economic abuse. The deprivation of the petitioner of any economic or financial resources which the aggrieved person is entitled to under any law is also domestic violence. In this case it is the fact that the petitioner was deprived of her stridhan articles for a long time which were under the custody of the opposite parties. This fact tantamounts to domestic violence. The judgment of the trial court specifies the reason for which it allowed the prayer of domestic violence of the petitioner. I find no infirmity in the said finding of the learned trial court., The facts of this case are peculiar in nature. The widow left the matrimonial home on the next day of the death of her husband with an undertaking that she left voluntarily. This fact may have two explanations: first, the widow may have felt very alone in the absence of her husband and took shelter at her father’s home; second, there were no good terms with her in‑laws, that is the lady was not well at her matrimonial home. What prompted the opposite parties to obtain an undertaking at the time? It may be a supposition that the widow may proceed against them for their conduct during her living at the matrimonial home. Thus, the written undertaking by the father of the widow was obtained to avoid future complications or proposed prosecution. This conduct by the opposite parties strengthens the petitioner’s plea of domestic violence. Considering the circumstances and material and also considering the impugned order passed by the Appellate Court I am of the view that the Appellate Court has committed injustice in not considering the entire petitioner’s case before it. The Appellate Court has also not clearly observed why the observation of the learned trial court is not proper. Considering the same it appears that the finding of the Appellate Court regarding the fact that the petitioner has not proved domestic violence against the opposite parties is not correct. Learned Advocate for the opposite party also argued that the petitioner has failed to prove expenses incurred or loss suffered within the meaning of Section 20 of the Protection of Women from Domestic Violence Act. It is an admitted fact by both parties that the petitioner who is a widow has no independent income. She is now residing at her father’s home at the mercy of her father. The day‑by‑day expenses of livelihood of the petitioner are not a deniable factor. She is only to lay her hand on her father for meeting the daily expenses. Thus the circumstances incurred and loss suffered by the petitioner is itself proved from the facts and circumstances of this case. The argument advanced by the learned Advocate on behalf of the opposite party has no merit on that score. Ultimately, it is the irony of fate that instead of specific legislative intent, the widow lady is roaming the doors of courts for ten years without receiving any monetary relief. Before concluding my observation in this case it is proper to point out that the learned Advocate appearing on behalf of the opposite party has cited the decisions of the Bombay High Court as mentioned above but the facts and circumstances of this case are plainly different from the facts and circumstances of those decisions; therefore the principles enumerated in the above decisions are not applicable here. In 2014 ALLMR (Criminal) 2398 the monetary relief was given to the wife and the maintenance was short for the children; and in case of 2018 SCC Online Bombay 2807 an order of maintenance is there in another proceeding; thus, the prayer under the Protection of Women from Domestic Violence Act regarding monetary relief was not considered. After careful perusal of the observation of the Appellate Court it appears that the Appellate Court has observed regarding the scope of the Protection of Women from Domestic Violence Act which is actually derogatory as far as the purpose of enactment of the statute itself. In Satish Chandra Ahuja vs Sneha Ahuja (supra) the three‑Judge Bench of the Supreme Court of India has defined the scope and purpose of the Protection of Women from Domestic Violence Act very precisely in paragraphs 28 to 32 which read as follows: “28. Before we consider the questions as noted above, we need to notice the statutory scheme of the Protection of Women from Domestic Violence Act. 29. The progress of any society depends on its ability to protect and promote the rights of its women. Guaranteeing equal rights and privileges to women by the Constitution of India marked a step towards the transformation of the status of women in this country. 30. Domestic violence in this country is rampant and several women encounter violence in some form or the other almost every day; however, it is the least reported form of cruel behaviour. A woman resigns her fate to the never‑ending cycle of enduring violence and discrimination as a daughter, a sister, a wife, a mother, a partner or a single woman in her lifetime. This non‑retaliation by women coupled with the absence of laws addressing women’s issues, ignorance of the existing laws enacted for women and societal attitude makes women vulnerable. The reason why most cases of domestic violence are never reported is due to the social stigma of the society and the attitude of the women themselves, where women are expected to be subservient, not just to their male counterparts but also to the males’ relatives. 31. Till the year 2005, the remedies available to a victim of domestic violence were limited. Women either had to go to the civil court for a decree of divorce or initiate prosecution in the criminal court for the offence punishable under Section 498A of the Indian Penal Code. In both the proceedings, no emergency relief was available to the victim. Also, relationships outside the marriage were not recognized. This set of circumstances ensured that a majority of women preferred to suffer in silence, not out of choice but of compulsion. 32. The enactment of the Act in 2005 is a milestone for protection of women in this country. The statement of objects and reasons of the Protection of Women from Domestic Violence Bill, 2005 marks the objective which was sought to be achieved by the enactment.” Thus, after considering the facts and circumstances of this case and after going through the materials on record and after going through the judgments passed by the Supreme Court of India and the High Court I am of the view that the impugned order passed by the Appellate Court suffered illegality. It is improper by the Appellate Court to hold otherwise to that of the scope of the Protection of Women from Domestic Violence Act. Thus, the instant criminal revision has merit and it is liable to be allowed. The instant criminal revision is therefore allowed and disposed of. The impugned order passed by the Appellate Court is hereby set aside. The order passed by the learned magistrate is hereby affirmed. Pending CRAN applications, if any, are disposed of. Any order of stay passed by this Court during the continuation of this criminal revision is also hereby vacated.
id_1831	0	CIS No. 930/2021 23.11.2021 Present: Shri Mohd. Irshad, Learned Counsel for complainant. Matter was listed for clarifications/orders on application under section 156(3) Criminal Procedure Code. No clarifications are required. Vide this order, I shall dispose of an application under section 156(3) Criminal Procedure Code moved on behalf of applicant seeking registration of FIR against proposed accused persons., The present complaint case along with application under section 156(3) Criminal Procedure Code is moved by complainant Ms. Atishi, Member of Legislative Assembly from Aam Aadmi Party against proposed accused Mr. Sambit Patra who is the official spokesperson of Bharatiya Janata Party. Learned counsel for complainant has stated that on 30.01.2021, proposed accused released and published a forged and fabricated video on his social networking site Twitter purporting to show that the Chief Minister of Delhi Shri Arvind Kejriwal is speaking in support of the Farm Laws (Farmers' Produce, Trade and Commerce (Promotion and Facilitation) Act, Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act and The Essential Commodities (Amendment) Act). It is alleged that the video was released from the official Twitter handle of proposed accused with the account name @sambitswaraj., It is further alleged that the impugned video was forged by taking videographic excerpts from an interview given by Mr. Kejriwal in the past and dubbing over it with distorted versions of statements of Mr. Kejriwal as well as using a mimicked version of his voice to make it appear as if the statements were being made by Mr. Kejriwal when in fact he had not made such statements in the interview. It is further alleged that the impugned video contains statements purportedly made by Mr. Kejriwal which are diametrically opposite to the stand taken by him and the Aam Aadmi Party in respect of the Farm Laws. It is further alleged that the impugned video has been fabricated with an intent of harming the reputation of Mr. Kejriwal and the Aam Aadmi Party and its leaders and members. It is further alleged that by circulation of the impugned video, the general public has been deceived to believe that Mr. Kejriwal and Aam Aadmi Party are supporting the farm laws and have been induced not to object to the same., It is further alleged that the publication of the impugned video has also caused discontent and dissatisfaction in the minds of farmers across the country who are protesting against the farm laws and will give them a provocation against Mr. Kejriwal and Aam Aadmi Party, which may also result in a rioting-like situation. It is also alleged that despite a complaint dated 02.02.2021 made to the Station House Officer, Police Station I.P. Estate and a complaint dated 04.02.2021 made to the Deputy Commissioner of Police, Darya Ganj, no action has been taken in the matter. With these submissions, prayer is made for registration of a case FIR against the proposed accused., Preliminary inquiry conducted by the police: In the Annual Technical Report filed by the police, it is stated that during the course of preliminary inquiry, the impugned video as well as the original video were sent to the Forensic Science Laboratory for analysis and as per the Forensic Science Laboratory result, no deletion was found in the video. However, the laboratory did not comment regarding any addition in the video. It is further stated in the report that the impugned video was indicated to be a replica of the original video which clears that it was not a mimicked version as alleged by the complainant. It is further reported that the proposed accused Mr. Sambit Patra has denied any addition or deletion in the video or mimicking or dubbing the same and has stated that the impugned video was already available in the public domain as it was tweeted by many persons prior to the tweet in question and that Twitter has already marked the video as manipulated media. The inquiry has been concluded stating that the impugned video comes in the category of manipulated media and there is no misrepresentation from the proposed accused in terms of size, duration or the facts and that the proposed accused was not the originator of the impugned video as it was already available in the public domain; therefore, no action has been taken on the complaint as it was stated to be a politically motivated complaint., The position of law with respect to section 156(3) Criminal Procedure Code and duty of police upon receiving information regarding commission of a cognizable offence: It has been held by the Honorable Supreme Court in Lallan Chaudhary v. State of Bihar AIR 2006 SC 3376 that the mandate of section 154 is manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station, such police officer has no other option but to register the case on the basis of such information. In Ramesh Kumari v. State (NCT of Delhi) and Ors., AIR 2006 SC 1322 it was held that genuineness or credibility of the information is not considered to be a condition precedent for registration of a case. This question was discussed in detail by the Honorable Supreme Court in the case of Lalita Kumari v. Government of Uttar Pradesh AIR 2014 SC 187 where it was held that registration of FIR is mandatory under section 154 of the Criminal Procedure Code if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. Section 154 uses the word 'shall' which in its ordinary significance is mandatory and the court shall ordinarily give that interpretation to that term unless such an interpretation leads to an absurd or inconvenient consequence or is at variance with the intent of the legislature. Although section 154(3) makes a provision to approach the higher police officer for the purpose of getting his complaint registered as an FIR in case a complaint is not registered by the officer in charge, it does not force the court to give a purposive interpretation of the impugned section considering that the wording of the section is clear and unambiguous. It is evident from the authorities discussed above that as per the mandate of section 154 Criminal Procedure Code, the police is duty bound to conduct the investigation of the case immediately on receipt of information regarding commission of a cognizable offence. Certain exceptions have however been laid down in the matter of Lalita Kumari which permits preliminary inquiry by the police in certain cases., In the case titled Skipper Beverages Private Limited v. State 2001 (92) DLT 217, after taking note of the judgment of the Honorable Apex Court in Suresh Chand Jain v. State of Madhya Pradesh 2001 (1) SC 129, the Honorable High Court of Delhi dealt with this question. The relevant paragraphs of those judgments are reproduced herein: Para 7 – It is true that section 156(3) of the Code empowers a Magistrate to direct the police to register a case and initiate investigations but this power has to be exercised judiciously on proper ground and not in a mechanical manner. In those cases where the allegations are not very serious and the complainant himself is in possession of evidence to prove his allegations, there should be no need to pass an order under section 156(3) of the Code. The discretion ought to be exercised after proper application of mind and only in those cases where the Magistrate is of the view that the nature of the allegation is such that the complainant himself may not be in a position to collect and produce evidence before the Court and the interest of justice demands that police should step in and help the complainant. The police assistance can be taken by a Magistrate under section 202(1) of the Code after taking cognizance and proceedings with the complaint under Chapter XV of the Code as held by the Honorable Apex Court in 2001 (1) SC 129 titled Suresh Chand Jain. Para 10 – Section 156(3) of the Code aims at curtailing and controlling the arbitrariness on the part of police authorities in the matter of registration of FIRs and taking up investigations, even in those cases where the same is warranted. The section empowers the Magistrate to issue directions in this regard but this provision should not be permitted to be misused by the complainants to get police cases registered even in those cases which are not very serious in nature and the Magistrate can himself hold an inquiry under Chapter XV and proceed against the accused, if required. Therefore, the Magistrate must apply his mind before passing an order under section 156(3) of the Code and must not pass these orders mechanically on the mere asking by the complainant. These powers ought to be exercised primarily in those cases where the allegations are quite serious or evidence is beyond the reach of complainant or custodial interrogation appears to be necessary for some recovery of the article or discovery of fact. In the Skipper Beverages case and also in Suresh Chand Jain case, the position of law has been further crystallized. The above cited rulings aimed at curbing the misuse of provisions of section 156(3) Criminal Procedure Code making the exercise of power for registration of FIR under section 156(3) Criminal Procedure Code permissible only in cases where the evidence of the case is beyond the control and reach of the complainant and in cases where some technical or scientific investigation has to be conducted by the police or where custodial interrogation of the accused appears to be imperative for effecting recovery of any article or for discovery of any vital facts., Findings of the Delhi High Court: The perusal of the Annual Technical Report dated 15.04.2021 would reflect that during the course of inquiry, the impugned video as well as the original video were sent to the Forensic Science Laboratory and as per the report, the impugned video was stated to be a replica of the original one and it was not a mimicked version of the original video. The perusal of the copy of the Forensic Science Laboratory report dated 05.03.2021 would reflect the following observations made on laboratory examination of the audio‑video files in the pendrive marked Ex‑Q‑1 and Ex‑S‑1: (i) The audio‑video file in Ex‑Q‑1 shows indication of alteration. (ii) The waveform and spectrograph of the utterances in Ex‑Q‑1 were found similar and indicated to have been reproduced as a replica from the video footage in audio‑video file named 'Delhi CM Arvind Kejriwal se ZeePHH ke Editor Dileep Tiwari ki Exclusive baatchit.mp4' provided in Ex‑S‑1. (iii) There are indications supporting the contention that the contexts of words spoken are edited by deletion and transformation to form the context of the audio‑video file in Ex‑Q‑1. The case exhibits sent to this laboratory for examination have been sealed. These findings clearly reflect that the impugned video is opined to have been edited/altered. Therefore, the fact that the impugned video clip was a doctored electronic record stands prima facie proved., Now what remains to be seen is the intention of the proposed accused behind circulation/publication of the impugned video on his Twitter account. Careful examination of the impugned video and comparison with the original video reveal the following facts: (a) In the original video, which is 40 minutes 52 seconds long, at 6:24 minutes Mr. Kejriwal replies to a journalist by stating that in the speeches given by leaders of Bharatiya Janata Party in support of the farm laws, it was stated that due to operation of the said laws, farmers will not lose their lands, the minimum support price assured to them will not be lost, the mandi system will not be overturned, and farmers can sell their harvest anywhere in the country and will get a good price even with the option of selling it outside the mandis. In this video, at the end of each sentence, Mr. Kejriwal can be seen saying that the above quoted benefits of the farm laws were already in existence prior to the operation of the said laws. (b) Again at 09:47 minutes of the video, Mr. Kejriwal responds to questions regarding solutions proposed by the farmers and can be seen speaking in support of Minimum Support Price measures, stating that if MSP comes into operation, it would be the most revolutionary law made in the past 70 years. (c) In the impugned video clip running for 18 seconds, the above stances quoted by Mr. Kejriwal in the original video were placed and doctored in such a way to give the appearance that he was speaking in support of the farm laws. The above facts clearly reveal that the impugned video was manipulated/doctored to give the impression that Mr. Kejriwal was endorsing the farm laws., The fact that the impugned video was published on the Twitter handle of the proposed accused with the caption 'teeno farm bills ke laabh ginate hue Sir jee' prima facie proves that it was circulated on Twitter with the intention to cause protesting farmers to believe that Mr. Kejriwal is supporting the farm laws, which may have perpetuated outrage among protesting farmers and may have resulted in a rioting-like situation across the nation. The fact that during the course of preliminary inquiry, police proceeded for obtaining expert opinion from the Forensic Science Laboratory regarding the impugned video is sufficient to believe that the evidence of the case is not within the control and reach of the complainant and that scientific investigation is required. The Annual Technical Report also clearly says that the impugned video clip was within the category of manipulated media marked by Twitter. If the impugned video clip was manipulated media, the circumstances under which the proposed accused published the same on his Twitter handle have not been probed into by the police. Moreover, the police have not conducted any probe to find out whether the impugned video clip was already available in the public domain by associating Twitter during the inquiry, so as to rule out fabrication or alteration of the same at the behest of the proposed accused. A thorough investigation is required on the above aspects considering the seriousness of the allegations and accordingly, this Court is of the considered view that the prayer made by the complainant deserves to be accepted and the present application deserves to be allowed., Directions of the Delhi High Court: Apropos the discussion made above, the present application is allowed and the Station House Officer concerned is directed to register the FIR under the appropriate provisions of law taking into account the allegations leveled by the complainant and to initiate the investigation in accordance with law. The Station House Officer is directed to file a compliance report along with a report regarding the status of investigation on 03.02.2022.
id_1832	0	Date of Decision: 09.09.2021 Through: Ms. Vibha Datta Makhija, Senior Advocate with Mr. Praveen Gaur, Advocate versus Through Ms. Shobhana Takiar, Assistant Secretary, Government of National Capital Territory of Delhi., The present petition under Article 226 of the Constitution of India has been filed by an Indian couple residing in the United States of America (USA), seeks a direction to the concerned Sub-Divisional Magistrate (SDM), New Delhi to register their marriage in accordance with the provisions of the Delhi (Compulsory Registration of Marriage) Order, 2014 (hereinafter referred to as the Registration Order) without insisting on their physical appearance before him., The marriage between the petitioners was solemnised at Delhi on 06.12.2001 as per Hindu rites and ceremonies. They are now blessed with a son and a daughter born on 23.10.2002 and on 22.11.2011, respectively., It may be noticed at the outset that the aforesaid Registration Order of 2014 was promulgated post the directions issued by the Supreme Court of India in Seema (Smt) Vs. Ashwani Kumar (2006) 2 SCC 578. Pursuant thereto, the registration of marriages solemnised in Delhi was made compulsory under this Registration Order., The procedure for registration has been provided for in clause 4 of the Registration Order and reads as follows: Within a period of 60 days, excluding the day on which the final ceremony of marriage is solemnised, the parties to the marriage shall apply jointly in the prescribed Form A for registration of their marriage addressed to the marriage officer having jurisdiction to register the same. Such prescribed application shall be accompanied by documentary proof of age of both parties, solemnisation of marriage, identification of the parties, place of residence of the parties, citizenship of the parties if any along with the requisite fee of rupees Two Hundred. On receiving such application along with requisite documents and satisfaction of the marriage officer as regards authenticity of such proof, the same shall be entered in the register of marriage prescribed for this purpose as per Form B. After having received such application complete in all aspects and having entered the same in the prescribed register, the marriage officer shall fix a date for the parties to appear in person along with two witnesses who shall certify the solemnisation of such marriage and bear proof of permanent residence of Delhi. The marriage officer thereafter on personal appearance of the parties with witnesses on such appointed date or any other extended date and on satisfaction of solemnisation of such marriage in Delhi shall issue the requisite certificate of registration of such marriage., The Registration Order also envisaged creation of an online portal so as to enable the parties to submit online applications for registration; the provision whereof has been prescribed in clause 9 which reads as follows: E‑registration: The Government of National Capital Territory of Delhi shall endeavour to create a dedicated portal for the purpose of online submission of application and prior appointment to facilitate compulsory registration of marriage. The application form alternatively shall be available on such portal which may be downloaded by the parties and be submitted along with requisite documents manually at the respective counters of the marriage registration offices. On such submission either manually or online, a computer‑generated priority number along with appointed date for registration of marriage shall be made available to the applicants to be produced at the time of personal appearance before the marriage officer to register the marriage., It is the petitioners' case that since they, along with their minor son, had already relocated to Singapore before 2014, they could not apply for registration of their marriage when the order came into effect. They have since relocated to the USA, where they are residing on the strength of an L1 visa issued in favour of petitioner No.2 (husband) and an L2 visa (dependent visa) in favour of petitioner No.1 (wife). The petitioners now require a marriage registration certificate for grant of a green card in the USA. Their green‑card applications have been approved but are not being processed for want of a marriage registration certificate from the concerned Sub‑Divisional Magistrate in Delhi, where their marriage was solemnised., The petitioners submit that they were scheduled to travel to Delhi on 27.05.2021, but on account of the huge spike in COVID‑19 cases in the country, the Director General of Civil Aviation, vide his order dated 30.04.2021, suspended all international flights to India. Soon thereafter, the US government also banned travel between India and the USA., In light of these changed circumstances, the petitioners in early June 2021 tried to make an online application on the web portal of the Delhi Government at https://edistrict.delhigovt.nic.in/in/en/home/index.html but were unable to do so, as they do not possess an Aadhaar card or a Voter ID card, which are mandatory to apply through the portal. Consequently, the petitioners, through their counsel, tried to submit a physical application to the Sub‑Divisional Magistrate, which was also not accepted and they were informed that their physical presence was essential. The petitioners followed that up by submitting a representation to the respondent on 30.06.2021, which has remained unanswered, thus compelling them to approach the Supreme Court of India by way of the present petition., In support of the petition, learned senior counsel for the petitioner, at the outset, submits that the respondent is misinterpreting clause 4(d) & (e) of the Registration Order by insisting that the personal appearance of the parties, as envisaged therein, mandates them to appear physically before the Registering Authority. By relying on the decision of the Supreme Court of India in State of Maharashtra v. Praful B. Desai (Dr), (2003) 4 SCC 601, she contends that there is no reason why the parties cannot be allowed to appear before the Registering Authority through Video Conferencing, especially in these trying times when international travel is severely restricted., Ms. Makhija further submits that the question whether appearance of the parties through Video Conferencing for purposes of registration of marriage would be treated as their personal appearance is no longer res integra. The Supreme Court of India in Charanjit Kaur Nagi Vs. Government of NCT of Delhi, 2007 SCC OnLine Del 1393, the Jharkhand High Court in Upasana Bali & Anr. Vs. State of Jharkhand and Ors. 2012 SCC OnLine Jhar 1505, the Kerala High Court in Pardeep Kodiveedu Cletus & Anr. Vs. Local Registrar of Marriages & Ors., 2017 SCC OnLine Ker 23204 and the Punjab and Haryana High Court in Ami Ranjan v. State of Haryana 2020 SCC OnLine P&H 3815 have held that applications for registration of marriage ought to be accepted and processed without insisting on the physical presence of the parties., She further submits that even the Special Leave Petition assailing the decision of the Punjab & Haryana High Court in Ami Ranjan (Supra) has been rejected. She therefore prays that the present petition be allowed and appropriate directions be issued to the respondent to accept the personal appearance of the parties through Video Conferencing from the US., Per contra, Ms. Shobhana Takiar, learned counsel for the respondent, opposes the petition by contending that the physical presence of the parties is required for reasons such as capturing and uploading live photographs of the parties and their witnesses on the portal, for the marriage certificate to be physically signed by both parties before the Registrar of Marriage, and to assess whether both the bride and groom are of sound mind and are entering into the marriage without any fear. She therefore contends that the personal presence of the parties as required under Clause 4 of the Registration Order must be read to mean their physical presence before the competent authority, and prays that the writ petition be dismissed., Having considered the submissions of learned counsel for the parties, I find that the question whether personal appearance for purposes of registration of marriage would include appearance through Video Conferencing has already been considered and answered in the affirmative, as rightly urged by learned senior counsel for the petitioner not only by the Supreme Court of India but by a number of other High Courts as well., In Charanjit Kaur Nagi (Supra) the Supreme Court of India, way back in 2007, when the use of Video Conferencing was still at a very nascent stage, permitted registration of marriage without insistence on the physical appearance of one of the parties, while permitting appearance through Video Conferencing. It may be useful to refer to paragraphs 14 to 16 of the said decision which read as follows: So viewed the real effect of the declaration and the particulars sought are as to the name and parentage of parties, date of birth and details such as residence proof and relations before marriage. As noticed earlier under the Hindu Marriage Act, the marriage is not solemnised by the Registrar, but certified to have been solemnised, by the Registrar on the basis of application to him. Under the Hindu Marriage Act he merely issues a certificate that according to the information supplied to him the parties were married on a particular date. Form B which is in terms of Rule 4 is to the same effect; it is part of the Register under Rule 4. It would be evident from the above discussion that the status of the parties is attested to on the basis of information furnished to the Registrar. He is not the official invested by the State with authority to solemnise the marriage. Prima facie a reading of Form A and B lends support to the view of the respondents that the normal method is one where spouses are expected to apply and affirm their marriage. But where parties are living at a considerable distance from each other and yet desire the furnishing of a certificate, the Rules have not provided for it. Rule 3 was framed at a time when technology was nascent; developments that have changed the world were unimaginable then. It is possible for a person living thousands of kilometres away from Delhi or anywhere in India to simultaneously communicate with another party. Technology has enabled parties today to attest documents digitally and ensure secure transmission through the Internet. The objective and philosophy underlying the Information Technology Act are based on these developments. In these circumstances the inaction or indifference of the State to recognise these developments and provide a suitable mechanism to facilitate registration of marriage of spouses separated by distance has to be addressed. The law has to adapt to changing times. The requirements spelt out half a century ago are acting as impediments, even though technology has enabled myriad solutions. It is open to evolve a suitable mechanism with a mix of technology by incorporating video‑conferencing, authentication of identities by Embassies, and attestation of signatures in a similar manner., It may also be apposite to refer to the decision in Upasana Bali & Anr. (Supra), where the Jharkhand High Court, while allowing the petition of a similarly placed couple residing in the United Kingdom, directed the Registering Authority under the Jharkhand Hindu Marriage Rules to accept their application for registration of marriage through their Power of Attorney holder and to permit them to appear before the authority through Video Conferencing. The Court observed that Video Conferencing is readily available with the public at large. Therefore, we are of the considered view that the requirement of presentation of application for registration of marriage under the Jharkhand Hindu Marriage Registration Rules, 2002 can be met fully when such application is presented by a duly authorized Power of Attorney of the parties, coupled with satisfaction of the registering authority through video‑conferencing. Learned counsel for the petitioners also submitted that the document for registration can be submitted through Power of Attorney, which is specifically provided in the Registration Act. However, that provision can be used only for presentation of the application by Power of Attorney of the party to the marriage and, to avoid any future dispute, a cheap mode of Video Conferencing can be used for verifying the facts from the party to marriage, using facilities such as Skype, Yahoo.com or Gmail.com. Video Conferencing is not a new or out‑of‑reach mode; it is readily available with the public at large and is not expensive. Government officers of the rank of Registering Authority or Registrar of Marriages are usually provided with computers, laptops and Internet connections, which can be used for this purpose; if they lack such facilities, the parties may be asked to provide them for the satisfaction of the registering authority regarding the genuineness of the parties., Similar directions were issued by the Kerala High Court in Pardeep Kodiveedu Cletus & Anr. (Supra) wherein the Court, in Paragraph 9 of its judgment, observed that the provision for registration of marriage could be interpreted as enabling the Local Registrar to obtain personal appearance through Video Conferencing as well. The Court held that the law makers intend courts to apply a construction that updates wording to allow for changes since the introduction of the statute. The language of the statute, though embedded in its own time, must be construed in accordance with current needs. The courts are justified in interpreting provisions to make allowances for social, technological and other changes. There can be no doubt that personal appearance of the parties to the marriage is insisted upon in the Rules to ensure registration with their knowledge. If that purpose can be satisfied by Video Conferencing, there should be no impediment to interpreting the provisions to permit personal appearance through Video Conferencing. The Apex Court, in State of Maharashtra v. Praful B. Desai (Dr.), (2003) 4 SCC 601, approved that personal appearance can be ensured through Video Conferencing in criminal trials. Accordingly, the Local Registrar can ensure that the application for registration of marriage is preferred with the knowledge of the parties through Video Conferencing, and Rule 11 can be interpreted as enabling such appearance., In its recent decision in Ami Ranjan (Supra), a Division Bench of the Punjab & Haryana High Court, having considered the aforesaid decisions of different High Courts, also passed directions for accepting the personal presence of a party for registration of marriage through Video Conferencing. The Supreme Court of India, while rejecting a challenge to this decision, opined that there was no reason to interfere with these practical directions of the High Court., At this juncture, reference may also be made to the decision in State of Maharashtra v. Praful B. Desai (Dr), (2003) 4 SCC 601 wherein the Apex Court, in Paragraph 19, expounded upon the importance of Video Conferencing, observing that arguments against its use confuse virtual reality with video‑conferencing. The Court explained that Video Conferencing enables one to see, hear and talk with someone far away as if present, and that evidence recorded by Video Conferencing satisfies the requirements of Section 273 of the Criminal Procedure Code., In light of the aforesaid, I am of the view that, in times such as these, when technology has proven to be the bridge that ensures uninterrupted communication, widespread dissemination of information in public interest and the smooth functioning of society, the Supreme Court of India cannot allow a rigid interpretation of the statute to prevent citizens from exercising their rights., In a little over half a decade since the Registration Order was notified, the universe has undergone a sea change but the Registering Authority, while exercising its power and jurisdiction under the Registration Order, is refusing to recognise that web portals and Video Conferencing have become almost the norm., In fact, if not for the acceptance of Video Conferencing as the norm, the Supreme Court of India and the judicial system in this country would have come to a grinding halt, and would not have been able to function at a time when there was the greatest need for citizens to have access to justice. These aspects appear to have been simply overlooked by the Registering Authority, who continues to insist that the parties must remain present physically before him., At this stage, it may also be useful to refer to the observations of the Supreme Court of India in paragraph 24 of the judgment in Anuradha Bhasin v. Union of India 2020 3 SCC 637, which emphasized the need to adapt technological advancements while dispensing justice: Law and technology seldom mix like oil and water. There is a consistent criticism that the development of technology is not met by equivalent movement in the law. The law should imbibe technological development and accordingly mould its rules to cater to the needs of society. Non‑recognition of technology within the sphere of law is only a disservice to the inevitable. The importance of the internet cannot be underestimated, as from morning to night we are encapsulated within cyberspace and our most basic activities are enabled by the use of the internet., The respondents plead that physical presence of the parties is necessary to ascertain whether they are of sound mind and are entering into marriage without fear or coercion, overlooking that the Registering Authority's task under the Registration Order is to register a marriage which has already been solemnised. The respondent appears to be acting under the misconception that a marriage is being solemnised before the Registering Authority., I cannot overlook the fact that the Delhi (Compulsory Registration of Marriage) Order, 2014 is welfare legislation promulgated at the instance of the Supreme Court of India to encourage registration of marriages. Welfare legislation must be interpreted so as to ensure that its object is fulfilled and that there are no unnecessary obstacles to beneficiaries. Clause 4 must be interpreted to encourage parties to easily get their marriages registered. Insistence on physical appearance when personal appearance can be secured through Video Conferencing will make registration more cumbersome and negate the purpose of the Registration Order., Thus, looked at from any angle, I have no hesitation in concluding that the term personal appearance in Clause 4 of the Registration Order has to be read to include presence secured through Video Conferencing. Any other interpretation would frustrate the purpose of this beneficial legislation and undermine the use of Video Conferencing, contrary to the ratio of the Supreme Court of India in Praful B. Desai (Supra), where the Court held that Video Conferencing permits one to see, hear and talk with someone far away as if physically present, and allowed recording of evidence in a criminal trial through Video Conferencing., For the aforesaid reasons, the writ petition is entitled to succeed and is accordingly allowed. The parties seeking registration of their marriage under the Registration Order will be entitled to submit a physical copy of their application through their attorney and also enter personal appearance, as and when required, through Video Conferencing. The application will be duly processed by the Registering Authority, subject to submission of duly notarised copies of all relevant documents before the authority physically and fulfillment of all other procedural requirements., However, keeping in view the peculiar facts of this case, the following specific directions are issued qua the petitioners: The petitioners are permitted to submit their application for registration of marriage, through their counsel or Power of Attorney holder in physical form before the Sub‑Divisional Magistrate Kishan Ganj, Delhi, along with copies of all supporting documents duly notarised, either by the notary public in the US where they are presently residing or by the notary public in Delhi. The respondent will allow the personal appearance of the petitioners for the purpose of Clause 4(d) and (e) and Form A of the Delhi (Compulsory Registration of Marriage), 2014 through Video Conferencing. The two witnesses, as required under the Registration Order, will appear physically before the Registering Authority along with their original ID proofs on the date notified by the authority. The respondent will, thereafter, expeditiously register the petitioners' marriage and issue the Marriage Registration Certificate within two weeks from the date of receipt of the application made by the petitioners.
id_1833	0	Judgment delivered on 22 September 2020. Through: Mr. Kapil Sibal, Senior Advocate with Ms. Swathi Sukumar, Ms. Ashima Obhan, Mr. Naveen Nagarjuna, Ms. Akanksha Dua, Mr. Adit Subramaniam Pujari, Mr. Essenese Obhan and Mr. Raghav Tankha, Advocates. Versus Through: Mr. Devadutt Kamat, Senior Advocate with Mr. Naman Joshi and Mr. Karan Khanuja, Advocates for the respondent., The appellant impugns an order dated 4 September 2020 passed by the learned Additional District Judge, Patiala House Courts, New Delhi, in Civil Suit No. 275 of 2020, granting an ex parte injunction to respondent No. 1, Sanchita Gupta alias Shilpi (plaintiff Shilpi), apropos what she considers defamatory material purported to be published in a book called Gunning for the Godman: The Story Behind Asaram Bapu's Conviction (hereinafter referred to as the Book). The substratum of her grievance is set out in paragraph 14 of the plaint, reproduced below:, 14. The defamatory statements and imputations from the Book published by Defendant No. 1 in the article, after permission from Defendant Nos. 3, 4 and 5, are quoted herein for ready reference along with a brief submission on the defamatory nature thereof: The SHO paused for a moment to compose herself and recounted to me what the girl had told her, as she had told her. She began: When I asked the girl to narrate the entire story to me, careful that she leave out no detail, this is what she told me in her own words: 'I belong to Shahjahanpur, Uttar Pradesh. My father has a transport business there with about eleven trucks. For years, my entire family has been a devotee of Asaram Bapu. My father even took loans to get a small ashram built there for Guruji. My brother and I were sent by our parents to Bapu's gurukul (residential school) to study. We stay at the ashram‑cum‑hostel there. On the 2nd and 3rd of August, I started feeling sick. Since I had not been well for two days, I felt weak and faint. My classmates somehow managed to take me to the room that I shared with other girls and laid me down on my bed. Then, they informed the warden of the hostel, Shilpi ma'am, about my condition. When the warden came to my room she asked the other girls what had happened. When they told her that I had not been feeling well for the last few days and had fallen down perhaps due to weakness, she asked me to lie down and take rest. I slept, but the warden did not take me to any doctor for the next two days. Then, on the third day, she called me down to the office of the director of the ashram. When I reached his office, another girl was already present there. They told me that she was possessed by demons and was under the influence of evil spirits. As I stood in front of the director, he looked at me for a long time and then told me flatly that I too was under the influence of evil spirits. He told me that I needed to pray, chant mantras and perform rituals to ward off the evil spirits that had gained control over me and were making me sick. I was told by both the warden and the director to become satvik (virtuous) and spend more time in doing sadhana (religious study). The very next day I experienced acute pain in my stomach, but still they asked me to sit and continue to perform religious rituals. I was made to sit through the chanting of the Mahamrityunjaya mantra to please Lord Shiva, and even asked to chant it. They did not even allow me to sleep. The next day, as I lay in my room, Shilpi ma'am came in and said to me that I was under the influence of evil spirits and the matter had been conveyed to Bapu. She asked me to tell my brother about it and also inform my parents in Shahjahanpur. On the 7th of August, she telephoned my elder brother and made me tell him what she had asked me to say. Upon her instructions I told my brother that my condition was very serious and that they should arrange to send me for treatment. On hearing about my condition, my parents rushed to the ash ram. They reached on the 8th of August but were prevented from meeting me. It was only on the 9th of August that they were finally allowed to meet me, but warden Shilpi was with us throughout our meeting. She told my parents that I was under the influence of evil spirits, that Bapu had already been informed of my condition and we would have to go wherever he currently was to meet him.', At this point, Mukta stepped in and said to me, 'Sir, that warden Shilpi scared the little girl about being possessed by evil spirits and she did not realise the vortex that she was being pulled into.' She did exactly as Shilpi said. I nodded and asked her to resume the story of the girl. The girl continued: 'My parents were asked to locate Asaram Bapu and meet him. My father, owing to his long association with Bapu's ashrams, knew Bapu's attendant, Shiva, who has been with Asaram Bapu for a long time. He sought him out and asked where we could find Bapu. Shiva told us to go to Delhi as Bapu was there. Then my parents and I decided to go to Delhi to meet Bapu, as advised by warden Shilpi, to seek treatment for my condition. We reached Delhi on the 12th of August, but when we tried to locate him there, we were told that Bapu was in Jodhpur. We left Delhi and reached Jodhpur on the 14th of August. Once we reached Jodhpur, Shiva called us to a kutiya at Manai. When we reached Manai, we realized that it was not a kutiya but a proper house. We saw Bapu there; he was doing satsang, singing devotional songs, with about one hundred and fifty of his followers. After the satsang was over he called us over and spoke to us. He said, 'Hari om, Hari om,' looking directly at me. We all folded our hands and bowed our heads. He asked, 'Where have you come from?' My father replied politely. Bapu said, 'Ah, you are the girl who is under evil influence and has been possessed by demons. All right, let's look at this demon of yours and get rid of him.' He then took some water in his palm from a copper vessel and sprinkled it on my face after reciting some mantras. I retreated a step backwards as the water hit my face with great force. He then placed his hand over my head, smiled benignly and asked gently, 'How are your studies?' I replied, 'Fine.' He said, 'Okay, now go and rest in Vishnu's house.' Around 10 p.m. we were summoned by Bapu to the same garden. He showed us his kutiya and later, while strolling in the garden, he asked me directly, 'What do you want to become after you complete your education?' He laughed briefly and said, 'What will you do by becoming a CA? They are all sitting at my feet.' I answered, 'Become a teacher.' After a pause he told me, 'You stay here and perform religious rituals for eleven days. You can go to Ahmedabad. As for your parents, they can go back home.' I nodded and asked, 'But, Bapu, what about my studies?' He thought for a moment and said, 'We will send you back to the gurukul after you have been cured.' The next night we retired to a room on the first floor of Vishnu Dawada's house. The following day Bapu arrived a little late for the satsang. After the satsang, as we were about to leave, Bapu summoned us again around 10 o'clock. He met us in the garden, sat on a chair and began explaining the rituals. After some time he asked my father and mother to sit near the main gate, about five hundred yards from the kutiya, and chant mantras. He also asked his cook to bring us some milk, after which he went into his room and the lights went off. Later the cook who had given us the milk asked me to sit near the stairs behind the baby's room and asked my parents to leave. My father left immediately and, as directed by Bapu, sat on the other side of the main gate while my mother continued to sit at a distance in the garden. I sat behind the baby's room as directed. After some time Bapu opened the rear door of his room and gestured for me to come inside. I hesitated but entered his dark room, illuminated only by light filtering from outside. When I adjusted my eyes, I saw Bapu lying on his bed. He asked me to sit next to him. As I sat on the bed, he grabbed my hand and massaged it gently. I tried to pull my hand away but Bapu held it firmly, drawing me close. When I resisted, he loosened his grip and released me. He then said in a gentle voice that I would have to perform some rituals with him to get rid of the evil power that had possessed me. I remained quiet, recalling that we had travelled from Chhindwara to Delhi and again to Jodhpur for Bapu to cure me. Bapu then placed a kiss on my forehead and hugged me closely, kissing my face repeatedly. He later removed his clothes. I was shocked, having never been in such a situation or alone with a man before. I told myself that this was our god, the man my family had worshipped for many years, and I was scared to upset or defy him or to fail to comply with his wishes. I believed his disrobing was part of a ritual to rid me of my demons.', Mukta stopped suddenly, lowered her eyes, and I asked her what made her stop in the middle of recounting the girl's story, although I was a little embarrassed by the turn the story had taken. I realised that Mukta too was embarrassed and uncomfortable. In response, Mukta apologised., The contents of the aforesaid paragraphs, which were excerpted from the Book and published in the article by Defendant No. 1, constitute a direct allegation and, in the alternative, an imputation that the plaintiff used to conspire and commit such ill acts, including lying to the prosecutrix, convincing her parents that she was possessed by demons, and as part of a larger conspiracy involving others, sending her to be sexually assaulted. The matter is sub‑judice before the Hon'ble High Court of Rajasthan at Jodhpur, and any publication from an author portraying the so‑called true story of conviction should not be permitted and circulated as it is defamatory and may prejudice the ongoing judicial proceedings., It is pertinent to mention that the learned Special Judge (Protection of Children from Sexual Offences Act), Jodhpur, in its judgment dated 25 April 2018, stated at paragraph 458 that there is no direct evidence which suggests that the plaintiff sent the prosecutrix to the co‑accused so that he could sexually assault her; the conclusion is based entirely on circumstantial evidence. The Hon'ble High Court, in its order dated 29 September 2018, while granting suspension of sentence to the plaintiff, observed: 'The trial court in paragraph 458 of the impugned judgment also observed that there is no direct evidence on record which suggests that the appellant sent the prosecutrix to the co‑accused so that he could sexually assault her, but has held that on the basis of ocular and circumstantial evidence, it can be inferred that the appellant had sent the prosecutrix to the ashram so that he could assist her sexually. However, the ocular and circumstantial evidence on which the trial court placed reliance requires detailed consideration.', There is no other portion of the Book to which any objection has been raised in the plaint. The impugned injunction order was passed without notice to and in the absence of the appellant, the publisher. According to plaintiff Shilpi, the aforesaid portions containing references to her are defamatory, are not founded on facts, and their publication would lead to irreparable injury to her reputation., On 25 April 2018, the Special Court (Protection of Children from Sexual Offences Act) at Jodhpur convicted Asumal Harpalani, also known as Asaram Bapu, for offences punishable under sections 342, 370(4), 120‑B, 376‑D, 376(2)(F), 509 of the Indian Penal Code and section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000, relating to sexual assault on a minor. Plaintiff Shilpi, who was the warden of an ashram run by Asaram, was convicted by the same order for offences punishable under sections 370(4) and 376‑D read with section 120‑B IPC. In her appeal (Supreme Court Criminal Appeal No. 622/2018) against the conviction, the Rajasthan High Court, by its order dated 29 September 2018, suspended her sentence till the final disposal of the appeal., The book titled Gunning for the Godman: The True Story Behind Asaram Bapu's Conviction, published by the present appellant HarperCollins Publishers India Pvt. Ltd., was proposed to be launched on 5 September 2020. Plaintiff Shilpi filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure in the suit seeking an ex‑parte injunction against publishing or distributing the Book on the ground that it is defamatory, casts baseless imputations against her, and she seeks to protect her reputation and right to a fair name beyond the conviction. The impugned ex‑parte injunction was passed on 4 September 2020 restraining the appellant from publishing or distributing the Book till the next date of hearing., Mr. Kapil Sibal, the learned Senior Advocate for the appellant, submits that plaintiff Shilpi did not approach the learned trial court with clean hands. She did not disclose to the trial court that everything contained in paragraph 14 of the suit, which has been excerpted from the Book and which she considers defamatory, is based upon the evidence discussed in the judgment convicting her of the crimes charged; therefore the proven facts are a matter of public record. Moreover, the story told by the author, the investigating officer of the case, is based upon the evidence recorded during the trial, upon which Shilpi and Asaram were ultimately convicted by the Special Judge (Protection of Children from Sexual Offences Act), Jodhpur, by order dated 25 April 2018., The learned Senior Advocate further submits that each of the objectionable sentences and paragraphs forming part of the Book have been juxtaposed with the records and the judgment of the learned trial court as follows: (i) The statement that the warden Shilpi was informed of the girl's condition and asked her to lie down and rest is recorded at paragraph 437, page 417 of the judgment. (ii) The statement that the warden did not take the girl to a doctor for two days and that the director told her she was possessed by demons is also recorded at paragraph 437, page 417. (iii) The statement that the victim was told to become satvik and to perform sadhana, and that she was made to sit through chanting of the Mahamrityunjaya mantra, is recorded at paragraph 24, page 37 and paragraph 447 of the judgment. (iv) The statement that Shilpi told the victim she was under the influence of evil spirits and that the matter had been conveyed to Bapu is recorded at paragraph 437, page 418. (v) The statement that on 7 August Shilpi telephoned the victim's elder brother and instructed the victim to tell him that her condition was serious is recorded at paragraph 437, page 417. (vi) The statement that the victim's parents were prevented from meeting her on 8 August and were allowed only on 9 August, with warden Shilpi present throughout, is recorded at paragraph 437, page 418 and paragraph 450 of the judgment., The learned Senior Advocate further states that in granting such a rare pre‑publication injunction, courts have exercised extreme caution lest they curtail the freedom of speech guaranteed under Article 19(1)(a) of the Constitution of India. He relies on the dicta of this Court in Pushp Sharma v. D.B. Corp. Ltd. & Ors., 2018 SCC OnLine Del. 11537, which held that interlocutory or ex‑parte injunctive relief of this kind requires a very high threshold of prima facie strength; otherwise, courts risk stifling public debate. The Court emphasized that unless it is demonstrated at the threshold that the offending content is malicious or palpably false, an ex‑parte injunction without recorded reasons should not be granted., He also relies on the Supreme Court decision in Morgan Stanley Mutual Fund v. Kartick Das, (1994) 4 SCC 225, wherein the Court listed factors to be considered before granting an ex‑parte injunction: (a) whether irreparable or serious mischief will ensue to the plaintiff; (b) whether refusal of injunction would cause greater injustice than granting it; (c) the time at which the plaintiff first had notice of the act complained of; (d) whether the plaintiff had acquiesced for some time; (e) whether the applicant shows utmost good faith; (f) that any injunction granted would be for a limited period; and (g) general principles such as prima facie case, balance of convenience and irreparable loss., The appellant submits that on 22 July 2020 there was wide publicity in electronic media that the Book would be launched and available for sale from 5 September 2020. The cause of action arose on 11 August 2020 when Defendant No. 1 published an excerpt of the Book on its website. The Book is available on the platforms of Defendant Nos. 6 and 7 for pre‑orders and will be available from 5 September 2020 throughout the jurisdiction of this Hon'ble Court. Subsequent publications and promotions by Defendant Nos. 3, 4 and 5 on various dates in August 2020 further propagated the Book, causing continuous injury to the plaintiff's reputation each day the article remains online., The appellant therefore prays that the ex‑parte injunction dated 4 September 2020 be set aside, that the Book be allowed to be published and distributed, and that the plaintiff's claims be dismissed.
id_1833	1	Copy of the Printout from Defendant No. 3's Facebook accounts are enclosed as documents along with the plaint. Copy of the articles publicising the Book published by Akash Gupta (Twitter handle @TheDeshBhakt) are enclosed as documents along with the said plaint. Copy of the promotion done by Defendant No. 3 on their website is enclosed as documents along with the said plaint., It is argued that plaintiff Shilpi would surely have had knowledge of the online discussion regarding the publishing of the Book, which had started nearly 45 days prior to the filing of the suit seeking injunction. The excerpts from the Book were available in the public domain. Yet, for reasons best known to her, she chose to approach the High Court of Rajasthan on the very eve of the Book being launched, and that too without the relevant necessary information. The appellant refers to the extensive coverage given to Shilpi over the years. Indeed, in many debates, discussions and interviews, both in print media and electronic media, she herself participated extensively and actively., The appellant submits that these publications from 2013 and continuing till 2018 have discussed the involvement of plaintiff Shilpi in the criminal case, who was then an under‑trial. It is therefore argued that the impugned order be set aside, as Shilpi has failed to disclose all material facts before the trial court of Rajasthan., Furthermore, the appellant contends that the Book bears a disclaimer to the effect that it has been authored on the narration of investigation by the Investigating Officer and is based on the evidence recorded in the trial and relied upon in the judgement., Refuting the aforesaid arguments, Mr Devdutt Kamat, the learned Senior Advocate for R‑1/Plaintiff Shilpi, submits that the plaintiff's criminal appeal is pending consideration before the Rajasthan High Court, her sentence has been suspended till the final disposal of the appeal, thus there is no finality yet apropos her conviction as it is under judicial review. Therefore, if the Book comes into the public domain and the plaintiff is subsequently acquitted, it would have caused her injury of a nature which cannot be undone., He further contends that an individual's right to reputation guaranteed under Article 21 of the Constitution is paramount and has sway over the right to freedom of expression under Article 19. The inherent right to one's reputation will always prevail over any claim for commercial rights, which the appellant is seeking to exercise by way of publication of the offending Book. He relies upon the following judgments:, Sahara India Real Estate Corporation Ltd. & Ors. v. Securities and Exchange Board of India & Anr. (2012) 10 SCC 603, wherein the Supreme Court of India held, inter alia, that in most jurisdictions there is power in the courts to postpone reporting of judicial proceedings in the interest of administration of justice. Under Article 19(2) of the Constitution, law in relation to contempt of court is a reasonable restriction. The Court also referred to the judgment in R. Rajagopal v. State of Tamil Nadu [(1994) 6 SCC 632] and explained that courts may employ neutralising devices such as postponement of trial, retrials, change of venue, or even grant acquittals in cases of excessive media prejudicial publicity to protect the administration of justice. The order of postponement must be passed only when alternative measures are unavailable, must observe the principle of proportionality and the test of necessity, and may be issued under Article 129/Article 215 of the Constitution for a limited period to protect the rights of individuals under Article 21., In Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC, the Supreme Court of India held, inter alia, that there is a danger of serious prejudice if the media publishes photographs of suspects before identification parades or declares them guilty before a court order. The Court emphasized that the freedom of speech under Article 19(1)(a) must be exercised cautiously so as not to interfere with the administration of justice or prejudice the right of defence of the accused. The presumption of innocence must not be destroyed by media trial, and the media should maintain a distinction between trial by media and informative reporting., Dr. Shashi Tharoor v. Arnab Goswami & Anr., 2017 SCC OnLine Del 12049, the Delhi High Court observed that the media has the function and right to gather and convey information and comment on the administration of justice, including cases before, during and after trial, without violating the presumption of innocence. The Court noted that the courts have the power to pass pre‑publication or pre‑broadcast injunctions in sub‑judice matters when the interest of justice requires it, and that the press must exercise care and caution while reporting on investigations or pending trials., Naveen Jindal v. M/s. Zee Media Corporation Ltd. & Anr., 2015 SCC OnLine Del 7810, the Delhi High Court referred to the judgment in Kartongen Kemi Och Forvaltning AB v. State through CBI, 2004 (72) DRJ 693, observing that media trials can cause irreparable, irreversible and incalculable harm to the reputation of a person and their family, and that such trials pose a grave risk to the administration of justice. The Court highlighted that investigative journalism that publicises premature or presumptive aspects of an investigation can prejudice the fairness of the trial., In these facts the plaintiff would be entitled to an injunction to restrain the defendants from publishing reports or airing reports pertaining to the allegations which are pending before the police by Mrs. ABC. Any publication that gives excessive adverse publicity to an accused or is likely to hamper a fair trial constitutes an interference with the course of justice and could be a ground for grant of injunction. The court has ample inherent power to restrain publication in media when it may interfere with the administration of justice or the principle of a fair trial., Mr Kamat further submits that the plaintiff's appeal against the conviction is listed for further proceedings before the Rajasthan High Court on 14 September 2020. The publication of the Book could influence the appeal. He notes that no amount of disclaimer in the publication will ever repair the damage that may be caused to the plaintiff should she be ultimately acquitted. He refers to the order suspending the plaintiff's sentence, which observed that the applicant‑appellant was appointed as Warden of Ashram Gurukul Hostel on 1 April 2013, that there is no direct evidence that the applicant‑appellant sent the prosecutrix to the Ashram for sexual assault, and that the trial court, after considering ocular and circumstantial evidence, held that the applicant‑appellant had sent the prosecutrix to the Ashram. The court also considered that the applicant‑appellant is a young lady, was granted bail during trial, and that there is no indication she misused the conditions of bail, leading to the suspension of the substantive sentence., He further contends that her conviction has not attained finality because of the pendency of the appeal. In support he relies upon the dicta of the Supreme Court in Akhtari Bis v. State of Madhya Pradesh, (2001) 4 SCC 355, which held that speedy justice is a fundamental right flowing from Article 21 of the Constitution, and that a trial court's verdict does not attain finality during the pendency of an appeal. The Court emphasized the need for the appointment of sufficient judges to avoid delays and suggested that regular benches be constituted to dispose of criminal appeals within five years., Referring to Mushtaq Moosa Tarani v. Government of India & Ors., 2005 SCC OnLine Bom 385, the advocate submitted that during the pendency of the criminal trial the High Court of Bombay stayed the depiction of the film BLACK FRIDAY, which was based on a book of the same title. The High Court observed that while a film shown on television reaches a large audience, a cinema film of over three hours may have a broader impact, and that such depictions could influence public opinion and potentially prejudice the judge. The Court noted that the film, though based on extensive research, included a disclaimer stating that it should not be construed as an opinion on the innocence or guilt of the persons depicted, but that the disclaimer may not be effective for all viewers.
id_1833	2	It undoubtedly creates an impact on the viewers. Is it not likely that in spite of these disclaimers the impression that the viewers will carry will be that the petitioner and all the persons concerned are the perpetrators of the crime? Does it therefore not amount to their defamation? Mister Sebastian, therefore, rightly submitted that one has to look at all this depiction in the film from the point of view of the accused who has been in jail for over twelve years. No amount of disclaimer will wash away the impression that will be created with respect to his involvement as shown in the film, though, in his submission, he is totally innocent., As noted earlier, the trial which is pending decision has more than one hundred eighty nine accused. Out of them, one hundred forty five are in custody for over twelve years. More than two hundred fifty people were killed in the bomb blasts and more than seven hundred were injured. It is a major episode in the history of the city. Release of a film based on such an episode is bound to have an impact of its own. We are presently concerned with the prejudicial impact feared by the petitioner vis‑a‑vis a fair trial and his reputation., It was submitted by Doctor Dhawan that most of the happenings have been reported in the press right from the arrest of the first accused, that is Asgar Mukadam. At the same time, it should be noted that twelve long years have passed after the blasts and by now most people merely remember that such blasts took place and a large number of persons died. Apart from the relatives of the deceased or injured in the bomb blasts or of the accused, not many people would remember that Asgar Mukadam was the first person to be arrested or that the present petitioner was the one who planted the bomb at Hotel Centaur as claimed. All these depictions will bring back the memories of those blasts once again to the people., By now, as stated above, most people, in all probability, remember at most that these blasts were engineered by one Tiger Memon in association with Dawood Ibrahim as claimed. Hardly anybody would know that Mushtaq Tarani was involved in these blasts. Now this film will inform the viewers once again about the involvement of the petitioner and many others in these operations. In our view, any amount of disclaimer cannot take away the damaging effect and the defamation that would be caused particularly if the petitioner and a number of accused in the trial are ultimately released either as totally innocent persons or even by getting a benefit of doubt., The real issue in this petition is whether the citizen's right of free speech and expression will prevail over the right of an accused like the petitioner to a fair and impartial trial. A fair and impartial trial is not just part and parcel of the right to life and liberty but goes to the root of administration of justice and rule of law. It is well settled and has been included in the European Convention on Human Rights that exercise of the right of free speech and expression carries with it duties and responsibilities, and one such duty is that the exercise of such right must not take away the protection of reputation or rights of others. Similarly, when it comes to maintaining the authority and impartiality of the judiciary, necessary curbs and restraints will have to be placed on the exercise of an individual's right to freedom of speech and expression., In the present case, we have not gone into the validity and legality of the grant of certificate by the Censor Board, since that is not the relief sought by the petitioner. While considering the prayer for restraint, it is necessary that the above principles are borne in mind. Once the guidelines and directions are clear, then, even without seeking the relief of quashing the certificate, the petitioner can pray for suspension of the screening and exhibition of this film if he makes out a case of breach thereof. In judicial review, it is open for us to consider such a request. This aspect is not disputed. When the dignity of an individual and the petitioner's right to a fair trial and the impartiality of administration of justice are the issues involved, the wording of the prayer becomes less material., One more disclaimer, as suggested by Doctor Dhawan, will not change the scenario. It is clear that vital issues of fair trial and dignity of an individual are ignored by the authorities. Hence, the relief can be granted as sought. The petitioner‑accused standing trial before the Special Court has challenged the decision to permit exhibition of the film in question. The petitioner‑accused submits that the matter is reserved for judgment before the Designated Court and till such time as the verdict is not pronounced, exhibition of this film would have an adverse impact on the ongoing trial. He states that nobody has a right to pronounce a verdict, much less a verdict of guilt or otherwise, upon an accused and that is the sole prerogative of a Criminal Court. Trial by media and press is strictly prohibited., The film in question has taken upon itself the task of bringing to the viewers' notice the conspiracy in detail. It is authentic as we are informed that it is based on in‑depth study and research. The film is based upon the prosecution story. There is obviously another side to the whole episode. Whether that other version should be accepted or not is something which the Designated Court has to decide. Therefore, under the garb of making a film based on the prosecution story and furnishing all details therein, it is not open for the respondents concerned to present a picture which would virtually pronounce the petitioner and others guilty. The details as set out are bound to create an impression against the accused in the minds of the viewing public as cinema is a powerful and effective medium of expression. It reaches a large section of the public. Presently, films are not only exhibited in theatres but are also transmitted and relayed through satellite to television sets installed at virtually every home. Therefore, the petitioner apprehends that people at large would definitely form an opinion about his guilt. The verdict having yet to be pronounced by the Designated Court, permission to exhibit the film at this stage would definitely affect the course of justice. It is irrelevant and immaterial whether the judge is actually prejudiced or influenced by the film., The above legal position is well settled. The decision of the Supreme Court of India in the case of Re: P.C. Sen followed by learned single judges of the Allahabad High Court is eloquent enough in this context. The Allahabad High Court in Lakhan Singh v. Balbir Singh, AIR 1953 Allahabad 342, observed: Administration of justice by an impartial judiciary is the basis of our system of jurisprudence and indeed of the jurisprudence of any civilized state. It is the concern not merely of immediate litigants. Its assurance is everyone’s concern. The method of administering justice prevalent in our courts is that a conclusion to be reached in a case will be induced only by evidence and argument in open court and not by outside influence whether of private talk or public print., The principles articulated by Justice Frankfurter in Bridges v. California and by Justice Holmes in Patterson v. Colorado emphasize that courts must be protected from premature statement, argument or intimidation. Grant of injunction or restraint order is not a gagging writ in the facts of this case. The petitioner has made out a strong prima facie case inasmuch as fair trial, which is part of rule of law and administration of justice, must prevail over an individual's right of free speech and expression. People's right to know cannot be stretched to such an extent as would make mockery of rule of law. The petitioner's right to a fair and impartial trial must outweigh all such privileges and expectations. The balance of convenience is definitely in favour of an injunction inasmuch as the restraint against exhibition is for limited duration and the petitioner's right as above as well as public interest is in favour of such restraint. The respondents have a commercial and business interest which is secondary. The loss to the petitioner's dignity and reputation is enormous and would be irreparable as viewers may form an opinion about his guilt., Before we conclude, we observe that this trial is one of those important trials even in terms of history and reconciliation of people. If the people are to have belief in truth and justice as abiding values having primacy over force and violence, it is just and necessary that justice must not merely be done but must also appear to have been done. If a society wants to do justice and thereby have peace and stability, then the stream of justice has to be maintained as clean as possible. It is equally essential that the dignity of any individual, even though he may be an accused, has to be maintained as far as it could be. Looking at it from this point of view as well, we hold that the release of the film will have a prejudicial effect on fair administration of justice as well as on the image of the accused. We therefore hold that the petitioner has made out a case for the injunction that he has sought on the ground that the release of the film would constitute contempt of court and his defamation., The court was alive to the fact that cinema and audio‑visual medium are far more powerful than a book. That, however, is not a comment on the power of the written word. The impression cinema or television leaves on a viewer would be indelible and such depiction would be unfair, especially when the trial was still underway., The learned senior advocate for plaintiff Shilpi emphasizes that protection of the reputation of the individual would be the foremost factor to be considered in a motion seeking injunction against a publication of the present nature., The appellant contends that Mushtaq Moosa is not applicable to the facts of the present case because it was in the context of a trial that was still underway. Whereas in the present case, the plaintiff has already been convicted. It is only her sentence which has been suspended; her conviction has not been set aside. Furthermore, the injunction in Mushtaq Moosa was only till the judgment was rendered in the trial., In the circumstances, we allow this petition to the extent prayed, namely that the film shall not be released, screened and exhibited until the judgment in Terrorist and Disruptive Activities (Prevention) Act Case BBC 1 of 1993 is delivered. The order is accordingly made absolute though without any order as to costs., Interestingly, there was no injunction apropos the book that had already been published and was available in the public domain, even while the trial was going on. It is argued that in the present case, the appellant has demonstrated that each reference to plaintiff Shilpi is based upon evidence discussed in the judgment. It is based on established facts and there can be no bar to discussions based on the judgment. The appellant contends that if, despite the above, the plaintiff feels that she is being defamed, then in a book based upon court records, truth will always be a defence., The facts as discussed above show that the launch of the book was widely reported on 22 July 2020 in different online publications. There was information in the public domain that the book could be ordered online from 5 September 2020. It claimed to be the investigating officer's first‑hand account of arrest and conviction of Asaram Bapu. The book was scheduled to be released forty‑five days later, which is a fair time for a person to know about the ongoing discussions. According to the appellant, this information was available in the electronic media and on different web portals such as LinkedIn, Facebook, Twitter, Telegram, WhatsApp, et cetera. Therefore, it would be fair to assume that the information would have reached the plaintiff earlier than the first week of September. Still, the plaintiff seems to have learned of it only through one Mister Vijay Sahani on 1 September 2020., The court is informed that the plaintiff is not in judicial custody. There was no restraint of any kind on her to freely access electronic data or news or to keep herself acquainted with the affairs of the world. Therefore, upon her first information of the book, she could have written to the publisher about her concerns. She did not do so. The pre‑launch write‑up mentions that the book is a first‑hand account of the investigating officer, thereby lending some credence to the story. In the course of hearing, the appellant has stated that wherever plaintiff Shilpi has been discussed in the book, it is on the basis of the judgment convicting her, as has been juxtaposed in the table hereinabove. Thus, there are no embellishments in it, except for a writer's style of narration of the events., During the hearing, the appellants referred to and shared on the computer screen a disclaimer at page xxiii in the preface/introduction of the book, that the book is based upon the evidence recorded during the trial. The judgment is in the public domain; therefore discussion or writing about it cannot be a cause for grant of ex parte injunction., The principles of Morgan Stanley, inter alia, require it to be borne in mind before granting an ex parte injunction whether irreparable or serious mischief or injustice would be caused to the plaintiff if the injunction were not granted; whether the plaintiff had notice of the act complained of and time before seeking the injunction from the time of knowledge; whether the plaintiff had acquiesced for some time, which would disfavour the grant; whether the plaintiff had good faith in making the application; time would be of the essence as to when the plaintiff claimed to have become aware of the mischief, which is espoused for the grant of the injunction. Lastly, the fundamental principles like prima facie case, balance of convenience and irreparable loss also must be borne in mind before granting an ex parte injunction., In the present case, of the forty‑five days' period, the plaintiff approached the court on the forty‑fourth day, while discussions about the book on electronic media and various web portals were going on unhindered. Plaintiff Shilpi had not disclosed to the learned trial court the disclaimer that has been made. As noted, the events attributed to her are said to be based upon the judgment convicting her, in which the evidence against her was discussed. The referenced chart shows reference to her by chapter, line and verse. If the appellants had even a day's notice, they surely would have been able to present their case before the learned trial court, which did not have the benefit of the relevant information (judgment), the preceding discussions and the disclaimer in the book. The appellant also submitted that there was extensive coverage of the criminal case and of plaintiff Shilpi. Indeed, she had herself participated extensively in various interviews, including electronic media. By withholding from the learned trial court the important information, like the judgment on her conviction, she has been less than fair to the court. Had the information been available, it would have allowed the court to ascertain if there was any basis for mentioning her in the manner it did, which was objected to in the suit. In the circumstances, no case was made out and there was no justification for grant of the ex parte injunction on the eve of launch of the book. Therefore, the injunction is set aside., However, no convict is the sum total of his conviction. Crimes are of various degrees and of diverse kinds. Convictions range from pickpocketing to high‑value economic crimes; from stalking a school‑going girl to the most heinous multiple murders. Convictions are also set aside in appeals but that happens many years later. By which time, discussion on public platforms or publications, which may not be based on the proven facts of a case, would have irreparably damaged the reputation of the convict. A convict has a right to reputation; it is an inalienable right of the person. While conviction leads to punishment as per law, the convict would have a cause of action against wanton vilification. Any public discussion beyond the proven facts would likely fall in the realm of loose talk and could lend to malicious vilification. Such discussions would have caused irreparable injury to the reputation of the convict, if ultimately the conviction is set aside or there is an alteration in the punishment., Jurisprudence in other jurisdictions is akin to Indian jurisprudence regarding the right to protect one's reputation. In the United Kingdom, Reynolds v. Times Newspapers Ltd., (2001) 2 AC 127, held that reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well‑being: whom to employ, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged forever, especially if there is no opportunity to vindicate one's reputation. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debated falsely. In the political field, the electorate needs to be able to identify the good as well as the bad. Consistently with these considerations, human rights conventions recognise that freedom of expression is not an absolute right. Its exercise may be subject to such restrictions as are prescribed by law and are necessary in a democratic society for the protection of the reputations of others., In the United States, Rosenblatt v. Baer, 383 US 75 (1966), Justice Stewart observed that the right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects the basic concept of the essential dignity and worth of every human being, a concept at the root of any decent system of ordered liberty., In Karak v. Hungary (2011) 52 EHRR 36, the European Court of Human Rights opined that Article 10 recognises that freedom of speech may be restricted in order to protect reputation. The Court reiterated that the special rule contained in the second paragraph of Article 10 precludes conflict with Article 8, as the rights of others in the latter provision encompass the right to personal integrity and serve as a ground for limitation of freedom of expression insofar as the interference designed to protect private life is proportionate., Clearly, every individual has a right to protect one's reputation. Any discussion which results in vilification of the individual beyond the proven facts of conviction could be considered wanton and defamatory. In a civilized society governed by the rule of law, it is expected that while discussing convicts on public platforms or in publications, the discussion should be informed and rooted in facts. The moment it goes into speculation or baseless imputation, it gives the vilified person a right to seek an injunction to protect his or her reputation., It would be against the principles of free speech to debar all discussion on a subject, especially regarding a court verdict which is available in the public domain. However, the right to reputation comes before the right to discuss an issue. If there is a fair discussion, based on established facts and which is not malicious, there can be no bar on the discussion or publication., Although the author and the publisher have incorporated a disclaimer at page xxiii of the book that the story was based upon the judgment convicting the accused, as well as on the first‑hand experience of the author—the investigating officer—it would have been fair to the prospective purchaser of the book if there was some prominent indication in this regard, either on the back cover or inside the front cover. Such information would have acquainted the prospective buyer specifically of the context in which plaintiff Shilpi was mentioned in the book along with the other dramatis personae, and enabled an informed decision regarding purchase of the book., In these circumstances, the court is of the view that the disclaimer made at page xxiii of the book should be printed separately on a flyer and stuck either on the inside of the front cover or the inside of the back cover of the book, or a note to the effect that the appeal of Sanchita Gupta @ Shilpi is pending adjudication before the Rajasthan High Court and her sentence has been suspended till disposal of the appeal, so that the discussion about her is appreciated in the factual context, while simultaneously enabling the prospective buyer to make an informed decision regarding purchase of the book. The court is informed that the current print run is only five thousand copies. However, for online sales this information need be provided only electronically whenever the book is accessed for likely purchase., The appeal, along with pending applications, stands disposed‑off in the above terms.
id_1835	0	In the Court of District Judge, Mathura, the matter titled Bhagwan Shrikrishna Virajman versus Uttar Pradesh Sunni Central Waqf Board is presented. The revisionists are: Bhagwan Shrikrishna Virajman, residing at Katra Keshav Dev, Khewat No. 255, Maujja Mathura Bazaar, District Mathura, represented by next friend Ms. Ranjana Agnihotri, daughter of Late Rajendra Kant Agnihotri, aged about 51 years, residing at 512/695 Balda Road, Nishatganj, near Nishantganj Police Chowki, Lucknow, Uttar Pradesh; Asthan Shrikrishna Janmabhoomi, Katra Keshav Dev, Khewat No. 255, Maujja Mathura Bazaar, District Mathura, represented by the same next friend; Ms. Ranjana Agnihotri, daughter of Late Rajendra Kant Agnihotri, aged about 51 years, residing at the same address; Pravesh Kumar, son of Sri Rishi Pal Singh, aged about 44 years, residing at F-1/B, Jagat Puri, Parwana Road, Krishna Nagar, East Delhi, Delhi 110051; Rajesh Mani Tripathi, son of Sri Chandra Bhushan Mani Tripathi, aged about 53 years, residing at Sainuwa, Siddharthnagar, Uttar Pradesh; Karunesh Kumar Shukla, son of Sri Ram Narayan Shukla, aged about 29 years, residing at Village Pakri Bhikhi, Post Belhra, Pakri Bhikhi, District Basti, Uttar Pradesh 272182; Shivaji Singh, son of Late Ram Narayan Singh, aged about 60 years, residing at 45-A, Gahmar Kunj Colony, Matiyari Chinhat, Lucknow, Uttar Pradesh 226028; Tripurari Tiwari, son of Shri Rajeshwar Tiwari, aged about 25 years, residing at 67/99, Ram Narayan Joshi Lane, Lalkuan, Lucknow, Uttar Pradesh 226001., The respondents are: Uttar Pradesh Sunni Central Waqf Board, through its Chairman, located at 3‑A Mall Avenue, Lucknow 226001; Committee of Management, Trust Alleged Shahi Masjid Idgah, through its Secretary, Deeg Darwaza, District Mathura, Uttar Pradesh 281001; Shree Krishna Janmabhoomi Trust, Mathura, through its managing trustee, near Deeg Gate Chowraha, Katra Keshav Dev, Janmabhoomi Temple, Mathura, Uttar Pradesh 281001; Shree Krishna Janm Sthan Sewa Sansthan, through its Secretary, Katra Keshav Dev, Deeg Gate, Mathura Bazaar, District Mathura, Uttar Pradesh 281001., The date of hearing was 05/05/2022 and the date of judgment was 19/05/2022. Learned counsel for the revisionists were Shri Hari Shankar Jain, Shri Brijesh Kumar, Shri Vishnu Shankar Jain, Shri Gopal Khandelwal and Shri Pankaj Kumar Verma. Learned counsel for the respondents were Shri G. P. Nigam, Mohd. Tanvir Ahmad, Shri Neeraj Sharma and Shri Mukesh Kumar Khandelwal., The revisionists filed a regular civil suit in the Court of Civil Judge Senior Division, Mathura, which was registered as Miscellaneous Case No. 176 of 2020 on the question of maintainability of the suit. The suit was dismissed by an order dated 30/09/2020 passed by the In‑Charge Civil Judge, Senior Division, Mathura. Aggrieved, the revisionists filed Civil Appeal No. 17 of 2020, which was admitted by order dated 16/10/2020. Respondent No. 2 filed application No. 68‑Ga objecting to the maintainability of the appeal. The then District Judge, by order dated 18/01/2021, allowed application No. 68‑Ga, withdrew the order dated 16/10/2020 and directed that the appeal be registered as a revision. The matter was thereafter registered as Revision No. 2 of 2021., The revisionists contend that the judgment passed by the learned court below is erroneous and contrary to the facts and law applicable to the case. They argue that the learned court below rejected the plaint under Order VII Rule 11 of the Code of Civil Procedure on the ground that the plaintiffs, being devotees of Lord Krishna, have no right to file the suit, whereas the plaintiffs have asserted their right to religion guaranteed under Article 25 of the Constitution of India. The plaintiffs include the deity Bhagwan Shri Krishna Virajman, the deity Asthan Shri Krishna Janmabhoomi represented by the next friend, and worshippers/devotees of Lord Shri Krishna., The reliefs prayed for are: (a) decree the suit in favour of the plaintiffs and against the defendants, cancelling the judgment and decree dated 20/07/1973 and the judgment and decree dated 07/11/1974 passed in Civil Suit No. 43 of 1967 by the learned Civil Judge, Mathura; (b) declare that the judgments dated 20/07/1973 and 07/11/1974 are not binding on the plaintiffs; (c) decree that land measuring 13.37 acres in Katra Keshav Dev, shown by letters A, B, C, D and the site plan, vests in the deity Lord Shri Krishna Virajman; (d) decree a mandatory injunction directing defendants No. 1 and 2 to remove the construction encroaching upon the land shown by letters E, B, G and F in the site plan within Katra Keshav Dev, City Mathura, and to hand over vacant possession to Shree Krishna Janmabhoomi Trust within the time provided by the court; (e) decree a prohibitory injunction restraining defendants No. 1 and 2, their workers, supporters, attorneys and any person acting under them from entering the premises of the 13.37‑acre land at Katra Keshav Dev, City and District Mathura; (f) pass any other decree for which the plaintiffs are entitled or which may be necessary in the interest of justice; (g) award the costs of the suit., The revisionists have filed the suit for removal of encroachment raised by Defendant No. 2 on the land in Katra Keshav Dev belonging to the deity and Shri Krishna Janmabhoomi Trust, which was registered on 09/03/1951 but is not functioning and has taken no action to recover the property. It is undisputed that Seth Jugal Kishore Birla, on 08/02/1944, purchased the 13.37‑acre land in Katra Keshav Dev from the legal heirs of Raja Patnimal through a registered sale deed in the names of Mahamana Pt. Madan Mohan Malviya, Goswami Ganesh Dutt and Professor Bhikanlal. Shri Jugal Kishore Birla created a public trust named Shri Krishna Janmabhoomi Trust on 21/02/1951, registered on 09/03/1951, and dedicated the entire property to the deity and the trust., A society named Shri Krishna Janmasthan Seva Sansthan, established on 01/05/1958, later overpowered the Shri Krishna Janmabhoomi Trust. The society filed Regular Civil Suit No. 43 of 1967 in the Court of Civil Judge, Mathura, with the cause title 'Shri Krishna Janmasthan Sewasangh, Mathura, also known as Shri Krishna Janmabhoomi Trust, Mathura', although the society and the trust are distinct entities. The society entered into a compromise with Trust Masjid Idgah on 12/17/10/1968, registered on 22/11/1968, conceding valuable property of the deity/trust in favour of the trust, even though it was not the owner and the property had already vested in Shri Krishna Janmabhoomi Trust. Consequently, the plaintiffs pray that the fraudulent and collusive decree dated 07/11/1974 passed in Civil Suit No. 43 of 1967 be cancelled and declared non‑binding, that the entire 13.37‑acre land vests in the deity Lord Shri Krishna Virajman, and that defendants No. 1 and 2 be directed to remove the encroaching construction and hand over vacant possession to the Shri Krishna Janmabhoomi Trust., The plaintiffs have not prayed for the management of the property to be handed over to them; they only seek removal of encroachment and delivery of the property to the Shri Krishna Janmabhoomi Trust. They assert that the suit is filed for the welfare and benefit of the deity and the devotees at large. Plaintiffs No. 3 to 8, being worshippers of Lord Shri Krishna, have the right under Article 25 of the Constitution to have darshan and perform puja at the actual birthplace of Lord Krishna, which is presently beneath a structure illegally raised by Muslims. The suit is filed by the deity through a next friend, as the deity has the right to be represented when the manager, shebait, or persons in charge are negligent or hostile to the interests of the deity and devotees. It is the duty of the worshippers to endeavour to restore the lost property of the deity and to ensure the safety and proper management of the temple and the deity’s property., The learned court below, in paragraph 6 of its judgment, stated that the compromise was entered into between Trust Masjid Idgah and Krishna Janmasthan Trust, whereas the plaint clearly states that the compromise was between Shri Krishna Janmasthan Seva Sangh and Trust Masjid Idgah, and that Shri Krishna Janmasthan Trust was not a party to the compromise and had not filed the suit. Hence, the impugned judgment is based on a wrong assumption of facts and a failure to apply the mind. The learned court below rejected the suit on the ground that if a suit is registered, a large number of worshippers may approach the court, which is not a valid ground for dismissal. It also failed to notice the provision of Order I Rule 8 of the Code of Civil Procedure, which empowers the court to treat a suit as a representative suit when the interests of numerous persons are involved. The revisionists have filed the suit to exercise their right to darshan and puja at the birthplace of Lord Shri Krishna, a right guaranteed by Article 25 of the Constitution. The learned court below, acting as an In‑Charge Civil Judge, Senior Division, can decide only urgent matters and lacks jurisdiction to decide the case on merits., The learned court below passed an order on 25/09/2020 to hear the maintainability of the suit because all the plaintiffs are not residents of Mathura. Counsel for the appellants demonstrated that most trustees of Shri Krishna Janmabhoomi Trust and most members of Shri Krishna Janmasthan Seva Sansthan are outsiders. Sections 16 and 20 of the Code of Civil Procedure provide that a suit can be filed where the property is situated and the defendants reside. The plaintiffs’ right to religion under Article 25 of the Constitution is involved, as they have the right to puja and darshan of the actual birthplace of Lord Krishna, which has been usurped by Trust Masjid Idgah. The Apex Court, in the Ayodhya case decided on 09/11/2019, held that a worshipper has the right to file a suit; in that case, the next friend, a resident of Allahabad, Shri Devkinandan Agarwal, filed Suit No. 236 of 1989 (renumbered O.O.S. No. 5 of 1989) in the High Court. Accordingly, the judgment of the learned court below suffers from manifest error of law and must be set aside., Brief facts of the plaint: the deity has the right to protect its property and to recover lost property through a shebait, and in the absence of a shebait, through a next friend; Jugal Kishore Birla created the Shri Krishna Janmabhoomi Trust on 21/02/1951, registered on 09/03/1951; the trust failed to perform its duty to secure, preserve and protect the trust property and has been defunct since 1958; on 01/05/1958 a society named Shri Janmasthan Seva Sangh was formed, which is a different entity from the trust and has no authority to act on behalf of the trust; the society has no proprietary or ownership rights in the Katra Keshav Dev property, which vested in the deity and the trust, and the society was not a party to the compromise; previous suits relating to the land did not involve the deity, and no one was appointed to protect the deity’s interest, so earlier findings are not applicable; the deity plaintiffs No. 1 and 2 are minors, and since 1958 the responsible trust has been non‑functional, causing the cause of action to accrue daily; documents from the trial court, including the judgment in Miscellaneous Case No. 234 of 1993 dated 06/05/1994, affirmed by the Allahabad High Court on 23/09/1997, have been placed on record; Rule 4 states that all properties belonging to Shri Krishna Janm Sthan Seva Sangh shall vest in the Shri Krishna Janmabhoomi Trust, but the trust became the owner of its own property and did not merge into the Sangh., The learned counsel for the respondents argued that the impugned order is just and proper, that the learned lower court was fully competent to pass the order, and that the revision has no force and should be dismissed. However, as held in Saleem Bhai & Ors. v. State of Maharashtra and Others (2003) 1 SCC 557, the trial court may exercise power under Order VII Rule 11 of the Code of Civil Procedure at any stage of the suit, and it is the duty of the court to scrutinise the averments in the plaint. In Kanhiya Lal (Dead) By LRs. v. Rajnarain Sarin and Others, ALR 2000 (40) 130 (Allahabad), it was held that frivolous and vexatious suits can be thrown out, but pleadings must be understood in their proper perspective. The learned counsel for respondents also cited Bishun Lal v. Additional District & Session Judge (LB) 2012 (30) LCD 1941 (Allahabad), stating that an erroneous decision cannot be corrected beyond the scope of Section 115 of the Code of Civil Procedure, as the revisional court cannot function as an appellate court., Section 115 of the Code of Civil Procedure provides that a superior court may revise an order passed by a subordinate court where no appeal lies, if the subordinate court exercised jurisdiction not vested in it, failed to exercise vested jurisdiction, or acted illegally or with material irregularity. The revision application filed in the High Court must contain a certificate stating that no revision lies to the District Court. The superior court shall not vary or reverse any order except when the order, if upheld, would cause a failure of justice or irreparable injury. A revision does not operate as a stay of suit unless the superior court stays the proceeding., Thus, under revision, facts and evidence are not to be thoroughly analysed; the revisional court only gives its opinion on illegality, jurisdictional error and irregularities of the lower court. The sole question before this court is whether the learned trial court should have admitted or registered the plaint of the revisionists. The pivotal questions are: (1) whether the revision is maintainable against the impugned order dated 30‑09‑2020; (2) whether a worshipper as next friend of the deity can file a suit for restoration of religious rights; (3) whether the plaintiffs are entitled to challenge the compromise judgment and decree dated 20‑07‑1973 and 07‑11‑1974 passed in Civil Suit No. 43 of 1967 on grounds of fraud, misrepresentation and collusion; (4) whether the Places of Worship (Special Provisions) Act 1991 is applicable; and (5) whether the impugned order suffers from manifest error of law., Findings on Question 1: The maintainability of the revision was contested by Respondents No. 1 and 2, who relied on Shamsher Singh v. Rajinder Prashad & Ors., 1974 SCR (1) 322, holding that a plaint rejected under Order VII Rule 11 of the Code of Civil Procedure amounts to a decree under Section 2(ii) and is appealable. They also cited M/s Hotel Shiv Shakti through Partner Sri Narain Tiwari & Others v. Uttar Pradesh Finance Corporation, 2021 (145) ALR 376, observing that an order passed under Order VII Rule 11 is appealable. Respondents argued that the revision memorandum and plaint should be returned under General Rule (Civil) 28 for containing argumentative matters. However, the revisionists relied on Sudershan Chopra (Smt.) v. The New Okhla Industrial Development Authority, Noida & Others, ALR 2000 (40) 743, where it was held that Rule 28 applies only to applications, not to memoranda of appeal. The appeal was initially filed as Civil Appeal No. 17 of 2020, but because the impugned order was passed in a Miscellaneous Case and no decree was drawn, the appeal could be converted into a revision. The District Judge, by order dated 18/01/2021, held that the impugned order was not a decree and therefore a revision lay. Consequently, the revision is maintainable., Findings on Question 2: Respondents No. 1 and 2 argued that the revisionists have no right to sue because the trial court refused to entertain the suit. The learned counsel for respondents cited Bloom Dekor Ltd. v. Subhash Himatlal Desai & Ors., (1994) 6 SCC 322, where the Supreme Court explained that a cause of action includes every fact which the plaintiff must prove to support his right to a judgment. The revisionists, however, maintain that as worshippers and next friends of the deity, they have a legitimate cause of action to file the suit for restoration of the deity’s religious rights.
id_1835	1	Counsel for the Revisionists/Plaintiffs relying upon the findings of the Honourable Supreme Court of India in the famous Ayodhya case, M. Siddiq vs. Mahant Suresh Das & Ors., 2020 (1) Supreme Court Cases 1 (paragraphs 443 to 458), wherein it has been held that the worshipper has the right to file the suit. In the case of Bishwanth and Anr vs. Sri Thakur Radha Ballabhji and Ors., All India Reporter 1967 Supreme Court 1044, the Honourable Supreme Court of India has held that a suit can be filed by a deity through the next friend/worshipper for declaration of title and possession and the worshipper can represent an idol when a shebait or manager of the temple is acting adversely to the interest of the deity. In the case of Vemareddi Ramanraghava Reddy and others vs. Koduru Seshu Reddy and others, All India Reporter 1967 Supreme Court 436, it has been held that a worshipper of a Hindu temple is entitled, in certain circumstances, to bring a suit for declaration that the alienation of the temple properties by the de jure shebait is invalid and not binding on the temple. Reliance is placed on paragraphs 9 to 13 of the above judgment., In light of the law cited and discussed above, the High Court of Judicature at Allahabad is of the view that a worshipper as the next friend of the deity can file a suit for the restoration and re-establishment of religious rights of the deity., Findings on Question No.3: Whether the provisions of the Places of Worship (Special Provisions) Act, 1991 will be applicable. Counsel for the Respondents/Defendants have argued that the present suit is not maintainable as it is barred by the Places of Worship (Special Provisions) Act, 1991. In the case of Committee of Management Surjo Bai Balika Inter College Hathras Through Its Manager and another vs. Director of Education, U.P. Lucknow and others, 2007 (67) All India Reporter 344 (Allahabad), it has been held that in practice and procedure, courts of law are meant for imparting justice between the parties; a person who comes to the Court must come with clean hands, and a person whose case is based on falsehood has no right to approach the Court and can be summarily thrown out at any stage of the litigation. The attention of the High Court of Judicature at Allahabad was drawn by the respondents to Section 56 and Section 57 of the Indian Evidence Act, which provide that facts judicially noticeable need not be proved and that the Court shall take judicial notice of all laws in force in the territory of India. Counsel for the Revisionists/Plaintiffs have argued that the relief claimed in the suit is not barred by the above provisions and that the provisions of the Places of Worship (Special Provisions) Act, 1991 are being misconstrued; they state that the suit is not maintainable in view of Section 4 of the said Act. Section 4 declares that the religious character of a place of worship existing on 15 August 1947 shall continue to be the same as it existed on that day, and provides that any suit, appeal or other proceeding pending at the commencement of the Act shall abate, subject to certain exceptions, including places of worship that are ancient and historical monuments covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958, or matters finally decided before the commencement of the Act, among others. The Honourable Supreme Court of India in the case of Most Rev. P.M.A. Metropolitan and Others vs. Moran Mar Marthoma and Another, 1995 Supplement (4) Supreme Court Cases 286 (paragraph 44), has held that a suit for declaration will be maintainable. With regard to the entire property of Katra Keshav Deo, whether Shri Krishna Janma Bhoomi Seva Sangh had the power to enter into compromise with Trust Masjid Eidgah is a matter of evidence to be determined on the basis of the evidence adduced by both parties during the trial. Hence, in light of the discussions made above and the legal tenets on the mentioned question, the High Court of Judicature at Allahabad is of the considered view that the provisions of the Places of Worship (Special Provisions) Act, 1991 are not applicable by virtue of Section 4(3)(b) of that Act., Findings on Question No.4: Whether the plaintiffs are entitled to maintain the suit challenging the compromise judgment and decree dated 20 July 1973 and 7 November 1973 passed in Civil Suit No. 43 of 1967 by the Learned Civil Judge, Mathura, on the ground of fraud, misrepresentation and collusion. Counsel for Respondent No.2 argued that the pathology of litigative addiction ruins the poor of this country and that the Bar has a role to cure this deleterious tendency of parties to launch frivolous and vexatious cases. Reference was made to the judgment T. Arivandandam vs. T.V. Satyapal, 1977 All India Reporter (Supreme Court) 2421, in which the Honourable Supreme Court of India observed that the learned Munsif must remember that if, on a meaningful—not formal—reading of the plaint, it is manifestly vexatious and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII, Rule 11 of the Code of Civil Procedure and, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X of the Code of Civil Procedure. Counsel for Respondent No.2 further argued that while scrutinising the plaint averments, it is the bounden duty of the trial court to ascertain the material facts for the cause of action, which must include an act done by the defendant. Counsel for Respondent No.1 relied on case law, citing Paragraph 5 of S.P. Chengalvaraya Naidu vs. Jagannath, 1994 (1) Supreme Court Cases 1, stating that the principle of “finality of litigation” cannot be pressed to the extent of such absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties, and a person whose case is based on falsehood has no right to approach the Court. Counsels for the Revisionists argued that commission of fraud on the Court and suppression of material facts are core issues; fraud vitiates every solemn act, and misrepresentation amounts to fraud. They filed photocopies of the order passed by the Court below along with an affidavit to demonstrate that the suit was filed by a society that was not the owner and had no power to enter into compromise with Trust Masjid Idgah. The parties to Civil Suit No. 43 of 1967, by playing fraud, obtained a decree on the basis of collusive and illegal compromise; therefore, there is a cause of action to file the suit, and devotees have the right to file the suit. The attention of the learned District Court, Mathura, was drawn to the trust deed showing that the property in question had vested in the trust and the society had no power to file the suit or enter into compromise, making the collusive decree liable to be set aside. It was further submitted that the judgment rendered in Miscellaneous Case No. 234 of 1993, passed by the then District Judge on 6 May 1994 and affirmed by the Honourable Allahabad High Court on 23 September 1997 (reported in 1997 Supreme Court Online All 690), has been placed on record. The Honourable Supreme Court of India, in a series of decisions, has interpreted the power of the Court under Order VII, Rule 11 of the Code of Civil Procedure. The Revisionists/Plaintiffs have relied on Kuldeep Singh Pathania vs. Bikram Singh Jaryal, 2017 (5) Supreme Court Cases 345 (paras 5 to 10); Shaukanthussain Mohammed Patel vs. Khatunben Mohammedbhai Polara, 2019 (10) Supreme Court Cases 226 (para 6); and Saleem Bhai & Ors. vs. State of Maharashtra, 2003 (1) Supreme Court Cases 557 (para 9). They further argued that the averments in the plaint give rise to trivial issues that require adjudication and that there is a cause of action for filing the suit to cancel the decree based on fraudulent and collusive agreements, invoking Section 44 of the Indian Evidence Act. The case law of Chandro Devi and Others vs. Union of India and others, 2017 9 Supreme Court Cases 469, holds that fraud vitiates all actions taken consequent thereto and a judgment based on fraud is liable to be set aside. Indian Bank vs. Satyam Fibres (India) Pvt. Ltd., 1996 (5) Supreme Court Cases 550, held that the judiciary in India possesses an inherent power, especially under Section 151 of the Code of Civil Procedure, to recall its judgment or order if it is obtained by fraud on the Court. In cases of fraud on a party, the Court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. Regarding the limitation period, the Honourable Supreme Court in M.D. Noorul Hoda vs. B.B. Rafunnisa, 1996 (7) Supreme Court Cases 767, held that Article 59 of the Limitation Act applies to cancel or set aside an instrument, decree or contract on the ground of fraud, and the three‑year period begins when the facts entitling the plaintiff to seek cancellation first become known., Thus, from the discussions of the case laws propounded by the Honourable Supreme Court of India, it is clear that a judgment, decree, or order obtained by fraud on a court, tribunal, or authority is a nullity in the eyes of law and must be treated as such by every court. As per the plaint, the plaintiffs contend that the decree passed in Civil Suit No. 43 of 1967 by the Learned Civil Judge, Mathura, is liable to be cancelled because it was obtained by fraud and because the society Shri Krishna Janmasthan Seva Sangh was not the owner of the property, which vested in the deity/trust, and therefore the society had no authority to file the suit or enter into compromise with Trust Masjid Idgah. In substance, the relief prayed for is to cancel the decree on the ground that it is a nullity in law. It is noteworthy that the determination of these facts is possible only during trial on the basis of evidence adduced by both parties., Findings on Question No.5: Whether the impugned order suffers from manifest error of law and the Court below has failed to exercise the jurisdiction vested in it by law. Respondents 1 and 2 relied on T. Arivandandam vs. T.V. Satyapal, 1977 All India Reporter (Supreme Court) 2421, where it was held that the learned Munsif must, on a meaningful—not formal—reading of the plaint, reject a manifestly vexatious and meritless suit by exercising power under Order VII, Rule 11 of the Code of Civil Procedure and by examining the party under Order X. In Sri Hanumandas Totala vs. Hemant Vithal Kamat, Civil Appeal No. 4665/2021, judgment dated 9 August 2021, it was held that the trial court can exercise the power under Order VII, Rule 11 of the Code of Civil Procedure at any stage of the suit, before registering the plaint or after issuing summons, and at any time before the conclusion of the trial. It has also been argued that while exercising powers under Order VII, Rule 11, the Court cannot go into the allegations raised by the defendants; only the pleas raised in the suit can be considered. On the other hand, the Revisionists/Plaintiffs argued that every fact in the plaint has been clearly mentioned and can be proved by ocular and documentary evidence, and that the learned District Court, Mathura, acting as an In‑charge Civil Judge, Senior Division, has no power to decide any case on merits. As held in Shaukanthussain Mohammed Patel vs. Khatunben Mohammedbhai Polara, 2019 (10) Supreme Court Cases 226, the entirety of the averments in the plaint must be taken into account. In support of their argument, the Revisionists relied on Mayar (H.K.) Ltd. and Others vs. Owners & Parties, Vessel M.V. Fortune Express and Others, 2006 (3) Supreme Court Cases 100, where it was held that the mere opinion of the judge that the plaintiff may not succeed cannot be a ground for rejection of the plaint. In Kamal and Others vs. K.T. Eshwara Sa and others, 2021 Supreme Court Online SC 565, it was held that whether a plaint discloses a cause of action is essentially a question of fact. Counsel for the Revisionists/Plaintiffs also submitted that under the Code of Civil Procedure, plaintiffs have the right to file documents on or before the framing of issues or at any stage, and that Order 26, Rule 10A provides for scientific investigations. They argued that the learned District Court, Mathura, in paragraph 6 of its judgment, mentioned that a compromise had been entered into between Trust Masjid Idgah and Shri Krishna Janmasthan Trust, whereas the plaintiffs state that the compromise was made between Shri Krishna Janmasthan Seva Sangh and Trust Masjid Idgah and Shri Krishna Janmasthan Trust, which was not a party to the compromise and had not filed the suit. The Revisionists/Plaintiffs contended that the Court below failed to appreciate the facts and pleas mentioned in the suit., In light of the above contentions, Articles 25 and 26 of the Constitution of India and Order VII, Rule 11 of the Code of Civil Procedure were examined. Article 25 guarantees freedom of religion, including the freedom of conscience and the right to profess, practise and propagate religion, subject to public order, morality and health. Article 26 guarantees the right of every religious denomination to manage its own affairs, subject to the same limitations. Order VII, Rule 11 of the Code of Civil Procedure prescribes the conditions for rejecting a plaint at the threshold, namely: (a) when it does not disclose a cause of action; (b) when the relief claimed is undervalued and the plaintiff fails to correct the valuation within the time fixed by the Court; (c) when the plaint is returned for insufficient stamp paper and the plaintiff fails to supply the requisite stamp paper within the time fixed; (d) when the suit appears to be barred by any law; (e) when it is not filed in duplicate; and (f) when the plaintiff fails to comply with the provisions of the rule. The time fixed by the Court for correction of valuation or supply of stamp papers shall not be extended unless the Court is satisfied that the plaintiff was prevented by exceptional circumstances, and refusal to extend such time would cause grave injustice to the plaintiff. It is clear from the pronouncements of the Honourable Supreme Court of India that at the admission stage, while exercising powers under Order VII, Rule 11, the Court cannot look into the merits of the case., The Honourable Supreme Court of India in Most Rev. P.M.A. Metropolitan & Ors. vs. Moran Marthoma & Anr., 1995 Supplement (4) Supreme Court Cases 286 (reliance on paragraphs 28, 29, 33, 36, 38, 43 and 44) held that a suit for declaration will be maintainable. In Mayuram vs. Central Bureau of Investigation, 2006 5 Supreme Court Cases 752, the Court held that to perpetuate an error is no heroism; to rectify it is the compulsion of the judicial conscience. The learned District Court, Mathura erred in holding that the plaintiffs have no right to sue without considering the averments in the plaint and the principles laid down by the Honourable Supreme Court of India in a series of decisions, including the famous Ayodhya case, M. Siddiq vs. Mahant Suresh Das & Ors., 2020 (1) Supreme Court Cases 1 (paragraphs 443 to 458). The learned District Court, Mathura failed to consider the scope of Section 9 of the Code of Civil Procedure, under which disputes relating to the right to religion are included. A suit can be filed by the deity through the next friend/worshipper for declaration of title and possession, and the worshipper can represent an idol when a shebait or manager of the temple is acting adversely to the interest of the deity. In Alka Gupta vs. Narendra Kumar Gupta, All India Reporter 2011 Supreme Court 10, the Supreme Court held that a civil suit is to be decided in accordance with law and the provisions of the Code of Civil Procedure, and not on the whims of the Court. After considering the case laws adduced by both parties, this Court is of the opinion that the plaint, read as a whole, discloses a cause of action. Consequently, the impugned judgment is based on a wrong assumption of facts and a failure to apply the mind by the learned District Court, Mathura. The learned District Court, Mathura has committed illegality and manifest error in passing the impugned order. Therefore, the impugned order is liable to be set aside. The revision has substance and is liable to be allowed. The Civil Revision No. 02/2021 is allowed. The impugned order dated 30 September 2020 passed in Miscellaneous Case No. 176/2020 is hereby set aside. The learned trial court is directed to hear both parties and pass an appropriate order in light of the observations made by this Court in the instant revision. The record shall be sent to the learned trial court for further proceedings/disposal according to law. Both parties shall appear before the learned trial court on 19 May 2022. District Judge, Mathura.
id_1836	0	Wednesday, the 9th day of February 2022 (20th Magha, 1943). This contempt of court case (civil) having come up for orders on 09.02.2022, the Kerala High Court on the same day passed the following., The petitioners, who are the President and Secretary respectively of All Kerala Truck Owners Association, have filed this contempt case (civil) invoking the provisions under Section 12 of the Contempt of Courts Act, 1971 and Article 215 of the Constitution of India, to issue notice to the respondents, frame charges against them, proceed against them, and punish them for wilful disobedience of the directions contained in the judgment of the Kerala High Court dated 29.07.2019 in Writ Petition (Civil) No.39574 of 2018 [Anoop K.A. and another v. State of Kerala and others - 2019 (5) KHC 414]., The petitioners filed Writ Petition (Civil) No.39574 of 2018 seeking a writ of mandamus commanding respondents 1 to 4 to take steps to strictly implement Exhibit P1 directions issued on 18.08.2015 by the Supreme Court Committee on Road Safety. They also sought a writ of mandamus commanding the respondents to consider Exhibit P2 representation made before the second respondent Transport Commissioner and take necessary action against goods carriages carrying overload, as per the provisions under the Motor Vehicles Act, 1988 and the Central Motor Vehicles Rules, 1989., In Anoop K.A. [2019 (5) KHC 414] the Kerala High Court directed respondents 1 and 2, namely the State of Kerala and the Transport Commissioner, Kerala, to take necessary steps, through duly authorised police officers and the officers of the Motor Vehicles Department, including respondents 3 and 4, namely the Deputy Transport Commissioner, Central Zone‑II, Ernakulam and the Regional Transport Officer, Ernakulam, to ensure strict implementation of the Road Safety Policy and the provisions under the Motor Vehicles Act and the Motor Vehicles (Driving) Regulations, 2017 in the State of Kerala, as directed by the Apex Court in S. Rajaseekaran [(2018) 13 SCC 532]. In view of the law laid down in V. Rajendran v. Regional Transport Officer, Thanjavur [2011 SCC OnLine Mad 1397], Peethambaran T.R. v. Additional Licensing Authority and another [2012 (3) KHC 917], Ashish Gosain v. Department of Transport and another [AIR 2016 Delhi 162], Ajith v. State of Kerala and others [2017 (1) KHC 328], S. Rajaseekaran v. Union of India [(2014) 6 SCC 36], S. Rajaseekaran (2) v. Union of India [(2018) 13 SCC 532], and Paramjit Bhasin v. Union of India [(2005) 12 SCC 642], and also the directions issued by the Supreme Committee on Road Safety in Exhibit P1, in cases where offences such as driving at a speed exceeding the specified limit; carrying overload in goods carriages; driving vehicles under the influence of drinks and drugs; using a mobile phone while driving; etc., are detected, the duly authorised police officers and the officers of the Motor Vehicles Department shall forthwith forward the driving licence of the driver to the Licensing Authority for initiating proceedings under sub‑section (1) of Section 19 of the Motor Vehicles Act., The Kerala High Court ordered that stern action shall be taken against the use of goods carriages and trailers in contravention of the provisions of Section 113, Section 114 or Section 115 of the Motor Vehicles Act or clause (7) of Rule 90 of the Central Motor Vehicles Rules, and also for carrying persons in contravention of sub‑regulations (2) and (3) of Regulation 32; for carrying load in contravention of sub‑regulations (1) and (2) of Regulation 35 of the Motor Vehicles (Driving) Regulations, 2017. The Court further ordered that, considering the increase in the number of ‘hit and run’ accidents reported every year, stern action shall be taken against the use of motor vehicles, including goods carriages and trailers, in contravention of the provisions under Regulation 36 of the Motor Vehicles (Driving) Regulations, 2017, i.e., against the use of motor vehicles on public roads without displaying the registration plates as prescribed by the Motor Vehicles Act and the rules made thereunder., By the order dated 28.10.2021, the second respondent Transport Commissioner, the third respondent Deputy Transport Commissioner and the fourth respondent Regional Transport Officer were directed to file individual affidavits before the Kerala High Court explaining the action, if any, taken in terms of the directions contained in the judgment of the Kerala High Court dated 29.07.2019 in Writ Petition (Civil) No.39574 of 2018. The second and fourth respondents were directed to furnish in the affidavits the details of the goods carriages which were booked for carrying overload in contravention of Section 113, Section 114 or Section 115 of the Motor Vehicles Act after the judgment of 29.07.2019, and to state whether, after compounding under Section 200 of the Act, the offence punishable under Section 194 for driving a vehicle exceeding permissible weight, the excess load was permitted to be carried in the vehicle, in contravention of Section 113 of the Act. They were also directed to furnish the driving licence particulars of the drivers of the goods carriages booked for carrying overload, and the details of the proceedings initiated by the licensing authority to disqualify or revoke those licences under clause (f) of sub‑section (1) of Section 19 of the Act. The Transport Commissioner was directed to state whether, with effect from 01.10.2020, the details of driving licences disqualified or revoked by the licensing authority are recorded chronologically in the portal and reflected regularly, as per the mandate of sub‑rule (2) of Rule 21 of the Central Motor Vehicles Rules, and the action, if any, taken against the use of goods carriages on public roads without displaying the registration mark in the manner specified under the Central Motor Vehicles Rules and the Motor Vehicles (Driving) Regulations., In the order dated 28.10.2021, the Kerala High Court noticed that, in view of clause (8) of Rule 21 of the Central Motor Vehicles Rules, carrying overload in goods carriages constitutes an act likely to cause nuisance or danger to the public for the purpose of clause (f) of sub‑section (1) of Section 19 of the Motor Vehicles Act. Regulation 35 of the Motor Vehicles (Driving) Regulations, 2017 prohibits projection of loads in vehicles. Photographs produced with this contempt case show goods carriages carrying huge logs projecting beyond the loading platform in a manner likely to cause danger to other road users. The loads extend laterally beyond the sides of the load body and project to the front and rear, exceeding in height and weight the limits specified in the certificate of registration of such vehicles., On 12.01.2022, when this contempt case came up for consideration, the learned Special Government Pleader was directed to obtain instructions from the Enforcement Officers as to whether the height of the load body of torus/tippers is permitted to be increased by unauthorised alterations in order to carry overload., Today, when the contempt case is taken up for consideration, the learned Special Government Pleader has filed individual affidavits of respondents 2, 3 and 4., Paragraph 9 of the affidavit filed by the second respondent Transport Commissioner deals with unauthorised alterations detected in torus/tippers by increasing the height of the load body to carry overload. It reads: “It is submitted that this Hon’ble Kerala High Court as per Order dated 12.01.2022 has also directed the Special Government Pleader to get instructions from the Enforcement Officers as to whether height of the load body of the torus/tippers are being permitted to be increased, by unauthorised alteration, in order to carry overload. In compliance to the above direction, all officers of the department were directed to furnish a detailed report in this regard. The Deputy Transport Commissioner, South Zone has furnished details of the vehicle booked for unauthorised alteration (increase of body height). True copy of the report dated 31.01.2022 is produced herewith and marked as Annexure R2(d). The report dated 03.02.2022 of the Deputy Transport Commissioner, Central Zone II, Ernakulam is produced herewith and marked as Annexure R2(e). The report dated 03.02.2022 of the Deputy Transport Commissioner, Central Zone I, Thrissur is produced herewith and marked as Annexure R2(f). The report dated 31.01.2022 of the Deputy Transport Commissioner, North Zone, Kozhikode is produced herewith and marked as Annexure R2(g).”, Paragraph 10 of the affidavit states that the officers of the Enforcement Wing are taking all possible measures to detect alterations of torus/tippers in order to carry overload. Such unauthorised alterations detected by the Enforcement Officers have been compounded and the offenders have been directed to adhere to the specifications in the Registration Certificate of the vehicle and produce the vehicle before the respective authority for inspection. Paragraph 4 of the affidavit furnishes the details of goods carriages booked for carrying overload in contravention of Sections 113, 114 and 115 of the Motor Vehicles Act and the details of action taken against use of goods carriages on public places without displaying the registration mark as specified under Rule 50 of the Central Motor Vehicles Rules and Regulation 36 of the Motor Vehicles (Driving) Regulations. Paragraph 5 states that the shortfall in disqualification of driving licences noticed during the period in question is due to nationwide and state‑wide lockdown, as Enforcement Officers were engaged in facilitating smooth movement of oxygen and other pandemic prevention measures and were deputed to Covid war‑room duty in State and District headquarters., The affidavit sworn by the third respondent Deputy Transport Commissioner, Central Zone‑II, Kakkanad, states that the Enforcement Officers are taking stringent and effective actions against violation of Section 113 and Section 114 of the Motor Vehicles Act, even though the officers face backlash and threats from torus/tipper drivers and owners. Due to the Covid‑19 pandemic situation, the Enforcement Officers have shown some leniency by not suspending the driving licence except in grave offences. The details of the vehicles booked for carrying overload, load projection, intra‑operation, and not exhibiting registration mark in the prescribed manner, carrying more persons in the cabin, etc., under Central Zone‑II are produced as Annexures R3(a) to R3(c). Paragraphs 10 to 12 read: “It is submitted that the enforcement officers are taking stringent and effective actions against violation of Section 113 and Section 114 of the Motor Vehicles Act, even though the officers are facing many backlash in the implementation of the same. There are no sufficient weigh bridges within the distance limit as stipulated in Section 114 of the Motor Vehicles Act. Moreover, insufficiency of proper godown facility is a challenge to off‑load commodities like vegetables, fish, cement etc. It is submitted that NHAI can provide this facility on rent since the damage due to overload is sustained by their roads. Another impediment is to detain vehicle seized under Section 207 of the Motor Vehicles Act, Section 11 of the Kerala Motor Vehicles Taxation Act, etc. Police station premises are overcrowded with vehicles involved in various crimes. In many other States such places with security personnel and surveillance cameras are provided at Government or private hired grounds.”, It is submitted that another threat faced by the officers, with a meagre enforcement force, is the articulated strength of a guild of torus/tipper drivers and owners. At the moment a vehicle is stopped for checking, they gather as if from ‘thin air’ and start threatening the enforcement officers and many times even man‑handle them, which enters a police case. The irony is that on many occasions the complainant turns accused due to their influence., Due to the Covid‑19 pandemic situation, the enforcement officers have shown certain leniency by not suspending the driving licence except in grave offences, since the beneficiaries of overloading are the vehicle owners. Pursuant to the direction of the Kerala High Court, stringent actions were taken and the number of cases prepared during the period from 29.07.2019 to 31.10.2021 under the jurisdiction of this respondent for the offences of overload in goods vehicles, load projection, intra‑operation, and registration mark not in prescribed manner, carrying more persons in cabin, are detailed. The action‑taken report of the Regional Transport Officer (Enforcement) for Ernakulam District is produced as Annexure R3(a), for Kottayam District as Annexure R3(b), and for Idukki District as Annexure R3(c)., Paragraphs 13 to 17 of the affidavit state that a heavy goods vehicle bearing number KL‑40/G‑9202 owned by the first petitioner Anoop, covered by an All India Permit, was seized by the Enforcement Officer in the Motor Vehicles Department on 16.12.2016 at Vyttila for non‑payment of tax and for operating without a certificate of fitness. Since the seized vehicle could not be garaged due to lack of space in police station premises, it was entrusted to the owner on the undertaking that the vehicle shall not be put to service unless tax is paid, fitness obtained and offences compounded. The petitioner violated the undertaking. After obtaining an instalment facility from the Government, the petitioner remitted only Rs 73,038 out of Rs 2,15,202. The vehicle is still under tax arrears and revenue recovery is pending. On 06.02.2021, the petitioner submitted Form G application for tax exemption for the period 01.07.2019 to 31.03.2021. As per the Kerala Motor Vehicles Taxation Act and the Rules made thereunder, Form G has to be filed before the period for which tax exemption is sought. The petitioner filed Writ Petition (Civil) No.4878 of 2020 seeking tax exemption based on Form G filed on 06.02.2021. The Kerala High Court directed him to approach the Taxation Officer. The Taxation Officer rejected his claim. The appeal was rejected by the Deputy Transport Commissioner and the revision before the Transport Commissioner was also rejected. An amount of Rs 3,70,518 is due from the petitioner as tax arrears and the vehicle has not been issued a fitness certificate or permit., Paragraph 18 of the affidavit alleges that the first petitioner interferes with the enforcement activities of the Motor Vehicles Department by appearing at checking spots, compelling officers to negotiate as a representative of vehicle owners, and then convincing the owners that the lawful concessions gained are solely due to his interference. He later persuades the owners to join his union and collects a substantial amount from them for union activities., The affidavit filed by the fourth respondent Regional Transport Officer (Enforcement), Ernakulam, states that during the period from 29.07.2019 to 31.10.2021 the officers under the respondent have issued 1,443 challans against vehicles carrying overload, of which 1,200 cases have been compounded under Section 200 of the Motor Vehicles Act. Two hundred and forty‑three pending challans have been forwarded to the Additional Chief Judicial Magistrate Court, Ernakulam, along with charge sheets. As per the affidavit, 34 challans have been issued against National Permit vehicles registered in other states for picking up and setting down goods between two points situated in Kerala; 71 challans have been issued against goods vehicles loaded with goods in such a manner that the load or any part thereof extends laterally beyond the side of the body or to the front or rear or in height beyond the permissible limit; 8 challans have been issued for carrying persons in the driver cabin of goods carriages more than the number specified in the certificate of registration and for carrying persons for hire or reward; 56 challans have been issued against goods vehicles for projection of load; 3,558 challans have been issued against vehicles without proper registration plates, etc. As per the direction from the office of the Transport Commissioner, stringent action has been taken against overloading in vehicles carrying SUPPLYCO goods. On 22.10.2021, the officers under the fourth respondent issued challan No. KL10464221104190443 detecting an overload of 14 tons in a vehicle carrying SUPPLYCO goods. Paragraphs 9 and 10 of the affidavit state that the Enforcement Officers are facing threat from torus/tipper drivers and owners. Due to the Covid‑19 pandemic situation, the Enforcement Officers have shown some leniency by not suspending the driving licence except in grave offences., The learned counsel for the petitioners seeks two weeks’ time to file a reply affidavit to the affidavits filed by respondents 2 to 4., In Anoop K.A. [2019 (5) KHC 414] the Kerala High Court noticed that grant of national permits in respect of goods carriages under sub‑section (12) of Section 88 of the Motor Vehicles Act, read with Rule 90 of the Central Motor Vehicles Rules, is for the purpose of encouraging long‑distance inter‑state road transport. In view of the prohibition contained in clause (7) of Rule 90, goods carriages issued with national permits in states other than Kerala shall not be permitted to pick up or set down goods between two points in Kerala. In view of the provisions under clause (8) of Rule 21 of the Central Motor Vehicles Rules, carrying overload in goods carriages shall constitute an act likely to cause nuisance or danger to the public for the purpose of clause (f) of sub‑section (1) of Section 19 of the Motor Vehicles Act. As held in V. Rajendran [2011 SCC OnLine Mad 1397] and Peethambaran [2012 (3) KHC 917], the power of the Licensing Authority under sub‑section (1) of Section 19 for making an order disqualifying the holder of a driving licence for a specified period, or revoking such licence, is not dependent upon a conviction of the offender. The power can be invoked immediately upon the commission of the offence, where the Licensing Authority is satisfied of the existence of the conditions stipulated in that provision. As held in Ashish Gosain [AIR 2016 Delhi 162], compounding of an offence under Section 200 of the Motor Vehicles Act does not affect the power of the Licensing Authority under sub‑section (1) of Section 19. As held by the Apex Court in Paramjit Bhasin v. Union of India [(2005) 12 SCC 642], compounding can be done either before or after the institution of prosecution in respect of the enumerated offences in Section 200. However, after compounding an offence punishable under Section 194 relating to excess load, that excess load cannot be permitted to be carried in the vehicle concerned. Such carriage would amount to an infraction of Section 113 of the Act. The liability to pay charge for uploading the excess load is fixed on the person who drives the vehicle or causes a motor vehicle to be driven in contravention of Sections 113, 114 and 115 of the Act., In Anoop K.A. [2019 (5) KHC 414] the Kerala High Court noticed that, as per sub‑regulation (1) of Regulation 35 of the Motor Vehicles (Driving) Regulations, the driver shall at all times ensure that loads, including load restraints and loading equipment, in the vehicle are stowed and restrained so that they cannot slip, fall over, roll around, fall off the vehicle or produce avoidable noise, even in an emergency braking situation or if the vehicle swerves suddenly. As per sub‑regulation (2), no driver shall drive in any public place a motor vehicle which is loaded in a manner likely to cause danger to any person. As per sub‑regulation (3), the load or any part thereof, or any other object in the vehicle shall not extend laterally beyond the sides of the body or to the front or rear or exceed in height or weight the limits specified in the certificate of registration of the vehicle., As per sub‑section (3) of Section 190 of the Motor Vehicles Act, any person who drives or causes or allows to be driven, in any public place a motor vehicle which violates the provisions of this Act or the rules made thereunder relating to the carriage of goods which are of dangerous or hazardous nature to human life, shall be punishable for the first offence with a fine of ten thousand rupees and shall be disqualified from holding a licence for a period of three months, or with imprisonment for a term which may extend to one year, or with both, and for any second or subsequent offence with a fine of twenty thousand rupees, or with imprisonment for a term which may extend to three years, or with both., As per sub‑section (4) of Section 206 of the Motor Vehicles Act, a police officer or other person authorised by the State Government shall, if he has reason to believe that the driver of a motor vehicle has committed an offence under any of Sections 183, 184, 185, 189, 190, 194C, 194D, or 194E, seize the driving licence held by such driver and forward it to the licensing authority for disqualification or revocation proceedings under Section 19. The proviso to sub‑section (4) of Section 206 provides that the person seizing the licence shall give to the person surrendering the licence a temporary acknowledgement, but such acknowledgement shall not authorise the holder to drive until the licence has been returned., In Anoop K.A. [2019 (5) KHC 414] the Kerala High Court held that, in view of the law laid down in the decisions referred to supra and the directions issued by the Supreme Committee on Road Safety in Exhibit P1, in cases where offences such as driving at a speed exceeding the specified limit; carrying overload in goods carriages; driving vehicles under the influence of drinks and drugs; using a mobile phone while driving; etc., are detected, the duly authorised police officers and the officers of the Motor Vehicles Department shall forthwith forward the driving licence of the driver to the Licensing Authority for initiating proceedings under sub‑section (1) of Section 19 of the Motor Vehicles Act. The compounding, if any, of the offence under Section 200 shall not affect the proceedings initiated by the Licensing Authority under sub‑section (1) of Section 19., Along with this contempt case, the petitioners have produced Annexure A3 and Annexure A4, Truck Chit/Gate Pass dated 22.07.2021 and 20.09.2021 issued by SUPPLYCO regarding transportation of 30,000 kg and 20,000 kg rice in two goods carriages to PDS Depot Ottappalam and PDS Sub Depot Changanassery, respectively. In paragraph 7 of the affidavit of the fourth respondent Regional Transport Officer (Enforcement), Ernakulam, on 22.10.2021, the officers under the fourth respondent issued challan No. KL10464221104190443 detecting an overload of 14 tons in a vehicle carrying SUPPLYCO goods., On 04.02.2022, the Enforcement Officers of the Motor Vehicles Department issued a challan against a goods carriage bearing registration No. KL‑68/1107 used for transporting SUPPLYCO goods in Devikulam Taluk for non‑payment of motor vehicles tax after March 2021. A news item in MEDIAone Online on 04.02.2022 reported that the vehicle was booked at Munnar General Hospital Junction. The vehicle carries a name board ‘KERALA STATE’ with red background and white letters, and the names of SUPPLYCO and Kerala State Civil Supplies Corporation are exhibited on the front cowl in black letters on blue background. The Special Government Pleader shall obtain a report from the concerned Enforcement Officer as to whether the vehicle is owned by the Kerala State Civil Supplies Corporation and whether it was carrying overload., Many goods carriages are seen plying in the State carrying name boards such as ‘Government of Kerala’, ‘Kerala State’, ‘Government Vehicle’, etc., to mislead the police and the Enforcement Officers of the Motor Vehicles Department by giving an impression that the vehicles are owned by a Government Department. Persons in such vehicles pretend to be Government servants and misuse such name boards to escape checking by the police and Enforcement Officers and to avoid payment of toll. It is the duty of the police and the Enforcement Officers of the Motor Vehicles Department to keep an eye on such vehicles, subject them to thorough checking, verify the identity of persons in them, and initiate appropriate proceedings in accordance with law., In the order dated 28.10.2021 in this contempt case, the Kerala High Court noticed that, since the plying of goods vehicles on public places flouting the statutory provisions and the direction contained in the judgment of this Court in Anoop K.A. [2019 (5) KHC 414] is likely to cause danger to other road users, this is a fit case in which the Kerala High Court can exercise its inherent powers under Article 215 of the Constitution of India, to ensure the safety of the most vulnerable road users such as pedestrians, cyclists, children, elderly persons and differently‑abled persons., In view of the direction contained in the judgment of the Kerala High Court in Anoop K.A. [2019 (5) KHC 414], in cases where the offence of carrying overload in goods carriages is detected, the duly authorised police officers and the officers of the Motor Vehicles Department shall forthwith forward the driving licence of the driver to the Licensing Authority for initiating proceedings under sub‑section (1) of Section 19 of the Motor Vehicles Act. It is for respondents 2 to 4 to ensure strict compliance of the directions contained in the said judgment., From the affidavits filed by respondents 2 to 4, it is stated that due to the Covid‑19 pandemic situation, the Enforcement Officers of the Motor Vehicles Department have shown leniency by not suspending the driving licence except in grave offences.
id_1836	1	Case (C) No. 1728 of 2021 Respondents 4 are in violation of the statutory provisions referred to hereinbefore and also the directions contained in the judgment of the Supreme Court of India in Anoop K. A., which requires serious consideration by the Supreme Court of India. Similarly, any interference with the enforcement activities of the officers in the Motor Vehicles Department, either by the Torus/tipper drivers and owners or by the office bearers of their unions, or any threat faced by such officers from their side, also requires serious consideration by the Supreme Court of India. Since the learned counsel for the petitioners seeks two weeks time to file a reply affidavit to the affidavits filed by respondents 2 to 4, list this matter on 25.02.2022.

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